FAQIR MUHAMMAD KHOKHAR, J.- The petitioner seeks leave 'to appeal from judgment dated 27.10.2004, passed by a learned Single Judge of the Lahore High Court, Multan Bench, in Writ Petition No. 4045/2003.
2. The petitioner lady, Mst. Miraj Bibi and the respondent No. 3, Muhammad Abbas, were married with each other. Unfortunately the relations between the spouses became strained which ended in dissolution of the marriage. However, during the wedlock a minor son, Babar Faruq was born on 8.8.1994. The respondent No. 3 made an application before the Senior Civil Judge, Sahiwal, exercising the powers of Judge Family Court/Guardian Judge, under Section 25 of the Guardian and Wards Act for the custody of his minor son Babar Faruq. On 13.4.1998, the learned counsel for the respondent No. 3 made an offer that if the petitioner lady took oath on Holy Quran that she had not contracted a second marriage after getting the divorce from the said respondent and had not given both to a child thereafter, the application of the respondents be dismissed. This offer was accepted by the petitioner lady and she took oath on Holy Quran before the Court accordingly.
Therefore, the application of the respondent No. 3 for custody of his minor son Babar Faruq was dismissed by the Trial Court, by order dated 13.4.1998. Thereafter, the respondent No. 3 filed another application for the same purpose on 29.6.1999 which was withdrawn by him after the statement by the petitioner lady that he would not claim any maintenance and the petitioner would have access to his minor son once a month in the chamber of Mr. Anwar-ul-Haq Rarnay, Advocate, Sahiwal.
However, the respondent No. 3 filed a third application on 7.9.2001, for the custody of the minor son Babar Faruq, Which was allowed by the Trial Court, by order dated 2.5.2003. However, the said respondent was directed to pay past maintenance to the petitioner lady @ Rs. 200/- per month for the first four years and also a sum of Rs. 400/- per month for the next three years. The petitioner lady and her present husband Zaheer Ahmad, petitioner No. 2 filed an appeal thereagainst in which the respondent No. 3 filed cross-objections. The Additional District Judge, Sahiwal, allowed the appeal of the petitioners arid dismissed the application of the respondent No. 3 for custody of the minor son vide order dated 11.9.2003. However, the cross-objections of the respondent No. 3 were allowed and the order/decree by the Trial Court for maintenance to the petitioner No. 1 was set aside. Therefore, the respondent No. 3 filed Writ Petition No. 4045/2003, which was allowed by a learned Single Judge of the Lahore High Court, Multan Bench, by the impugned order dated 27.10.2004. Consequently, the order dated 11.9.2003, passed by the Additional District Judge, Sahiwal was set aside to the extent of acceptance of appeal of the petitioners.
3. The learned counsel for the petitioners argued that the respondent No. 3 had also contracted a second marriage. Therefore, the passing on the custody of the minor. Son to him would be a miscarriage of justice and detrimental to the welfare of the minor, lt was further contended that the present wife of the respondent No. 3, a step mother of the minor Babar Faruq, could not be a substitute for the*real mother. It was lastly submitted that although the petitioner lady had accepted the offer of the other side to take' the oath on Holy Quran for the denial of his second marriage but she had never taken such an oath.
4. On the other hand, the learned counsel for the contesting respondent No. 3 argued that the petitioner No. 1 had taken a false oath on Holy Quran before the Trial Court after her marriage with the petitioner No. 2 when she was already on her family way and she gave birth to a child within seven days thereof. Therefore, the petitioners did not deserve any indulgence from this Court in discretionary exercise of Constitutional jurisdiction.
5. We have heard the learned counsel for the parties at some length and have also gone through the original record of the Trial Court, which had been requisitioned by this Court. The order sheet dated 13.4.1998 of the Trial Court clearly shows that the learned counsel for the respondent No. 3 had made an offer for dismissal of the application of the contesting respondent if the petitioner lady took an oath on Holy Quran that the had not contracted a second marriage and had not given birth to another child out of second marriage. The petitioner,, Mst. Miraj Bibi accepted the offer and affixed her thumb-impression on the order sheet and took the oath on Holy Quran before the Guardian Judge/Senior Civil Judge, Sahiwal on the same date i.e. 13.4.1998. Thereupon, the application of the respondent No. 3 was dismissed accordingly. We do not find any substance in the submissions of the learned counsel for the petitioners that no such an oath was taken by the petitioner lady. Admittedly the petitioner lady had already contracted marriage with the petitioner No. 2 but still took oath before the Trial Court, on Holy Quran, to the contrary. The present husband of the petitioner lady, Zaheer Ahmad (petitioner No. 2) had also appeared as RW-1 on 21.4.2003 and had stated that he had contracted the marriage with the petitioner lady as back as 7 years ago and that the petitioner lady had given birth to a son on 20.4.1998. Needless to observe that the minor son. Babar Faruq is already over 11 years of age. Therefore, following the normal rule, the respondent No. 3, being natural guardian, was rightly held entitled to the custody of his minor son.
Ln our view, the impugned judgment of. The High Court is plainly correct to which no exception can be taken. The Trial Court as well the High Court seem to have taken a lenient view by not prosecuting the petitioner lady for taking the false oath before the Court on Holy Quran.
5. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. The original record of the case as received from the Trial Court be returned.