MASUD ABID NAQVI, J. By this single judgment, I intend to decide instant writ petition alongwith connected W.P.No.17845 of 2014 tilted "Mst.Shamim Akhtar Vs Ghulam Mustafa etc filed by the respondent No.1, involving common questions of law and facts.
2. Brief facts of this writ petition are that respondent No.1/maternal grandmother filed a Petition under Section 8 of the Guardians & Wards Act , 1890 ("Act") for appointing her as Guardian of minors (Sharmeen & Abdullah) regarding their property and person wherein the petitioner/father contested the petition by filing reply and raising certain legal as well as factual objections. The petitioner/father also filed a Guardian Petition under Section 25 of the Act ibid for the custody of the minors, namely, Sharmeen (daughter) & Abdullah (son) against the respondent No.1/maternal grandmother of the minors who were/are residing with their maternal grandmother. The respondent No.1/maternal grandmother contested the guardian petition by filing reply and raising certain legal as well as factual objections. Out of divergent pleadings of both the parties, consolidated issues were framed by the learned Guardian Judge. Both the parties produced their respective evidence and after recording the same, learned Guardian Judge accepted the Guardian petition of the petitioner & rejected the petition of the respondent No.1 under Section 8 of the Act for appointing her as Guardian of minors vide consolidated judgment dated 26.09.2012.
Feeling aggrieved, the respondent No.1/maternal grandmother filed an appeal and learned Additional District Judge vide order dated 20.05.2014 partially accepted the appeal to the extent that she is entitled to the custody of Sharmeen (daughter). Being dissatisfied, petitioner/father has filed the instant Writ Petition and challenged the validity of judgment passed by the learned appellate court whereas respondent No.1/maternal grandmother has challenged both the judgments of courts below through connected Writ Petition No.17845/14.
3. I have heard the arguments of the learned counsel for the parties who reiterated their respective arguments and perused the available record as well as have minutely gone through both the impugned judgments.
4. The perusal of record reveals that the respondent No.1/ maternal grandmother deposed as AW-1 and also produced her husband/Ehsan-ulHaq and Usman Ibrahim as AW-2 & AW-3 with documentary evidence i.e Exh.A-4/medical report, school certificate/Exh.A-5, death certificates/Exh.A-6 & Exh.A-7, birth certificate of minors/Exh.A-8 & Exh.A-9, certificates of merit/Exh.A-10 & Exh.A-11, school studying certificates/ Exh.A-11 and Exh.A-12.
In rebuttal, the petitioner/father deposed as RW-1 and tendered his affidavit/Exh.R-1 and also produced Mohammad Yaqoob as RW-2 and tendered his affidavit/Exh.R-2.
5. Onus to prove issue No.2, which pertains to the custody of the minors, was on the petitioner/father to establish/prove that welfare of the minors lies with him and he is entitled to get the custody of minors. It is an admitted fact that learned trial court accepted the guardian petition of the petitioner/father on the touchstone of "paramount consideration of the welfare of minors" and gave the custody of both the minors to the petitioner/father, however, the learned appellate court by separating the minors, declared the entitlement of the petitioner/father to the extent of his son/Abdullah (son) with the following observations about the petitioner/father that: " during cross examination, he stated that he is MBA and his educational career ended in the year 2000 he has beautiful residence in Sheikhupura in the form of bungalow for residence of the minors from record, it is transpired that he is man of means and sources I have also described the capacity and performance level of the appellant and that of respondent in para 21 & 22. Both the appellant and respondent have not earned any disqualification "
Hence, both the courts below concurrently agreed on the point that the petitioner has absolutely no personal disqualification(s) for claiming the custody of minors. Ordinarily, while deciding the question of custody, the courts refrain from separating the minors between the contestants. In a case reported as Mst. Nazli Ys Muhammad Ilyas and other (2010 M LD 477) it is held that:- " in my candid view, to compel the minors to live aloof shall in ordinary course violates their right of togetherness which is a natural right bestowed upon them by the nature as being the member of the clan of social animals (the human being). Thus the separation shall seriously militate regarding the welfare of the minors "
6. It is also the admitted facts that marriage between the petitioner and late Dr. Aliya was solemnized on 12.12.2003 and both the minors were born out of this wedlock. The petitioner/father was/is resident of Sheikhupura but shifted to Lahore alongwith his wife/Late Dr. Aliya in 2007 and got admission of their minors in a well-known school. Sharmeen/daughter was born on 31.01.2005 and Abdullah/son was born on 01.6.2007. Dr. Aliya/mother of minors died on 31.12.2010 and the petitioner/being the father of minors has not remarried for the sake of his children/minors and has shown intentions to provide conducive atmosphere for their proper upbringing including the education to his children/minors being his first priority as there are now schools available in Sheikhupura, imparting education of high standards. Being father of minors, the petitioner/father is also a natural guardian and it is more natural for the children to share their joys and worries with their natural parents. Although, respondent No.1/maternal grandmother has the preferential right to the custody of minor/daughter under personal law but paramount consideration is the welfare of the minors. In a case reported as "Mst. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others" (PLD 2003 SC 877), the Honourable Apex Court has held that: "There is no cavil to the proposition that notwithstanding the right of the mother or father for the custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor "
7. After scanning the facts, evaluating the evidence of the contesting parties and considering the established principle of law that welfare of minors is the paramount consideration for determining their custody, which outweighs against all other considerations, I hereby confirm/uphold the concurrent findings of the learned courts below that the petitioner has no disqualifications to obtain the custody of minors. Hence, the petitioner/father has succeeded in establishing his claim for the custody of both the minors better than the respondent No.1/maternal grandmother who is of old age, suffering from diabetes and resultantly this petition is accepted. However, to enable the minors to meet their maternal grandmother, a visitation schedule is chalked out as under:
(i) petitioner/father shall leave both the minors at the residence of minors' maternal grandparents on every Saturday at 4:00pm and shall pick them on the next day (Sunday) at the same time;
(ii) maternal grandparents shall be entitled to have the minors for first half of every summer/winter/spring vacations; And
(iii) minors shall spend second day of both Eids with their maternal grandmother.
8. In so far as the connected W.P.No.117845-2014 is concerned, in view of my findings above, the same is dismissed.