SHAHID BILAL HASSAN-J: Tersely, the petitioner filed a guardian petition under section 25 of the Guardian & Wards Act, 1890, for custody of minor daughter namely Khadija Fatima against the present respondents No.3 and 4 as well as one Mukhtar Ahmad, which was duly contested by them. Out of the divergent pleadings of the parties, the learned Guardian Judge framed issues and evidence of the parties was recorded. The learned Trial Court vide impugned judgment dated 16.07.2018 dismissed the guardian petition filed by the petitioner. The petitioner being aggrieved of the said judgment preferred an appeal before the Appellate Court but the same was dismissed vide impugned judgment dated 28.01.2019; hence, the instant constitutional petition.
2. Heard.
3. Admittedly, the petitioner is real father of the minor Khadija Fatima, whereas mother of the minor has breathed her last. Respondent No.3 is maternal aunt of the minor and she has her children, thus, she has to look after her own children and it can be assumed that she would have more love, care and affection for her own children than the minor Khadija Fatima, whereas the maternal grandmother of the minor namely Mst. Majeedan Bibi (respondent No.4) has, statedly, died.
Therefore, after death of maternal grandmother fresh cause of action has arisen against the respondent No.3. The father being natural guardian after death of minor's mother can better look after her interest and can take care of her as well as provide her education. Moreover, it is not a case that the petitioner is living alone and there is no female inhabitant in his house who could take care of the minor namely Khadija Fatima and provide her proper guidance at the time of her reaching the age of puberty, which is nearing as the age of the minor is stated to be 10 years. Para 355 of the Muhammadan Law reads:- '355. Right of male paternal relations in default of female relations.--In default of the mother and the female relations mentioned in section 353, the custody belongs to the following persons in the order given below:-
(1) the father;
(2) nearest paternal grandfather;
(3) full brother;
(4) consanguine brother;
(5) full brother's son;
(6) consanguine brother's son;
(7) full brother of the father;
(8) consanguine brother of the father;
(9) son of the father;
(10) son of father's consanguine brother; Provided that no male is entitled to the custody of an unmarried girl, unless he stands within the prohibited degree of relation to her.
If there be none of these, it is for the Court to appoint a guardian of the person of a minor.'
4. In this view of the matter, the learned Courts below have failed to consider the peculiar facts of the case in hand and have not exercised vested jurisdiction as per mandate of law while passing the impugned judgments, which has resulted in miscarriage of justice. Therefore, the impugned judgments cannot be allowed to hold field further. Resultantly, by allowing the constitutional petition in hand, the impugned judgments are set aside, consequent whereof the application filed by the petitioner for custody of the minor namely Khadija Bibi is accepted and the respondent No.3 is directed to handover custody of the minor to the petitioner.