1. The captioned appeal has been filed against the impugned judgment dated 16.02.2019 passed by the learned Civil Judge/Guardian Judge Barnala, whereby Najma Bibi, Respondent No. 1 herein has been appointed guardian of minor Noor Muhammad.
2. Precise facts necessary for the disposal of instant appeal, are Najma Bibi Respondent No. 1 herein filed an application for her appointment as guardian of minor namely Noor Muhammad in the Court of Civil Judge/Guardian Judge Barnala wherein, it was submitted that she was married to defendant No, 1 Muhammad Ashfaq and out of their wedlock, a son namely Noor Muhammad took birth. It was contended that respondent has divorced her on 15.07.2017 and has forcibly snatched minor son, therefore, she may be appointed as guardian of the minor. Respondent contested the application by filing objections. The learned trial Court framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence and at conclusion of the proceedings, accepted the application and appointed Respondent No. 1 herein as guardian of the minor vide its impugned judgment dated 16.02.2019, hence the captioned appeal.
3. The learned counsel for the parties have addressed the Court in the light of their respective stance.
4. I have heard the learned counsel for the parties and perused the record of the case with utmost care and caution.
5. Section 17 of the Guardians and Wards Act, deals with the matters to be pondered while appointing a person as guardian of the ward. For ready reference, Sections 17 of the Guardians and Wards Act are reproduced as under: "17. Matters to be considered by the Court in appointing guardian. (1) In appointing or declaring the guardian of a minor the Court shall, subject to the provisions of this section, the guided by what, consistency with the law to which the minor is subject, appear in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) The Court shall not appoint or declare any person to be a guardian against his will."
6. By now, it is a settled proposition of law that while appointing or declaring the Guardian of a minor or handing over the custody of the minor under Sections 17 of the Guardians and Wards Act, the paramount consideration would be the welfare of the minor. The law laid down in Irshad Begum's case [2003 SCR 318] can be referred in support of the proposition. The relevant observations appearing in para No.9 and 10 are reproduced: "9. According to the aforesaid provisions of law the Personal Law to which the minor is subjected should be the guide for the appointment of a guardian which is further subject to two limitations:
(i) the provision of this section (ii) and welfare of the minor. If consideration of the welfare of the minor or the conclusions arrived at as a consequence of the guidance in the section itself makes it impossible to follow the guideline of the Personal Law then the same may be abandoned and steps most conducive to the welfare of the minor and consistent with either of the provisions of this section or the welfare of the minor then it should be followed.
10. While appreciating the welfare it has to be seen that the welfare includes it moral, spiritual and material well doing. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor if he or she is intelligent enough to make it."
7. Sub-section (3) of Section 17, reproduced herein above makes it blatantly obvious that if the minor is matured enough to express his opinion then he cannot be compelled to live with the person against his/her wish. In the instant case, the minor is matured enough and has showed his wish to live with her mother even before this Court, therefore, the preference, interest and welfare of the minor cannot be ignored, thus, cannot be compelled to live with appellant. The custody of minor, who is matured enough to express his/her opinion, cannot be given against his wish. In this regard I may refer to 2015 SCR 1455, supra, wherein at page 1463 the apex Court of Azad Jammu and Kashmir has observed as under: "As we have discussed above, the statement of the minor that he is not willing to go with his father and wants to live with his mother, therefore, we do not compel him to live with his father as the custody of the minor is always subject to, the welfare of the minor. The minor is matured enough to express his independent opinion."
8. Furthermore, there is another aspect of the case which disentitles appellant to be appointed as guardian of the minor that since decision of the Court below the minor is in custody of Respondent No. 1/mother but appellant who is father of the minor did not pay him maintenance and a separate suit was filed by Respondent No. 1 against appellant, herein, for maintenance of the minor. Reliance may be placed on a case titled Mst. Rasheedan Bibi vs. Additional District Judge and 2 others reported as (2012 CLC 784), wherein the learned Judge of Lahore High Court Lahore in para 9 of the judgment held as under: "Another important factor for the decision of present petition is that admittedly minors were living with the petitioner after the death of their mother Mst. Kausar Bibi. Respondent No. 3 himself mentioned in para-4 of his petition under Section 25 of the Guardians and Wards Act, 1890 that minors had been living with the petitioner since 20.12.2007. The father of minors (Respondent No. 3) did not bother to provide maintenance allowance to his minor children and he did not pay a single penny for their education or livelihood and eventually the petitioner filed a suit for recovery of maintenance allowance of the minors on 04.02.2008. On coming to know about filing of the above- mentioned suit, Respondent No. 3 filed a Guardian Petition for custody of minors on 14.02.2008. It appears that in order to avoid the payment of maintenance allowance of the minors, he had filed the said petition. The above-mentioned suit for recovery of maintenance, allowance was decreed in favour of the minors but in spite of that Respondent No. 3 did not pay the maintenance allowance for a considerable long period and in this respect his warrants of arrest were also issued.
9. Although Respondent No. 3, later on, had stately paid the maintenance allowance, when his warrants of arrest were issued by the learned executing Court, but his earlier conduct is a relevant factor to decide the issue of custody of minors and their welfare".
10. It is also relevant to mark that ward is studying and Respondent No. 1 is providing him all the facilities of life. Appellant has contracted second marriage and has also got children from his second wife, hence, if the custody of minor is given to the appellant it would tantamount to leave him at the mercy of his step mother, while on the counter-part Respondent No. 1 did not contract second marriage and has given her whole life for her son/minor. There is no alternate of lap of a mother and lap of step-mother cannot be equivalent who has more love and affection with children. Mother of minor is a natural guardian and has got a preferential right to be appointed as guardian of the minor until it is proved that welfare of the minor is not to live with his mother due to her involvement in immoral activities but in any other case she cannot be deprived of from the custody of her minor son.
11. The argument advanced by the learned counsel for the appellant that Respondent No. 1 herself gave custody of minor to the appellant through an agreement has got no plausible substance because neither said agreement was proved through evidence nor such agreement is legal one rather would be deemed to have been obtained by coercion and in illegal manner for the reason that as stated earlier mother has got a preferential right to be appointed as guardian of minor son and while appointing guardian of minor the prime consideration is the welfare of the minor and nothing else. In the circumstances of this case the welfare of the minor is to live with her mother and appellant who even paid no heed to give any maintenance to the minor or even not bothered to meet him thus cannot be appointed as guardian of the minor. The Court below has appreciated every iota of evidence in a legal fashion and reached at just conclusion, which does not suffer from any legal infirmity.
12. The sum and substance of the above discussion is, finding no essence the captioned appeal is hereby dropped.