M. TABASSUM AFTAB ALVI, J.---The supra titled appeal has been preferred against the impugned judgment of Senior Civil Judge, empowered as Guardian Judge, Palandri, dated 14.10.2015, whereby an application filed by Mst. Shabnam Niaz, respondent, herein, for custody of Ubaid-ur-Rehman, minor son, was allowed.
2. The precise facts forming background of the instant appeal are that Mst. Shabnam Niaz, mother of minor Ubaid-ur-Rehman, filed two applications; one for, appointment of guardian and other for custody of the aforesaid minor against Shafique-ur-Rehman, father, Qazi uhammad Ghous and Mst. Khursheed Begum, grandparents, defendants, before Guardian Judge Sudhnoti/Patandri on 15.07.2008 and 18.07.2008, respectively. The defendants filed their objections on 20.08.2008. The learned Guardian Judge consolidated both the applications ibid and framed issues on 05.12.2008.
Both the parties, except Shafique-ur-Rehman, father of minor, appeared in witness box and produced their respective evidence. The learned Guardian Judge after hearing accepted both the applications filed by Mst. Shabnam Niaz, mother and defendants were ordered to handover custody of the minor to mother, vide judgment dated 13.04.2009. The aforesaid judgment was challenged by Qazi Muhammad Ghous and Mst. Khursheed Begum, grandparents of the minor, before this Court at Circuit Bench Rawalakot, through Civil Appeal No,21/2009 dated 15.04.2009, which was later on transmitted at Circuit Bench Kotli, where it was re-numbered as Civil Appeal No,03/2010 dated 02.02.2010. The appeal was sub judice before this Court, meanwhile, on 15.02.2010, a compromise deed was produced before the Court stating therein that the parties had compromised the matters through a 'Jirga' convened on 04.10.2009. It is worthwhile to observe here that the aforesaid compromise deed was executed between Qazi Muhammad Ghous, grandfather, since died, and Mst. Shabnam Niaz, mother, and not with grandmother and father of the minor. As per condition No,5 of compromise deed, Mst. Shabnam Niaz, mother, had conditionally withdrawn from custody of the minor on the ground that the defendants would not create hindrance in meeting of mother with the minor child. The appeal was, however, dismissed by this Court vide order dated 15.02.2010.
3. Thereafter, on 07.03.2015, Mst. Shabnam Niaz, moved an application, titled Dr. Shabnam Niaz v.
Mst. Khursheed Begum, before Civil Judge, empowered as Guardian Judge, Palandri, alleging therein that the condition regarding her meeting with the minor child had not been fulfilled by, defendants and moreover, Qazi Muhammad Ghous, grandfather of the minor, with whom compromise deed was executed, had died and now the minor is living with uncles and grandmother, who are not legally entitled to keep him in their custody; therefore, she was entitled to take his custody in current circumstances. She further averred that the appeal filed by defendants before this Court was dismissed; therefore, the earlier judgment dated 13.04.2009, delivered by Guardian Judge was still intact; therefore, execution proceedings may be initiated and if the application could not be taken as execution petition, the same may be treated as a fresh application for custody of the minor.
4. On the aforesaid application, notice was issued to Mst. Khursheed Begum, appellant, herein, grandmother of the minor, who executed special power of attorney to her son Zia-ur-Rehman on 10.04.2015, stating therein that on account of old age, sickness and being 'Pardanasheen lady, she was unable to appear before the Court in person to prosecute the case. The application was however, opposed through objections dated 28.03.2015. The learned Guardian Judge on the basis of pleadings of the parties framed issues on 30.05.2015. Thereafter, Dr. Shabnam Niaz,, was directed to produce evidence in support of her application, who herself entered into witness box and produced Haroon Ejaz and Masood Ahmad, as her witnesses, whereas on the other side Yasir Ashraf, Zia-ur-Rehman and Muhammad Abbas were produced, as witnesses. The aforesaid application was later on transferred to Senior Civil Judge/ Guardian Judge, Palandri, on 19.09.2015.
The learned Guardian Judge, Palandri, after hearing the learned Advocates for parties, accepted the applibation by declaring that custody of the minor, Ubaid-ur-Rehman, would be handed over to mother, Shabnam Niaz so that she could educate and bring him up in a befitting manner, vide impugned judgment dated 14,10.2015; hence, the instant appeal.
5. Messrs Muhammad Irshad Khan and Sheraz Hussain Awan, the learned Counsel for appellant argued that the Court below committed grave illegality while passing the impugned judgment in favour of minor's mother, because she waived her right of custody in earlier round of litigation, before this Court by receiving a sum of Rs,1,00,000. The learned counsel stressed on the point that as the matter of custody had earlier been decided by this Court, in light of compromise deed dated 04.10.2009, through which, respondent agreed to hand over custody of the minor to Qazi Muhammad Ghous, grandfather, hence, her application was hit by principle of res judicata. The learned Counsel further argued that as per judgment dated 13.04.2009, the respondent was appointed guardian of the minor when his age was about 02 years whereas now he is almost of 08 years old and it was clearly declared in the aforesaid judgment that appointment of guardian would be effective until minor attained age of 07 yeaRs, The learned Counsel pressed into service that the custody of a male child after attaining age of 07 years could be handed over to father and in this regard, the learned Guardian Judge without applying judicious mind passed the impugned judgment. The learned Counsel maintained that mother of the minor had been regularly visiting and meeting with him; therefore, she filed second application with mala fide intention just to damage the appellant. The learned Counsel contended that the minor child is living with his grandmother and uncles happily and he is more familiar and akin to them because he is living with them since his childhood and getting education in a renowned school; therefore, paramount consideration ought to be given to welfare of the minor and his custody may not be handed over to mother. The learned Counsel argued with vehemence that although Shafique-ur-Rehman is settled in England, however, he has returned in Pakistan, hence, application moved by father of the minor, for impleading him party in line of appellant may also be accepted. The learned Counsel finally prayed for acceptance of appeal by setting aside the impugned judgment. The learned Counsel in support of their arguments cited the lowing case law:--
2. PLD 1992 (Lahore) 441.
3. 1994 MLD (Lahore) 796.
4. PLD 1996 (Karachi) 174.
5. 2003 YLR (SC AJ&K) 3245.
6. 2003 CLC (Karachi) 771.
7. 2005 CLC (Lahore) 894.
8. 2006 CLC (Lahore) 730.
6. Conversely, Kh. Ataullah Chak, the learned Counsel for respondent, vigorously contended that the learned Guardian Judge, recorded the impugned judgment strictly in accordance with law as it is evident from record that in earlier round of litigation, the compromise was executed between late Qazi Muhammad Ghous, grandfather and Dr. Shabnam Niaz, mother of the minor, however, after death of Qazi Ghous, the compromise was vanished, hence, mother of the ward is legally entitled to take his custody. The learned Counsel further submitted that in previous round of litigation, custody was ordered to be handed over to mother by Guardian Judge, against which an appeal was filed before this Court, which was dismissed, hence, the judgment of Guardian Judge dated 13.04.2009, is still intact; therefore, grandmother is not entitled to keep the minor in her custody. He argued that the learned Guardian Judge correctly accepted the application of mother-respondent, because in presence of real parents, the grandmother cannot be appointed as guardian of the minor. The learned Counsel agitated that appellant executed a special power of attorney to her son Zia-ur-Rehman to prosecute the case, due to feebleness, sickness, infirmity, old age, and moreover, she has not shown means of income, whereas respondent, mother of the minor, is well educated as Ph.D., who is serving as Lecturer of Botany in Grade B-18 in Hazara University Mansehra, Pakistan, hence, can look after him in a befitting manner; therefore, welfare of the minor lies in the hands of mother instead of grandmother. He emphasized that it is well settled law that welfare of the minor is given paramount consideration in the cases of custody. The learned Counsel also contended that mother is a natural guardian of the minor child; therefore, she cannot be deprived of right of custody. The learned Counsel strenuously voiced against the application moved by Shafique-ur-Rehman, father of the minor, before this Court, for impleading him as party in the line of appellant, on 14.12.2015, at final stage of arguments in appeal, and submitted that he is settled in England who came in Pakistan on.Visit, whereas he never bothered to file application for guardianship and custody of the child before Guardian Judge in eight years; therefore, the instant application cannot be entertained at this belated stage. He further maintained that principle of Muhammadan Law that a male child after attaining age of 07 years be handed over to father cannot strictly be applied in the present case in view of peculiar facts and circumstances of the case and submitted for dismissal of appeal. The learned Counsel in support of his contentions referred to and relied upon the following, authorities:--
1. 1995 SCR 136.
2. 1996 SCR 33.
3. 1998 SCR 140.
4. 2005 YLR 547.
5. 2007 CLC 474.
7. After hearing the learned Advocates for parties, we have perused the contents of appeal, examined the record and have given our earnest consideration to the points raised by the learned Counsel for parties.
8. At the very outset, we would like to take up argument of the learned Counsel for appellant regarding application moved before this Court by Shafique-ur-Rehman, father of the minor child, on 14.12.2015, for impleading him as party in the line of appellant. The application was moved at final stage of arguments in appeal before this Court stating therein that on the ground that the applicant was abroad, who brought up the minor since eight years by providing him education including religious one and he is natural guardian of his minor son. The application was seriously opposed by the other side. We have minutely scrutinized record and found that Shafique-ur- Rehman, father of the minor, never bothered to file application before Guardian Judge, for appointment of guardian or custody of the minor, before or after death of Qazi Muhammad Ghous, rather it reveals that he neither appeared as witness before the Court below nor preferred an appeal against earlier judgment of Guardian Judge dated 13.04.2009, through which the custody of the minor was ordered to be handed over to mother. However, against the aforesaid judgment only appeal was filed by grandparents of the minor, before this Court. Moreover, he did not appear in person before the Court below in both first and second rounds of litigation, to make himself available for cross-examination as to his living conditions in abroad so as to enable the Court to adjudicate upon whether the welfare of the minor lay in delivering his custody to him or not. The aforesaid conduct of the applicant, father, vividly indicates his disinterest throughout the Court proceedings. The application is even not supported by an affidavit. It appears that he is on casual visit to meet his kith and kin. Even he did not bother to put his schedule before the Court regarding his stay at Kashmir. The question that he was abroad; therefore, could not move any application before the Court below, is devoid of force because he could have filed such application (s) through Counsel or attorney before the Guardian Judge. Therefore, keeping in view the peculiar facts and circumstances of the instant case, we are of the considered view that the aforesaid application cannot be entertained at such belated stage; hence, the same is turned down. In this regard, an authority cited by the learned Counsel for appellant, 2006 CLC (Lahore) 730, does not deal with the matter of custody rather it deals with land dispute; therefore, the same does not render any help to the applicant.
9. Now, we advert to the moot point of appeal pertaining to custody of the minor, which has been ordered to be given to respondent-mother instead of appellant - grandmother by the learned Guardian Judge through the impugned judgment.
10. It will be relevant to observe here that this is second round of litigation over custody of the minor, Ubaid-ur-Rehman. In first round of litigation, the learned Guardian Judge recorded judgment dated 13.04.2009, in favour of respondent, Mst. Shabnam Niaz, mother of the minor, against which an appeal was preferred before this Court. Meanwhile, on 15.02.2010, a compromise deed was produced before this Court stating therein that the parties had compromised the matters through a 'Jirga' convened on 04.10.2009. However, on the basis of compromise supra no any decree was passed by this Court but appeal filed by the present appellant and late Qazi Muhammad Ghous, was dismissed, vide order dated 15.02.2010. A perusal of the aforementioned compromise deed reveals that as per condition No,5, respondent, Shabnam Niaz had conditionally withdrawn from custody of the minor on the ground that defendants would not create hindrance in her meeting with the minor child. The aforesaid compromise deed was executed between late Qazi Muhammad Ghous, grandfather, and Mst. Shabnam Niaz, mother and not with appellant, grandmother, or father of the minor. Moreover, it was never incorporated in compromise deed that custody of the minor was handed over to grandfather for life time. It is pertinent to mention here that after death of Qazi Muhammad Ghous, grandfather, Mst. Shabnam Niaz, mother of the minor, sought his custody by filing fresh application before Guardian Judge, which was not prohibited under law because after death of grandfather, the question arises that who will be guardian of the minor, particularly in the circumstances, when father neither appeared before the Court of Guardian Judge nor claimed custody of his minor son. Even otherwise, neither a consent order or a compromise nor an agreement between the parties will absolve the Guardian Court from its basic responsibility to safeguard and protect the interest and welfare of the minor, hence, Guardian Court could re-examine such issue even if a compromise, agreement or consent order, in that regard, was already in the field. The aforesaid view is fortified from a reported case titled Ayesha Tahir Shafiq v. Saad Amanullah Khan and 2 others (PLD 2001 Karachi 371), wherein it was held as under:-- "it may be mentioned here in this regard that an order passed by the Guardian Court in respect of the custody of the minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same may be served as such. It is for this reason that the Guardian Court has been empowered to modify, set-aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context will not operate as a bar of jurisdiction for the Guardian Court for all future time to come. A consent order, a compromise or an agreement between the parties will not absolve the Guardian Court from its basic responsibility to safeguard and protect the interest and welfare of the minor. Moreso as in the litigation before a Guardian Court the two parties participating in such proceedings are not adversaries in the strict sense but they plead their own view point before the Court to enable the Guardian Court to arrive at a just and proper conclusion on the question of welfare of the minor. For these reasons I am of the view that a Guardian Court can re-examine such issue even if a compromise, agreement or consent order in that regard is already in the field.
' Therefore, in such state of affairs, the contention of the learned Counsel for appellant that respondent had waived her right of custody in first round of litigation, as the matter of custody was already decided; therefore, now she should not claim custody of the minor and her application was hit by principle of res judicata, is devoid of any force, therefore, repelled.
11. So far as argument of non-framing of issue regarding welfare of the minor is concerned, suffice it to say that no such grievance was ever made before the Court below. Apart from it, the parties were alive to the controversy, in both rounds of litigation and adduced evidence in support and rebuttal thereof; therefore, remand of the instant case to frame the aforesaid issue would not justify rather it can be decided by this Court while keeping in view the evidence available on record.
From perusal of special power of attorney executed by appellant, grandmother, in favour of her son Zia-ur-Rehman, to prosecute the instant case, it is proved that she is sick, infirm facing feebleness and old age. Moreover, she has not shown any source of income, whereas mother of the minor has established her case, who is highly educated as Ph.D. And is serving as Lecturer of Botany BPS-18 in Hazara University Mansehra, Pakistan, and receives a reasonable salary; therefore, she can look after the minor in a befitting manner, as compared to grandmother. It is well settled principle of law that welfare of the minor is to be given paramount consideration for disposal of such like cases.
The aforesaid view finds support from a reported case titled Mst. Farah Mehnaz and others v. Safeer Hussain Jaffar and others [2013 CLC (Lahore) 235], wherein the following principle was laid down:- "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 Additional District Judge in these circumstances being not sustainable in the eyes of law is hereby set aside and that of learned trial Court is hereby restored."
12. It will not be out of place to mention here that in presence of real parents, the grandmother or grandfather cannot be appointed custodian of her/his minor grandson. The aforesaid view is fortified from the case reported as Sughran Bibi v. Akhtar Hussain [2007 CLC (SC AJ&K) 474] wherein it was observed as under:-- "At this stage we must make it clear that in presence of the parents claiming the custody of the child grandparents or other legal guardians cannot be considered for handing over the custody to them under any law including Muhammadan Law and the Guardians and Wards Act. On this point the provisions of Muhammadan Law by D. F. Mullah are very clear, however, deviation from this view has been recorded in some cases but that also in the interest and welfare of the minor. "
13. The authorities cited by the learned Counsel for appellant are distinguishable from peculiar facts of the instant case; therefore, need not to be discussed in detail.
14. The crux of above discussion is that the learned Guardian Judge correctly recorded the impugned judgment for custody of the minor in favour of respondent Dr. Shabnam Niaz, mother, instead of appellant, Mst. Khursheed Begum, grandmother, which is maintained. The minor is handed over to mother in open Court, however, S.S.P Muzaffarabad is directed to provide escort to respondent, Dr. Shabnam Niaz, up to her destination. Resultantly, the appeal stands dismissed with no order as to the costs.