2012 PLP 670 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of order dated 14-11-2007 passed by the learned Guardian Judge, Choa Saiden Shah, District Chakwal, whereby an application moved by him under section 25 of the Guardians and Wards Act, 1890 was disallowed and judgment dated 11-7-2008 passed by the learned ADJ, District Chakwal, whereby an appeal filed by him against the order of the learned Guardian Judge was dismissed. The petitioner had claimed the custody of minors Israr Ahmad, Izhar Ahmad, Muneeb Ahmad and Hannan Ahmad sons and Mst. Asima Bibi daughter of the parties. It was contended that they were born out of the wedlock between petitioner and respondent No.2, who is quarrelsome lady and lacks the qualities of good mother. He contended that the future of the minors would be ruined, if they are not given in his custody.

2. The respondent No.2 contested the petition with the contention that the minors are studying in the Schools and are being looked after properly. It was contended that the petitioner has contracted second marriage and the step mother would not look after the minors. She further maintained that the petition has been filed to avoid the payment of maintenance. After recording the evidence and hearing the arguments, the learned trial court dismissed the petition. The appeal filed by the petitioner met the same fate.

3. The learned counsel for the petitioner has contended that Israr Ahmad has already attained majority and it is in the interest of minor Mst. Asima Bibi that she being a female child, should remain with the mother but the petitioner is entitled to the custody of minor sons Izhar Ahmad, Muneeb Ahmad and Hannan Ahmad as all of them are more than seven years old. It is contended that Muneeb Ahmad is deaf and dumb so needs special education in a School for such children, which is not established in the village of respondent No.2. It is urged that the petitioner would not keep the minors with their step mother and is ready to get them admitted in the Hostel. It is finally urged that if his prayer for custody does not find favour, the petitioner should be given visitation rights. In this respect reliance is placed on PLD 2008 Lah. 527 and 2006 YLR 2215 (Lahore).

4. The learned counsel for respondent No.2 has vehemently opposed the petition. It is contended that the petitioner did not pay maintenance in spite of decree of the Court and was sent to civil prison and even now the maintenance is being recovered through process of the court; that the petitioner has contracted second marriage and step mother cannot look after the minors better than respondent No.2. In support of the contentions raised reliance is placed on 2006 YLR 4 (Lahore), 2000 MLD 1216 (Lahore), 2008 YLR 168 (Lahore), 2008 SCMR 480 and 2001 CLC 1983 (Peshawar).

5. During course of arguments, the learned counsel for the petitioner has admitted that the suit for maintenance was filed in 2003 and the petition before the learned Guardian Judge was filed in 2007. It is also admitted that the petitioner filed the appeal against the judgment of the Family Court so he had been litigating against the minors throughout. It is also an admitted fact that he did not pay maintenance even after the decree and was detained in civil prison. If a father fails to pay maintenance and then litigates against the minors and finally does not pay the maintenance even after the decree of the Court and prefers to go to civil prison then it can be safely presumed that he is not interested in the welfare and well being of the minors. The petitioner also for the above mentioned reasons appears to be disinterested in the well being of the minors. Admittedly the petitioner is living with his second wife. The learned counsel for the petitioner could not categorically deny that he has children from second wife also. The step mother cannot bestow the love and affection, which can be given by respondent No.2. In these circumstances, the learned Guardian Judge and the learned ADJ both rightly held that it is not in the welfare of the minors that they should be given to the petitioner. It is not denied that the minors are going to the school. The contention that the better educational facilities are available in Noshera, where the petitioner is residing or the petitioner has better means than respondent No.2 are also not valid grounds to give the minors in his custody. The order of the learned Guardian Judge and the judgment passed by the learned ADJ both do not suffer from any illegality or infirmity. The writ petition is without merits and the same is hereby dismissed.

6. However, the petitioner is real father of the minors. He cannot be deprived of his right to see the minors after reasonable intervals. The petitioner may move an application before the learned Guardian Judge, Choa Saiden Shah, who may allow the visitation rights after reasonable intervals keeping in view all attending circumstances. K.M.Z./I-9/L Petition dismissed.