1973 SCMR 1 (PLP)

Ahmad Saeed Kirmani, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing : 29th January 1973. SAJJAD AHMAD, J.‑In this petition for special leave, the dispute is with regard to the custody of a girl, Tahira Parveen, aged about 8 years, between her father, Bashir Ahmad, petitioner, and Mst. Noor Jahan, her maternal grand‑mother, although initially the mother of the girl, Mst. Aziz Begum, was also in the contest. The petitioner filed an application under section 25 of the Guardians and Wards Act for the custody of the minor in the first instance against the mother only, but on her plea that the girl was living with her grand‑mother, the latter was also impleaded as a respondent. The learned Guardian Judge allowed the petitioner the custody of the minor, eliminating from consideration Mst. Noor Jahan, on the finding that she was not in her custody and was in fact living with her mother, who was not considered to be suitable to keep her custody as she had married a stranger Muhammad Khalil by name after she had been divorced by the petitioner. It may be pointed out that the petitioner has also married again after divorcing Mst. Aziz Begum. In fact, it appears from the evidence on record that the petitioner has married quite a few times before also and has ended up each time with a divorce. On an appeal, a learned Single Judge in the High Court has set aside the order of the Guardian Judge, and held on a point of fact that not only Tahira Parveen was living in the custody of her grand‑mother but her welfare also lies in continuing to remain in her custody. The mother was passed over and the petitioner was also denied the custody of the girl, because next to the mother, it was the maternal grand‑mother who, under the Muslim law, had the right to the custody of the minor girl at the stage of the age at which she then was. Nothing was urged or proved against the grand‑mother to4efeat her legal and natural right to the custody of her grand‑child. The learned counsel for the petitioner has submitted that under the law, the petitioner, who is the father has the control and supervision of his minor daughter, which has been denied to him by the respondents, as they would not permit him to visit the girl and meet her. The learned Single Judge has directed that there should be no impediment to the father meeting the girl, and that if the mother or the grand‑mother put any restriction in his way, the Guardian Judge should make suitable arrangements to ensure that the petitioner gets an opportunity to see his daughter. This fully meets with the filial wishes of the petitioner, who is also under a legal obligation to maintain the child. We do not see any valid ground to interfere with the order of the learned Single Judge. This petition is dismissed. Leave refused.