' KHAWAJA FAROOQ SAEED, J.---The brief facts of the case are that the petitioner who is mother of the minor after death of her husband is statedly forced to live apart. She, therefore, filed an application under section 25 of the Guardian and Wards Act, 1980, for custody of her minor daughter namely Aiza Naseer against her respondent No, 1 .
2. The Guardian Judge on divergent contentions of the parties framed the following issues:--
(1) Whether welfare of minor lies in her custody with the petitioner as against the respondent? OPA
(2) Whether the plaintiff has lost her right of hizanat of minor as she has contracted second marriage? OPD
(3) Relief.
3. The Guardian Judge vide his order dated 26-11-2008 accepted the application and directed to hand over the custody of the minor to the petitioner. The respondent No,1 who is grand-father of the minor preferred an appeal which was allowed by the Addl. District Judge vide his order dated 22-1-2009 in the manner that the order dated 26-11-2008 of the Guardian Judge was set aside and the case was remanded for fresh trial with the direction to decide the issue after taking consent of the minor.
4. The direction of the first appellate Court is challenged inter alia on the basis of following grounds:--
(i) that the minor is a female and is only of seven years old. Petitioner is the real mother and has got the right of "Hazanat" which cannot be substituted or denied under any arguments;
(ii) that the respondent No,1 is an ailing man of 75 years of age. The petitioner is an educated and well behaved lady. The claim that she is married is incorrect as she has not yet done so;
(iii) that the minor is at the age of seven years now and in the near future being a girl shall be needing
5. The respondents' case on the other hand is that the petitioner left her daughter at her option when she was only two years of age. She preferred going to her job and not to stay at home with her daughter while she was offered to remain there and the respondent is ready to bear their expenses along with daughter.
6. Moreso, the daughter is not willing to go with her. She starts crying whenever it comes to her knowledge that she is likely to go with her mother. She is not at all attached with her for the obvious reasons, besides, if the petitioner comes to their terms, they can ultimately allow her to take the custody also.
7. Both the sides have argued the case in their favour. The petitioners' claim remains that in the famous case of "Mst. Ulfat Shaheen v. Akram Khan and 2 others" reported as (2006 CLC 51) not only the writ petition was allowed to be entertained but it was also held that where there is an error of law this Court must interfere in the matter of custody also.
8. The respondent relied upon (1994 M LD 1098) re: "Mst. Zainab Bibi v. Rehmat Ali and 2 others" and said that the minors attaining the age of discretion, Court while granting custody of minor must ascertain the wishes of the minor. Further in the case "Mst. Rubia Jilani v. Raja Zahoor Akhtar and 2 others" reported as (1996 CLC 1603) the Court has held as under:--
(a) The paramount consideration is the welfare of the minor;
(b) This welfare must be judged consistently with the law to which the minor is subject;
(c) While determining the welfare of the minor regard shall be had inter alia to the
(i) age, sex, religion of the minor and
(ii) character and capacity of the proposed guardian
(iii) if the minor is old enough to form an intelligent preference, the Court may consider that preference."
9. An accumulative reading of the above judgment makes it clear that in the case of minor if she or he has attained the age where she can decide by exercising an intelligent preference only then minor should be allowed to avail the same. Furthermore, in the case of a child at the age of seven years, the right of "Hazanat" of the mother cannot be substituted or equated with any other right. In the case of girl another paramount factor is the guidance which every girl is required on her attaining the age of majority. This obviously cannot be done by grand-father.
10. In any case, in this case the Addl. District Judge has not exercised his jurisdiction in an appropriate manner. If in his opinion the consent of the minor is to be obtained to adjudge the case there was no need of remanding it to the Guardian Judge.
11. This Court normally would not have interfered, but, however, since it is a matter of future and welfare of a kid, the direction of the Addy. District Judge is modified himself and the same shall be decided on the sole consideration of the welfare of the child who is girl and not young enough to adjudge her welfare, within two months after receiving this order.
13. Disposed of.