' MUHAMMAD FARRUKH IRFAN KHAN, J.---The instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is instituted by the petitioners to challenge the judgment of the learned Additional District Judge, Wazirabad dated 31.8.2013 whereby the appeal of respondent No,2 filed against the order dated 23.4.2013 of the learned Guardian Judge, Wazirabad has been accepted.
2. Brief facts of the case are that respondent No,2 Kaneez Akhtar was married to Khalid Hussain and out of their wedlock two daughters, namely, Sania Khalid and Tanzeela Khalid were born. The said Khalid Hussain was murdered. Respondent No,2 was nominated in the FIR for the murder of her husband. She was, however, acquitted and left the house of her in laws along with minor Tanzeela Khalid. The minor daughter Sania Khalid remained in custody of her paternal grandmother, Noor Begum. Respondent No,2 applied for custody of Sania Khalid but her application was dismissed.
She filed an appeal, which also met the same fate. Later on when the said Noor Begum died and the minor Sania Khalid was in custody of her paternal uncle Tariq Mahmood and paternal aunt Mst.
Suraiya Bibi (petitioners), respondent No,2 again filed application before the learned Guardian Judge for custody of the said minor. The petitioners contested the said application. The learned Guardian Judge, Wazirabad framed necessary issues and after recording evidence of both the parties, including statement of the minor, dismissed the application, vide his judgment dated 23.4.2013. Aggrieved, respondent No,2 filed an appeal, which was accepted and custody of the minor was ordered to be handed over to her, vide judgment dated 31.8.2013. Hence, the instant writ petition.
3. Learned counsel for the petitioners contends that the impugned judgment is the result of misreading or non-reading of evidence and also 'misapplication of the law on the subject; that the learned lower appellate court illegally ignored the statement of the minor, who was 13 years of age and was intelligent enough to make a statement to display her inclination to stay with either of the parties; that while passing the impugned judgment the learned lower appellate Court has departed from the settled principle of law that in a matter involving custody of the minors welfare of the minor is the supreme consideration; that the evidence available on the record suggests that the welfare of the minor lies in her custody with the petitioners, who have better resources and enjoying good status as compared to respondent No,2 who has no source of income of her own; and that findings recorded in the impugned judgment are pntrary to law as such liable to be reversed. He has relied upon the cases of Mst. Zar Bibi v. Haji Malik Abdul Ghaffar and others (1998 M LD 1697), Mst. Zainab Bibi v. Rehmat Ali and 2 others (1994 M LD 1098) and Mst. Munira Bibi v.
Additional Dish ict Judge, Sheikhupura and 2 others (2007 CLC 1612).
4. On the contrary, the learned counsel for respondent No,2 submitted that the impugned judgment of the learned appellate Court has been passed in accordance with law and does not call for interference by this Court; that welfare of the minor lies with respondent No,2, who is her real mother; that the allegation of murder of father of the minor by respondent No,2 was not proved and she was acquitted by the learned trial Court; that she is being financially supported by her brothers and nephews and as such is capable of bringing up the minor in a better way; that she has not contracted second marriage and has devoted her life for the betterment of her two minor daughters, out of which the younger one is already living with her; that love and affection of the mother for her children cannot be substituted by that of uncle and paternal aunt; that even otherwise insufficient sources to maintain children is no ground to deprive the real mother from custody of her minor children.
5. Arguments heard. Record perused.
6. Admittedly, respondent No,2 is real mother of the minor. Her husband was murdered on 21.2.2006 and respondent No,2 was nominated in the FIR as an accused. She was charged for the commission of murder of her husband but ultimately she was acquitted. After the murder of her, husband she was allegedly ousted from the house of her in-laws. The custody of the minor Sania Khalid was retained by her paternal grandmother while the younger daughter, namely, Tanzeela Khalid remained in custody of her mother, respondent No,2. The learned Guardian Judge refused to hand over custody of the minor to respondent No,2, on the grounds that welfare of the minor so demanded and that the minor herself wished to stay with the petitioners and got recorded her statement to this effect. The learned lower appellate Court reversed the judgment of the learned Guardian Judge and held that welfare of the minor lies with respondent No,2, who is real mother of the minor. This Court has perused both the judgments of the courts below with due care and caution. The findings recorded by the learned lower appellate Court are based on sound reasoning. I am forming this opinion on the touchstone of supreme determining factor in the matters of custody of a minor i.e, welfare of the minor. The learned Guardian Judge mainly relied on the statement of the minor recorded in which she preferred to live with her aunt and uncle. The case law relied upon by the petitioner in this regard is distinguishable from the facts and circumstances of the present case. In the cases relied upon by the learned counsel for the petitioners there was a dispute of custody of the minor between the parents whereas in the instant case on the one side there is real mother and on the other end there are uncle and paternal aunt of the minor. In absence of father, mother is the natural guardian of the minor and she can better look after her, especially when she is near the age of puberty where a female requires the assistance and guidance of her mother. Even otherwise, there is no substitute of love and affection of a real mother. Reliance is placed on the case of Mst. Nazli v. Muhammad Ilyas and another (2010 M LD 477). In the circumstances, the petitioner cannot be given preference over the real mother, who has been striving for custody of the minor from the time she was snatched by her in-laws. She firstly filed application for custody of the minor against her paternal grandmother and after her death filed another petition against the present petitioners. This amply shows that respondent No,2 has much love and affection for the minor daughters. The respondent has not contracted second marriage and has devoted her life for the sake of her children. No doubt when a minor reaches the age of discretion his/her statement can be considered while determining his/her custody but it is not the sine qua non for the court to make it the basis for its decision. The learned Guardian Court while deciding this matter has failed to take into account that in custody matters supreme consideration is the welfare of the minor. In this view of the matter, I am of the considered view that the learned lower appellate Court has not committed any illegality in ignoring the statement of the minor in the present case.
7. So far as source of income of respondent No,2 is concerned, it has come on the record that she is living in a separate house along with her younger daughter, Tanzeela Khalid and she is financially supported by her brothers and nephews. Even otherwise, it has consistently been held by the superior courts that a real mother cannot be deprived of custody of her minor children merely on the ground that she does not have sufficient source of income. Reliance in this regard is placed on the cases of Najma Parveen v. Ihsan-ur-Rehman (1988 CLC 2196), Mst. Feroze Begum V. Lt. Col. Muhammad Hussain (1983 SCM R 606) and Ghulam Mustafa v. Mst. Manzooran Bibi and others (1994 M LD 1199). The younger sister of the minor is also living with respondent No,2 and it is always considered in the welfare of the minors if they all live together at one place. In this case it would be in the welfare of both the minors if they live together so that they nurture a bond which is so essential between two sisters, under the ambrella of their mother.
8. In the light of above discussion, the instant writ petition is dismissed.