' This is rather an unfortunate case. Mst. Nadia Malik daughter of the respondent No,1 was married to the petitioner on 27-1-2002. The couple was blessed with a son, namely, Muhammad Sammi who was born on 22-2-2003. Mst. Nadia Malik died on 5-3-2003 and death was caused by Thalassaemia. The child remained in the custody of petitioner and looked after by his mother. On 27-1-2004, the respondent No,1 who is admittedly a maternal grandmother of the child filed an application for his custody. -It was stated that the welfare of the minor child is in the custody of the respondent. It was mentioned that petitioner has contracted the second marriage. Further argued that the respondent No,1 and other relatives are not allowed to see the child. It was also mentioned that the respondent No,1 is better placed to look after the minor. In his written statement the petitioner, mentioned that minor remained in his custody since his birth. Respondent was accused of committing of fraud as she had concealed the facts of disease of Mst. Nadia Malik at the time of her marriage. She was also stated to be a greedy lady inasmuch as after two months of the death of her daughter they took away her belonging but did not take away the minor. It was admitted that the second marriage was contracted but there is no affect on the minor and he is' being looked after by his mother. Issues were framed and: evidence of the parties Was recorded. The learned trial Court allowed this application on 19-1-2005 and learned Additional District Judge, Multan,- dismissed the appear filed by the' petitioner on 30-3-2005. The learned, counsel for the petitioner contends that learned. Courts below have only relied upon the principle that the respondent/lady has a preferential right of the custody of the minor under the personal law. They have relied upon the several judgments including Muhammad Nafeez Abbas -v. The' Guardian Judge, Lahore and others NLR 1994 Civil 4; Mst. Salima Bibi v. Muhammad Khan PLD 1987 Lah. 383; Mst. Razia Bibi v. District Judge, Bahawal Nagar and others 1992 .CLC 1981, to urge that the paramount importance is the welfare of the minor. According to the learned counsel, it is not in welfare of the. Minor, to remove him from custody of the petitioner and hand him over to respondent. They also. Argued that since they have not removed the minor physically, the application is not competent, relying on case of Mst. Imtiaz Begum v. Sheikh Azmat Ullah PLD 1959 (WT.) Lah. 750:
2. I have gone through the record there can possibly be no cavil with the proposition canvassed by the learned counsel for the petitioner that in the matter of the custody the paramount importance consideration is the welfare of the minor as elaborately laid down by the Honourable Supreme Court of Pakistan, in the case of Mst. 'Firdous Iqbal v. Shifaat Ali and others 2000 SCMR.
838. However, after the examination of the record and judgments recorded by the learned Coufts below, I have found that apart frorri the facts that they have observed that the respondent No,1 certainly has preferential right to the custody of the minor under the Muslim Personal Law, they have duly considered the matter of welfare of the minor. Now it has come on record in the course of evidence that the petitioner has a. Daughter from the second marriage. It has also been B stated that respondent is much better placed than the petitioner and is certainly in a better position to look after the minor. Now the simple question which arises is whether, it would be in the welfare of the minor to leave him in presence of a step-mother. To, my mind the learned Courts below has correctly answered the question. The learned Courts below have correctly compared the conditions prevailing in the house of the petitioner and abode of the respondent. I am not inclined to interfere with the impugned orders by exercising the Constitutional jurisdiction. So far as the said second contention of the learned counsel is concerned, I am afraid nothing turns upon the same.
The said judgment does not disclose to the age of minor. To my mind custody includes contractive custody. There is no denial that the mother having died the respondent' No,1 is a person entitled to the custody of the minor. This being so refusal of petitioner to deliver the custody to the respondent No,1 does constitute the removal within the meaning of section 25 of Guardian and Wards Act, 1890.
The application was, therefore, competent. No other point has been urged. The writ petition is dismissed in limine.