' IJAZ AHMAD, J.---The petitioner, mother and respondent No,1, father of the minors Hamza Masood, now aged about 17 years and Abdullah Masood now aged about 12 years are the rival contenders for their guardianship and custody. The petitioner made an application under section 7 of the Guardians and Wards Act, 1890 for her being appointed, as a guardian of the minors. Respondent No,1 filed written reply. The following issues were framed:--
(1) Whether it is in the interest and welfare of the minors that custody of the minors be handed over to the petitioner? OPA.
(1-A) Whether the petitioner is entitled to be appointed as guardian of the minors OPA?
(2) Relief.
2. The parties led their respective evidence, therefore, issue No,1 regarding custody of the minors was deleted, vide order dated 30-3-2009. Petitioner's application was dismissed by the learned Judge Family Court, Lahore, vide order dated 15-4-2010. The appeal preferred by the petitioner was also dismissed by the learned Additional District Judge, Lahore, vide order dated 18-6-2010. The petitioner, however, has been given the right of visitation; that is, to take custody of the minors, at 1100 hours, on the first and the last Saturday of every month and return the same to respondent No,1 at 1600 hours, on Sunday. The minors would spend first fifteen days of the summer vacation in the month of July with the petitioner. They would also spend the next day of every Eid and respective birthday with the petitioner.
3. It is contended by the learned counsel for the petitioner that although, the head-note of the application made by the petitioner reads that it is an application for appointment of a guardian of the minors yet paragraphs 13 and 14 indicate that besides praying for appointment, as a guardian, the petitioner also sought custody of the minors and that in the prayer clause, the petitioner has also prayed for any other relief. Further contends that the petitioner is entitled to the guardianship and custody both, of the minors; or if, the guardianship cannot be bestowed on the petitioner, at least custody of the minors be given to her; that initially the issue regarding custody of the minors was framed and the parties being cognizant of the nature of the rift led the evidence accordingly; that even if, issue No,1 was deleted, the court could, in order to effectively adjudicate upon the matter and to ensure the welfare and good keeping of the minors, hand over custody of the minors to the petitioner. Relies on 2007 CLC 357 titled Muhammad Ameer and another v., Syed Shujat All Tirmizi, Additional District and Sessions Judge, Khushab and 4 others and 2004 SCMR 1219 titled Malik Safdar Ali Khan and another v. Public-at-large and others and that the technicalities should give a way to justice. Relies on PLD 2002 SC 267 titled Mst Hameed Mai v. Irshad Hussain,. 1999 SCMR 1834 titled Mst. Rubia Mani v. Zahoor Akhtar Raja and 2003 CLC 729 titled Mst. Najma Yasmin and others v. Javaid Akhtar and 2 others to argue that while deciding the question of custody of a minor, the paramount consideration should be the welfare of a minor and a father's right to custody of a male child is not absolute. He refers to the statement made by Muhammad Akhtar Masood, P.W.1, the paternal uncle of both, the petitioner and respondent .No,1, to apprise the Court that the petitioner is a well placed and an affluent lady, earning handsomely, as a lecturer in the college and is capable to look after and support the minors. He further argues that even the solitary prayer for guardianship includes the handing over custody of the minors, as is evident from the bare reading of sections 4 and 7 (ii) of the Guardians and Wards Act, 1890. He refers to the principles of Mahommedan Jurisprudence by Abdul Rahim to argue that guardianship includes custody of the minors and that the guardianship and the custody may also rest with two different persons. He also contends that the affluence of one contender and the economic constraints of the other contender are not the absolute factors for determining the guardianship and custody of the minors. Relies on 2007 CLC 1403 titled Mst. Fauzia Begum v. Amin Saddruddin Jamal Gonji.
4. On the other hand, the learned counsel appearing on behalf of respondent No,1 contends that although requested by the respondent yet the petitioner had acquiesced to the request for deletion of issue. No,1 by making a statement on 16-1-2009 i.e, prior to recording of the evidence.
The issue however, could not inadvertently be deleted and was so done, after recording of the evidence. It would for all purposes be considered, to have been deleted on 16-1-2009. He refers to section 19(h) of the Act ibid to argue that in a case where a father being a natural guardian is alive, no court shall appoint or declare a guardian of the person of a minor unless the father in the opinion ofa court is unfit to be a guardian of the person of a minor. Relies on PLD 1968 Karachi 774' titled Fahimuddin Khokhar v. Mst. Zaihunnisa, AIR 1963 RAJASTHAN 239 titled Rafiq, Appellant v. Smt.
Bashiran and another, respondents and AIR 1926 Lahore 393 titled 'Fakhr-ud-Din Khan alias Harbans Rai Appellant v. Mt. Biro Respondent and argues that' the guardianship and the custody are two distinct characters. The first denotes the umbrella of care while the second one means the actual or constructive possession. He also refers to the statement made by Bushra Rehmat, as AW- 3 to argue that the minors are being well kept, well cared and well fed while in the custody of the respondent and that the family of the respondent is well educated and well placed and would make itself a good cradle for the minors.
5. I have heard the learned counsel for the parties and also gone through the record.
6. In view of the ages of the minors mentioned as 17 and 12 years, I thought it expedient to summon the minors in the court. They appeared on 20-3-2012. Hamza Masood, aged 17 years, is a student of 0' level and Abdullah aged 12 years is, a student of 7th class, both studying in the Aitcheson College Lahore. When I tried to interview them, in the presence of the Lawyers and my Personal Assistant, both, in a very polite but candid manner objected to the presence of others and requested for an interview in privacy. All those in attendance were requested to afford the privacy. They stated that their father is left with little time for them and is unable to give them his company and that both of them are living separately from each other. Hamza Masood is putting up with his father whereas Abdullah is putting up with his paternal aunt. The minors one after the other unequivocally desired and expressed their wont for the lap of the mother, for company of each other and for being given in the custody of the petitioner.
7. The minors are male, the father is their natural guardian. In the presence of the father, any -other person cannot put a claim to be a guardian of theminors. A court is not authorized to appoint or declare a guardian of the person of a minor whose living father is not, in the opinion of a court, unfit to be a guardian of the person of that minor. In the instant case, there is no material available to come to such a conclusion that the father is unfit to be a guardian. Now the questions arise:--
(i) Whether the guardianship and the right to custody may rest with one person or may be entrusted to two persons?
(ii) Whether the application was for the appointment of a guardian only or also for the custody of the minor's?
(iii) If the application was only for the appointment of guardian, which, under section 19 of the Guardians and Wards Act, 1890, could not be proceeded with, could it be treated as an application for the custody of the minors as well and be adjudicated upon accordingly?
8. As reference is made by the learned counsel for the petitioner to the principles of Mahommedan Jurisprudence by Abdul Rahim, the guardianship and the custody may rest in two different persons. I place reliance on PLD 1968 Karachi, 774 titled Fahimudin Khokhar v. Mst. Zaibunnisa and PLD 1967 Karachi 645 titled Muhammad, Sadi Butt v. Mst. Khalida Parveen, wherein it has been held that the guardianship and custody are two different expressions; the first means, having the care of a person, it prescribes the duty on the guardian to take care of the minor even without having his actual domain over the corpus of a child. The latter denotes the actual or constructive possession over the minor for the purpose of his protection. Both these capacities and characters could be enjoyed by the same person or by the two different persons, keeping in view the circumstances of each and every case and definitely with the paramount consideration of the welfare of the child. No doubt, a father is the natural guardian of the minors whether they be sons or daughters. For the purpose of the welfare of the minor, the custody, however, may be entrusted to the mother.
9. Although, the head note of the application reads that it was meant for the appointment of a guardian yet contents of the application and the prayer reveal that custody of the minors was solicited. Issue was framed regarding the custody as well. Evidence was recorded accordingly. The parties were cognizant with the nature of the rift. Later on, issue No,1 was deleted. A court can, as per the requirement of the circumstances, grant such a relief that would meet the ends of justice.
In this application, the courts in the presence of the father, could while declining to appoint or declare any other person a guardian of the person of minors, proceed to give the mother, their custody.
10. In the instant case, the minors being kept separately, cannot enjoy the company of each other, that the two brothers have a right to do. Although, the children need the guidance of a father yet they cannot be denied the company of the equals who inter se share the thoughts, activities and urges. The father being pre-occupied with his profession has little time to spare for the children.
The paternal aunt may spare a lot of time but that would leave little time for the minors to lead a life suitable for the youth. A mother who always has a better understanding with her children, with whom the children enjoy the intimacy, has a superior right for the custody of the minors. The intelligence preference made by the minors who, in my opinion, are old enough to make a right preference deserve a consideration and respect. A child needs a proper control as well as a room for free thoughts and actions. The mother's lap is a proper place for these optimum restrictions and liberties. In my view, the welfare of the minors in the instant case lies in giving their custody to the mother.
11. As the minors are boys, they need the masculine company of their father as well for grooming and training as men. The father shall have a right of visitation to the children in the terms that were given by the learned District Judge, Lahore, to the mother, as narrated in Paragraph No,2 of this order.
12. For the foregoing reasons, the impugned orders passed by both the courts below are set aside.
The father remains guardian of the minors while custody of the minors goes to the mother reserving the right of visitation for the father. This petition is accepted.