' This Constitutional Petition seeks to set aside the judgment, dated 6-5-1986 pronounced by the learned Senior Civil Judge/Guardian Judge, Sahiwal and the judgment, dated 14-7-1986 pronounced by the learned Additional District Judge-III, Sahiwal. The learned Guardian Judge, Sahiwal, had accepted the petition of Ch. Nazir Ahmad, Advocate for haivng the custody of his minor daughter Mst. Ferzana Kausor. The appeal lodged by Mst. Jamila, the mother of the minor, and her maternal grand parents was unsuccessful on 14-7-1986.
2. The facts of the instant case, in brief, are that Ch. Nazir Ahmad was married to Mst. Jamila Bibi and they lived together for a number of years. During the said wed-lock, Mst. Ferzana Kausor was born to Mst. Jamila Bibi. There was some estrangement between the spouses and Mst. Jamila Bibi instituted a suit for having her maintenance allowance and that of Mst. Ferzana Kausor. She has alleged that Ch. Nazir Ahmad had brought a woman in the house without marriage and she was turned out of the house by him. When she moved an application for the recovery of maintenance allowance she was divorced by Ch. Nazir Ahmad.
3. After her divorce, Mst. Jamila Bibi has married one Muhammad Sarwar who is not related to the minor within prohibited degree. Conversely, Ch. Nazir Ahmad has also contracted a second marriage and is having a daughter from his second wife. The grand parents of Mst. Ferzana Kausor are alive. Ch. Nazir Ahmad filed an application under section 25 of the Guardians and Wards Act for having the custody of his minor daughter which was accepted by the learned Guardian Judge and the petitioners could not succeed in appeal. The learned Guardian Judge had formulated the following issues which reflect the objections taken by the petitioners in response to the application of the respondent:-
(1) Whether present application is barred under section 11 of C.P.C.? O.P.D.
(2) Whether plaintiff has not paid the maintenance of the minor according to the decree for maintenance against him, dated 20-5-1981, If yes, its effect? O.P.A.
(3) Whether respondent has married with Muhammad Sarwar, if yes, its effect? O.P.P.
(4) Whether plaintiff is entitled to the recovery of custody of minor in her best interest? O.P.P.
(5) Relief.
4. Mirza Manzoor Ahmad, learned counsel for the petitioners, has not pressed any issue except issue No.
4. The admitted position is that Mst. Jamila Bibi and Ch. Nazir Ahmad have contracted second marriage and Muhammad Sarwar, the second husband of Mst. Jamila, is not her relative. The grand parents of Mst. Ferzana Kausor are alive. Mst. Ferzana Kausor has stated that she preferred to live with her grand parents and she does not know her father even. It is also on the file that Ch. Nazir Ahmad, Advocate-respondent is sending Rs.150 to the minor per month and she has been admitted in the Convent School on the wish of Ch. Nazir.
5. The welfare of the minor is of paramount importance in such cases. Mst. Jamila Bibi has contracted a second marriage with a stranger and she is obviously disqualified to have the custody of Mst. Ferzana, her minor daughter. Mahomedan Law applies in guardianship cases and para. 353 of the Mahomedan Law by Mulla states that failing the mother, the custody o: 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 sister, and
(10) paternal aunt, also in like order as sister.
' Under Mahomedan Law, Mst. Basso, petitioner No. 1, who happens to be the mother's mother of Mst. Ferzana Kausor, the minor, is entitled to the custody of the minor. It is to be seen whether she B can be preferred to the minor's father in the matter of guardianship or she is otherwise disqualified to have the custody of the minor. Ch. Nazir Ahmad, Advocate, like Mst. Jamila Bibi has remarried. He is having a step-mother of the minor in his house who has also got an issue. Apparently, the minor female child should not be driven to suffer the company of the step-mother. The learned lower Courts were influenced by the fact that Mst. Basso had not come in the witness-box to claim the custody of the minor. I do not subscribe to this view because Mst. Basso lodged an appeal and is present to prosecute her petition today in this Court. I have seen her and questioned her. She has stated that she is 80 years old and her husband earns Rs.60 to Rs.70 per day who is a carpenter.
The poverty of the mother's mother or her lower status in life does not D disqualify her from having the custody of the minor. In Tassadiq Hussain Shah v. Mst. Surraya Begum 1980 CLC 1802, it was held that the father had brought a step-mother in the house and the father had rendered himself unfit for the custody of the minor child as it was not conceivable that the step-mother can be any substitute for real mother in rearing up the minor. In Fatima Bibi v. Shaik Peda Pentu Saheb AIR 1941 Mad. 944 the right of mother's mother in the absence of mother was preferred to the right of.The father for having the custody of minor. Bashir Ahmad v. Mst. Rehana 1978 SCMR 192 nearly applies to the facts of the instant case. In this case, the husband had divorced the wife who had contracted another marriage and the minor girl was left to the custody of her maternal grand parents. The father used to bear expenses for the maintenance and education of the minor and it was held that the father was not entitled to the custody of the minor before she attained puberty.
In the said precedent the father had not remarried even.
6. It may be noted that the female child is studying in the Convent school although she is much behind in education than her years, yet she is now being properly educated. The evidence on the file evinces that the grand parents spend Rs.300 per month on her education and the respondent is remitting Rs.150 to her each month. It appears that Ch. Nazir Ahmad is not sending Rs.150 per month to his female child out of any love and affection, but a decree has been passed by the Judge Family Court regarding the recovery of Rs.150 as the monthly alimony of Mst. Ferzana Kausor.
He is complying with the decree of the Court. 'Had he sent Rs.300 to the female child then it could be said that he is financing the minor in the accomplishment of her education. In Mst. Niaz Bibi v.
Fazal Ilahi and another PLD 1953 Lah. 442, it has been laid down that ordinarily a female's right to custody cannot be defeated on the ground of want of funds to G maintain the child. The female child is being properly looked after by her grand parents. Therefore, their illiteracy vis-a-vis the status of an Advocate do not disqualify them especially Mst. Basso, the maternal grandmother from having the custody of the minor.
7. It has been contended on behalf of the respondents that when a Tribunal makes a decision rightly or wrongly then a writ petition does not succeed. Muhammad Hussain Munir and others v.
Sikandar and others PLD 1974 SC 139 and Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131 have been cited in support of this contention. In PLD 1967 SC 402, it was stressed that the remedy by writ is available where due to erroneous view of law or assumption of facts, jurisdiction is assumed or denied. In the instant case, the learned lower Courts did not properly consider the provisions of Mahomedan Law that in the absence of mother, the right of custody vests in the mother's mother and then to the other female relatives as stated supra. The father figures no where who has rendered himself disqualified by contracting a second marriage and bringing a step-mother of the minor in his house.
8. It was also represented that the petitioners may engage or marry Mst. Ferzana against the wishes of the respondent. This apprehension has been repelled by the learned counsel for the petitioners who has assured that the minor shall not be engaged or married by them and when she attains the age of 16 years, her custody would be given to the respondent as envisaged under law.
10. In the circumstances, I quash both the impugned orders and decide that Mst. Basso, the maternal grandmother of Mst. Ferzana Kausor, is the best guardian to have her custody. The petition filed by Ch. Nazir Ahmad under section 25 of the Guardians and Wards Act, therefore, stands dismissed. I make no order as to costs.