1994 PLP 1199 (MLD)

Subject-matter of this petition a minor girl Mst. Pathani was born out of the wedlock of petitioner and respondent No.1 on 10-12-1979. Relations between the spouses became strained which resulted in the filing of a suit for dissolution of marriage by Mst. Manzooran Bibi respondent who was granted decree of divorce on 6th of June, 1983. Subsequently, she contracted second marriage. Then the petitioner filed an application under section 25 of the Guardians & Wards Act on 14-5-1989 for the custody of the minor daughter on the plea that the respondent has contracted second marriage with a person not within the prohibited degree and having meagre sources of income lacked her welfare and thus was not entitled to keep the custody. The respondent contested this application and on the pleadings of the parties the following issues were framed:

(1) Whether petitioner is entitled for custody of minor? OPA (2) Relief. The parties led their respective evidence and the Judge, Family Court through his judgment, dated 27-6-1990 dismissed the application. Aggrieved with this the petitioner filed an appeal which too was dismissed by the District Judge, Toba Tek Singh, through his judgment, dated 12-11-1992. Hence, this Constitutional petition.

2. I have considered the contentions and have noticed that the petitioner has contracted second marriage and out of this wedlock three children are alive while the respondent has got no issue out of her second marriage. It is also born out from the record that the petitioner's second wife is not from his brotherhood and is a complete stranger while the respondent's second husband is related to her. This being the situation, the minor daughter would not be having comfortable time with her stepmother. She would certainly be facing tremendous difficulties and problems in getting herself adjusted in new atmosphere. It is notable that throughout this period the minor has been living with the respondent, her mother, which has resulted in the development of great affection between them. Even otherwise the remarriage of respondent lady does not disentitle her absolutely from the custody of her minor daughter. The circumstances of the present case support the view of the two Courts below that the welfare of the minor would be best looked after if she remains in the custody of her mother. The other argument of the learned counsel that the mother is not having sound financial means is devoid of any force. It has consistently been held by the superior Courts that the mother's lap cannot be denied to the minor simply on the ground of her low financial means. There is evidence on record that the mother has got sufficient means and she is looking after the minor in a proper manner. Even otherwise throughout this period the petitioner has neither provided any maintenance to the minor nor has ever bothered to see tier. In these circumstances, after all this period when the minor is reaching the age of puberty it would not be proper to disturb the present arrangement. The judgments impugned are neither perverse nor arbitrary. No misreading of the evidence or jurisdictional defect has been pointed out. The writ petition is, therefore, dismissed in limine. H.B.T./G-202/L Petition dismissed.