Instant constitutional petition assailed orders/judgments dated 17.7.2001 and 31.10.2001 passed by learned Guardian Judge and learned Additional District Judge, Faisalabad to be declared illegal, void and of no legal consequence whereby petitioner was refused custody of her minor son Saad.
2. Succinctly, relevant facts are that Respondent No, 3 solemnized his marriage with the petitioner which led to birth of a male child who was named as Saad Relations between the spouses did not remain cordial and resulted in separation. Respondent No, 3 Muhammad Anees filed an application under Section 25 of the Guardian and Wards Act, 1890 for the custody of his minor son Saad. Learned Guardian Judge who was seized of the matter vide his order dated 2.5.1995 dismissed the petition with a direction that he will be entitled to see the minor, after every fortnight.
Respondent No, 3 filed an appeal against the order dated 2.5.1995 which was disposed of on the basis of compromise between the parties, to the effect that petitioner will hand over minor to Respondent No, 3, after 12.8.1999 on attaining age of 7 years and in case of failure of the petitioner, Respondent' No, 3 shall get custody through process of the Court. During the period of custody by the petitioner, Respondent No, 3 was given right of meeting with the minor on every first Monday of each month, within the premises of trial Court at 9.00 a.m. to 10.00 a.m. This arrangement was made vide order dated 29.1.1996.
3. Respondent No, 3 Muhammad Anees filed an execution petition whereon meeting of the minor continued. Petitioner on 29.7.1999 filed an application under Section 25 of the Guardian & Wards Act, 1890 to retain the custody of minor besides praying stay of execution proceedings. Learned Guardian Judge issued, a warrant under Section 100 Cr.P.C. for production of the minor but dismissed application of the petitioner under Section 25 of the Act, 1890 vide order dated 9.2.2000.
Petitioner assailed this order in appeal where she succeeded as the impugned order was set aside and the Guardian Judge was directed to decide the matter after consolidating petition under Section 25 of the G & W Act, 1890 alongwith execution petition filed by Respondent No, 3 and by deciding afresh, the question of welfare of the minor, before issuing warrants under Section 100 Cr.P.C.
4. Arrangement for return of custody of the minor by the petitioner dated 29.1.1996 was claimed to have been made on account of second marriage of the petitioner but in the meanwhile, Respondent No, 3 also entered into second tie of marriage with one Mst. Bushra out of whom Respondent No, 3 had two sons and for this reason, he was said to have lost interest in custody of petitioner's minor son Saad. Under the directions of appellate Court contained in order dated 16.3.2000, Guardian Judge framed issues regarding welfare of the minor/restoration of his custody to the petitioner. Parties produced their respective evidence and according to appraisal of evidence by the learned Guardian Judge he dismissed application of the petitioner vide his order dated 17.7.2001 alongwith execution petition of Respondent No, 3.
5. Petitioner aggrieved of order dated 17.7.2001 filed two separate appeals challenged the order to the extent of her dismissal of petition under Section 25 of the Guardian acid Wards Act, 1890 and the other against order regarding warrants under Section 100 Cr.P.C. but she remained unsuccessful as both the appeals were dismissed through appellate judgment dated 31.10.2001.
She thereafter filed instant constitutional petition assailing concurrent judgments/orders with the relief noted above. The petition was admitted to regular hearing hence Respondent No, 3 in response to notice by this Court appeared and was represented through Mian Shahid Rasool, Advocate who did not appear on behalf of Respondent No, 3 and consequently ex-parte proceedings were taken against him vide order dated 27.10.2003.
6. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. There is no cavil about the fact that initially application of Respondent No, 3 under Section 25 of the G & W Act, 1890 was dismissed on 2.5.1995 but on appeal by Respondent No, 3, petitioner agreed to hand over custody of the minor to him after 12.8.1999 as she intended to solemnize second marriage which as a matter of fact was solemnize second marriage which as a matter of fact was solemnized. Respondent No, 3 also entered into a tie of second marriage and had two living sons therefrom and lost interest in custody of his minor son Saad who since his birth is in custody of the petitioner. Petitioner had been looking after his day-to-day needs till attaining the age of 13 years 29 days at present. Concurrent orders of the two Courts below have been impeached mainly on the ground that the petitioner committed to return of custody of her minor son as she intended entered into second tie of marriage but on account of medical problem no child born to her out of this marriage and against it, Respondent No, 3 has two sons out of his second marriage and consequently it was claimed that on the basis of these charged circumstances and strong love/affection between mother and son for long period of 13 years, custody of the minor should be allowed to continue with the petitioner. The other supporting submissions of the learned counsel for the petitioner were that Respondent No, 3 has lost interest with the minor who was also not being paid any maintenance allowance by him hence in view of welfare of the minor, both the impugned orders may be adjudged.
7. Even though instant petition cannot take place of an appeal, nevertheless it being a guardianship matter, evidence produced by the parties was scanned. Both the divorced spouses have contracted their respective second marriage. Respondent No, 3 has children from his second wife but no such issue was born to the petitioner and she rested/satisfied with brining up of her minor son Saad. Respondent No, 3 had never paid any maintenance allowance to minor Saad who at the present is in 7th class. The minor had been appearing before this Court and his brilliant elect to live with the petitioner is born out from the interim orders of this Court. The minor never went to live with his father (Respondent No, 3) and thus has no intimate relation with him rather both father and sons are aline to each other. The minor as compared to his father is attached with the petitioner, having lived with her since his birth. Attachment of Respondent No, 3 with his two sons out of his second marriage is not only natural but understandable as he is living with them and for this reason also, he is detached from minor Saad. Apparently, absence of Respondent No, 3 and his counsel from proceedings before this Court is deliberate and is aimed at to allow custody of minor with the petitioner.
8. Viewing welfare of the minor, there is no doubt about it that the same shall be provided by the petitioner with more devotion. I have no doubt in my mind that there is no other better institution than a lap of a loving mother and there can be no better tutor than the mother. There is nothing on record to show the nature of the woman, to whom the father of the minor has married the second time e.g. whether she is of the type to take proper care of a step-child. Our experience about step- mothers in this society is not very healthy, especially when the step-mother has her own children out of her marriage with father of the child. Besides it, I cannot loose sight of the fact that right from birth the minor is living with the mother and this period is spread over about 13 years and to, uproot the minor from his given and familiar surroundings although permissible but cannot be done in this case as there is nothing on record to suggest that she would be given beneficent treatment by step-mother on the assumption that he would live with father in presence of her own two minor sons. Inspite of sitting in constitutional jurisdiction, I would not like to consign the minor to uncertain environments and surroundings, as done by the two Courts below. I feel it in-evitable to intervene to undo the orders which would result in prejudice to the future/personality of the minor and would work against his welfare.
9. I am cognizant of the remarks in the impugned judgments that petitioner is living/putting up with a person who has 4/5 children from his previous wife but these findings did not disturb me while concluding as per foregoing paragraphs, for multiple reasons. First of these is that 4/5 children living in house of the petitioner are not from her womb and in the second place, she has no other off spring of her second marriage and the last but not the least is that minor Saad has lived and survived in those environment, during his crucial period of life of 13 years whereafter he having attained sensible age, can pull his life to his practical era. Above all, the view formed in support of the impugned orders is not worth to be shared at the cost of health, life and education of the minor by forcibly thrusting him to live in hostile and new environments.
10. For all the reasons noted above, I accept this petition and declare both the orders dated 17.7.2001 and 31.10.2001 passed by Respondents Nos, 1 and 2 to be illegal, void and of no legal consequence with the result that initial order of Respondent No, 2 dated 2.5.1995 stands revived whereby petition under Section 25 of the Guardian & Wards Act, 1890 filed by Respondent No, 3 was dismissed.
11.It is, however, clarified that notwithstanding adjustment of impugned orders, subject to law it will be open to the father (Respondent No, 3) to approach the Guardian Judge afresh for seeking orders ensuring better education etc, meant to promote welfare of the mint after discharge of his liabilities regarding payment of maintenance allowance etc. With these observations, writ as prayed is issued with no order as to costs.