SAGHEER AHMED QADRI, J. --- Through this petition petitioner No. 1 has challenged the judgment and decree dated 11.5.2010 passed by learned Additional District Judge, Gujar Khan whereby he while setting aside the order of learned Guardian Judge dated 27.1.2010 accepted the appeal and allowed the application u/S. 25 of Guardian and Wards Act, filed by respondent No. 1.
2. Brief facts necessary for the disposal of this writ petition are that petitioner No. 1 Mst. Farha Mehnaz was married to respondent No. 1 Safeer Hussain Jaffar on 4.2.2005, which tie due to so strained relations culminated into divorce on 5.6.2005; that out of the wedlock one daughter namely Muntaha Zohra was born on 16.2.2006 and since birth she is in custody of petitioner No. 1 who according to averments have contract second Nikah. Respondent No. 1 being natural guardian filed petition under Section 25 of the Guardian and Wards Act to get the custody of the minor which was resisted by petitioner No. 1 by filing written reply in which she controverted all the assertions made by respondent No. 1 and prayed that same be dismissed. Necessary issues were framed by the learned Guardian Court. Parties produced their respective evidence and the learned Guardian Court after evaluating and considering the same dismissed the application vide order dated 27.1.2010. Being aggrieved respondent No. 1 preferred an appeal before the learned Additional District Judge, Gujar Khan, which was accepted vide impugned judgment dated 11.5.2010. Hence this writ petition.
3. Learned counsel for the petitioners argued that the impugned judgment passed by the learned Additional District Judge is against the law and facts of the case which have not been given due appreciation and the verdict has been passed without application of judicial mind; that the impugned judgment is the result of misreading and non-reading of evidence available on the record. Further argued that the minor being daughter is more familiar with the petitioner No. 1 and in future in would be more appropriate and proper if she is allowed to be lived with the petitioner No. 1 being real mother. Learned counsel while adding that petitioner's lap has not been yet blessed out of her second nikah, submitted that in such-like case the prime consideration should be the welfare as well as interest of the minor and not rights of the parents; that the minor is living happily with petitioner No. 1. Learned counsel for the petitioner while concluding the arguments submitted an affidavit executed by petitioner Mst. Farah Mehnaz the mother of the minor whereby she undertook that she would reside alongwith the minor at Data Bhat Tehsil Gujar Khan where she would be educated and she would not further demand any maintenance allowance for the minor from the respondent as she has given up her claim in this respect. The affidavit is placed on record.
Learned counsel, in these circumstances, in the light of the arguments as well as the affidavit prayed that this writ petition be allowed and the judgment and decree passed by the learned Appellate Court whereby custody of the minor is directed to be handed over to the respondent be set aside.
4. Conversely, learned counsel for the respondent in reply to the arguments advanced by learned counsel for the petitioner contended that the petitioner has contracted second marriage with a stranger, therefore, it would be not be proper to keep the custody of the minor with her; that in the peculiar circumstances of the present case the minor cannot be left at the mercy of step-father in presence of her real father i.e. The respondent, thus, he has preferential right to get the custody of his minor daughter where the interest as well as proper upbringing of the minor can easily be presumed to be guaranteed.
5. I have considered the arguments addressed by learned counsel for the parties and have gone through the file.
6. Facts have already been discussed, therefore, need not to be reiterated. Suffice it to say that after having been divorced by the respondent, petitioner Mst. Farah Mehnaz contracted second marriage and shifted to Karachi where she started living with her husband. Minor Muntaha Zohra was kept alongwith her maternal grandparents here at Data Bhat Tehsil Gujar Khan. Petitioner filed suit for recovery of maintenance allowance for the minor and when it was decreed and appeal filed by the respondent was dismissed, thereafter, respondent moved instant application for the grant of custody of the minor. It is admitted fact that prior to that he never tried to visit the minor Who was born in the house of her maternal grandfather i.e. The parents of the petitioner. If the evidence led by the respondent is seen, he during the cross-examination when appeared as PW-1 admitted:-- {{URDU TEXT}} 15.12.2008 At another place during the cross-examination, he further admitted:-- {{URDU TEXT}} Mst. Manzoor Fatima, paternal grandmother of the minor, the mother of the respondent Safeer Hussain appeared as AW-2 and she during cross-examination stated:-- {{URDU TEXT}} If the above-mentioned state of affairs and the factual aspects admitted by the respondent are seen, it is clear that the minor was born in the house of her maternal grandparents, she remained throughout with them i.e. Initially with her mother and subsequently when she contracted marriage sometime she lived with her maternal grandparents or sometime with the petitioner at Karachi.
The respondent tried his best to avoid payment of maintenance allowance at any cost and to prove this fact learned counsel for the petitioner referred an application submitted by respondent Safeer Hussain Jaffar in the Court where decree for recovery of maintenance allowance for the minor was under execution. He moved application for the permission to pay the maintenance allowance in instalments and in para 3 of the application he specifically mentioned:- {{URDU TEXT}} Contrary to above-mentioned stance taken by the respondent during the execution proceedings, if his statement while appearing as PW-1 is seen, he has shown himself as a man of means having better resources than the petitioner to upbring the minor. This conduct of the respondent -father itself shows that he was not interested in the custody for the welfare of the minor rather he was trying to avoid the payment of the maintenance allowance to the minor.
7. The conduct of the petitioner, on the other hand , if seen, she never denied the factum of second marriage keeping her residence with her second husband at Karachi and keeping the minor with her as well as with her own parents i.e. The maternal grand parents of the minor at Tehsil Gujar Khan. The height of her love and affection for the minor is shown at the time of arguments today when she submitted the affidavit which is referred above wherein she has sworn that she would give up her residence at Karachi with her second husband permanently for the sake of minor and would reside here at village Data Bhat Tehsil Gujar Khan to up-bring her in accordance with the requirements in the best interest of the minor. She also undertook not to - claim any maintenance allowance from the respondent. Admittedly, in order to decide the question of "Hizanat" the personal law of the parties is to be kept in consideration but it has not consistently been held by this Court as well as by the Hon'ble Supreme Court of Pakistan that welfare of the minor is to be given paramount consideration while disposing of such question. Dealing with a similar question Hon'ble Supreme Court of Pakistan in the judgment cited as "Rahimullah Choudhury Vs. Mrs. Sayeda Helali Begum and others" (1974 SCMR 305) whereby it was observed at pages 319, 320 and 321:- "It was argued that in determining welfare of the. Minors under Section 25 the Court will act consistently with the law to which the minor is subject as provided for in Section 17. In other words the two sections should be read as supplementary to each other and the question whether it is for the welfare of the minors to return them to the custody of the appellant should be resolved according to Muslim Law which envisages that as a result of the forfeiture of the right of hizanat vesting in the mother there was no alternative, but to return the minors to the custody of the father. As against a mere presumption attributed to Muslim Law, Section 25 recognizes it as a right of the guardian that his ward who leaves or is removed from his custody be returned into his custody, but subject to his welfare. "Welfare" being a question of fact will, therefore, have to be resolved on the material placed before the Guardian Judge and not on the basis of any presumption. The question to be decided under Section 25 is, however, not the right of the guardian to obtain the custody of the word as that right is given to him by the statute but the welfare of the ward. A natural or certificated guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specifically that although the guardian is entitled to such custody no other will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. A mother, may, therefore, be deprived of the custody of the children of tender age only if the paramount consideration of their welfare so demands."
Further reference in this respect can be seen from judgments cited as "Mst. Fauzia Begum Vs. Amin Saddruddin Jamal Genf!' (2007 CLC 1403), "Zohura Begum Vs. Maimuna Khatun" (PLD 1965 Dacca 290), "Mst. Gulnaz Bibi Vs. Rafaqat A.I Shah and another (PLD 2000 Peshawar 23), "Muhammad Afzal Vs. Mst. Sameena Akhtar and another" (1995 CLC 1519) and "Mst. Firdous lqbal Vs. Shifaat A.I and others" (200 SCMR 838).
8. I must mention here the atmosphere of the Court when this Court announced the order declaring that custody of the minor would be retained by the mother-petitioner, she alongwith her parents was embracing and kissing the minor and joyful tears were pouring out of their eyes. The love and affection of a mother cannot be compared with and as already observed that welfare of the minor is to be given paramount consideration for the disposal of such-like questions i.e. The custody of the minors and for that purpose any other consideration even the personal law of the parties is sometime preferred to be ignored. At this stage, I would like to refer a Punjabi proverb:-- And I feel whenever any such circumstances exist or controversies are brought before the Courts the learned Judges are to perform their jurisdiction like parents. In the circumstances of the present case tearing apart the minor from the lap of her mother, who at this stage, even is taking risk of her matrimonial life with her second husband for the sake and betterment of the minor, shall affect her mental, psychological and physical uplift: therefore, while allowing this writ petition the impugned judgment and decree passed by learned ADJ in these circumstances being not sustainable in the eyes of law is hereby set aside and that of learned Trial Court is hereby restored.
The minor shall be kept with the petitioner mother within the District Rawalpindi i.e. Village Data what Tehsil Gujar Khan and she shall not be removed from District Rawalpindi without getting permission from the learned Guardian Judge, Gujar Khan. It is further directed that the petitioner shall produce the minor before the learned Guardian Judge, Gujar Khan on every first Monday of each month to provide a facility of meeting with her father/respondent No. 1. Meaningless to further observe that minor shall also be provided all the necessary educational facilities accordingly. .