1. This judgment will dispose of Constitutional Petitions Nos.1385/91 and 1518/91 as the law and facts involved in these two petitions are similar and have emanated out of the same judgments.
2. Facts in brief are that Mehmood Ayyaz petitioner entered into a marriage contract with Mst.Mehmooda Akhtar respondent in the year 1976. Two children namely Rakhshanda Ayyhz and Jawad Mehmood son and daughter respectively were born out of this wedlock. Their ages at this juncture are 11-1/2 years and 15 years respectively. The relations between the spouses became strained which resulted in divorce taking place on 30th of March, 1988. Mst. Mehmooda Akhtar respondent filed an application under section 25 of the Guardians and Wards Act on 3-9-1988 for the custody of the afore stated two minor children. Petitioner contested this petition and the following issues were framed:-- I'M Is it the welfare of the minors' to appoint the petitioner as a guardian of the person and property of the former? OPP.
3. The petitioner as well as respondent appeared solely in the witness --box to establish their respective stances. The Guardian Judge after scanning their evidence through order dated 10-4- 1990 dismissed this petition. Aggrieved with the same Mst. Mehmooda Akhtar filed an appeal. The learned Addl. District Judge, Chakwal, through his order dated 3-11-1991 granted the custody of Rakhshanda Ayyaz to the mother i.e. Mst. Mehmooda Akhtar and allowed the son Jawad mehmood to remain with his father. The parties have filed their respective Constitutional petitions claiming the custody of both the minor children.
4. I have noticed that after the judgment of the Addl. District Judge, Chakwal, petitioner-Muhammad Ayyaz tried unsuccessfully to . Get the operation of the impugned judgment suspended from this Court. After being unsuccessful to secure the interim favourable order he approached the Honourable Supreme Court where too his Civil Petition No.282/91 against the interim order dated 10-12-1991 of this Court was disallowed on 27-1-1992. Thereafter the custody of Rakhshanda Ayyaz was handed over to her mother Mst. Mehmooda Akhtar on 3rd of March, 1992.
5. An effort was made more than once to bring about compromise between the parties but all these efforts in that direction,ende4 in smoke. During this exercise Rakhshanda Ayyaz appeared on 24-5- 1992 and stated in the clear terms that she has been undergoing a terrible mental' Aress inthe custody of her mother, who is creating hindrances inhe ' r pursuit of seeking education. Instead of developing love' and. Understanding during her stay of 2-1/2 months with the mother the minor has resolutely stated that she wasbetter looked after at her father's house. She earnestly implored the Court thatshe should be allowed to join her father. It is true that the opinion of the minors shall not be taken as a deciding factor to determine the question of their welfare but certainly it cannot be out-rightly thrown over board particularly in this case when the minor Rakhshanda aged 15 years has demonstrated her feelings in a most intelligent and impressive manner. She appears to be a girt of matured personality. Her academic career is superb which factor has been admitted by both the parties. She could not adjust herself with the mother in spite of her stay for more than 2- 1/2 months over there. Reliance is placed upon Mst. Sughra Begum v. Ashfaq Ahmad Butt PLD 1981 Lahore 393, Mst. Feroze..Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299 and Haji Muhammad Shafi and another v. Mst.Maqbool Afza and others 1986 SCMR 1634. Similar is the attitude of Jawad Mehmood minor son who throughout has been living at his father's house. The family of father is living in city of Chakwal where they are getting education in Jinnah Public School, a known best School of the city while on the other hand the mother is living 415 kilometres away from the city in - a village in the house of her brother. It is also to be mentioned that the grandfather of the minors who was working in Jordan has come back just for the sake of children and settled permanently at Chakwal. The father of the children has also not married simply for the sake of minors. The minors are also. Having additional benefit being supervised by their two aunts who are teachers in the aforesaid school. It is worth mentioning over here that the father who during thependency of these proceedings hadgone to Masqat in pursuit of livelihood, has come back only for the sake of children. I 'agree with the finding of the learned trial Court that if status quo is disturbed in the present case the minors would not only suffer academically but also psychologically. From every angle I have considered this case and I am of the view that the welfare of the minors best lies at the house of their father.
6. In view of what has been stated above, the judgment dated 3-11-1991 passed by the Additional District Judge is hereby set aside and that of Guardian Judge dated 10-4-1990 is hereby restored.
7. There shall be no Order as to costs. Before concluding it is directed that the petitioner Mehmood Ayyaz shall make arrangement for the meeting of children with their mother Mst. Mehmooda Aklitar at least once in a month which shall be increased if so desired by the minors.
8. AA./M-505/LOrder accordingly.