The respondent filed an application under section 25 of the Guardians and Wards Act, 1890, for the custody of his minor son Muhammad Iftikhar, who was born from his wedlock with Mst. Bashiran.
The latter died 4/5 months prior to the institution of that application. Muhammad Iftikhar minor child was residing with his real maternal uncle Karim Bakhsh, petitioner herein. It was averred in the application that the respondent was the real father of the minor child and was, therefore, legally authorized to have his custody. It was also averred that the minor child was not receiving any education in a school and the welfare of the minor demanded that his custody may be restored to the respondent. Written reply was filed by the petitioner. The learned Guardian Judge, after framing the issues and recording the evidence of the parties accepted the application of the respondent vide his order dated 30-9-1992. An appeal was filed against the aforesaid order, which was dismissed by the learned Additional District Judge, Chichawatni, vide his judgment dated 8-1-1995.
This writ petition is directed against the aforesaid orders.
2. On 31-1-1996, the minor child Muhammad Iftikhar was directed to be produced today. He is present. His statement has also been recorded.
3. The real mother of the minor child Mst. Bashiran died 5 months prior to the institution of the application filed in the trial Court.
4. During the arguments, father of the minor child, who was also present in the Court, conceded that Muhammad Iftikhar was doing manual work to extend financial help to the family, which consisted of his father, step-mother, step-brothers and step-sisters. It was also conceded by him that he could not get him admitted to any school as it was beyond his means.
5. Statement of the minor child demonstrated that he was quite unwilling to reside with his father.
He stated that he was not receiving any education because his father wanted that he should work as a labourer and earn some money for the members of the family. The perusal of the application filed before the Guardian Judgereveals that one of the ground invoked for the restoration of the custody was that Muhammad Iftikhar was not getting any education in any school/institution but when the custody was restored to him, he himself opted to force Muhammad Iftikhar to work as a labourer.
6. The statement made by the minor child in this Court in the peculiar circumstances of the case is one of the determining factors to clinch the controversy. His statement shows that he was very disturbed while living with his father and on the contrary he was very much anxious to join the petitioner where his grandmother was also living.
7. The welfare of the child outweighs against all other considerations. Mst. Bashiran, the minor child's mother had filed a suit for recovery of maintenance. Muhammad Iftikhar, minor child, was also one of the plaintiffs in the suit. This suit was decreed in their favour but the respondent failed to transmit this amount either to Mst. Bashiran or the minor child. The respondent when appeared as P. W.1 in the trial Court had stated that he was not ready to provide maintenance to the said child.
8. In Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1983 SCM R 606), the following observations were made: "A natural or a certified guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specially that although the guardian is entitled to such a custody, no order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of guardian, the Court will have to weigh it against the other weighty considerations on the record. The overriding and paramount considerations always is the welfare of the minor. Indeed this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in his favour unless it is in their welfare to do so.. The welfare of a minor means his material, intellectual, moral and spiritual well---being."
9. In Khizar Hayat Khan Tiwana v. Zainab Begum (PLD 1967 SC 402) it was observed that in proceedings under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor.
10. As already discussed above the respondent Muhammad Bakhsh when appeared as P.W.1 in the trial Court, stated that he had deposited Rs.1,000 in the name of Mst. Bashiran but he failed to produce any receipt in that respect. The respondent who was even not prepared to provide maintenance to the minor child could not be considered a fit person for the custody of the minor. It is well-settled that the father was legally obliged to provide maintenance to the minor child. In Mst.
Zahran v. Umar Draz and others (1993 CLC 907) it was observed that:--- "Another development which needs to be noticed is that respondent No.1 has re-married and is living with his second wife. In the overall circumstances of the case, there cannot be two opinions that it would not be in the welfare of the minor, rather it would be cruel to uproot him from the custody of his mother and to force him to live in the house where his step-mother is residing. The minor appearing as a witness before the Guardian Judge unequivocally expressed his preference to continue living with the mother. Although the preference of minor is not conclusive but it is one of the factors which must be taken into consideration by the Court, especially as the minor had attained the age of discretion. "
11. The two Courts below did not take into consideration this aspect of the matter and conveniently ignored it. I am of the considered opinion that -it was not in the welfare of the minor to allow the respondent to have his custody further. Under these circumstances the petitioner who is real maternal uncle of I the minor child was legally authorized to have his custody and the paternal grandmother, who was also the wife of the petitioner, was living with him. She was very keen to bring up and look after the minor child as stated by her before the trial Court when appeared as R.W.2. There is no reason to disbelieve her.
12. Resultantly, this petition- is accepted and the orders of the two Courts below are declared to be without lawful authority and the application for the custody of the minor child Muhammad Iftikhar filed by the respondent is dismissed with no order as to costs. The minor child, present in Court, is allowed to accompany the petitioner.