SHAHID BILAL HASSAN-J : This single judgment will dispose of the captioned constitutional petition as well as connected W .P.No.7657 of 2017, as in both one and same judgment has been impugned.
2. Precisely, Mst. Ayesha Abdul Maleek (hereinafter called as "petitioner") filed an application under section 25 of the Guardian & Wards Act, 1890 with the assertion that the marriage between the petitioner and Naeem Hassan Gill (hereinafter called as "respondent") took place on 27.01.2006 and out of the wedlock a female minor namely Waniya Naeem Gill was born, who was aged 10 years at the time of filing of the application and was in custody of the respondent; she contended that welfare of the minor lies with the petitioner as she got her admitted in Bloomfield Hall School, Sahiwal and the respondent had contracted second marriage, so it would not be convenient for the minor to live with step mother. The said application was resisted by the respondent and he also filed an independent application under section 7 of the Guardian & Wards Act, 1890 for his appointment as guardian of the minor .
Both the applications were consolidated by the learned trial Court on 01.07.2016 and consolidated issues were framed. Evidence of the parties was invited, which was adduced in pro and contra, oral as well as documentary , whereafter , the learned Guardian Judge vide consolidated order dated 10.04.2017 dismissed application of the petitioner and accepted the application under section 7 of the Act, 1890 filed by the respondent.
The petitioner being aggrieved of the said order preferred an appeal. The learned appellate Court vide impugned judgment dated 15.05.2017 dismissed the appeal, however , chalked out visitation schedule.
Being aggrieved of the above said order and judgment, the petitioner has filed the instant constitutional petition, whereas the respondent has filed the connected W.P.No.7657 of 2017 calling into question the visitation schedule, chalked out by the learned appellate Court.
2. Heard.
3. Prime and paramount consideration while deciding application for custody of the minor is the welfare of the minor and nothing else. Section 25 of the Guardians & W ard Act, 1890 provides:- '25. Title of guardian to custody of ward.--- (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."
Similarly , the other relevant provision to decide the question of custody of a minor is section 17 of the Act ibid, which reads:-- '17. Matters to be considered by the Court in appointing guardian .--- (1) In appointing or declaring the guardian of the minor , the Court shall, subject to the provisions of this section, be guarded by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor .
(2). In considering what will be for the welfare of the minor the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3). If the minor is old enough to form an intelligent preference, the Court may consider that preference.'` From the above provisions of law it is vivid that prime and foremost consideration to decide the question of custody of a minor is his or her welfare and betterment. Welfare of the minor would overweight against all other considerations. It is also apparent from the bare reading of section 17(2) of the Act that character and capacity of the proposed guardian as well as age and sex, is also an important factor to be considered while determining the welfare of the minor . In a reported judgm ent Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839 ), the Apex Court of the country held:- 'The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor . The Court in the light of law, on the subject and facts and circumstances of each case consi ders the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor . No doubt general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor , has the preferential right of custody of minor but this rule is always subject to the welfare of the minor which is the prime consideration in determination of the question of custody .'
In the present case, both the learned Courts have summoned the minor for the purpose of "intelligence preference" as the minor was old enough to form an "intelligence preference" and she categorically denied to have company with the petitioner and even the minor has deposed about the character of the petitioner and she has showed her willingness to reside with her father i.e. the respondent; even she deposed that her father contracted second marriage with one Nasreen Kanwal on her asking and she feels happy to be with her as she takes care of her more than her mother i.e. the petitioner . Thus, it can safely be said that the learned Courts below while evaluating evidence of the parties especially "intelligence preference" of the minor have rightly reached to the conclusion that the petitioner is not entitled to the custody of the minor and the respondent is entitled to retain her custody because he enjoys sound financial status and his family is also well educated, they are providing education to the minor and up-bringing her in a better way. The respo ndent is looking after the minor properly and minor Wania Naeem Gill is enjoying natural sense of safety and protection with her father/ respondent.
4. There is no denial that the petitioner is mother of the minor , so the learned appellate Court while considering this fact has rightly held her entitled to have visitation rights, despite the fact that the minor has shown her aversion towards the petitioner but the petitioner cannot be denied to have company of her minor daughter , because the same cannot be denied to a mother/father vice versa.
5. Pursuant to the above, there appears no illegality , jurisdictional error or legal infirmity in the impugned order and judgment passed by the learned Courts below warranting interference by this Court in exercise of extraordinary constitutional jurisdiction. Resultantly , the constitutional petition in hand as well as connected W.P.No.7657 of 2017, being without any force and substance stands dismissed. No order as to the costs.