' This writ petition is instituted by the petitioner against the respondents on the ground that the order dated 15-4-1998 passed by the learned Guardian Judge, Lahore (respondent No,2) and the appellate order dated 28-5-1998 passed by the learned Additional District Judge, Lahore (respondent No,3) are illegal, arbitrary and ultra vires with the prayer that the same be set aside.
2. The brief facts are that respondent No,1 is the mother of Amna Faiz Rasool born on 26-1-1996 from the wedlock of Faiz Rasool petitioner No,1 and Mst. Nosheen Aslam respondent No,l. The marriage of the parties, however, ended in a divorce on 7-8-1997. Respondent No,1 filed a petition under section 25 of the Guardians and Wards Act in which, she moved a petition under section 12 of the Act (ibid) for obtaining the temporary custody of the aforesaid minor. That application was allowed vide the impugned order passed by respondent No,2 and upheld by respondent No,3.
3. Learned counsel for the petitioners has submitted that the guardianship petition was instituted by respondent No,1 with ulterior motive in order to harass the petitioners and to take revenge of divorce given to her; that she lodged a false F.I.R. Under section 363, P.P.C. At Police Station Mustafabad vide F.I.R. Dated 8-10-1997. It was investigated and the proceedings under section 182, P.P.C. Were directed to be taken against her on account of false version given therein; that the welfare of the minor girl also demands that she should remain in custody of her grandfather i,e, petitioner No,2 as she was left in his care by respondent No,1 of her own through an agreement whereby, she had agreed to relinquish her right of custody qua the female child through her brothers; that respondent No,1 had left the child at an oven (Tanoor) while leaving the house of her husband and as such, she was not entitled to take back her custody; and lastly it was contended that father of the minor i,e, petitioner No,1 has returned to Pakistan with the intention to permanently settle here and as such, the ground which prevailed with the Courts below that the father was away to a foreign country, does not remain as a compelling force to hand over the custody of the minor to the mother i,e, respondent No,l. Reliance was placed on 1989 M LD 4756 (Lahore) Amtal Sarosh v. Khalid Saleem, whereby custody to the mother was declined on the ground that the minor was living with the father for the last more than two years and a direction was issued to the trial Court to decide the petition under section 25 of the Guardians and Wards Act within two months after holding trial from day-to-day. Reliance was also placed on PLD 1974 Nate 80 at p.125 Mirza Muhammad Yousaf v. Razia Sultana, whereby, it was held that the order of the Guardian Judge under section 12 passed for welfare, without adverting to danger to health and life of minor was invalid and liable to be set aside. Learned counsel for the petitioners contended that if the custody is handed over to the mother, the minor is likely to be exposed to danger to her life as members of family of respondent No,1 i.e mother of the minor are suffering from different diseases which may afflict the minor as well.
4. Learned counsel for the respondents, however, submitted that the authorities cited above were not applicable to the facts of the case because in the case in hand, the custody of the minor was with the grandfather who himself is an old man and cannot efficiently look after the minor as compared to the mother i,e, respondent No,1; that there is no danger to the life of the ward if her custody is handed over to the mother because the latter would be in better position to look after the welfare of the child; that the allegation about danger to life of the minor on account of alleged illness of other members of family of respondent No,1 was not only ill-founded but maliciously false and required strong proof during the trial of the petition under section 25 of the Guardians and Wards Act and hence, cannot be readily answered in affirmative; that no agreement can debar the mother to obtain the custody of the suckling female child who was aged about 17 months when the dispute broke out; that the interim order passed regarding the custody of a minor cannot be challenged in writ jurisdiction as would be clear from the principle laid down in Mst. Amera Saeed v.
Syed Hasssa n Hamid and 2 others reported as 1985 CLC 792 and Shah Nawaz Khan and others v.
Mst. Shahida Parveen and others reported as 1974 SCM R 96.
5. I have considered the foregoing arguments addressed at the Bar and have also gone through the documents placed on record by the parties. Both the Courts below are consistent to hold that the welfare of the minor requires that she should be handed over to her mother on account of her very tender age being a suckling baby. Admittedly, the minor was handed over to her paternal grandfather i,e, petitioner No,2 as her father was away to United States. In such a situation, the mother was the most suitable and appropriate guardian of the person of famale child and, as such, the order regarding her temporary custody appears to be in line with the scheme of law regulating the temporary custody under the Guardians and Wards Act. The mere fact that the father of the child has returned to Pakistan with the intention to reside here permanently would not nullify the impugned orders nor would it diminish their useful value because the same were made when the father was away from Pakistan. It shall, however, be open to the father to prove during the trial of the petition under section 25 of the Guardians and Wards Act that he intends to reside in Pakistan permanently and that the welfare of the minor would be promoted if her custody is allowed to .Him.
6. At present, I do not find any good ground to interfere with the impugned orders passed by the Courts below which have concurrently held that the temporary custody of the female suckling child aged about one year and five months be handed over to the mother i,e, respondent No,1. The writ petition being meritless is dismissed. However, the parties are left to bear their own costs.