IFTIKHAR HUSSAIN CHAUDHRY, J.- Mst. Shaheen Bibi was married to Zulfiqar Ali Kazmi on 5.10.1973.
Out of the said wedlock a daughter-Maimoona Kazmi was born on 18.1.1978. Relations between the spouses became strained and they ultimately separated. Mst. Shaheen later married another person, Maqsoom Ali.
2. Zulfiqar Ali Kazmi submitted an application under Section 25 Guardian & Wards Act on 23.12.1989 before the Judge, Family Court, Rawalpindi for custody of the minor on the ground that Mst.
Shaheen Bibi had married a stranger who was not related to the girl within prohibited degree and as such the father was entitled to custody of the minor. Written statement was filed on 3.2.1990 controverting the stand of the father. The pleadings of the parties gave rise to the following issues:
1. Whether the petitioner is entitled to custody of the minor. If so, whether the same will be in the welfare of the minor?
2. Relief:
3. After trial of the case, the learned Family Judge concluded that as the minor was living with her maternal grand-father, and the mother (petitioner) was living in Karachi with her husband, therefore, under Section 353, (Mulla's) Muhammadan Law, the grand mother of the minor was entitled to her custody. The learned Judge also held that the girl was nearing the age of puberty and she needed guidance of an elderly lady and such a guidance the maternal grand-father could not provide, and accordingly paternal grand-mother was declared to be entitled to the custody of the girl. By order dated 7.3.1993, the learned Judge Family Court allowed the application under Section 25 Guardian and Wards Act. The petitioner-mother was also allowed to sec the girl whenever she (mother) would come from Karachi.
4. The petitioner appealed to the District Judge, Rawalpindi and the Addh District Judge, Rawalpindi who heard the the same vide order dated 8.2.1994. The learned appellate Court held that the mother by marrying a stranger had forfeited the right of custody of the girl. The mother has submitted this petition in the constitutional jurisdiction of this Court.
5. Only one ground has been urged before me for setting aside the order dated 8.2.1994 of the Addl: District Judge and order dated 7.3.1993 of the Judge Family Court, and that is: that Mst. Maimoona Kazmi had attained puberty at the age of 15 years according to Muhammadan Law and the lower Courts had no jurisdiction to adjudicate upon the matter in issue, the girl having become an adult.
6. The learned appellate Court dismissed the appeal with following observations: "It is one of the ground for obtaining custody of the minor daughter as alleged in para No. 2 of the petition, that Mst. Shaheen Bibi respondent had contracted marriage with one Maqsoom Ali Shah and she is residing with him. It is itself a sufficient ground to forfeit right of custody within purview of Islamic Law and also in the welfare of the minor herself. Islam docs not allow such custody after re- marriage of the mother. Under the given circumstances, when the appellant right for custody had already been forfeited in accordance with provision of Mohammadan Law, therefore, the finding of the trial Court that welfare of the minor lies in handing over the custody to her father is well within ambit of Islamic Law. The objection that the special attorney has no locus standi to retain her custody is of no way as the right of custody of the minor has already died due to forfeiture of the custody upon her marriage, therefore, under the given circumstances the findings of the trial Court is confirmed and appeal is dismissed accordingly without any order as to costs".
The perusal of this order as well as order of the Judge Family Court does not reveal that such an objection was raised by the petitioner before those forums. If a particular plea or objection was available to a party to any litigation, and the same was not raised before appropriate lower forums, the same cannot be allowed to be raised in the constitutional jurisdiction of this Court. It may be pointed out that "Hizanat" is right of child and not of the parents and the Courts have to see Only the welfare and well-being of the minor concerned. A girl in our society needs protection not only during minority but thereafter also, at least till marriage. In the given facts and circumstances of the case, when the mother is remarried to a stranger, the paternal grandmother and the real father are the most suitable persons to take care of the girl-Mst. Maimoona Kazi. The orders of learned lower Courts are legally and factually correct and are upheld.
7. The appellate Court passed the order on 8.2.1994 whereas the petition has been aded on 16.10.1994 with a delay of over eight months. The question involved custody of a child and needed prompt recourse to legal remedies which was not done. Therefore, the petition is hit by doctrine of laches also and deserves dismissal on this score alone.
8. Resultantly, for the fore-going reasons, the petition is dismissed in limine.