MS. JAMILA JAHANOOR ASLAM, J.---Brief facts of the' case for disposal of this writ petition are that respondent No,1 filed an application under section 25 of Guardians and Wards Act, 1890 with the contentions .That she was married to the present petitioner and in the said wedlock minor daughter namely Nagin Zohra was born, who is residing with the father/petitioner, who is not taking proper care of the minor nor is she getting proper education from any recognized Institution and as the minor is passing through a very sensitive and vulnerable stage of her life, she needs the absolute attention of her mother. The application was accepted by the learned Guardian Judge, Chakwal vide judgment/decree dated 12-3-2008. The appeal filed by the present petitioner was dismissed by the learned Additional District Judge Chakwal vide judgment/decree dated 15-7- 2008 with costs. Hence this writ petition.
2. Learned Counsel for the petitioner contends that the impugned judgments/ decrees passed by the Courts below are against the law and facts of the case which have not been considered in the correct perspective and the verdicts have been passed without application of judicial minds. Both the impugned judgments/ decrees are the result of mis-reading and non-reading of evidence as respondent No,1 has admitted in her evidence that the minor is living with her father since birth.
Further contends that prime consideration should be the welfare of the minor and not rights of the parents. He relied upon PLD 1987 Lahore 383. That minor has been living happily in the family of her father wherein she was brought up after her mother left by abandoning the minor just a few days after her birth, so the mother does not have any right to the custody of minor. He relied upon 1994 MLD 796. Further contends that the minor has been receiving proper education in a School and the respondent intends to shift the minor to Rawalpindi in her brother's home where the young children of her brother are also residing, who are strangers to the minor girl. Moreover, the respondent has neither proper residence to live nor proper source of income and finally prayed for dismissal of both judgments/decrees of the Courts below and acceptance of this writ petition.
3. On the other hand the learned counsel for the respondent fully supported the judgments/decrees of the Courts below and submits that no misreading or non-reading of the evidence has been committed by both of them. Further contends that the mother of the child has natural and unquestionable love for her child, whether male or female. There is no substitute for the care, love and affection of a real mother. A daughter requires her company and association for preparing her to shoulder her responsibilities in the future. Further contends that the right of a father to claim custody of a minor is not an absolute right. The welfare of the minor is the predominant consideration and finally prayed for the dismissal of the instant writ petition.
4. Arguments heard. Record perused
5. The learned Guardian Judge framed two issues arising out of the pleadings of the parties which are reproduced below:--
(i) Who amongst the parties is entitled to the custody of the minor, keeping in view the welfare of the minor? OP Parties.
(ii) Relief?
6. The respondent appeared herself as A.W.1 and sought to establish through her evidence that the petitioner has contracted a second marriage, while she has remained single. The minor is not being given properly brought up, therefore, for the welfare of the minor the custody be handed over to her. On the other hand the stand taken by the Petitioner was that the minor is being properly brought up and being given education by him. In the cross examination the respondent herself admitted as under:- {{URDU TEXT}}
8. have given my anxious consideration to the entire arguments advanced by the learned counsel for the parties and perused the available record carefully. No doubt, the paramount consideration in the custody of the minor is her welfare and not the rights of parents. In my mind a young girl aged of 10/12 years cannot be left at the mercy of her cousins. The petitioner having contracted second marriage did not disentitled himself to the custody of the minor. On a question, put to the minor present in Court, she has shown her reservations towards her real mother, obviously because she had been neglected by her and there has been no interaction between the two. Her mother and the maternal side of the family are virtual strangers to her. She wishes to remain with her father and his family where she is studying properly. Seeing the apprehensions of the minor qua her mother, who she barely knows, I am not inclined to take the risk of traumatizing a child, who seems perfectly happy, healthy, well adjusted, confident and emotionally stable, by handing her custody over to her mother. Therefore, I have no hesitation to hold that both the subordinate Courts have failed to exercise the parental jurisdiction vested in them, in its true sense as they have not taken into consideration the wishes of the minor in terms of section 17(3) of the Act. Reliance can be placed upon 2000 YLR 3046 and keeping in mind the educational career of the child she cannot be disturbed from a perfectly good school and in this regard reliance can also be placed upon PLD 1992 Lahore 1441.
8. The upshot of the above discussion is that the writ petition in head is accepted by setting-aside both the judgments/ decrees of the Courts below. It is imperative that a bond develop between mother and daughter. For this a visitation schedule has been drawn up in the following terms :--
(i) Respondent shall hand over the custody of the minor to her mother on every second weekend/Saturday at 16-00 hours and she will remain with her mother till Sunday at 16-00 hours only at village Jaspal and not elsewhere.
(ii) The minor shall spend the first half of her summary vacations with the mother and rest with the father.
(iii) The minor shall visit to her mother on each Eid-ul-Fitr and shall remain there for two days starting from the first day of Eid.
(iv) It is made clear that respondent No,l will not remove the minor from Jaspal.
' In case of non-compliance of the above visitation schedule by the petitioner, the respondent can approach this Court by filing a Contempt of Court application, With these observations, this writ petition is allowed but no order as to costs.