' HASSAN RAZA PASHA, J.---Through this petition the petitioner has challenged the judgment dated 16-4-2010 passed by Additional District Judge, Rawalpindi whereby he accepted the appeal filed by Mst. Asmat Farooq and granted interim custody of three minors to her.
2. Mst. Asmat Farooq petitioner was married to Muhammad Zulqarnain Satti. Out of the said wedlock Haider Ali aged 10 years, Amina Zulqarnain aged 7 years and Muhammad Salar aged 5 years were born. Relations between the parties became so strained which culminated into divorce.
The respondent No,1 moved an application under section 25 of the Guardians and Wards Act 1890 seeking custody of the minor in the Court of learned Guardian Judge, Rawalpindi. Along with the said application, she also moved a petition under section 12 of the said Act for interim custody of the minors. After hearing the learned counsel for the parties the learned Guardian Judge, Rawalpindi dismissed the application under section 12 of the Guardians and Wards Act. The appeal filed by the respondent has been accepted by the learned District Judge, Rawalpindi. Feeling aggrieved by the said judgment, petitioner has filed the instant writ petition.
3. Sardar Muhammad Hafeez Khan, Advocate learned counsel for the petitioner argued that there is no ground to grant the interim custody of the minors to respondent No,1 particularly when the custody of the minors was given to the petitioner at the time of divorce in lieu thereof. In this respect an agreement was executed between the parties and the divorce was pronounced at the exclusive and unilateral choice of respondent No,1. He further, argued that respondent No,1 left the minors of her own with the petitioner and now she is living in a hostel, therefore, the welfare of the minor lies with the petitioner and not with mother.
4. Mujeeb-ur-Rehman Kiani, Advocate learned counsel for respondent No,1 in reply to argument that an agreement was executed in which the respondent No,1 handed over the minors to the petitioner, submitted that an undertaking in the form of compromise given by a person against his right available to him/her under the law is of no significance. Such an agreement cannot disentitle the mother to bring an application for the custody of the minors. According to learned counsel petitioner is serving as Major in Pakistan Army and due to exigencies of service he can be posted anywhere in Pakistan. In support of his contention he has referred a letter written by the G.H.Q. To Guardian Judge, Rawalpindi that due to exigencies of service Major Muhammad Zulqarnain Satti cannot be spared to appear before the Court. He also submitted that the petitioner had contracted a second marriage and the mother on the contrary has not contracted second marriage, therefore, it would be harsh to hand over the custody of the minors to the petitioner leaving them at the mercy of the step-mother in presence of their real mother. The real mother having a preferential right is entitled to the custody of minors under section 12 of Guardians and Wards Act especially when there was no allegation levelled by the petitioner against the immorality of the respondent No,l. According to learned counsel the minors are living at the mercy of step mother who having no interest in the upbringing of the minors and if the minors are allowed to be retained with the step mother, it would deteriorate their health as well as education. He lastly prayed for dismissal of the writ petition. In support of his contention he has relied upon Zulfiqar and others v.
Mst. Kausar and others 1997 MLD 543, Abdul Razak v. Ijaz Mahmood and another 1992 CLC 5, Matloob Hussain v. Additional District Judge, Lahore and others 1992 MLD 1210; Muhammad Jamil v.
Safina Bibi 2008 CLC 576, Tahira Batool v. Additional District Judge, Mianwali and another 2008 CLC 1595, Yaqoob Ahmad v. Mst. Shaista and 2 others 2008 CLC 654, Mrs. Khurshid Begum v. Additional District Judge, Rawalpindi and 2 others PLD 2004 Lahore 395, Mst. Gulnaz Bibi v. Rafaqat Ali Shah and another PLD 2000 Peshawar 23, Shamim Bibi v. Allah Ditta 1992 CLC 1573, Ms. Quratulain Aleem v. Muhammad Rehan Khan and another 2006 YLR 2604 and Mst. Nasreen v. Additional District Judge, with Power of Guardian Judge, Alipur and others PLD 2007 Lahore 576.
5. I have given anxious considerations to the contentions advanced by learned counsel for the parties and have gone through the record with their valuable able assistance.
6. Admittedly Haider Ali is aged 10 years, Amina Zulqarnain is aged 7 years and Muhammad Salar is aged 5 years and definitely needs nursing care of the mother which in the instant case cannot be provided by the petitioner who admittedly is serving as Major in Pakistan Army and has contracted second marriage. Mother of the petitioner has also died. On the other hand the respondent No,1 has not contracted second marriage and she is devoting her complete love and affection towards the upbringing minor children. It would be hard to dis-entitle the interim custody of the minors to the respondent No,1 leaving them at the mercy of step mother in presence of their real mother. The love and affection which a real mother can provide to her minor children cannot be provided by a father or step mother. There is no substitute and parallel to mother's love and affection in this world. Further more the petitioner has not levelled any allegation or corruption or bad character against the respondent No,1, which could be made basis to dis-entitle her from the interim custody of the minors. The overriding and paramount consideration of handing over the interim custody of a minor is the welfare of the minor. The learned Additional District Judge while passing the impugned judgment had taken into consideration the age and welfare of the minors.
7. In view of above discussion, I find no illegality or irregularity in the judgment passel} by the learned Additional District Judge, Rawalpindi and find no reason to interfere in the same.
Resultantly, this writ petition having no merit is hereby dismissed.
8. As the petition under section 25 of the Guardians and Wards Act is pending in the Court of Guardian Judge, Rawalpindi and is at the stage of recording of evidence, therefore, the learned Guardian Judge is, directed to decide the main petition within a period of two months positively from the date of receipt of this order, if necessary by holding day to day proceedings.