' SYED SAKHI HUSSAIN BOKHARI, J.---In. This Constitutional petition, the petitioner has prayed for setting aside judgment, dated 14-11-2005, passed by learned Additional District Judge, Mianwali and judgment, dated 16-6-2005, passed by learned Judge Family Court, Isa Khel.
2. Relevant facts for the disposal of this writ petition are that Mst. Waziran Bibi, respondent No,3, filed application against the petitioner (Nasrullah Khan) for custody of her minor daughters (Asma Bibi and Sameena Bibi) and stated that she was married to him and out of this wedlock, five daughters were born. She further stated that on 9-6-2002, petitioner gave her beating, snatched two minor daughters (AsmaBibi and Sameena Bibi) and turned her out of his house along with two daughters (Aqsa Bibi and Kaneezan Bibi). She asked the petitioner for restoration of minor daughters but he refused, therefore, she was constrained to file application for their custody. She filed application on 20-5-2003 and on 17-12-2004, petitioner filed application against respondent No,3 for custody of his two daughters (Aqsa Bibi and Kaneezan Bibi). The minors (Aqsa Bibi and Kanizan Bibi) also filed suit for maintenance allowance. Learned trial Court framed consolidated issues, recorded evidence and accepted the application brought by respondent No,3, whereas, application brought by petitioner was dismissed vide judgment, dated 10-6-2005. The petitioner filed appeal thereagainst, which was dismissed vide judgment, dated 14-11-2005, passed by learned Additional District Judge, Mianwali. The other cases were also decided through the same judgments but in this writ petition the petitioner has challenged the impugned judgments only to the extent of custody of minor daughters.
3. Heard. Record perused.
4. As mentioned above, Mst. Waziran Bibi, respondent No,3 had filed, application against the petitioner for custody of her minor daughters (Asma Bibi and Sameena Bibi).. She filed application on 20-5-2003 and at that time minors were aged about 5 years and 3 years respectively. Later on, petitioner also filed application for custody of his two daughters (Aqsa Bibi and Kaneezan Bibi) as said minors were with their mother (respondent No,3). Learned trial Court, accepted the application, brought by respondent, whereas, application of petitioner was dismissed. As stated earlier, at the time of institution of the application for custody of minors, Aqsa, Kanizan, Asma and Sameena were aged about 9 years, 7 years, 5 years and 3 years respectively. Mst. Waziran Bibi, respondent No,3 is real mother of minors. The petitioner is present in Court today and he states that about six months back, he has contracted second marriage. Learned Courts below observed that it is in the welfare of the minors that they should remain with their mother. Learned counsel for respondent No,3 submits that minor daughters (Aqsa Bibi and Kaneezan Bibi) had brought suit for maintenance allowance against their father (petitioner) but he has not paid decretal amount and Rs,67,000 are outstanding against him. So, in the circumstances of the case, I find that it is in the welfare of the minors that they should remain with their mother/respondent No,3. Even otherwise petitioner has contracted second marriage, whereas, respondent has not contracted second marriage so far. So learned Trial Court had rightly accepted the application, brought by respondent No, 3 and dismissed the application brought by petitioner. Learned counsel for the respondent submits that if minor daughters (Asma Bibi and Sameena Bibi) are given to respondent, she (respondent No,3) would not claim their maintenance allowance. The judgment, dated 14-11-2005 shows that learned Additional District Judge has decided the appeal, brought by petitioner, after appraisal of entire material available on record. It is well-reasoned judgment. IA There is no illegality or infirmity in the impugned judgments. Even otherwise, in determining the question of custody of minor the paramount consideration is the welfare of the minor. Reliance can be placed on the case of Safdar Hussain and others v. Mst. Parveen Umar and others (PLD 2004 SC 357). As such, it is in the welfare of the minors that they should remain with their mother (Mst.
Waziran Bibi, respondent No,3). So, impugned judgments are just and proper and there is no justification to set aside the same .
5. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed. However, respondent No,3 (Mst. Waziran Bibi) would not claim maintenance allowance of two daughters (Asma and Sameena) from the petitioner.