' This Constitutional petition seeks judgments/orders dated 16-11-2001 and 13-1-2003 passed by respondent No,1 (learned Guardian Judge) and learned Additional District Judge, Daska, to be declared illegal, void and of no legal consequence, whereby application under section 25 of the Guardians and Wards Act, 1890, filed by Muhammad Bashir (respondent No,2) was allowed and custody of minor Junaid was ordered to be handed over to him, whereas similar application filed by Mst. Sharifan Bibi (petitioner) was dismissed and this decision was affirmed on appeal.
2. Precisely, relevant facts are that Muhammad Bashir respondent No,2 was married with Mst.
Sughran Bibi and this wedlock gave birth to a male child, who was named as Junaid. Relations between the spouses did not remain cordial and resulted in separation. Mst. Sughran Bibi started living along with her son Junaid in the house of her parents i,e, petitioner and respondent No,4. The minor was being looked after by her mother and maternal-grandmother, but unfortunately Mst.
Sughran Bibi died and custody of the minor was taken over by the maternal-grandmother Mst.
Sharifan Bibi (petitioner). Respondent No,2 father of the minor had filed an application under section 25 of the Guardian and Wards Act, 1890, for custody of his son Junaid, but on account of death of Mst. Sughran Bibi pending petition respondent No,2 amended his petition raising another ground that maternal-grandmother is not entitled to retain custody of the minor in presence of father, the natural guardian.
3. Mst. Sharifan Bibi petitioner not only contested the application for custody by respondent No,2 but also filed a separate petition for guardianship of the minor asserting that in absence of mother, she being maternal-grandmother may be given the guardianship in the interest/welfare of the minor, who was allegedly brought up by her from the time when he was a suckling baby and has developed with her attachment/association. This petition, which was filed on 21-3-1998, was hardly contested by respondent No,2. The learned Guardian Judge, seized of the matter, consolidated both these petitions and framed consolidated issues arising out of respective stance of the parties.
Parties led their evidence on the basis of which respondent No,1 vide his judgment/order dated 16- 11-2001 dismissed the guardianship application of Mst. Sharifan Bibi petitioner and accepted that of respondent No,2 father, restricting paternal-grandfather Muhammad Munir (respondent No,3) from having custody of the minor in absence of Muhammad Bashir who was employed abroad and allowed medical eye-treatment of child abroad with permission of the Court. Respondent No,1 also granted permission to the petitioner (Mst. Sharifan Bibi) to meet the child, fortnightly.
4. Petitioner aggrieved of the decision of the Guardian Judge dated 16-11-2001 dismissing her guardianship application and taking away from her the custody of the minor, filed an appeal but the same failed on 13-1-2003 then maintained instant Constitutional petition with the prayer noted above. In response to notice, respondents Nos.2 and 3 are represented through their counsel whereas respondent No,4 himself pleaded his case.
5. Learned counsel for the petitioner submitted that dispute regarding guardianship and custody of the minor has incorrectly been decided by respondent No,1 because father of the minor lives abroad in connection with his employment and has also contacted second marriage out of which he has also issues. According to him, even ignoring employment of the father abroad, custody of the minor should not have been handed over to him because the minor will not flourish in healthy atmosphere in presence of her step-mother and this circumstance would adversely affect his capabilities. He further argued that minor Junaid was brought up by his maternal-grandmother, the petitioner, since his tender age as deceased Mst. Sughran Bibi out of dispute between the spouses deserted house of respondent No,2 and started living with the petitioner. Learned counsel stressed that both the petitioner and minor have developed association where he lived for a long period of about 7 years and it is cruel to hand over his custody to other paternal relations, who have no interest in the minor because father is away. He further elaborated his arguments by stressing that ignoring everything, guardianship of the minor should have been decided keeping in view his welfare, but this aspect of the matter has not been considered in the impugned order.
6. Learned counsel appearing on behalf of respondents Nos.2 and 3, who was engaged to defend this petition by general attorney of respondent No,2 opposed the arguments of the petitioner, supported the impugned order and argued that respondent No,2 is natural guardian and he is entitled to the custody of the minor in absence of mother. He further submitted that the child has some eye problem, for which he was got operated by his father and under the advice of the concerned doctor he has to visit his clinic regularly, hence the impugned order is justified. Learned counsel for respondents Nos.2 and 3 also emphasized that maternal-grandmother has no right of custody under the Muslim law as well as the law applicable. According to him, the orders impugned were passed by keeping in view the welfare of the minor and this Court while discharging Constitutional jurisdiction is not in a position to substitute a view formed by the Court of competent jurisdiction.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before looking into legality/propriety of the order impugned; it has to be kept in mind that both the contestants are closely related to each other even if marriage of respondent No,2 with deceased Mst. Sugharan Bibi is left out of sight. Both the paternal and maternal grandfathers of minor Junaid i,e, respondents Nos.3 and 4 are real brothers and at the same time, both his maternal and paternal grandmothers are real sisters inter se. It is also not disputed between the parties that Mst. Sughran Bibi wife of respondent No,2 since long deserted house of respondent No,2 and started living with petitioner, her mother, along with her son Junaid. The petitioner in the lifetime of Mst. Sughran Bibi must have been rendering help for brought up of the child and it cannot be said that in view of relations between the parties she has no attachment with him. Minor Junaid has attained sensible age, as he at the present is about 9 years. On Court's query, he answered that he lived with the petitioner for about seven years without any problem. No doubt father is natural guardian and is entitled to custody in absence of mother, but he undisputedly lives abroad and cannot look after welfare of the minor. His visits to Pakistan may be frequent but could not be earlier to six months, as admitted by his counsel. Respondent No,2, who has contacted second marriage and has offshoots thereof did not pay any maintenance for brought up for his son while he was living with his maternal grandparents, in spite of the fact that it was his bounded Islamic, moral and legal obligation. Respondents Nos.2 and 3 also could not refute that he was got admitted in school by the petitioner where he at the present is studying.
Respondent No,1 while deciding the matter refrained Muhammad Munir respondent No,3 paternal- grandfather from taking custody of the minor in absence of the father, but in the circumstances of the case, discussed above, it appears that custody, after taking it from the petitioner has gone to him. Court was informed that in absence of respondent No,2, paternal-uncle of the child is looking after his affairs, who did not figure in the litigation and was not authorized to deal with the child. It could not be pointed out that the paternal-uncle, who is looking after, has some positive interest of welfare of the minor or he has to look after his own family. Since the petitioner looked after the child for long period of seven years and brought him up to this age A without intervention of any of the respondents Nos.2 and 3, in her preference paternal-uncle appears to be alien to the child.
Adverting to medical care of the child as his angle of eyes is not straight and for his visits to the clinic of the doctor, this exercise could have been managed by the petitioner, who had been arranging for his schooling and other necessities of life. Before handing over custody of the minor to respondent No,2, the most important point which hinged for determination by respondent No,1 was as to who would take care of the child in absence of the father, but this aspect remained thirsty of decision, as the same was not touched in the order impugned. I have no hesitation to hold that in absence of any such arrangement/decision by the Guardian Judge, the order impugned would negatively work for the child and is not in his welfare. In view of my own Constitutional handicaps of not substituting decision of the lawful forums within their compass of jurisdiction, I am left with no other option except to strike down the order of respondent No,1, which as noted above, is against the interest of the minor and to remit the case back to the learned Guardian Judge concerned for decision of the matter afresh keeping in view absence of father from the country and to provide shelter to the child in his absence.
8. For the reasons noted above, instant Constitutional petition is allowed and judgments/orders dated 16-11-2001 and 13-1-2003 passed by respondent No,1 and Additional District Judge are declared to be void, illegal and of no legal consequence, with the result that both the applications under section 25 of the Guardians and Wards Act, 1890, filed by the petitioner and respondent No,2 shall be deemed to be pending and will be decided afresh keeping in view the above noted aspects of the case, on the basis of material already available on the record, after hearing the parties. As far as interim custody of minor Junaid till the fresh decision by respondent No,1 is concerned, it shall be restored to the petitioner as the same was taken from her and it will be subject to the ultimate decision as directed in the preceding lines. Parties are directed to appear before respondent No,1 on 20-12-2004. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.