This single order will dispose of two Review Petitions, one filed by Mst. Shahida Kausar and the other by Mst. Mafrooz Begum, for review of judgment dated 15-3-1992 of this Court whereby appeal filed by respondents Nos. l and 2 was accepted and the judgment dated 12-9-1991 of Guardian Judge, Gilgit was set aside and Mst. Mafrooz Begum was directed to hand over the custody of the two minor girls to respondents Nos. l and 2.
2. Both the Review Petitions arise in the following circumstances: -- Mst. Shahida Kausar, petitioner herein, was married to one Malik Ghulam Sarwar, Advocate of Gujrat. She belongs to Gilgit. Out of the wedlock two daughters, namely, Nooreen Sarwar and Ambereen Sarwar were born. The marriage of the spouses took place on 21-5-1983 but the husband died on 8-2-1986. Mst. Shahida Kausar after completing the period of "Iddat" left the house of her deceased-husband at Gujrat and came to her parents house at Gilgit. Mst. Mafrooz Begum, rival petitioner, it may be mentioned here, is the real mother of Mst. Shahida Kausar, when respondent No. l Mst. Sardar Begum is the real mother and respondent 2 Mst. Khurshid Begum is the real sister of the deceased husband Malik Ghulam Sarwar. Mst. Shahida Kausar returned to Gilgit in July 1986. It was on 2-4-1987, when Mst. Sardar Begum, respondent No. l filed an application under section 25 of the Guardians and Wards Act in the Court of Guardian Judge at Gujrat for the custody of the two minor girls and obtained an ex parte decree/order on 2-7-1987. Thereafter, respondent No. l obtained a warrant under section 100, Cr.P.C. From the Guardian Judge, Gujrat for taking the kids from Gilgit to Gujrat, but her this effort was foiled and as a result thereof Mst. Shahida Kausar and Mst. Mafrooz Begum, real mother and maternal grandmother of the minors, filed separate applications for their appointment as guardian of the person of the minors. These applications were, however, contested by the two respondents, but in the result the learned District/Guardian Judge, Gilgit appointed Mst. Mafrooz Begum as the guardian of the minors taking into consideration their welfare. Mst. Shahida Kausar and both the respondents filed appeal before the then Judicial Commissioner, who accepted the appeal filed by the respondents Nos. l and 2 and while setting aside the judgment/decree of the Guardian Judge directed Mst. Mafrooz Begum to restore the custody of the two minors to respondents Nos. l and 2 Hence the present Review Petitions.
3. I have heard the learned counsel for the petitioner, the rival petitioner and both the respondents at length and have also gone through the record. In cases of guardianship, the welfare of the minor has always remained supreme consideration with the Courts while adjudicating upon such application. In the case in hand, however, I do not find much consideration having been given weight by the Honourable Judicial Commissioner, who has passed the judgment under review. It is on record that respondent No. l is an old lady having no source of her income and respondent No.2, the paternal aunt of the minors, is a married woman, having her children. It is also on record that late Malik Ghularr Sarwar had a motor-car which was sold by respondent No. l for a sum of Rs.50,000 and this amount was deposited by her in her own account. She also failed to disclose before the lower forum the exact detail/income of the property of her late son, who was admittedly a leading counsel at Gujrat. The Hon'ble Judicial Commissioner had, at a stage directed respondent No. l to deposit the sale proceed of the said motor-car in Court, which is sufficient to prove that respondent No. l was not a fit person to take the custody of the minors. In fact, she has played all this game to usurp the wealth of the minors: Same can be the case with respondent No.2, who is the real daughter of respondent No. 1. It is a settled principle of law that where interest of any person. Is adverse to the interest of the minor, then that person cannot be appointed as guardian of the person and property of the said minor.
Reference can conveniently be made to the authorities on the point, viz. (1) 1969 DLC page 240 (DB)
Dr. Nazrul Islam Khan v Begum Hamida Khatun and others and 1980 CLC 1802 Tassadiq Hussain Shah v. Mst. Surraya Begum.
4. It has been held in the judgment under review that late Malik Ghulam Sarwar belonged to Sunni Sect, whereas his widow Mst. Shahida Kausar is Shia by faith but a look at the material placed on record shows that no doubt, at the time of marriage Malik Ghulam Sarwar was Sunni, but later on he has converted his faith to Shia Sect, reference can conveniently be made in this respect to the "Nikah Nama" which shows as per statement of Sheikh Dawood, Advocate, a marginal witness of the said deed, that Nikah of the deceased with the petitioner was solemnised under Shia Fiqh. The Honourable Judicial Commissioner has not discussed this Nikahnama in the impugned judgment.
In such-like cases, sect is immaterial in connection with the appointment of a guardian. It is, in fact, the religion which is being taken into consideration in such proceedings and the religion of the deceased as well as his widow is Islam, therefore, the finding of the Honourable Judicial Commissioner requires a review on this point too. It has been established on record that Malik Ghulam Sarwar was a Shia at the time of his death and the petitioner Mst. Shahida Kausar is also Shia, therefore, the welfare of the minors will be if they are left with their mother because it is always the welfare of the minors, which is supreme on ail other circumstances, and the faith and religion are subordinate to 18 this consideration.
5. It has also been proved on record that no doubt, Mst. Shahida Kausar, petitioner, has contracted a second marriage but her second husband also belongs to education profession and is serving as Headmaster in Grade-17. Likewise the petitioner, herself is serving in the education department and thus possesses better qualification as compared with respondents Nos. l and 2 to have the custody of the minors. Respondent No. l is admittedly an old lady without any source of income and respondent No.2, it may be pointed here, was introduced during the proceedings without any initiation on her part. She never showed her interest to become guardian of the minor-girls. She even did not record C statement in the Court and to an extent she has not agreed with the statement of respondent No. 1.
6. Under Muslim Personal Law, the order of qualification for becoming a guardian of a paternal aunt is last of all, i.e. At No. 10 and in the present case the suitable person to be appointed as guardian of the minors is their mother, Mst. Shahida Kausar and next comes the rival-petitioner, Mst. Mafrooz Begum, maternal grandmother of the minors. The Court have granted custody of the minors to the real mother as against paternal grandmother of the children and in this connection reference can be made to the following case-law. Viz.--
(1) 1983 SCMR page 481 (Mst. Rafiqan and 2 others v. Jallaluddin); (2)1982 SCMR page 1100 (Mst. Sardaran v. Mst. Majeedan Begum).
7. Lastly, I come to the question of welfare of the minors. Sections 7, 17 and 25 of the Guardians and Wards Act revolve around the welfare of the minors. The word "welfare" means both material and spiritual welfare of the minors. It must be taken in its widest sense. The welfare and happiness of the minor is the paramount consideration in cases of Guardianship. Courts must have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his/her nearness of kin to minor. In such-like cases, while passing the orders regarding appointment of a guardian for the person of the minor, the paramount consideration for the Courts are, what order under the circumstances of the case would be best for securing the welfare and happiness of the minors, with whom they would be happy, who is most likely to contribute to their well being and look after their health and comfort, who is likely to bring up and educate them in the manner in which they would have been brought up by their parents (if they had been alive): In the instant case, no doubt, the petitioner Mst. Shahida Kausar, who is the real mother of the two minors, has contracted a second marriage but, as remarked earlier, she is in a position to look after the minors properly, educate and maintain them nicely and give them love and affection in a better position as compared with respondents Nos. l and 2.
8. A real mother like Mst. Shahida Kausar cannot ignore her minor---daughters though she is having other children, because she is an educated lady and belongs to a noble profession of education at the moment.
9. The upshot of the above discussion is that it is a fit case which needs review of the impugned judgment, with reference to a ruling reported in PLD 1986 Supreme Court (AJ&K) page 56 (Ghulam Akram and 5 others--Applicants v. Syed Shabbir Hussain Shah and 10 others--Non-applicants).
10. Rival--petitioner, Mst. Mafrooz Begum, no doubt, is the maternal grandmother of the minors but petitioner Mst. Shahida Kausar comes superior in degree to be appointed as guardian of the person and property of her two real daughters. I would, therefore, accept the Review Petition filed by Mst. Shahida Kausar, set aside the impugned judgments of the Guardian 'Judge, Gilgit and Honourable Judicial Commissioner and appoint Mst. Shahida Kausar as guardian of the person and property of her two real daughters, Nooreen Sarwar and Ambereen Sarwar. The Review Petition filed by Mst. Mafrooz Begum is disposed of accordingly.