This writ petition has been filed against the judgment dated 24.01.2011, passed by learned Additional District Judge, Pattoki, District Kasur, whereby, he accepted the appeal, filed by Respondent No, 1, and set-aside the judgment dated 04.11.2010, passed by learned Guardian Judge, Pattoki.
2. As per brief facts emanated from the instant petition, the petitioner was married to Respondent No, 1 on 10.04.1999, and from this wedlock, four offspring were born and out of them Aysha Saddiqa and Kalsoom are alive, but thereafter, the said marriage culminated into divorce. The petitioner filed a petition for the custody of his daughters. The said petition was filed in the Court of Guardian Judge.
3. On the other hand, Respondent No, 1 resisted the said petition by submitting a written-statement and controverted the averments made in the petition.
4. In order to resolve the controversy between the parties, the learned Guardian Judge framed the following issues:-- ISSUES
1. Whether petitioner is entitled to custody of minors? OPA.
2. Relief.
After framing formal issues, the parties were directed by the learned trial Court to produce their evidence in support of their respective claims.
The petitioner himself appeared as PW. 1, and examined Ghulam as PW.2.
In rebuttal thereto, Mst. Sakina Bibi appeared herself as DW.1, and examined Ghulam Rasool as DW.2, and submitted documentary evidence in the shape of certificate Mark-D.A.
The learned Guardian Judge, Pattoki, District Kasur, after recording evidence and considering all the documents, accepted the Guardian Petition, filed by the petitioner, vide judgment dated 04.11.2011. Respondent No, 1, being dissatisfied, filed an appeal against the said judgment, which appeal was accepted by the learned ,Additional District Judge, Pattoki, vide impugned judgment dated 24.01.2011.
This judgment dated 24.01.2011 of the learned appellate Court has been impeached by the petitioner through the instant writ petition.
5. It is contended by the learned counsel for the petitioner that the petitioner, being father of minors Aysha Saddiqa and Kalsoom Bihi, is entitled to their custody; that the mother of minors namely, Mst. Sakina Bibi (Respondent No, 1) has contracted a second marriage, therefore, she has lost her right of `Hizanat' of minors, whereas, the petitioner has not contracted second marriage and it will be in the interest of minors to grant their custody to the petitioner/father, therefore, this petition may be accepted and the impugned judgment, passed by the learned Additional District Judge, Pattoki; may be set-aside.
6. On the other hand this petition has been opposed by the learned counsel appearing on behalf of Respondents 'No, 1 to 3 on the grounds that Respondent No, 1, being real mother of minors, is entitled to their custody till the age of their puberty; that minors have been living in the company of their mother (Respondent No, 1) since their birth and they have developed profound attachment with the said respondent; that Respondent No, 1 has contracted second marriage with her 'Mamonzad'; that mere second marriage of the mother/Respondent No, 1 is no ground to disentitle her from the custody of minors and welfare of the minors is the prime consideration to decide the question of their custody; that the learned Additional District Judge, Pattoki, has rightly granted the custody of minors to Respondent No, 1, therefore, this petition may be dismissed.
7. Arguments heard and record perused.
8. Mst. Sakina Bibi (Respondent No, 1) is real mother of the minors namely, Aysha Saddiqa and Kalsoom Bibi. The petitioner has admitted at the time of recording of his statement before the learned trial Court that he was a tutor at Madrissa Jamia Usmania, where 50/60 children were under his tutelage. The said Institution is 18/19 miles away from his house. He has further admitted that he used to come to his house on Thursday. The other witness produced by the petitioner namely, Ghulam Nabi (PW.2) has stated that Muhammad Shafique (the petitioner) used to come to his house after one month on Thursday. It has also come on the record that when the minors were produced before the learned trial Court, they were in good clothes. It has not been brought on record that Mst. Sakina Bibi (Respondent No, 1) does not enjoy good reputation, therefore, the learned Additional District Judge, Pattoki has rightly held that welfare of minors lies in keeping them under the custody 'of their mother. The said respondent could not be refused custody of minors merely on the ground that she has contracted a second 'marriage. If Respondent No, 1 has contracted marriage with a stranger, even then the right to the custody of minor is not lost absolutely. The Court has to see the environment, circumstances, position of parties, while determining the welfare of minors. Reference in this context may be made to the cases of Mst.
Firdous Iqbal vs. Shiffat Ali and others (2000 SCM R 838), Mst. Rani vs. Bilal Ahmad and 2 others (2000 M LD 1967 Lahore), and Mst. Yasmin Bibi vs. Mehmood Akhter and 2 others (2000 YLR 641 Lahore).
9. The learned counsel for the petitioner could not point out any illegality or material irregularity in the impugned judgment, passed by the learned Additional District Judge, Pattoki, District Kasur, warranting interference by this Court through its Constitutional jurisdiction. This petition has no merits and the same ,is, hereby, dismissed. There is no order as to costs.