' ALI AKBAR QURESHI, J.---This Constitutional petition is directed against the judgment and decree dated 20-9-2008 and 17-3-2008 passed by the learned Courts below whereby the application under section 12 of the Guardians and Wards Act filed by the respondent for the custody of the minor girl was allowed and the custody of the minor girl was given to the respondent.
2. Shortly, the facts are that the respondent filed a petition under section 25 of the Guardians and Wards Act on 22-10-2006 seeking the custody of Mst. Aisha Bibi (the minor daughter aged 11 years).
It was stated by the respondent in the petition that the minor girl was living with the respondent but the petitioner on a false assertion made an application under sections 22-A, 22-B, Cr.P.C. Before the learned Addl. Sessions Judge, Jhang on 2-11-2006 and in result of the order passed by the learned District Judge on the said application, the custody was removed from the respondent and given to the petitioner. The respondent further stated in the application, that a minor son is living with the respondent and the petitioner has no love and affection for the minor as the petitioner earlier to this in result of a compromise relinquished her right of "Hazanat", therefore, the petitioner in any case, keeping in view the welfare of the minor is entitled to retain the custody of the minor girl.
3. The said application was vehemently contested by the petitioner. In the written reply, the petitioner levelled serious allegation on the character of the respondent. Also stated that because of the growing age of the minor girl, it is in the welfare of the minor that she should live with the petitioner as the petitioner being the real mother of the minor girl can easily understand the requirements of a growing girl. The petitioner stated that the agreement was executed but subsequently the respondent backed out the same.
4. The learned Guardian Court framed issues, out of the pleadings of the parties, recorded the evidence and finally accepted the petition whereby it was held that it is in the welfare of the minor that the custody of the minor should be given to the respondent. The petitioner being dissatisfied of the said judgment and decree preferred an appeal but the same was too dismissed by the learned appellate Court.
5. Learned counsel for the petitioner contended that while deciding the petition under section 25 of the Guardians and Wards Act, the paramount consideration, which should be in the mind of the Courts, the welfare of the minor. In this case, admittedly the age of the minor girl is about 13 years which is growing age and the requirements of the said age of a girl can only be understood by the real mother. It was contended that the petitioner till today has not contracted second marriage so she is more suitable for the custody of the minor and it is also in the welfare of the minor that the minor should not be removed from the custody of the petitioner. Lastly contended that the minor girl is studying in school in class-8th whereas the minor son who is in the "Hazanat" of the respondent is doing a job on a tea stall so it is sufficient to show that it is in the welfare of the minor that she should be brought up by the petitioner. The learned counsel also contended that both the learned Courts below have in fact relied upon an agreement, at one point of time was executed between the parties but has ignored the welfare of the minor, therefore, the judgment and decree is liable to be set at naught on this score alone. Learned counsel also contended that the respondent to avoid the payment of maintenance allowance has filed the petition under section 25 of the Guardians and Wards Act. Reliance is placed on Muhammad Yunus Qamar v. Rubina and others (1994 M LD 1950), Zulfiqar and others v. Mst. Kausar and others (1997 M LD 543), Mst. Nasreen Akhtar v. Javed Akhtar (2004 CLC 228), Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri (1994 PCr.LJ 1361), Mst. Fazelat Begum v. Public in General and another (PLD 1994 Azad J&K 1) and Mst.
Aslam Khatoon v. Muhammad Munir and others (2000 M LD 1216).
6. Conversely, the learned counsel for the respondent contended that the petitioner is not entitled for the custody of the minor simply on the ground that the petitioner herself relinquished her right of "Hazanat" and handed over the custody of the minor girl to the respondent, therefore, this is sufficient to show the love and affection of the petitioner with the minor. Next contended that the petitioner till today has not denied the agreement executed between the parties, thus both the learned Courts below rightly relied upon the agreement and finally concluded that the petitioner is not entitled to ask for the custody of the minor. Reliance is placed on Mst. Fauzia Begum v. Amin Saddruddin Jamal Gonji (2007 CLC 1403), Mst. Munira Bibi v. Additional District Judge, Sheikhupura and 2 others (2007 CLC 1612) and Shah Bano v. Station House Officer (S.H.O.) Police Station Tandlianwala and another (2007 PCr.LJ 1928).
7. I have heard the learned counsel for the parties and perused the record.
8. From the record and the arguments advanced by both the side, it is not denied that the petitioner till today has not contacted the second marriage; the age of minor girl is 13 years; the minor girl is studying in class-8th; the minor son who is in the "Hazanat" of respondent, in minor age is working on a tea stall, meaning thereby not getting education. The learned Courts below have mainly relied upon the agreement executed between the parties while delivering the judgment.
9. The minor girl who appeared in a Family Court on 12-3-2008 recorded her statement which is reproduced:-- {{URDU TEXT}}
10. The minor girl who is of the age of 13 years, also marked her thumb-impression on the order sheet maintained by the learned Judge. All the provisions of the Guardians and Wards Act revolves around the welfare of the minor and the Courts while decides the application for custody/ Hazanat of the minor besides only one thing i.e, the welfare of the minor irrespective of the age of the minor and poverty of guardian. The welfare of the minor can be adjudged from the record available on the file and particularly in which circumstances and surrounding the minor is living. The father, although a natural guardian but his right of Hazanat is also subordinate to the fundamental principle i.e, welfare of the minor, the sole criteria, which is any case should be prevailed.
11. In this case, the minor girl who is living with her mother, is studying in class 8th whereas the minor son is living with the respondent is not studying anywhere but doing a job in this tender age on a tea stall and the atmosphere of a small tea stall of a village can easily be adjudged without referring anything. Further, it is the requirement of the age of the minor girl who is presently 13 years of age, living with her mother, the petitioner and it is undeniable fact that only the mother can understand the requirement of the age of puberty and the minor girl in this age can only tell or discuss the changes in the body because of natural process, with her mother. To my mind, if the ingredients of the welfare of the minor is counted, the important and paramount consideration is to get education particularly for a girl who subsequently had to play the role of a mother and in this case it is proved that the minor girl can only continue her studies while living with the petitioner and if the custody of the minor girl is distributed or removed from the petitioner, it would amount to deprive the minor girl to get the education or to continue her studies, which is any case is not advisable in any society particularly in an Islamic society. Furthermore, the minor girl while appearing in a Court of law as referred above, has recorded her statement, that she want to live with the petitioner and she also marked thumb impression on the order sheet of the learned Court.
12. Both the learned Courts below have totally ignored this aspect of the case and have not exercised the parental jurisdiction conferred upon them under the provisions of Guardians and Wards Act, rather elected to decide the fate of the minor girl, relying upon an agreement executed between the parties. Admittedly, in the said agreement, the minors and particularly the minor girl was not party but the learned Courts below elected to decide the fate of the minor girl without keeping in view the supreme consideration which is required to be considered while deciding the application under the Guardians and Wards Act i.e, the welfare of the minor.
13. It is in the welfare of the minor to live with her mother due to only one reason along with other, that the minor girl is getting education and presently studying in class-8th which is also sufficient to establish that the minor girl is living in a better atmosphere and being carefully looked after and bringing up by the petitioner. The respondent because of his conduct and behaviour with the minor son is not entitled to ask for custody of the minor girl but anyhow the respondent is entitled to visit the minor girl and also to pay the maintenance allowance. For visitation, the respondent may file an application to the competent Court of law.
14. For the foregoing reasons while setting aside the orders/judgment and decree dated 20-9-2008 and 17-3-2008 passed by the learned Courts below, the E application filed by the respondent is dismissed and it is held that the petitioner is more entitled than the respondent to have custody of the minor girl.
15. Resultantly, this petition is allowed and the custody of the minor shall not be disturbed.