RASAAL HASAN SYED, J.---Petitioner in this Constitutional petition has challenged orders dated 17.11.2016 and 10.4.2017 of the learned courts below whereby an application under section 25 of The Guardians and Wards Act, 1890 (the " Act") was dismissed and the order was af firmed in appeal.
2. Petitioner filed an application for custody of minor daughter , Arfa Azeem, respondent No.4, claiming that respondent No.3 was married to the petitioner on 25.11.201 1; the couple was blessed with the daughter on 01.9.2012; relations between the parties were initially cordial but ultimately soured and resulted in divorce and that respondent No. 3 had remarried; and that being father , petitioner was entitled to the custody of his minor daughter .
Application was resisted, allegations were controverted and it was asserted that the minor was being taken care of by the respondent No.3, her real mother , since birth and that the welfare of the minor lay with her and that even the maternal grandmother had a preferential right of custody after the real mother and that the welfare of the minor , keeping in view the conduct of the petition er and his disinterestedness, would warrant that custody of the minor not be disturbed. Parties produced their respective evidence wherein Khalid Javed, father of the petitioner and Muhammad Asif and Muhammad Younis appeared as A.W .1 to A.W.3; while respondent No.3 appeared as R.W.1.
The learned Guardian Judge after evaluating the evidence and weighing the peculiar circumstances of the case as also the conduct of the petitioner during the proceedings of the case, dismissed the application. In appeal, the learned Addl. District Judge on due scrutiny of evidence, af firmed the view of the learned Trial Court.
3. Learned counsel for the petitioner submitted that the impugned orders were based on misreading and non- reading of evidence; the learned courts below had incorrectly assumed that the matter was between the paternal grandfather and maternal grandmother; that the petitioner having filed the petition as father , was entitled to custody of the minor and that the mother of the minor having remarried, the petitioner being a natural guardian had a preferential right to seek custody of the minor and that he had the financial means to provide best living standards for the minor .
4. In response, learned counsel for respondents Nos.3 and 4 supported the orders of the learned courts below and pointed out the behavior and conduct of the petitioner throughout the trial. It was argued that the petitioner never pursued the application for child custody himself nor ever availed the opportunity of visitation rights which were allowed by the learned courts below and that throughout the trial and also the appeal, the paternal grandfather of the minor pursued the matter as Special Attorney and also that the petitioner himself was living abroad and had remarried and never cared for the welfare of the minor and that the learned courts below had correctly concluded that the welfare of the minor was best served by not disturbing her custody .
5. From the impugned orders it is discernable that the facts made note of by the learned courts below were that the petitioner never appeared personally before the learned Guardian Court, never availed visitation rights and that his father as Special Attorney had been pursuing the matter throughout who was involved in criminal cases, which included case for drinking alcohol and that he had to remain behind the bars for some time and that the petitioner , who had remarried, was settled abroad and that it was not in the welfare of the minor girl that her custody be disturbed by placing her at the mercy of the stepmother in the absence of her Dubai living father .
6. Perusal of the pleadings and evidence shows that the petitioner married respondent No.3 on 25.11.201 1, the child Arfa Azeem was born out of the wedlock on 01.9.2012, parties got divorced and on 08.12.2012; respondent No.3 instituted a suit for recovery of gold ornaments, articles of dowry and also for her own past maintenance allowance as well as past and future maintenance allowance of minor . The suit was resisted by the petitioner but was ultimately decreed by the learned Judge Family Court, Sialkot vide judgment dated 03.2.2014 in terms whereof the minor daughter was allowed maintenance allowance @ Rs.10,000/- per month with 10% annual increase from the date of institution of the suit till her marriage. Respondent No.3 was also allowed a decree for recovery of articles of dowry as per Ex.D-2 or in the alternative its value in the sum of Rs.3,00,000/-. Petitioner preferred an appeal against the judgment and decree of the learned Judge Family Court to challenge the maintenance of the minor as also the other reliefs. In para 7 of the judgment dated 02.12.2015, Ex.A-8, the arguments raised on behalf of the petitioner were noted which were to the effect that the petitioner claimed himself to be a disabled person due to fracture of his arm and pleaded that he could not work hard due to his disability and that the quantum of maintenance allowance was high, which was challenged. The appeal was partly accepted and decree of the learned Family Court was modified and maintenance allowance of the minor was reduced from Rs.10,000/- to Rs.5,000/- per mensem from the date of institution of the suit till the marriage of the minor with 10% annual increase.
7. From the documentary and oral evidence it is manifest that the minor Arfa Azeem was born on 01.9.2012, litigation for maintenance allowance and dowry articles between the estranged spouses started on 08.10.2012 wherein a decree was granted on 03.2.2014 and during the period neither any application for custody of minor was moved by the petitioner nor any keenness was evinced to meet the minor or fret about her welfare while respondent No.3, the mother of the minor , took care of her throughout. It was only on 05.1.2015 i.e. after the passing of the decree for maintenance allowance that the petitioner filed an application under section 25 of the Act on 05.1.2015 and also challenged the decree of the learned Family Court in appeal wherein question of maintenance was challenged on account of financial constraint and physical disab ility that impeded the petitioner from working hard.
8. In the application for custody of the minor , the main stance of the petitioner was that respondent No.3 had remarried and that the petitioner was entitled to custody of the minor . Response was that the petitioner himself had remarried, that he was living abroad throughout and never bothered to avail visitation rights qua the minor and that the welfare of the minor was better served with the mother and that the maternal grandmother had the next preferential right of custody and that the grandfather was involved in criminal cases and had also been incarcerated and in such atmosphere, the minor daughter , could not flourish in the custody of the stepmother which was contrary to her welfare.
9. It is discernable from the evidence that Khalid Javed, father of the petitioner and paternal grandfather of the minor , appeared as A.W.1. He admitted in his statement that he was 64 years of age, was involved in criminal cases out of which one pertained to drinking liquor , that he had to remain in jail and that the petitioner , who was the father of the minor , had remarried on 26.3.2015 and was not in Pakistan. It was not disputed that the petitioner did not personally avail any visitation rights during the trial nor even appeared as witness in the case and that he lived abroad throughout. As against the evidence of the petitioner , respondent No.3 appeared as R.W.1 and deposed that she had a B.A degree and denied the suggestion that her mother was suffering from blood pressure or sugar .
She admitted that the petitioner was serving abroad and that she filed a suit for recovery of dowry articles which was decreed to the extent of Rs.3,00,000/-; she deposed that the minor was study ing in a school and, importantly , in cross-examination, the respondent was given the suggestion that the mino r was living with her maternal grandmother and maternal uncles. Sabir Hussain son of Sher Zaman Khan appeared as R.W.2 and supported the testimony of respondent No.3.
10. The circumstances of the case revealed that the petitioner , father of the minor has already remarried. He has been living abroad throughout and did not turn up nor availed the visitation rights during the trial or appeal as allowed by the learned courts below on his application under section 12 of the Act. He did not even appear as a witness to evade cross-examination. In the matter of custody it is not the choice of the parents which attaches any importance. Rather it is the welfare of the minor which is of paramount consideration. Overall welfare of the minor , in the long run, is always in her living with the natural mother or the maternal grandmother who had the next preferential rights of custody rather than living with stepmother . In "Mehmood Akhtar v. District Judge, Attock and 2 others" (2004 SCMR 1839 ) considering the issue pertaining to the welfare of the minor it was observed to the effect that if both parents had remarried and the minor has no choice except to live with stepfather or stepmother it would not be in the interest of the minor to deprive her from the natural love and affection of the real mother and compel her to face stepmotherly treatment in the house of the fathe r. In "Mst. Nighat Firdous v.
Khadim Hussain" (1998 SCMR 1593 ) it was observed to the effect that the welfare of the minor is of paramount consideration and that the custody can only be delivered in the welfare of the minor and not in the interest of the parents and that although the father is the lawful guardian, the right of the father to claim custody is not an absolute right and that he may become disentitled to it on account of his conduct that may be determined from the facts and circumstances of each case. Similarly , in the case of "Mukhtar Ahmed Shahzad v. Muhammad Adeel and others"' (2020 MLD 368) it was observed to the effect that the minor was living with the maternal grandfather and that the father had contracted a second marriage and that his right of appointment as a guardian in routine, vanished, and that the court needed to be more cautious in such cases particularly when the father made no effort to see the minor over the years which revealed his lack of interest. In "Mst. Firdous Iqbal v. Shiat 411 and others " (2000 SCMR 838) it was observed to the effect that where the minor was being brought up throughou t by the mother who had later entrusted the duty to the maternal grandmother and that the father throughout this period had never taken the trouble to meet the minor and it was only when the mother sued for maintenance allowance of the minor that the application for custody of the minor was filed, the father having taken another wife, would expose the minor to the onslaughts of stepmotherly treatment at the hands of the second wife which was well-known.
11. The case of "Shabana Naz v. Muhammad Saleem" (2014 SCMR 343) referred by the learned counsel for the petitioner , was considered by the learned courts below and it was observed that the same had distinguishable facts. Even in the said case it was observed to the effect that there were many factors which may not entitle the father to the custody of the minor and some of the factors could be where the father was habitually involved in crimes or was a drug or alcohol abuser or maltreated the child or did not have the capacity or means to maintain or provide for the health and upbringing of the child or where the father deliberately omitted and failed in meeting his obligations to maintain his children and that these factors noted are not exhaustive and that they may also not be considered to be conclusive and each case has to be decided on its own merits keeping in view that the cardinal consideration is the welfare of the minor .
12. In the instant case the learned courts below duly weighted all the material facts and circumstances of the case, took note of the conduct of the petitioner throughout the proceedings, his little personal interest in the welfare of the minor and other material factors and concluded that the welfare of the minor did not lie in disturbing her custody .
With a view to appreciate the conclusion drawn it will be germane to refer to the operative part of the order dated 10.4.2017 of the learned Addl. District Judge which is as under: "10...The petitioner is out of country and even he has not come to the court for visiting the minor daughter . But the grandfather of the minor who is special attorney of the petitioner does not possess noble and poise character and he has been involved in some criminal cases. The respondent has mentioned in her affidavit Exh.R.1 that maternal grandmother of the minor is alive and healthy and she has great love for the minor which implies that the minor is living with her maternal grandmother . This fact is further established from the suggestion put to the RW.1 that the minor was living in the custody of her maternal grandmother . In the given situation the contest, in fact, remains between the grandfather and maternal grandmother of the minor and the court has to decide in whose custody the welfare of minor lies. During the cross- Examination AW. 1the grandfather of the minor has admitted the registration of criminal case against him. He also admitted it correct that criminal case for drinking liquor was also registered against him. To give the custody of the minor to the petitioner would tantamount to deliver the custody of the minor to his grandfather because the petitioner is out of country . Admittedly the petitioner is out of country and the grand father of the minor is involved in criminal cases. In these circumstances I am not inclined to give the custody of the minor the petitioner . It will not be out of place to mention here that the petitioner has never appeared before the court to visit the minor which reflects that he is least concerned with the welfare of the minor . There is yet another aspec t of the case that the minor is of tender age and in absence of his real father she is likely to bear the brunt of her step mother ."
13. It is manifest from the orders of the learned courts below that the central consideration was the welfare of the minor and to determine the same all relevant factors were kept in view. It was rightly observed that the petitioner had never evinced any interest in the welfare of the minor , never availed the visitation rights during the trial or appeal and that he never expressed his desire to meet the minor despite the fact that he was permitted by the court to meet the minor as per schedule fixed.
14. It was also observed that the minor was produced before this Court by her mother and maternal grandmother , who was observed to be comfortable with her maternal grandmother . It was a case in which during last approximately nine years the petitioner had not attempted to meet the minor even once either during the proceedings for the recovery of her maintenance allowance or in the trial of the present case. Even the Constitutional petition is pending for the last three years and the order-sheet did not reflect that the petitioner ever made an effort to attend the proceedings to express his desire to meet the minor . Instead the case is being pursued through the father of the petitioner as his Special Attorney against whom there were serious reservations as rightly observed by the learned courts below . In view of the facts and circumstances and reasons noted supra, the orders of the learned courts below could not be shown to be suffering from any misread ing of record or error of law or jurisdiction as to warrant any interference in the extraordinary jurisdiction of this Court.
15. For the reasons supra, instant petition being devoid of substance is, accordingly , dismissed.