ATIR MAHMOOD, J.---- Brief facts of the case as narrated in the writ petition are that petitioner Muneeza Nisa and respondent No.1 Ahmed Nawaz were married in the year 2002 and out of this wedlock, four children namely Alishba Ahmed, Mishal Ahmed, Muhammad Manzar Nawaz and Hooriya Fatima were born; that Ahmed Nawaz is living abroad for bread and butter from the very beginning; that Ahmed Nawaz had earlier married with respondent No.3 Khalida Parveen but had no issue from her, therefore, he married with the petitioner; that respondent No.2, who happened to be brother of husband of the petitioner , got lodged a criminal case FIR No.243 dated 04.09.2016 with Police Station Saddar Chakwal alleging that the petitioner , her brother and father had murdered his wife Zahida Parveen; that the petitioner firstly approached sessions court for her bail before arrest but remained fail whereafter her pre-arrest bail was confirm ed by this Court; that after confirmation of her bail, the petitioner moved petition under Section 491, Cr.P.C. for custody of her minor children on 31.01.2017 before learned Additional Session Judge, Chakwal who accepted the petition to the extent of minor daughter Hooriya Fatima but dismissed the same to the extent of remaining children; that the petitioner approached this Court through Criminal Miscellaneous Petition No.521-1 1/2017 challenging order of the Sessions Court but later on withdrew the same in order to approach the Guardian Court for custody of the remaining children; that Ahmed Nawaz moved Guardian Petition through his attorney Muhammad Afzal/respondent No.2 for custody of minor Hooriya Fatima whereas petitioner filed Guardian Petition for custody of other three children.
2. Both sides contested petitions of each other by filing written their respective replies. Both the petitions were consolidated and consolidated issues were framed. Learned Senior Civil Judge (Family Division), Chakwal accepted the petition of respondent No.1 but dismissed the petition of the petitioner vide consolidated order dated 18.04.2019. The petitioner challenged the said order by filing two appeals which were dismissed by learned Additional District Judge, Chakwal through consolidated judgment dated 09.08.2019. Hence this writ petition has been filed.
3. Learned counsel for the petitioner inter alia contends that the petitioner is real mother of the minors whereas their father/respondent No.1 is abroad in connection with his job and the minor children are residing with their uncle (respondent No.2) and step mother (respondent No.3) but this fact has altogether been ignored by learned courts below; that the minor daughters are near to attain the age of puberty; that none is better guardian than the mother; that there is misreading and non-reading of evidence; that learned courts below have miserably failed to ignore the right of togetherness of the children; that the respondents are avoiding meeting of the minors with the petitioner; that due to enmity of murder , there is great threat of life to minors by the respondents, therefore, this writ petition be allowed, the impugned decisions of learned courts below be set aside, the guardian petition of the petitioner be allowed whereas the guardian petition of the respondents be dismissed.
4. On the other hand, learned counsel for the respondents has vehemently opposed this writ petition and fully supported the impugned decisions mainly on the ground that the environment of house of the petitioner is not good for the minors as father and brother of the petitioner are also involved in another dual murder case; that respondent No.3 though is step mother but she has no child of her own and she treats the minors as her own children; that the children are also well-acquainted with respondents Nos.2 and 3 and are not willing to reside with their mother . He accordingly prays that this writ petition be dismissed.
5. Arguments heard. Record perused.
6. To look into the entitlement of respondents Nos.2 and 3 to have custody of the minors, we will have to go through Para 353 of Muhammedan Law which talks about entitlement of relatives in default of mother . The same is reproduced below for ready reference: "353. Right of female relations in default of mother . Failing the mother , the custody of a boy under the age of seven years, and of a girl who has not attained puberty , belongs to the following female relatives in the order given below:-
(1) mother's mother , howhighsoever;
(2) father's mother , howhighsoever;
(3) full sister;
(4) uterine sister;
(5) consanguine sister;
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) consanguine sister's daughter;
(9) maternal aunt, in like order as sisters; and
(10) paternal aunt, also in like order as sisters.
The above are the total entitlements for custody of the minors if the mother for any reason is held disentitled to their custody . 'The uncle or the step mother do not figure anywhere in the above entitlements.
Therefore, respondent No.2, paternal uncle and respondent No.3, step mother of the minors cannot be given custody of the minors even if the mother is held disentitled to the same.
7. Disentitlements for custody of the minors have been given in Para 354 of the Muhammedan Law which is reproduced hereunder: "354. Females when disqualified for custody. -- A female, including the mother , who is otherwise entitled to the custody of a child, loses the right of custody:-
(1) if she marries a person not related to the child within the prohibited degrees (sections 260-261), e.g. a stranger , but the right revives on the dissolution of the marriage by death or divorce, or
(2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or
(3) if she is leading an immoral life, as where she is a prostitute or
(4) if she neglects to take proper care of the child."
Above are the disqualifications of a female, including the mother , to have custody of the minors. None of the same is attracted in this case with regard to the petitioner-mother as neither she has contracted second marriage nor there is any allegation of immorality nor that of ignoring the children in any manne r against her. There is no denial to the fact that the petitioner was living with her children, in a joint family system and brought up the children in an efficient manner as there is neither any allegation in the pleadings nor even in evidence .to the contrary . Therefore, the petitioner is not disqualified to the custody of her minor children and cannot be deprived of her legitimate right to get the custody of her minor children.
8. In the instant case, respondent No.1 filed the application under Section 25 of the Guardians and Wards Act ("The Act") seeking the custody of minor Hooriya Fatima through his attorney/respondent No.2 Muhammad Afzal who happened to be real brother of respondent No.1 with the allegation that the petitioner murdered his sister-in- law/bhabi (wife of respondent No.2) namely Zahida Parveen by making a fireshot with .30 bore pistol. Regarding the said allegation, a case FIR was got lodged against the petitioner , her brother , her father and her maternal uncle.
In the said case, though brother of the petitioner has been convicted and sentenced but the petitioner has been honourably acquitted by the court. Therefore, the said case does not provide any basis for disentitlement of the petitioner to have custody of her minor children. At this stage, learned counsel for the respondents has also pointed out that earlier , there was another murder case against brother and father of the petitioner wherein they have compromised with the complainant party . Since the petitioner was neither alleged any role nor was convicted in the said case, she cannot be deprived from custody of the minors on account of that case as well.
9. The petitioner and respondent No.1 are real mother and father of the minors respectively whose right to have custody of the minors has been admitted by Shariat as well as law of the land. Respondent No.1, i.e. father , is undisputedly residing abroad since long to earn his bread and butter . The record does not reflect that he ever came to the court to pursue his case which is being prosecuted by his attorney/brother . There is also no evidence that he ever tried to see his daughter living with the petitioner . In the circumstances, it cannot be presumed that he can look after his children at his own and if the custody of the minors is given to him, he will definitely be dependant upon his brother respondent No.2 and his other wife/respondent No.3 (step mother of the minors) for their bringing up. Therefore, the father being unable to care for his children at his own is not entitled to their custody . The petitioner is real mother of the minors who is anxious to have custody of her children and also filed petition for custody of the minors. Respondent No.2 is real uncle and respondent No.3 is step mother of the minors with whom the minors are presently residing. As discussed above, respondents Nos.2 and 3 have no right to have custody of the minors. Even, they cannot be expected to have love and affection for the minors more than their real mother. Furthermore, according to the respondents, the petitioner murdered Mst. Zahida Parveen who was wife of respondent No.2 and real sister of respondent No.3. This might become a strong reason for respondents Nos.2 and 3 for being inimical towards the minors in future, if they are not so today. For this reason too, the custody of the minors cannot he given to respondents. Nos.2 and 3.
10. In the matters of custody , the paramo unt consideration before the courts is always the welfare of the minors.
The right of togetherness of children is a well-recognized right and the minor children can neither be bifurcated nor can be treated as property of a mother or a father . Their welfare is to be taken into consideration as top most priority and sentiments of parents/relatives or their wishes are of very little importance in the matters of custody of the minors. The minor daughter Hooriya Fatima is admittedly residing with the mother . The father though filed application for custody of both the children but being residing abroad, cannot be presumed to care for them at his own. Therefore, the only way to gather the children at one place is to keep them with the mother with whom the minor daughter Hooriya Fatima is alread y residing. It is well settled proposition that none can be better guardian than the mother whose love and affection for her children is always unmatchable. Therefore, the custody of the minors should, in my considered opinion, be and remain with their mother .
11. There is contention of learned counsel for the respondents that the minors are familiar with respondents Nos.2 and 3 and they call respondent No.3 as 'Ammi' and respondent No.3, who is issueless, has also great love and affection for the minors and also treats the minors like that of her own children. He has further pointed out that the minors when produced before learned Additional District Judge, Chakwal, they refused to go with their mother . Be that as it may, but the fact remains that the petitioner is real mother of the minors whose love and affection will obviously be much more than that of respondent No.3. So far as calling respondent No.3 by the minors as `Ammi' is concerned, the petitioner and respond ents have been residing together for a long time and this shows good conduct of the petitioner that she realized the deprivation of respondent No.3 of being issueless and prepared and trained her children to call her (respondent No.3) as 'Ammi'. This is, by no stretch of imagination, disqualification rather qualification of the petitioner to look after her children and care for her close relatives. Regarding denial of the minors to go along with their real mother before the court, this might be due to their mind-poisoning by the respondents with whom the minors are residing for years, particularly when a charge of heinous offence of murder of wife of respondent No.2 and real sister of respondent No.3 has been levelled by the respondents upon the petitioner mother , it cannot be expected from the respondents that they will do anything causing even a sigh of relief to the petitioner . The contentions of learned counsel for the respondent do not hold water . The same are accordingly repelled. Reliance is placed on the dictums laid down by the Hon'ble Supreme Court of Pakistan in case Mir Bat Khan v . Mst. Sherin Bibi and others (2019 SCMR 520 ).
12. Learned courts below have ignored the above aspects of the matter and incorrectly and illegally given custody of the minors to the respondents, therefore, the impugned decisions passed by learned courts below cannot sustain.
13. For what has been discussed above, this writ petition is allowed, the impugne d decisions passed by both the learned courts below are set aside and the respondents are directed to handover the custody of minors namely Alishba Ahmed, Mishal Ahmed and Muhammad Manzar to the petitioner forthwith. Resultantly , the guardian petition filed by the petitioner is accepted whereas guardian petition filed by respondent No.1 is dismissed.