' SHAUKAT UMAR PIRZADA, J.---This writ petition has been directed against orders dated 20-11-2008 and 3-6-2008, passed by the learned Additional District Judge and learned Guardian Judge, Dunyapur, respectively, whereby respondent No,3's petition for custody of the minors has been accepted.
2. Brief facts giving rise to this writ petition are that the petitioner contracted marriage with respondent No,3 about 16/17 years prior to the filing of the application for custody of the minors before We learned Guardian Judge. Out of this wedlock two children, namely, Muhammad Baghdad, aged about 16 years and Mst. Khalida, aged about 13 years Were born and are living with the petitioner. This marriage was dissolved by the learned Family Court on the ground of Khula.
Thereafter, the petitioner filed suit for recovery of maintenance allowance for the said minors, which was decreed on 1-6-2004. Prior to the instant petition, respondent No,3 filed application for the custody of the minors that was dismissed by the learned Guardian Court, which decision was also upheld by the learned appellate Court. In the meanwhile, the petitioner got married with one Niaz Ahmad, who belongs to her Brotheri. Annoyed by this marriage, respondent No,3 got registered a criminal case, i,e, F.I.R. No,153, dated 23-3-2006, under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein he alleged that as the decree of dissolution was subject to the condition that petitioner would deposit Rs,5000 in Court, which she failed to fulfil and contracted second marriage with said Niaz Ahmad, therefore, she was leading an immoral life with Niaz Ahmad. However, this F.I.R. Was cancelled subsequently. Respondent No,3 owns landed property and seeks custody of the minor children by contending that the petitioner is not properly maintaining the minors, who are not getting proper education. He has further alleged that the petitioner is woman of bad character and criminal case to this effect has been registered against her, while her second husband is also a vagabond and characterless person, therefore, future of the minors would be destroyed if they are allowed to remain with the petitioner. This petition was contested by the petitioner. Out of the divergent pleadings of the parties following issues were framed:--
(1) Whether the application is not maintainable under principle of res judicata? OPR.
(2) Is it in the interest and welfare of the minors, they be handed over to the petitioner? OPA.
(3) Relief.
' The parties led their evidence in support of their respective contentions and after hearing their counsel the learned Guardian Judge accepted the application of respondent No,3 on 3-6-2008 and directed the petitioner to hand over custody of the minors to him. Feeling aggrieved by this order, the petitioner preferred appeal, which too was dismissed on 20-11-2008, hence this writ petition.
3. Learned counsel for the petitioner contends that the impugned orders of the Courts below are illegal and contrary to record as both the Courts below have failed to appreciate that after obtaining decree for maintenance allowance for the minors, respondent No,3 has filed repeated petitions for custody of the minors in order to defeat the decree for maintenance. He has further contended that minors are properly looked after and are being brought up by the petitioner, who is their real mother and living close to her parents who are also looking after the said minors with great care and affection. It has been further contended that respondent No,3 has also contracted second marriage, which also came to an end due to his bad character.
4. Counsel for respondent No,3 has controverted the contentions of the counsel for the petitioner and has supported the impugned orders of the Courts below.
5. I have heard the learned counsel for the parties and perused the available record.
6. After carefully scanning the record and particularly the evidence, it transpired that the claim of custody of minors by respondent No,3 is not out of love and affection for them, rather it is a counterblast to the decree of A maintenance obtained by the petitioner from the learned Family Court whereby minors have been granted maintenance allowance. This is also supported by the admission of respondent No,3, that he has made before the learned Guardian Court during cross- examination while deposing as A.W.1 in which he has categorically admitted that his cases are being pursued by his elder brother, Muhammad Amin, and on his instigation he filed earlier petition for custody of minors. He has further admitted that instant application has also been filed at the instance of his said brother. He has admitted that none from his family is literate. His brother, Muhammad Amin, while deposing as A.W.2, has also admitted that he pursued the cases as being brother of respondent No,3. He has further stated that he is pursuing the instant petition as well and he would bring up the children of B respondent No,3. A careful examination of the evidence leads to this irresistible conclusion that respondent No,3 has no independent mind, he is under the influence of his elder brother, Muhammad Amin, A.W.2, who is manoeuvring everything including the instant litigation. Unfortunately, this important aspect of the case has been totally ignored by the Courts below while passing the impugned orders and offering their findings on Issue No,2. It may not be out of place to mention here that admittedly respondent No,3 is owning land measuring 54 Kanals, 16 Marias (Exh.A/2) while A.W.2 owns nothing, therefore, keeping respondent No,3 engaged in litigation by his said brother is not reflecting his bona fide and fairness towards his brother.
Moreover, both the Courts below have given much weightage to F.I.R. No, 153 of 2006, but without perusing the same, which on the fact of it is mala fide and was got registered in order to humiliate the petitioner and her second husband. Commission of zina has been alleged by respondent No, 3 against the petitioner with a person to whom she lawfully married after obtaining decree/divorce from a learned Family Court, which position has been admitted by respondent No,3 and his brother in their statements made before the learned Guardian Court. This reflects the negative frame of mind of respondent No,3, who is a puppet at the hands of his brother and mentor. Admittedly, the said brother is pursuing the respondent No,3's litigation, which in fact, has been initiated on his instigation. This aspect of the case has also been ignored by the Courts below in their impugned judgments which should have been considered with all seriousness. In order to verify the allegations of respondent No,3 regarding improper upbringing of the minors by the petitioner, the minors were today called by this Court and their appearance prima facie contradicts the said stance of respondent No,3. The minors were properly dressed up and were in good health. They are with the petitioner since their birth and have developed a very close association and deep feelings and understanding with their mother. They have been accepted by the petitioner's second husband, who is also contributing towards their proper upbringing, therefore, it would not be appropriate to disturb the custody of the minors at this point of time when they, especially the daughter, need close association and guidance of their mother much more than before. On the other hand respondent No,3 is not an independent person and driving force behind him is his elder brother, who pulls his strings, therefore, the minors if given to respondent No,3 would be treated the way his said elder brother would like, who has his own agenda. It has also been stated that the minors are being iooked after by their maternal grand-parents, who are living close to the petitioner's house, therefore, it is in the welfare and interest of the minors that they should remain with their mother . This view is supported by the law laid down in Muhammad Anwar v. Additional District Judge, Mandi Baha-ud-Din and 2 others PLJ 2007 Lahore 335. It has further been held in Mst. Gulnaz Bibi v. Rafaqat Ali Shah and another PLD 2000 Peshawar 23 as under:--- C E F "- The basic criterion for the appointment of the guardian and the restoration of the custody is welfare of the minor. While dealing with the application for appointment of the guardian and for restoration of the custody, the Court has to pass its findings on the conditions laid down in sections 17 and 25 of Guardians and Wards Act. The right of parents regarding the interest and control of the children is not to be exercised in the interest and benefits of the parents but in the interest and welfare of children themselves. Although respondent No,1, father, is natural guardian but his right is also subordinate to the welfare of the minors. The overriding fundamental and paramount important consideration is always the welfare of minors rather this is sole criteria which must prevail."
"--- In the present case it is to be weighed whether it is in the welfare of the minor to face step- mother or to remain with his real mother and face step-father. The minor is deeply attached to his real mother and also expressed attachment for his step-father, whom he considered to be his real father till it was disclosed to him in Court that petitioner No,1 is his father. The minor is of the age where he can express an intelligent preference and his preference has to be taken into consideration while deciding where the welfare of the minor lies. I am of the view that the welfare of the minor in the present case is to remain with his real mother and it would be harsh and unjust to the minor to deprive him of his mother's company."
' Keeping in view the facts and circumstances of the instant case and the above quoted case-law, it would be in the interest and welfare of the minors that they should remain with the petitioner and respondent No,3 should have a right to meet them as per schedule agreed upon by the parties or by the learned Guardian Court. Resultantly, the findings of the Courts below on Issue No,2 are declared to be erroneous, contrary to record and not sustainable.
' In view of what has been discussed above, this writ petition is allowed, impugned judgments/orders of both the Courts below are set aside, application filed by respondent No,3 for custody of the minors is dismissed and the petitioner is allowed to retain the custody of the minors subject to the right of respondent No,3 to meet them in a manner pointed out above.