RASAAL HASAN SYED, J.----This Constitutional petition arises from order dated 31.10.2017 of the learned Addl.
District Judge, Bhalwal, District Sargodha, whereby order dated 01.7.2017 of the learned Guardian Judge, Bhalwal, on an application under section 25 of the Guardians and W ards Act, 1890, was reversed.
2. Respondent No.1, Nazir Hussain, filed an application under section 25 of Guardians and Wards Act, 1890, seeking custody of minor namely , Asif Ali. It was claimed that marriage between the parties was solemnized 14 to 15 years before the filing of the applicatio n; out of the wedlock parties were bless ed with a daughter and son; the couple separated; the minors, Fatima Nazir and Asif Ali remained in the custody of their real mother , the petitioner herein; the marriage was subsequently terminated and also that the writ petitioner had entered into second wedlock and that the respondent was entitled to the custody of minor son, Asif Ali. In her reply , the petitioner mother submitted that respondent No.1 had an objectionable character and that she was turned out by him after giving severe beating while she was pregnant and that' the minor son was born when she was living with her parents and, since birth, both the children i.e. daughter and the son were living with her who brought them up, took good care of their health and gave them best education and that the respondent did not pay any maintenance to the minors, the marriage was subsequently dissolved in the proceedings of family suit and that despite directive of court, the respondent No. 1 failed to pay any maintenance to the minors and also that the respondent earlier filed an 'application only for the custody of minor daughter , namely , Fatima Nazir , on the same plea as was taken in the instant ,petition which was seriously contested and ultimately respondent No. 1 's petition was dismissed by the learned Guardian Judge which order was affirmed in appeal and that, thereafter , he had filed the present application for the custody of minor son only, which reflected the mala fide of respondent No.1, who was bent upon, causing unnecessary mental torture to the petitioner and further that the respondent did not have any regular source of income; instead claimed during the evidence of the previous case, that he was employed in a hotel for cooking/preparing tea and that the minors were living with the petitioner along with the other children of her present husband and were being given the best treatment, care and education as also the love and affection by the mother as well as her present husband and that the Petition was without any legal or moral justification. Issues were framed, evidence recorded, whereafter the learned Guardian Judge, through a well-reasoned judgment, dismissed the petition under section 25 of Guardians and Wards Act, 1890 and fixed the meeting schedule of the minors with the respondent father . In appeal, the learned Addl. District Judge, reversed the judgment and allowed application of respondent No.1 vide order dated 31.10.2017 which is now the subject matter of challenge in the instant petition.
3. Arguments from both sides were heard whereafter a direction to produce the minor in Court was issued, who appeared and apprised that he was living with his mother who was looking after him and that he was getting education in a school and also that he would like to live with his mother and sister and that the petitioner's present husband was taking good care of both children.
4. Record of the main petition, comprised of the pleadings, oral and documentary evidence, the order of the Guardian Judge as also the Addl. District Judge, filed along with the instant petition has been deeply examined.
The oral testimonies of the parties, in view of the judgments being at variance, were reconsidered with the assistance of learned counsel for the parties. Perusal thereof reveals certain important features of the case. The marriage between the parties blessed them with one daughter and a son. The marriage was dissolved on 26.9.201 1. The minor Asif Ali was born on 23.3.2008. Before termination of marriage, the petitioner was living with her parents as she had been turned-out of the house and that the marriage was dissolved during the proceedings of family suit and that the minor was living with his mother , the writ petitioner , since his birth who was taking care of his health, day-to-day living and education and that the daughter , Fatima Nazir , born out of wedlock was also living with the writ petitioner . The respondent earlier filed an application for the custody of the minor Fatima Nazir which was dismissed on merits by the Guardian Judge vide order dated 12.3.2016; appeal filed by the respondent was also dismissed by the Addl. District Judge on 18.6.2016; in result, the custody of the minor daughter was allowed to continue with the mother; and that when the earlier petition was filed for the custody of the minor daughter the respondent did not ask for the custody of the son, Asif Ali, though he was eight years old and was living along with his sister with the mother . The earlier petition was also filed on the plea of second marriage of petitioner but the same was declined while in the present petition under section 25 of Guardians and Wards Act, 1890 out of which the instant writ petition, arises, filed on 01.4.2016, the petitioner did not press for the custody of daughter and that the petitioner did not marry for 4 to 5 years after the termination of marriage with the respondent and that the minors are presently studying in a school and are getting regular education. The minor son, who was quite grown up, appeared before the Guardian Judge and expressed his desire to continue his custody with the mother and even while, appearing in this Court, he apprised that he was studying in the school with his sister , and both of them were living along with their mother and that he would like to continue living with his mother . The learned Guardian Judge did take note of all these facts as proved on the record and concluded that the welfare of the minor would lie in continuing his custody with his mother instead of disturbing the custody of the minor son: In appeal the learned Addl. District Judge was mainly influenced by the fact that the petitioner had remarried and from this, it was assumed that having allegedly married with a person who was not related, the minor should be delivered to the father .
5. It has been consistently observed that mere fact that the mother enters a second wedlock will not be given preponderance while considering welfare of the minor and if the court reaches the conclusion that welfare lies in the custody of the mother and that the minor son or daughter was being properly looked after in the company of mother and also that the second husband was also extending same love and affection towards the minor , the mother's custody shall not be disturbed. Reference can be made to the case of "Mst. Rabia Bibi v. Abdul Qadir and others " (2016 CLC 1460 ) wherein it was observed to the effect that there was no substitute of real mother on the earth; lap of mother was considered as cradle of God and that while passing the order the court shall take into consideration the welfare of minor which is of paramount consideration and that the rules of personal law would be subservient to welfare of minor . In case of "Sardar Hussain v. Mst. Parveen Umer and 6 others " (2003 YLR 3054 ) it was observed to the effect that financia l status of the mother is not relevant and that the plea of second marriage will not be sufficient to disentitle her to custody and that if at a stage when she was deserted along with the minors and thrown in a tide of hostile social conditions with uncertain future and that too in our male dominated society , she could legitimately feel insecure and defenceless and, therefore, be justified to contract second marriage for securing her own future as well as that of the minors. In "Mst. Firdous Iqbal v. Shifaat Ali and others" (2000 SCMR 838) while dealing with the objection of secon d marriage it was observed by the honourable Supreme Court to the effect that the welfare of minor remains paramount consideration in determining the custody of the minor notwithstanding the right of the father to get the custody after seven years of age of male minor child and that the right of father on attainment of seven years by the minor son was not an absolute right and the father may disentitle himself to the custody on account of his conduct in the light of the facts and circumstances of each case where the evidence reflects that the minor was neglected since separation of spouses inter se and was left voluntarily to the custody of mother who had brought him up and educated him and all along the father never bothered to even go to meet the minor muchless than providing maintenance to him, and that he made the application for custody only when the mother pressed for the maintenance allowance of the minor; father will not be entitled to the custody even if the minor had attained the age of seven years. In "Sugran Bibi v. Munawar Alkram and 2 others" (2019 MLD 236) it was observed to the effect that rights if any of the parties are to be given a second place and the child's welfare shall be the key consideration and that where welfare of minor including, health, education, physical, mental and psychological well-being as well as his' development and other peculiar circumstances of a case prove welfare of minor in the custody of mother the same shall be allowed. In "Mst.
Ruqayya Yasmin v. Muhammad Riaz and others" (1991 MLD 166) it was observed that all other reasons are subordinate to the welfare of the minor and that factum of remarriage of minor's mother may be one of the factors but it could not form the sole basis.
6. In the instant case the learned Guardian Judge did take into consideration all the material facts relating welfare of the minor and observed that the minor Asif Ali was living with the mother , the petitioner , since his birth. She had taken care of his health, day-to-day living and education and that the minor being quite grown up gave his preference to live with the mother and further that the second husband of the petitioner had also supported the petitioner and deposed as AW2, that the petitioner was taking good care of the minors and as well as his own children and that he had due love and, affection for all of them. It was taken note of that the respondent did not maintain the minor nor attempted to meet the minor and that in his first application he had only asked for the custody of minor daughter and, being unsuccessful, he initiated proceedings, for the custody of son only. The view taken was that welfare of the minor would lie in custody of his mother . The learned Addl. District Judge to the contrary was mainly influenced by the fact that the petitioner had remarried, and being so, the respondent could get the custody; in doing so the consistent rules referred hereinabove were overlooked.
7. Deeper consideration of statement of parties also reveals that the respondent No.1 in his testimony , as AW1 stated that he was allegedly running a shop in Satellite Town, Sargodha, while his residence was in Islampura, Bhalwal where his mother was also living and that he used to come back to his house after a week and then stated that he did so after two to three days. The respondent does not have any place of residence in Sargodha but he lives with his brother's family and mother at Bhalwal where he will not be physically present due to his business at Sargodha. It was admitted by respondent's brother AW 2, that their mother was old lady of seventy to eighty years.
In the given circumstances intent of the respondent appears to be to snatch the custody of minor from the mother and to keep him in isolation by depriving him of the company of mother and also the real sister with whom he had grown up and been living for twelve years. This was one of the factors, which was sufficient to satisfy the court that the respondent was not interested in the welfare of the minor . In the situation where the father was working for livelihood in Sargodha, the old grandmother is living in Bhalwal, the respondent admits to be not available in Bhalwal and visit Bhalwal after a week and sometime after two to three days. If the minor was compelled to live in Bhalwal in isolation, without the, mother and sister and even without father , it would have a disastrous effect on his mental state. It is for this reason that view consistently taken is that minor living with the mother in the company of his real sister for the last twelve years, shall not be separated, simply to satisfy the ego of father as it is not deemed to be in the welfare or interest of minor . It is always observed that one of the greatest blessings of Allah Almighty for a child is that he should be a part of a normal, integrated and unified family , as children of broken homes will grow up with lots of deprivations, deficiencies and carry sense of loss and incompleteness throughout their life. It is commonly seen that the children are rendered a roller coaster ride in life or made rolling stones stumbling between the whims and caprice of two estranged parents who are unable to survive as husband and wife on account of incompatibility or, if some other reason and develop a predilection for using minors as tool to settle their grievances and scores qua against each other . This impinges seriously on the personality of minors and irreversible damage to psyche. To minimize the impairment in this behalf if there are more than one minors, the touchstone of "paramount F consideration" to adjudge as to who minors should live with will be to ensure that the order shall not result in divided custody . To compel minor siblings to live apart will in the ordinary course violate their right of togetherness, which is-a natural right bestowed upon them by nature as human beings. In the present case the minor son and daughter are living with the writ petitioner , since their birth, who has brought them up. The preponderance of the factors, therefore, indicates that minor's welfare tilts in favour of undivided custod y with the mother . Even at the time when minor was examined by the trial court as also by this Court, it was observed that the minor expressed the wish to live together with his sister and the effect of keeping him apart will, therefore, cast an unhealthy reflection on his development which will be adverse to the welfare and interest of minor .
8. In view of the consideration hereinabove, it is observed that the learned Guardian Judge had passed a well- reasoned order which did take care of the larger interest and welfare of the minor and that the learned Addl. District Judge, unjustifiably ignored the real facto rs pertinent to the welfare of minor and passed the impugned order which is legally unsustainable.
9. For the reasons discussed above, this petition is allowed ; the impugned order dated 31.10.2017 or the learned Addl. District Judge is declared to be illegal, based on misreading and nonreading of the record and against the consistent rule and without lawful jurisdiction, which is accordingly set aside; while the order of the learned Guardian Judge dated 01.7.2017 dismissing the petition filed by respondent No.1 under section 25 of the Guardians and W ards Act, 1890, is restored.