SHAKIL-UR-REHMAN KHAN, J. The instant matter relates to a clash between the paternal aunt (petitioner) and the real mother (respondent No. 1) for the custody of a minor namely , Basit Ali, also referred to as Basit Akram. The mother had applied to be appointed as the guardian of the child along with his custody and had won her battle before the two learned courts below . The paternal aunt now challenges the decisions of both the said learned courts. It needs to be noted that the present petition is being decided on the basis of the record appended with the instant petition.
2. Relevant facts for the decision of the instant petition are that respondent No. 1 filed a petition under section 25 of the Guardians and Wards Act, 1890 on 23-12-2017 before the learned Guardian Judge, Okara along with an application under section 12 of the said Act. The said petition had been filed against the petitioner and her three (3) brothers. The respondent No. 1 had stated before the said learned Court that she was married to one Muhammad Akram on 20-12-2002 and out of this wedlock three children were born, namely , Haram Akram born on 30-8-2005, Basit Ali born on 10.5.201 1 and Habiba Akram born on 13.1.2013. Her husband was working in the Army , who unfortunately passed away on 23-7-2015, after his retirement. She was living with her in-laws and on 21-7-2017 she was kicked out of the house along with her two minor daughters but her son was snatched from her. She had filed an application for custody of the said minor along with an application for his interim custody . The application for interim custody was dismissed on 22-7-2012.(sic) It was further stated by her that she had admitted her children in the school namely , A.P.S. Okara and that she was paying their fee but for the last four months she was not being allowed to meet with her minor son.
3. It was further her case that the petitioner has seven children out of whom, two were married and the remaining five are also adults. It was further stated that the petitioner cannot look after the said minor , namely , Basit Ali properly and that the petitioner and other in-laws had snatched the said minor because of greed as they wanted to snatch the property of his deceased father/husband of the respondent No. 1.
4. The petitioner along with her brothers submitted their joint reply to the petition under section 25 of the Act ibid along with the reply to the application under section 12. Through the said reply , it was stated that the petitioner was looking after the said minor Basit Ali and all his expenses were also being paid by the petitioner .
5. The application for the interim custody was disposed of vide order dated 24-3-2018 while settling a schedule for respondent No. 1 to meet her children on every last Saturday of the month in the Court for two hours i.e. from 1:00 p.m. to 3:00 p.m. Through this order the learned Court framed the following three issues:
(i) Whether it is in the welfare of the minors that their custody be delivered to the petitioner? OP A.
(ii) Whether the petitioner has no cause of action and locus standi to file the instant petition? OPR.
(iii) Relief.
This seems to be a typographical error as the case only concerned the minor Basit Ali and not the other two children who were already living with the respondent No. 1. In any case, this mistake has not affected the merits of the case, nor the right of any of the parties, therefore, is ignored.
6. Respondent No. 1 submitted her affidavit along with those of her two brothers, namely , Had Nawaz and Asif Ali.
She appeared as AW-1 on 27-9-2018 and was cross-examined. Her brother Asif Ali appeared as AW-2 on 27-9- 2018 and was cross-examined as well. On 29.9.2018, her counsel gave up the third witness of respondent No. 1, namely , Haq Nawaz. The said counsel on 4-10-2018 submitted photocopy of Form-B as Mark-A and death certificate Muhammad Akram as Mark-B and closed her evidence.
7. On the other hand, the petitioner submitted her affidavit on 20.10.2018 along with those of her brother Muhammad Aslam and her sister Nasreen Bibi. The petitioner appeared as RW-1 on 7-11-2018 and was cross- examined. Her brother , namely , Muhammad Aslam also appeared on the said date as RW-2 and was cross- examined as well. As far as documentary evidence is concerned, the same was submitted through the learned counsel of the petitioner on 19-1-2019 who placed on record, the progress report of the said minor as Mark-A and the school certificate as Mark-B and thereafter closed the evidence of the petitioner . It is noted that the other two brothers who had been impleaded as respondents in the said petition, did not submit their affidavits in support of their sister , now the petitioner .
8. The learned Guardian Judge throu gh impugned judgment and decree dated 26-01-2019 accepted the application of respondent No. 1. Again, it is noted that only the petitioner challenge d the said judgment and decree dated 26-01-2019 through an appeal before the learned District Judge, Okar a on 30-01-2019. The learned Appellate Court vide judgment dated 29-3-2019 dismissed the appeal filed by the petitioner , hence, the instant petition.
9. Learned counsel for the petitioner contended that second child from the said marriage was given to the petitioner in order to adopt the said child by the petitioner . It is further stated that the said minor , namely , Basit Ali was given to the petitioner for his better future and that respondent No. 1 had not raised any objection in this regard. Since that time, the petitioner is maintaining the minor as her own child and the said child considers the petitioner as his real mother since his birth. It is further stated that unfortunately Muhammad Akram, husband of respondent No. 1 and brother of the petitioner passed away and subsequently the relations between respondent No. 1 and other relatives including the petitioner became strained. Eventually , she left and now lived with her parents. Thereafter , respondent No. 1 filed a petition under Section 25 of the Guardians and Wards Act, 1890 for the custody of Basit Ali against the petitioner and others by narrating a false story .
10. Learned counsel for the petitioner argued that both the judgments and decrees passed by the learned Courts below are against the facts and circumstances of the case, the governing law as well as the welfare of the minor .
He added that respondent No. 1 could not prove her assertions as contained in the guardian petition and, therefore, she was not entitled to any relief. He further stated that the learned Cour ts below failed to appreciate that respondent No. 1, with the consent of her husband handed over her son Basit Ali to the petitioner just after three days from his birth and since then, the petitioner has been maintaining the minor . The petitioner under the Guardians and Wards Act, 1890 had approached the learned Court below , after about 10 years and there was no lawful justification to claim her son. However , the learned lower courts have ordered the petitioner to hand over the said minor to his real mother while ignori ng the services of the petitioner; that the welfare of the minor is with the petitioner and not with the respondent for the reason that the petitioner can provide better education, status and other necessities of life than the respondent No.1. He further stated that the learned lower courts wrongly assumed that the said minor is weaker than his sisters, who were living with respondent No.1. He further stated that the said minor considers the petitioner as his mother; hence, there was no question of depriving the minor from the love and affection of his real mother . The petitioner is providing a better education to the minor . She got the minor admitted in A.P.S. School and is bearing all the necessary expenses of his education and tuition due to which he had secured 92.55 % marks. On the other hand, respondent No.1 had admitted her daughters in a government school, hence, the welfare of the minor is with the petitioner and not with said respondent No.1.
11. The learned counsel for the petitioner further stated that respondent No.1 is very poor and she is dependent upon the pension of her husband and borrows money from her brothers and that she cannot bear the expenses of A.P.S. Okara. He further stated that the petitioner never disallowed respondent No.1 and her daughters to meet the said minor or to take him to their house for some days and in this manner , the minor is not deprived from affection of his real mother and sisters.
12. It is also the case of the petitioner that the allegation leveled against her that she wanted to grab the valuable property of inheritance of the said minor , is incorrect, as there is no property which is to be inherited by him, in any case. He adds that in case any property is owned by him through inheritance, the petitioner undertakes that she will not take any benefit from the said property . He further added that the petitioner has great love and affection with the said minor and that there is no statement of the respondent No.1 available on recor d to show that the petitioner and her children are disgracing or insulting the minor . He further stated that the impugned judgments and decrees have been passed by the learned courts below on presumptions and suppositions. In this view of the matter , it was prayed that the impugned judgments and decrees dated 26-01-2019 and 29-3-2019 passed by the learned Courts below be set aside and the petition filed by respondent No.1 be dismissed.
13. Heard. Record perused.
14. It is noted that the reply submitted to the petition under section 25 of the Act ibid was vague and it was for the first time stated through the affidavits of the petitioner , her brother and her sister that said minor Basit Ali was handed over to the petitioner , after three days of his birth by the husband of respondent No. 1/brother of the petitioner , with the understanding that the petitioner shall look after the said minor .
15. The learned Guardian Judge throug h impugned judgment and decree dated 26-01-2019 after recording of evidence and hearing the learned counse l for the parties, allowed the petition under section 25 of the Act ibid. The petitioner filed an appeal against the said judgment and decree before the learned District Judge. The said appeal was dismissed as having no force. It is also noted that the said appeal was dismissed with costs.
16. A plain reading of the above noted two judgments clearly show that in the peculiar facts and circumstances of the case, the said minor namely , Basit Ali cannot be deprived from his mother's love and affection. The scan of the record and evidence placed along with the instant petition depicts that the petitioner , paternal aunt of the minor , has five sons and two daughters out of her own wedlock. The elder son of the petitioner works in a workshop and the other son works at the Sheesh Mahal Hotel . The learned Courts below came to the conclusion that it would not be appropriate to keep the minor Basit Ali away from neither his mother , nor from his two sisters and that in the presence of his real mother , his paternal aunt cannot be an alternative to the real mother .
17. The other arguments as raised by the learned counsel for the petitioner are not substantiated from the record of the case. As noted above, the stance of the petitioner as explained through her affidavit and those submitted in her support, is clearly beyond the reply submitted by her in response to the petition under section 25 of the Act ibid. Moreover , the moot question that needs to be addressed in such matters is the welfare of the minor . This particular aspect has been the key feature, duly taken into consideration by both the learned courts below . It was also noted by the said courts that respondent No.1 had not entered into a second marriage and due to this very reason it was held that she was not disqualified to obtain the custody of her minor son.
18. It has been pleaded before this court that the petitioner has never disallowed the respondent No. 1 or her daughters to meet the minor and to take him to their house for some days, therefore, the minor is not deprived of the affection of his real mother and his real sisters. This submission on behalf of the petitioner rocks the bottom out of the case of the petitioner . This clearly depicts that the respondent No. 1 is no stranger to the minor . It also needs to be noted that the welfare of the minor is not to be determined on the basis of presumptions, likings or the preferences of either of the parties but on the basis of the evidence on record. A child's welfare is the only paramount factor and has to be kept in view while taking into consideration all the relevant considerations in the matter . The rights, if any, of the parents are to be given a second place and the "child's welfare" will always be the key consideration. Welfare of the child / minor includes, but is not limited to, his health, education, physical, mental and psychological well-being as well as his development. His right of togetherness with his siblings is also very relevant. There is, as such no check-list under the governing statute to determine the welfare of the minor , therefore, each case has to be decided on its own facts and evidence brought on the record. Accordingly , the court has to enter into a "balancing exercise" while applying the test of "welfare of the child".
19. Keeping in view the right of the mother to have custody of the said minor child and his welfare, he cannot be allowed to be kept away from his real mother , as the mother's lap is the cradle of God. Unfortunately , his father has already passed away , however , since his real mother is alive and his two (2) sisters are also living with the said mother , therefore, the scale of welfare of Basit Ali, clearly tilts in their favour and they need to be together . In reaching this conclusion, I am fortified by the cases reported as Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839 ), Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460 ), Tariq Mehmood and others v. Additional District Judge and others (2016 MLD 1767 ) and Mst. Nazli v. Muhammad Ilyas and another (2010 M LD 477).
20. In the above noted circumstances, no illegality or perversity has been found in the impugned judgments and decrees passed by the learned courts below . Accordingly , the instant petition, being devoid of any force, is dismissed in limine ,