This Constitutional petition impugns order dated 13.11.2018 and 16.7.2019 of the learned Guardian Judge, Shujabad as well as learned Addl. District Judge, Multan whereby petitioner 's application under section 25 of Guardians and W ards Act, 1890 was dismissed and the order was maintained in appeal.
2. Petitioner claiming herself to be the paternal grandmother filed an application under section 25 of Guardians and Wards Act, 1890 for the custody of minor s namely "Mazhar" and "Faizan" who at the time of filing application were claimed to be aged 12 and 10 years respectively . It was asserted that respondent No. 3 was married to the son of petitioner (respondent No.5) who subsequently got divorce and that the son of the petitioner was paralyzed and also that the respondent No. 3 having entered into second wedlock, the petitioner ought to be given custody of minors/grandsons. Respondent Nos. 3 and 4 filed contesting written statement wherein it was specifically mentioned that the petitioner had herself remarried one Bashir (Munshi/servant of petitioner), after the demise of her husband and did not care about her own ailing son, i.e. the father of the minors and that she could not claim to have any interest in the welfare of the minors who were being properly looked after brought up and given due education by respondent No. 3 and that as a real mother she was entitled to contin ue with the custody of minors to ensure their better interest and welfare.
3. Application under section 12 of Guardians and Wards Act, 1890 for the interim custody of minors was rejected by learned Guardian Judge vide order dated 23.11.2017, observing that in the larger interest of minors their custody need not be disturbed. On completion of trial the main petition under section 25 of Guardians and Wards Act, 1890 was also dismissed by the learned Guardian Judge Shujabad, vide order dated 13.11.2018 who recorded findings to the effect that the welfare of minors existed in their custody with the mother who was bringing up the minors properly and that the petitioner was not entitled to the custody of minors. In appeal the learned Addl. District Judge, on re-consideration of the points raised respectively before him and also the record, concurred with the view taken by the learned trial court and, in result, the appeal of the petitioner was dismissed.
4. Learned counsel for the petitioner assailing the orders submitted that the orders of the courts below were legally untenable and arbitrary; respondent No. 3, real mother , having contracted second marriage after divorce from the father of the minor , could not prove to be a good mother , continuation of minors' custody with the mother will not be in welfare of minors and that the respondent No. 3 was only interested in the maint enance allowance while the real father being bedridden was unable to move or take care of the minors and that, under the circumstances, the petitioner could better take care of minors. It was added that the respondent No.3 was a negligent lady who could not properly look after the minors and that the minors' health was likely to be in danger at the hands of respondent No.3. Concluding, it was argued that the findings of the courts below were based on misreading and nonreading of record and contrary to the welfare of the minors.
5. Record of the case annexed with this petition has been perused. It is discernible that the petitioner , as paternal grandmother of the minors moved the application under section 25 of the Guardians and Wards Act, 1890 for custody of minors. The ground taken was that respondent No. 3 had entered into a second wedlock after divorce by the real son of the petitioner and that the petitioner 's son was paralyzed who had no objection to the handing over of minors' custody to the petitioner and that she could better take care of the minors. This was opposed by the respondents No.3 and 4 who specifically stated in their reply that the petitioner , after the death of her husband, had herself contracted marriage with one Bashir (Munshi/previous servant of petitioner) and that she did not bother about her ailing son, the father of the minors, instead she opted to contract second marriage to live her own life and that the minors were being looked after and brought up by respondent No.3 right from their childhood, therefore, any interference at this stage could be fatal to mental and physical conditions of minors.
6. Careful scrutiny of reasoning, which prevailed with the learned courts below , in the light of the evidence annexed with this petition reveals that predicated on the proper reading of the evidence, the courts below correctly recorded findings to the effect that the minors throughout remained in the custody of their mother who being their real mother properly looked after the minors and was giving them due education and was also tending to their health and quotidian needs and that the paramount consideration before the courts in such instances ought only to be the welfare of the minors which in the circumstances was proved to be in continuation of their custody with the real mother . It was also taken note of that the petitioner did not specifically deny the allegation of her own second marriage with one Bashir , after the demise of her husband, notwithstanding the fact that she claimed that the father of minors i.e. her own real son was paralyzed and required her personal attention for due care. Obviously , it was a negative factor which was rightly reckoned against the petitioner .
7. As regards the plea of disability of mother to continue the custody on the premise of her second marriage, the same in the peculiar circumstances of this case does not appear to be of moment. Had it been a case of a minor girl, the objection might have been relevant but in point of fact the minors in this case are male children. The petitioner who was paternal grandmother and also having statedly entered second wedlock herself after the death of her husband, could not be given preference to the real mother of the minors who since their birth was looking after them and bringing up the children along proper and better lines. In "Mst. Noor Afshan v. Muhammad Ghali b and 3 others" ( 2019 CLC 1787 ) it was observed as follows: "...Learned appellate court granted permanent custody of the minor to respondents No.1 on sole ground that the petitioner has re-married and is now living with her second husband. In my humble opinion such ground could not be applied in the present case as the same could have been applied had been subject minor been a girl. Except for the above, no other justifiable reason has been assigned by the learned appellate court for granting permanent custody of a male minor of tender age to his father ..."
In "Sardar Hussain v. Mst. Parveen Umer and six others" (2003 YLR 3054 ) while considering the objection on the basis of second marriage of the mother , in custody matters, it was observed that: "6. The second plea is also not sufficient to disentitle the respondent No.1 from having the custody of the minors.
She was deserted along with the 3 mino rs and was thrown into a tide of hostile social conditions with uncertain future and that too within our male dominated society thus she legitimately felt insecure and defenceless was therefore justified to contracting second marriage for securing her own future as well as of the minors.
As discussed above, the petitioner did not pay a single penny to respondent No.1 for the maintenance of the 3 minors and the present husband took on himself such responsibility without any hesitation and exception. The minors have been brought up by this way by their mother with the help of the present husband therefore, the second marriage could not be made a ground to disentitle the mother to the custody of the minors."
In another case "Mst. Ruqayya Yasmin v . Muhammad Riaz and others" ( 1991 MLD 166 ), it was observed that: "4. From a perusal of the orders passe d by the Guardian Judge as also the Addl. District Judge, it becomes abundantly clear that the only reason which prevailed with them for directing that the custody of the minors be handed over to respondent No.1, the father , was that the petitioner on account of her remarriage with the stranger has lost her right of Hizanat. Unfortunately , however , while deciding the application no attention was paid by the Courts below either to the evidence on the record nor was any effort made so as to ascertain that it would be in the welfare of the minors to continue living with the mother notwithstanding her remarriage. It is trite law that the dominant or rather the only factor which is to be considered by the courts while determining the question of custody of the minors is their welfare. To this paramount consideration all other reasons are subordinate. The fact that the petitioner had remarried was one of the factors which could be taken into consider ation while deciding the dispute, but it certainly form the sole basis. Refe rence in this connection may be made to Shagufta Bano. v. Musarrat Hanif and others 1982 CLC 1821 ; Mst. Rafiqan and 2 others v. Jalal Din 1983 SCMR 481; Mst. Jannatan v.
Ch.Abdul Hamid and others 1984 CLC 345 and Mst. Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606 it was observed that :- "...It is therefore, provided specifically that although the guardian is entitled to such a custody , no order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of guardian, the Court will have to weigh it against the other weighty considerations on the record. The over-ridin g and paramount consideration always is the welfare of the minor . Indeed, this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in this favour unless it is in their welfare to do so. The welfare of a minor means his material, intellectual, moral and spiritual wellbeing."
The Courts below while dismissing the appeal relied upon Mst. Parveen Akhtar v. Muhammad Ashraf 1986 SCMR 1944 and Mst. Zubeda Khanum v. the Distr ict Judge, Karachi South and 2 others 1988 CLC 556 but these authorities are distinguishable on facts inasmuch as, in both the cases it was held that the welfare of minors demanded that their custody be granted to their father . Unfortunately , in the present case, as already indicated, no such exercise was undertaken which has rendered the orders of the Courts below to be without lawful authority .
It is also to be noticed that while adjudicating upon the question, the custody of minors, it is not the right of the parties which is required to be decided by the Courts but instead it is the welfare of the minors which has to be considered. Consequently , both the Courts below fell in serious error in proceeding to decide the application for custody of the minors on the sole ground that the petitioner had lost her right of Hizanat. Another legal error committed by the Courts below is that they have failed to consider that the factum of remarriage of the mother has no relevance as regards the custody of the male child for this principle is only applicable in cases of females"
In "Mst. Rabia Bibi v. Abdul Qadir and others" (2016 CLC 1460 ) it was observed to the effect that mere fact of remarriage of mother would not ipso facto disentitle her from retaining custody of minor and handing him over to the father when it is not otherwise in the welfare of the minor and that the welfare of the minor is the paramount consideration in determining the custody of a minor . In "Mst. Firdous Iqbal v. Shafaat Ali and others" (2000 SCMR 838 ) it was observed by the honourable Supreme Court as follows: "15. As stated earlier , the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custod y of the minor to the father was only that after attaining the age of seven years, the right of 'Hizanat' of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under section 25 of the Guardians and Wards Act (VIII of 1890). The welfare of the minor , however , remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however , be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another . It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor .
It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor , neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother . She had brought him up and educated him till she had to opt for her second marriage..."
In "Mehmood Akhtar v. District Judge, Attock and 2 others" (2004 SCMR 1839 ) it was observed by the honourable Supreme Court to the ef fect that: "...The Courts, subject to the welfare of minor, always determine the question of custody of minor child in the light of the governing principle of Muhammad an Law but mere fact that the father becomes entitled to get custody of minor or mother has lost the right of Hizanat, is not a sole criteria to decide the question of the custody of minor .
This Court in Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 having discussed all the above questions raised before us in the light of Muslim Personal Law and the provisions contained in Muhammadan Law by Mulla, has held that notwithstanding the right of father for custody of minor under Muslim Personal Law, this right is always subject to the welfare of the minor which is the paramount consideration for determining the question of custody of minor .
4. We having considered the matter in the light of law laid down by this Court and the principles of Muhammadan Law, find that in the given facts and peculiar circumstances of the present case, it would not be in the interest and welfare of minor to handover her custody to father rather the welfare of minor would lie in her custody with her mother ..."
8. It is manifest from the cases referred supra that in the matter of custody of the minors, mere entitlement or disentitlement of a parent to have the custody may not be such a significant factor; instead it is in the welfare of the minors that need to be accorded paramount consideration. While determining this aspect, the courts always lean in favour of allowing custody to the person with whom the custody of minor lies and in the cases second marriage of the wife after divorce, the mother is not denuded of her capacity simply because of remarriage unless the factum of second marriage was established to have impinged upon the welfare of the minors. In the peculiar circumstances of the present case the factual aspects cannot be overlooked. It is a case in which the mother is looking after the minors since their birth while the application under section 25 of Guardians and Wards Act, 1890 was filed at the age when they were both over 10 years of age. During this period the parties litigated in the Family Suit which ended in a compromise and in terms thereof, the father agreed to the continuation of custody with the mother till majority . The compromise was effected in the year 2012. The mother respondent continued bringing up the minors and also looking after their health and education. In the petition under section 25 of the Guardians and Wards Act, 1890 which was moved by the petitioner as a paternal grandmother , it was claimed that the father was paralyzed and unable to take care of the minors and that he also conceded this fact before the court while acting through his counsel. The counter circumstances of the respondent mother were that the petitioner herself after the death of her husband had entered into second marriage and was living with her second husband who is obviously not the real grandfather of the minors. The second husband of respondent No.3 has throughout supported her in looking after the minors and taking care of their educat ion. There is no evidence that either before the second wedlock or after it that the minors' education or health was in any way be impacted adversely . In the absence of any such proof, it was a case in which the paternal grandmother intended to deprive the real mother of her sons who she has looked for over a decade at this stage and place the children with a step grandfather with whom the petitioner is statedly living while the father is neither interested nor physically or in terms of health or otherwise, claimed to be capable of taking care of the minors. Any change in the custody at this crucial and formative age of the minors and that too after over a decade is likely to have untoward repercussions on their mental state and physical condition. Any attempt to deprive them of their real mother would obviously mean that they shall be deprived of the supervision of the mother and also the father and the father is according to petitioner paralyzed. The circumstances, therefore, proved beyond doubt and was rightly so observed and concluded by the courts below that the welfare of the minors did not lie in disturbing their custody at this stage. The findings recorded by the courts below are strictly in accordance with law and the consistent rule laid by the superior courts. No error of law or jurisdiction could be shown in the impugned orders.
9. For the reasons hereinbefore, this writ petition is meritless, which is accordingly dismissed.