TARIQ SHAMIM, J.--- This constitutional petition is directed against the orders dated 27-8-2005 passed by the learned Additional District Judge, Sahiwal whereby the appeal filed by the petitioner had been dismissed and against the order passed by the learned Guardian Judge, Sahiwal dated 31-5-2005 whereby the application of respondent No.1 filed under section 25 of the Guardian and Wards Act for the custody of minor daughter Sawaira Kanwal aged about 7-1/2 years had been accepted.
2. Brief facts of the case are that Mst. Tahira Perveen respondent No.1 married the petitioner on 14- 11-1996 and from wedlock a daughter, namely, Sawaira Kanwal was born on 16-5-1998. On being divorced, respondent No.1 filed an application under section 25 of the Guardian and Wards Act for the custody of the abovesaid minor. The petitioner contested the application and filed written reply.
In the said reply he averred that the respondent had abandoned her right of Hizanat vide agreement, dated 2-12-1999, therefore, she had no locus standi to file the application. It was further averred that the minor was in safe custody and was being properly looked after by the parents of the petitioner as the petitioner was employed in Saudi Arabia. He denied the claim of the respondent that the minor was not being maintained properly and was being neglected.
3. On the other hand, the respondent stated that she was kicked out from the house by the petitioner and all throughout the petitioner did not provide maintenance to her and that the petitioner took thumb impressions of the respondent on blank stamp-papers for the preparation of Talaq but instead prepared a bogus document showing that the respondent had relinquished custody of the minor in favour of the petitioner.any
4. The learned trial Court on the basis of the divergent pleadings of the parties framed six issues and Issues Nos.1 and 2 being pivotal to the decision of the case are being reproduced hereunder:-- (1)Whether it is in the interest and welfare of the minor that her custody is handed over to the petitioner? OPA
(2) Whether the petitioner is estopped by her words and conduct to file this petition? OPR
5. The parties led their respective evidence and at the conclusion of the trial the learned trial Court decided Issues Nos.1 and 2 in favour of the respondent.
6. Being aggrieved of the said order the petitioner filed an appeal before the learned Additional District Judge, Sahiwal which was also dismissed on 27-8-2005.
7. Learned counsel for the petitioner contended that the minor daughter of the respondent was living with her grandparents and was being looked after and cared for properly at the expense of the petitioner who although employed in Saudi Arabia was taking care of her financial needs; that the paramount consideration in custody matters was of course welfare of the minor and keeping in view the financial position of the father as well as the relationship of the minor with the parents of the petitioner the custody rightfully belonged to the petitioner, Further contended that the judgments of the learned trial Court and that of the learned lower Appellate Court were stereotype as the welfare of the minor being sole consideration was not taken into account while passing the impugned orders and that the mother/respondent No.1 had no visible means of income as she was dependent on her father, hence she could not take care of the needs of the minor which would increase with the passage of time. It has also been urged by the learned counsel for the petitioner that in view of the settlement arrived at between the parties, the respondent was barred from seeking the custody of the minor. However, the learned counsel has admitted that the petitioner was not directly looking after the minor.
8. The learned counsel for respondent No.1 has contended that the petitioner had concealed the fact that previously a writ petition was filed by the petitioner in which jurisdiction of the learned trial Court was challenged and that on account of concealment of the said writ petition the petitioner was estopped from challenging the order impugned' in the present petition. Further contended that the respondent being natural guardian was not excluded under the law from seeking the custody of the minor, particularly in view of the fact that the petitioner was not directly looking after the affairs of the minor and was at the mercy of his father who had contracted second marriage and thus the minor daughter was with the step-grandmother which could not be compared with the love and affection given by the natural mother to her child. Further contended that the agreement arrived at between the parties regarding the relinquishment of the custody by the respondent was of no effect. Also contended that the respondent was the owner of five acres of land which she had received from her father and that the same was sufficient to sustain the respondent and the minor financially. Places reliance on Lt. Col. (R.Etd.) Ijaz Ali Khan v. Mst. Sheheen 2 others 1993 CLC 2088 to assert that even if the mother was poor the custody of the minor would lie with the mother.
9. I have heard the learned counsel for the parties and perused the record.
10. The learned trial Court while deciding Issues Nos. l and 2 has observed that the minor was not being directly looked after by the petitioner but was in the custody of the grandfather who like the petitioner had contracted second marriage and the minor was thus, in the custody of her step- mother and step-grandmother. A step-mother or a step-grandmother cannot be a substituted for the real mother. In the peculiar circumstances explained above, the learned trial Court was justified in holding that welfare of the minor being paramount consideration lies with the mother. The agreement referred to by the learned counsel which purportedly had been arrived at between the parties regarding the custody of the minor could not come in the way of the minor as respondent No.1 not only repudiated the same but had also stated that the petitioner had deceitfully obtained her thumb-impressions on blank sttamp-papers. The learned Appellate Court while discussing the findings of the learned trial Court also concluded that respondent No.1 after divorce from the petitioner did not contract second marriage whereas the petitioner had contracted a second marriage and had children from the second were. Even the father of the petitioner with whom the minor was presently residing had contracted a second marriage and had other children also. The learned Appellate Court further noted that during the proceedings before the learned trial Court the father of the minor i.e. The petitioner did not bother to appear for getting his statement recorded and thus, the presumption goes against him that he was not interested in the proceedings relating to the custody of the minor. Muhammad Arshad R.W.2 while appearing on behalf of respondent No.1 has levelled allegations that the step-mother and the step-grandmother were not treating the minor properly and had been inflicting physical punishment on the minor. He was not cross-examined on this point which therefore, stood established.
11. Further the impugned judgments given by the Courts of competent jurisdiction are based upon findings of facts based upon sound principle that in the welfare of a minor which is the paramount consideration, notwithstanding the purported agreement, the custody of the minor daughter lies with the mother. The findings of fact and law arrived at in exercise of lawful jurisdiction by the learned Courts below would not be open to interference by this Court in exercise of its constitutional jurisdiction.
12. For the foregoing reasons here being no substance in the petition, the same is dismissed accordingly. There shall be no order as to costs.