' This Constitutional petition is directed against the appellate order dated 18-1-1995 passed by respondent No,3, by which order the appeal of respondent No,1, hereinafter referred to as the mother, against the order of respondent No,2 granting the custody of minor Mst. Fatima to the petitioner, hereinafter referred to as the father, was set aside and father's application was dismissed.
2. Mst. Fatima, at the time of filing of petition in April, 1992, was claimed to be about 1-1/4 years of age. The parties' marriage unfortunately got into trouble, with the result that right from birth the minor remained with the mother. The application under section 25 of the Guardians and Wards Act, 1890, was filed on the ground that the mother by marrying one Muhammad Anwar, disentitled herself to the Hizanat as the said Muhammad Anwar was not related to the minor within the prohibited degree. It was also averred that the minor was not properly looked after and brought up.
The claim was contested. The issues thus arising were duly tried and, vide order dated 19-1-1994, the learned respondent No,2 allowed the application and directed the mother to hand over the custody of the minor within one month. As noted, on appeal this order was set aside and the custody of the minor was permitted to remain with the mother.
3. Respondent No,1, in spite of service, has not entered appearance and she is, therefore, directed to be proceeded ex parte.
4. The appellate judgment is impeached by the learned counsel mainly on the ground that the mother having married second time a person not related to the minor within the prohibited degree, has disentitled herself to the Hizanat. It is contended that, in the circumstances, the custody automatically reverts to the father and this principle has been ignored by the Appellate Court.
Reliance has been placed on Muhammad Bashir v. Mst.Ghulam Fatima (PLD 1953 Lah. 73), Mst.Zahida and another v. Capt. (Retd.) Shahid Ali Khan (1993 CLC 2116 and Mst. Sakina and others v. Muhammad Ali 1990 ALD 720). It is further urged that the Appellate Court has ignored that the second husband of the mother has already six children from the first marriage and, in the circumstances, it cannot be proved that the welfare of Mst. Fatima lay with living in that house.
5. Even though this is a Constitutional petition and not a regular appeal, nevertheless this being a guardianship matter, I have reviewed the evidence myself. While it is true that having married a stranger a second time, the mother looses the Hizanat, but it is not true that after loosing such Hizanat, the minor reverts to the father. The Guardian Judge still retains the discretion to determine the welfare of the minor. The perusal of the evidence reveals that the father after dissolution of marriage is employed in PIA at Karachi where he lives alone. He has no mother or other close female relative where Mst.Fatima could be put up.
' In his evidence it was tried to be shown that the sister of the father will look after the child although it is admitted that that very sister is also married and has her own children. During the pendency of appeal it further transpired that the father has also married a second time. The unfortunate predicament of the minor is that she should either live in step-father's house or under the shadow of stepmother. It is difficult choice even for a Judge, muchless the minor, who is now about seven years of age.
6. There are two factors which dissuade me from interfering in this case, first of course is the employment of the father at Karachi and his second marriage. There is nothing on record to show the nature of the woman the father has married the second time e.g. Whether she is the type to take proper care of a step-child. Our experience about step-mothers in our society is not very healthy. The second consideration is that it is in evidence that all the six children of Muhammad Anwar, the second husband of the mother, are married. In other words those children are involved in their own married lives and, in the circumstances, it can be expected that Fatima, the minor, will have more and exclusive care of her real mother. I cannot lose sight of the fact that right from birth the minor is living with the mother. This is for about seven years. To uproot her from her given and familiar surroundings, although permissible, but cannot be done in this case as there is nothing on record to suggest that the minor would be given the beneficent treatment by the step-mother on the assumption that she lives with the father and the new step-mother and is not left at the mercy of father's sister, as appearing in the evidence. Sitting in constitutional jurisdiction, I would not like to consign the minor to uncertain environments and surroundings.
7. For the above reasons, I decline interference and hereby dismiss- this petition with no orders as to costs.
8. It is clarified that notwithstanding the denial of his claim but subject to law it would be open to the father to approach the Guardian Judge afresh for seeking orders ensuing better education etc. Meant to promote the welfare of the minor. The father should also discharge his liability under law to maintain the minor according to his capacity.