' RAUF AHMAD SHEIKH, J.--- The petitioners have assailed the vires of the judgment dated 27-3- 2008 passed by the learned ADJ, Jatoi, District Muzaffargarfi, whereby he accepted an appeal filed by respondent No,2 against the order dated 11-1-2008 of the Guardian Judge, Jatoi, District Muzaffargarh and resultantly an application filed by him under section 25 of the Guardians and Wards Act, 1890 was accepted and petitioner No,1 was directed to hand over the custody of petitioners Nos.2 and 3 to respondent No,2.
2. The respondent No,2 had filed a petition for custody of minors Mst. Aneela Bibi aged about 3 years and Khalil Ahmad aged about 2 yeaRs, It was contended that he is real father of the minors, who are living with petitioner No,1 their mother's mother. It was alleged that petitioner No,1 is an ailing old widow and has no source of income and as such cannot look after the minors properly. It was further asserted that there was criminal litigation between respondent No,2 and the petitioner.
No,1 so the lives of the minor petitioners Nos.2 and 3 are not safe in her house.
3. This petition was contested by petitioner No,1 with the contention that respondent No,2 had murdered mother of the minors so they are afraid of him and also have hatred towards him. It was contended that the petitioner No,1 being mother's mother is looking after the minors properly after murder of their mother. The learned trial Court framed the following issues. ISSUES:-
(i) Whether it is in the welfare of the minors that Guardian be appointed and custody be returned to the petitioner? OPA
(ii) Whether the petition is not maintainable in view of preliminary objections? OPR
(iii) Relief.
4. After recording the evidence and hearing the arguments the learned trial Court dismissed the petition. This order was assailed through appeal before the learned ADJ, Jatoi, who accepted the same through impugned order.
5. The learned counsel for the petitioners has contended that respondent No,2 has contracted second marriage and has children from second wife so the step-mother would'not look after the minors properly; that the respondent No,2 did not pay the maintenance to the minors and contested the suit throughout and even after passing of the decree has not paid the maintenance so he is not interested in the welfare of the minors; that the minors had seen the respondent No,2 while committing murder of their mother so they are afraid of him and are not willing to live with him; that the minors are studying in the School and also in the Madrissa to learn Holy Quran and are being provided all necessities of life and that the judgment passed by the learned ADJ, Jatoi is based on improper and incorrect appraisal of evidence.
6. The learned counsel for the respondent No,2 has contended that although he has contracted second marriage but his second wife is a very kind hearted woman and wants to keep the minors with her and that the petitioner No,1 is an old ailing lady, who cannot look after herself so cannot bring up the minors; that the minors have not been admitted in any School; that the respondent No,2 has been paying the maintenance but the same is not spent on welfare of the minoRs, It is also contended that the minors are engaged in beggary and it would be against their interest if they are allowed to live with the petitioner No,
1. In support of the contentions raised reliance is placed on 2004 SCM R 1382.
7. It is an admitted fact that the petitioner No,1 is mother's mother of the minors and that their mother was murdered. In absence of the mother, the mother's mother has right of "Hizanat" qua the minor girl till she attains puberty and the minor son till he attains the age of seven years under Islamic Law. Of course, the paramount consideration would always remain the welfare of the minoRs, The respondent No,2 has admittedly contracted second marriage and has children from the second wife also. The step-mother usually cannot look after the children better than the mother's mother. Admittedly the appellant had been contesting the suit for maintenance filed by the minors throughout and also filed an appeal whereby the learned ADJ, Jatoi reduced the maintenance from Rs,800 P.M. Per head to Rs,500 P.M. Per head. It is admitted that the execution petition is still pending so the contention of the petitioner that he has been paying the maintenance is incorrect. The allegation that the minors are deployed in beggary is not proved through any independent evidence. The sole witness produced by respondent No,2 is his real brother. It is not denied that the petitioner No,1 and her sons own land. The contention that she is a beggar and also deployed the petitioners Nos.2 and 3 (minors) in the same profession is not substantiated. It is categorically stated that the minors are studying in the School and she is bearing the expenses from her sources and the money paid by her sons. It is true that School certificates have not been produced but at the time of filing of the petition, the minors were two and three years old and were not of School going age. In the suit for maintenance and recovery of articles of dowry, Abdul Rashid real brother of respondent No,2 had admitted in the cross- examination that the minors are studying in the Madrissa of Hafiz Iqbal and also in the School. In these circumstances the contention that they were deployed in beggary or were not admitted to School is false. The court while deciding the application under section 25 of Guardians and Wards Act, 1890 and determining the welfare of the .Minors has to keep all the material available and the prevailing circumstances of each case. In the instant case the respondent No,2 contracted second marriage and has children from second wife. He contested the suit for maintenance throughout and did not pay the maintenance in spite of the decree of the court of competent jurisdiction. In these circumstances, he does not appear to be interested in the welfare of the minors and has filed the application only after filing of the suit for maintenance. The contention that the minors are not admitted in the School is false and the assertion that they are deployed in beggary is not established. The case-law cited at the bar is not applicable on the facts of the present case. The contention that the petitioner No,1 is an ailing woman is also not proved. It is stated by R.W-2 that she cooks in the house and merely because her daughters-in-law wash her clothes is not sufficient to conclude that she cannot look after the minoRs, I am of the considered view that the learned ADJ, Jatoi erred in reversing the order of the learned Guardian Judge, Jatoi and failed to appreciate the evidence IC in its true perspective and thus did not perform his duties in accordance with law.
8. In the light of above findings the writ petition is accepted and the impugned order dated 27-3- 2008 passed by the learned ADJ, Jatoi is D set aside and the order, dated 11-1-2009 passed by the learned trial Court is restored.