S. ALI HASSAN RIZVI, J. --- Mst. Akhtar (respondent No. 1) had on 08.05.2008 instituted a petition for custody of minor Mst. Shirzana, Asmat Ullah and Abbas Khan who were putting up with Maees Khan (father) and Nawab Khan (grand-father).
2. On conclusion of the trial the petition for custody was accepted thereby directing the respondents to hand over the minors to the petitioner (respondent No. 1) within 30 days. The petitioner-mother was directed to send the minors on every Sunday from 10.00 a.m. To 6.00 p.m. On her on behest to the father' of the minors. .
3. In appeal preferred thereagainst the order passed by the learned Judge, Family Court was modified to the extent of visitation rights and return of custody of the minors after attaining the age of 7 years. The other findings were upheld and consequently the appeal was partly allowed as afore-mentioned vide judgment dated 18.12.2008 passed by,the learned Additional District Judge, Mianwali.
4. The present writ petition has been filed to challenge the validity of the judgments passed by the two Courts below respectively on. 19.7.2008 and 18.12.2008, on the ground that the minors had developed love and affection, with the father/writ petitioner; that their intelligent preference should have been given due weight and that the Courts below had misdirected themselves while ignoring the above facts.
5. Learned counsel for contesting respondent No. 1 opposed the writ petition and contended that the mother has always a preferential right of custody where the children are under the age of 7.
6. After hearing learned counsel for the parties and going through the judgment passed by the two Courts below, I find that the learned Judge Family Court had rightly observed that the lap of the mother was a heavenly place, which could not be substituted'by love and affection of any other relation. The minors were of tender age. They remained with the father/writ petitioner. They were naturally prone to toe his line. Monetary reasons cannot be treated as disqualification for a real mother to keep her children close to her bosom and rear them up under her on umbrella. Mother is symbol of sacrifice for her children and 'there is no earthlyubstitUte for love and affection of the mother. Both the learned Courts below rightly came to the conclusion that well-are of the minors lay in transferring their custody the mther. I find that before the lower Courts (grand-father) of the minors was also arrayed as a respondent. While filing the writ petition he was left out. On this ground also the writ petition was hit by the law laid down in PLD 1982 SC 590, 1994 SCM R 2268, PLJ 2007 Lahore 494 and 2008 PLC 317. Nawab Khan (grand-father) was necessary party and he was strongly left out in the writ petition. If he was not joining the petitioner (father), he should have been impleaded as respondent.
7. Be that as it may,, the petitioner Moees Khan has no case on merits as discussed above. The writ petition is, therefore, dismissed. .