MALIK SHAHZAD AHMAD KHAN, J. --- This writ petition has been filed against judgment dated 8.2.2010 passed by the learned Additional District Judge, Kamalia whereby appeal filed by respondent No. 3 was accepted and issue of the custody of minor Mst. Sadia Bibi aged five years was decided in favour of the above-mentioned respondent.
2. Brief facts of the present case are that the petitioner filed a petition under Section 25 of the Guardian and Wards Act, 1890 for appointment of Guardian of Mst. Sadia Bibi. The said petition was filed in the Court of learned Guardian Judge, Kamalia, which was accepted vide judgment and decree dated 17.9.2009. Feeling aggrieved, respondent No. 3 filed an appeal before the Court of learned Additional District Judge, Kamalia, which was accepted vide judgment and decree dated 8.2.2010, hence this petition.
3. It is contended by the learned counsel for the petitioner that respondent No. 3 was married to the petitioner and out of the said wedlock three children namely Babar A.I, Mst. Nadia Bibi and Mst.
Sadia Bibi were born; that remaining two children namely Babar A.I and Mst. Nadia Bibi are in the custody of petitioner and if custody of third minor namely Mst. Sadia Bibi is not handed over to the petitioner, it will leave negative effects on the health of the minor Sadia Bibi; that minor Sadia Bibi will miss the company of here other brother and sister, therefore, it will not be in the welfare of the said minor to allow her custody to remain with respondent No. 3; that the learned Judge Family Court, Kamalia had rightly decided the question of custody in favour of the petitioner; but the said findings have illegally been set aside vide the impugned judgment dated 8.2.2010 passed by learned Additional District Judge, Kamalia; that respondent No. 3 had contracted a second marriage, therefore, custody of minor daughter of the petitioner may be handed over to the petitioner by setting aside the impugned judgment dated 8.2.2010.
4. On the other hand, this petition has been opposed by the learned counsel appearing on behalf of respondent No. 3 on the grounds that second husband .Of respondent No. 3 had already died, therefore, the objection of the learned counsel for the petitioner to the above-mentioned fact has become infructuous; that respondent No. 3 was divorced by the petitioner at the time when she was pregnant and minor Sadia Bibi has been living with respondent No. 3 since the time of. Her birth and she is deeply attached with the said respondent; that minor never remained in the company of her brother and sister, therefore, question of missing their company does not arise; that the petitioner has filed the present petition in order to avoid the payment of maintenance allowance; that there is no substitute of mother's lap, therefore, this petition may be dismissed.
5. Arguments heard. Record perused.
6. From the perusal of record, it is evident that respondent No. 3 was divorced by the petitioner when she was pregnant. Minor Sadia Bibi has taken birth during the period of desertion. The minor has been living with respondent No. 3 since the time of her birth and naturally, she is deeply attached with her real mother. The objection of the learned counsel for the petitioner to the effect that respondent No. 3 had contracted a second marriage, is no more available because the second husband of respondent No. 3 has already died. The death of second husband of the petitioner has not been denied by the learned counsel for respondent No. 3. It is also an admitted fact that the petitioner has not paid the maintenance allowance of the above-mentioned minor Mst. Sadia Bibi, which shows that he has no attachment with her. Respondent No. 3 is real mother of the minor and there is no substitute to the lap of real mother. It has been laid down in number of judgments passed by Hon'ble Supreme Court of Pakistan that "Mother's lap is God's own Cradle".
7. In light of the above discussion, the instant petition is without any substance. Hence, the same is, hereby, dismissed. .