' This order shall dispose of Writ Petitions Nos.8221 and 8222 of 2004 as both these writ petitions arise out of the same judgment.
2. Relevant facts for the disposal of these writ petitions are that Mehtab Mirza, petitioner filed application under section 25 of Guardians and Wards Act against Mst. Shazia Mansoor, respondent and stated that he was married to respondent on 8-11-1996 and out of this wedlock a daughter (Mehnoor) was born on 15-11-1998. He further stated that his daughter was with respondent and it was in the welfare of the minor that she should be given to him. He averred that respondent, Mst.
Shazia Mansoor was suffering from the disease, SLE/LUPUS and said disease causes inflammation of various parts of body (skin joints and kidneys etc.) and minor could get infection/disease from respondent, therefore, it was in the welfare of the minor that she should remain with petitioner. He stated that he was in a better position to provide excellent education to the minor and that minor was very much attached with him. Mst. Shazia Mansoor, respondent mentioned in reply that petitioner was not entitled to custody of minor because it is in the welfare of the minor that she should remain with her mother (respondent). She further mentioned that due to her disease there was no danger to the health of minor as doctor had opined that she was stable and fully capable of taking care of her child. Also that disease was not contagious disease. She also produced certificate of doctors. The respondent asserted that petitioner had mentioned the disease to be dangerous to the minor only after she had filed suit for dissolution of marriage, suit for maintenance allowance and suit for recovery of dower (Rs.60,000) and after her petition before Guardian Judge, Lahore. She stated that delivery charges of the minor were borne by her father and he spent Rs.60,000. Also that petitioner failed to maintain respondent and minor, therefore, she had filed suit for maintenance allowance before the institution of this application. The respondent stated that petitioner had mentioned in suit for maintenance allowance brought by her that he was serving in Steel Mills Karachi but left job from 12-9-2000 and that he was jobless. The respondent further stated that she was M.A. In English Literature but she was not doing any job only due to the reason that minor may not be neglected and that she was owner of a spacious house constructed on plot of 1-1/2 Kanals. Also that petitioner had filed application only to pressurize the respondent to withdraw the suit for dissolution of marriage and suit for maintenance allowance.
The minor was living with the respondent in the same house along with maternal grandmother who was also a doctor, retired from service. Mst. Shazia Mansoor, respondent also filed application for guardianship certificate of the minor. The petitioner filed reply to the same. Learned trial Court framed consolidated issues. The parties adduced evidence in support of their respective claims.
After hearing the parties learned trial Court dismissed the application brought by petitioner whereas application brought by respondent for issuance of guardianship certificate was allowed vide judgment dated 2-6-2003. The petitioner filed appeals thereagainst which were dismissed by learned Additional District Judge, Lahore vide judgment dated 6-11-2003. Hence these writ petitions.
3. I have heard the arguments and perused the record.
4. As mentioned above Mehtab Mirza, petitioner filed application under section 25 of Guardians and Wards Act for the custody of his minor daughter (Mehnoor). The petitioner contracted marriage with Mst. Shazia Mansoor on 8-11-1996 and out of this wedlock Mehnoor was born on 15- 11-1998. The petitioner appeared as A.W.1 in support of his application and stated that he was married to respondent and minor was born on 15-11-1998. He further stated that respondent was suffering from disease SLE/LUPUS, therefore, minor would get infection from her. He deposed that he was financially strong to bring up the minor in better manner. During cross-examination he admitted that respondent had already filed suit for dissolution of marriage. He also admitted that he was not serving anywhere and that he did not own house in Lahore and was living in a hostel. He did not know whether driver took the minor to the school and that her room was air-conditioned.
The petitioner admitted that her mother-in-law was a doctor and that respondent was M.A. In English Literature. He also examined A.W.2, Asim Saleem, in support of his version. So it is clear that petitioner did not own a house in Lahore and that he was jobless. Mst. Shazia Mansoor appeared as R.W.2 and stated that petitioner tortured her and he was abnormal even before marriage and that he had been getting treatment from Psychiatrist. She deposed that she came to Lahore in April, 1998 and since then he had not provided her maintenance allowance. The respondent stated that minor was born on 15-11-1998 in Lahore but he did not bear the expenses of delivery. She was M.A. In English Literature. She got admitted the minor in a very good institution of Lahore in play group and paid Rs.10,000 as admission fee. Her house was constructed on a plot of 1-1/2 Kanals and she had driver and other servants. She deposed that she took the minor to the school in her car and that her parents owned a separate house. She stated that petitioner had no house in Lahore and he resided in Lahore with his second wife. Her mother was a doctor. She stated that petitioner had not provided them maintenance allowance, despite decree passed by Court. She further stated that she did not want to contract second marriage, despite the fact that she was physically fit. The respondent examined R.W.1, Dr. Mansoor Ahmad in support of her case. The statements of R.W.1 and R.W.2 are convincing and confidence-inspiring and there is nothing on record to disbelieve the same. It is clear from the material available on record that minor is living with her mother since birth (15-11-1998). She is getting education in a very prestigious institution. The respondent owns a spacious house and a car. However, petitioner has no house in Lahore. He has not even a rented house. The respondent has not contracted second marriage so far, whereas petitioner has contracted second marriage. In these circumstances, I find that it is in the welfare of the minor that she should remain with her mother. So learned trial Court has rightly accepted the application brought by respondent and dismissed the application filed by petitioner. The judgment dated 6-11- 2003 shows that learned Additional District Judge decided the appeals brought by petitioner after appraisal of entire material available on record. Paras Nos.5 and 6 of the said judgment read as under:--
5. "The perusal of record reveals that there are two main issues for deciding dispute between the parties and on these issues evidence has been recorded by learned trial Court where Mehtab Mirza appellant examined two witnesses. The petitioner appeared as A.W.1 and narrated the same facts mentioned in the petition and examined Dr. Asim as A.W.2 who deposed that petitioner is son of his maternal uncle and father of respondent is cousin of his parents. It was stated that respondent is suffering from Systemic Lupus Erythematosus which affects the mental capabilities of the patient and it also affects the defensive system of the body. Due to this disease many other diseases can attack the patient easily and it can also affect the people living around the patient. The respondent Shazia Mansoor examined three witnesses Dr. Mansoor Ahmed R.W.1 who deposed that he is father of respondent. The respondent lived with the petitioner as a wife from November, 1996 to April, 1998.
The period of pregnancy was spent with him and he incurred all expenses. She was examined by Dr. Shaukat Raza Khan Ex-Principal of King Edward Medical College, who declared the minor absolutely normal. He spent an amount of Rs.70,000 in this regard. The welfare of minor lies if the custody remains with the respondent. The minor has already been admitted in a prestigious Institution about 1-1/2 years ago and respondent has arranged the car and driver for transportation. The witnesses also stated that respondent is living in a house worth Rs.60,00,000 and owns another house also. The petitioner being a psycho case is not in a position to have custody of minor. He has no means as compared with respondent to look after the minor while R.W.3 Sadiqa Mansoor has deposed that she is mother of respondent. She reiterated the version R.W.1 and R.W.2. The respondent also tendered medical certificate issued by Dr. Nighat Mir as Exh.R.1, Medical Certificate issued by Dr. Shaukat Raza Khan Exh.R.2, medical bill as Exh.R.3 and R.4, receipt issued by the school as Exh.R.5, certificate issued by Lauriate School as Exh.R.6, receipt issued by the PCSIR Employees Cooperative Housing Society Ltd. As Exh.R.8, from PT-10 as Exh.R.9, copy of daily Alfazal dated 27-7-2002 as Exh.R.10.
6. On the basis of evidence on record learned trial Court answered both the issues against the appellant by deciding the issue of custody in favour of respondent. So far as the ailment attributed to respondent No.1 is concerned, the document Exh.R.l reveals as under:-- "To whom it may concern"
' Systemic Lupus Erythematusus (SLE) is not a Contagious disease. There is no chance of this being an infection which can be transmitted by living together. I have been treating Shazia and she is stable and to the best of my knowledge is fully capable of taking care of her child. If you have any question, you are more than welcome to get in touch with me."
' Therefore, learned trial Court rightly gave the weight to expert opinion and considering SLR/LUPUS is not contagious one. Moreover, trial Court was of the view from evidence on record that respondent has not remarried while appellant has contacted second marriage and respondent does not intend to contract second marriage and being a female child, the custody is to be remained with the mother. The learned trial Court was also of the view that in case re-marriage is contracted by respondent, then it will be seen in the light of circumstances, of course, then the appellant would have right to apply again, if so advised.' Therefore, neither the trial Court misread the evidence nor there is non-appreciation of evidence rather learned trial Court narrated the evidence and discussed each and every aspect of the case and gave conscious opinion on each and every detail of the evidence".
It is well-reasoned judgment. Even otherwise in determining the question of custody of minor, the paramount consideration is the welfare of the minor. Reliance can be placed on the case of Sardar Hussain and others v. Mst. Parveen Umer and others (PLD 2004 SC 357). The minor is admitted in a standard school, getting education and is enjoying every facility of life in the house of respondent.
As such it is in the welfare of the minor that she should remain with her mother (Mst. Shazia Mansoor). So impugned judgments are just and proper. There is no illegality or infirmity in the impugned judgments, therefore, there is no justification to set aside the same.
5. The upshot of the above discussion is that these writ petitions have no force and the same are accordingly dismissed.