1989 PLP 3427 (MLD)

Hassan Ahmad Khan Kanwar for Petitioner. Ch. Muhammad Jamil for Respondent. Date of hearing: 12th February, 1989. The dispute fir: this petition pertains to the custody of Kashif minor born on 14‑7‑1978. On the death of iris mother Muhammad Amin respondent applied to the Guardian Court for his custody which was with his maternal grand‑mother namely Mst. Moondan petitioner at that time. The latter also applied for the same purpose. The parties reached a compromise before the Guardian Court on 27‑5‑1980. By virtue of this agreement the custody of Kashif minor was to remain with Mst. Moondan till he attained the age of six years and afterwards the right of custody was given to the father (Muhammad Amin). When Kashif attained the age of six years Muhammad Amen respondent filed an execution application in the Guardian Court, Jhang. Mst. Moondan petitioner contested it. The Guardian Court decided it in favour of Muhammad Amin on 15‑10‑1985. Mst. Moondan petitioner preferred an appeal against the said order which was dismissed by the learned District Judge, Jhang on 8‑3‑1986. Hence this Constitutional Petition.

2. It is contended that the orders of the courts below were illegal in that they did not consider the welfare of the minor while passing the said orders. Learned counsel for the petitioner has cited Mst. Tahira Begum v. Salim Ahmad Siddiqui P L D 1970 Kar. 619 to show that custody and guardianship matters of minors could not be settled by private compromise or even arbitration and any such agreement was not enforceable in law. According to him the prime consideration was welfare of the minor which was not adverted to by the Guardian Court or the appellate Court and they decided the matter of custody of Kashif in favour of Mst. Moondan only on the basis of agreement dated 27‑5‑1980.

3. I have perused the said order. There is absolutely no finding by the Court with regard to the welfare of the minor. The law requires the Court to decide the 1 question of custody of minor on the sole consideration of welfare of the minor 'and not on the basis of agreement between the parties. All agreements to this; effect should be subject to the welfare of the minor which is a supreme; consideration in deciding such matters.

4. Learned counsel for the respondent states that no evidence was recorded by the Courts below on the question of welfare of minor and the matter was simply decided on the agreement between the parties reached in the year, 1980.; That agreement was also not in accordance with law as the question of welfare of, minor was not considered by the learned Gua, than Court and even if no such j objection was raised by the father (Muhammad Amin) at that time or any subsequent stage it could not give it any legal sanctity. The Guardian Judge and: the learned District Judge should have looked into the question of welfare of l minor but they were merely impressed by the agreement reached by the parties; in 1980 that did not go into question of welfare of the minor and ordered , execution of the former decree in favour of Muhammad Amin. The proper course for Muhammad Amin was to have filed an application for the guardianship of Kashif and the Court after recording evidence on the question of welfare of the minor should have disposed of the matter. There is no material before this Court to find out wherein the welfare of minor lies and which of the; parties is entitled to have the custody of the minor.

5. Consequently the petition is accepted and the judgments of the Court below are declared to be without lawful authority and of no legal effect. Muhammad Amin respondent may file a fresh petition before the competent Court for the custody of Kashif and if any such petition is filed it shall be disposed of within a period of four months of its filing. This direction has been issued on the request of the learned counsel for the respondent who states that an application to the said effect shall be filed by his client. The petitioner shall arrange meeting between the respondent and Kashif as directed by the Guardian. Court on 27‑5‑1980. Parties are left to bear their own costs. M.Y.H./M‑1238/L Petition allowed.