' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the legality of order, dated 29-4-1999 passed by the learned District Judge, Khushab, whereby the appeal of the petitioner was dismissed and the order, dated 14-12-1998 passed by the Guardian Judge, Khushab was affirmed, resultantly, the application of the petitioner under section 25 of the Guardians and Wards Act, 1890 was partly dismissed.
2. This is an unfortunate case where a son is pitched against his own father in regard to the custody of three allegedly minor children. The application has been filed under section 25 of the Guardians and Wards Act, 1890 by the father of the minors against his real son i,e, elder brother of the minors. The application proceeded on the ground that the mother of the minors died on 13-11- 1988, where after the petitioner re-married with the real sister of his wife i,e, the real maternal aunt of the minors. According to the petitioner, the father as also the step-mother reared up the children with love and affection to such an extent that the father handed over his business to his sons. It was maintained that about six months preceding the filing of the application the father asked for accounts of the business for he wanted to marry the respondent, whereupon dispute started and the son left the house of his father and took the minor children with him. The custody of the minors was claimed on the ground that it is in the welfare of the minors that they should live with the father particularly when the daughter is of marriageable age and there is no woman in the house of the respondent application was resisted by the son, who alia maintained that the father of the re-married for satisfaction of his lust and that he has proclaimed by way of a public notice that he has no connection with the respondent. It was also submitted that the business of the petitioner was handed over to the respondent simply because the petitioner had filed petitions for appointment as Lumberdar, wherein it was necessary to show that he had a permanent abode in the village.
3. The petition was hectically contested between the parties and during the course of pendency thereof, one of the minors namely Asad Mehmood opted to live with his father, therefore, his custody was granted to the petitioner. As far the remaining minors i,e, a son and a daughter, it was held that they are of age and since they have not evinced intention of living with their father therefore, the petition to the extent of their custody was dismissed, vide order, dated 14-12-1998 passed by the learned Guardian Judge, Khushab. The petitioner appealed against the above said order and during the pendency thereof the other son also evinced his intention to live with his father, therefore, his custody was also granted to the father. The learned Appellate Court had proceeded to dismiss the appeal vide its order, dated 29-4-1999.
4. The above said order has been assailed through the present Constitutional petition. It is admitted at the bar that Mst. Nadia Naseem is studying in 2nd year and is of 19 years of age. It is thus obvious that the girl has already attained the age of puberty and even otherwise has become major therefore, no petition under section 25 of the Guardians and Wards Act, 1890 could at all be maintained in regard to her custody. Needless to add that she had not evinced any intention to join her parental home. It is in the evidence that the father had not maintained the minors since the date that they are alleged to be living apart from him. The father who has not cared to maintain his daughter is not at all entitled to her custody for it can be said in that regard that he has not looked after the welfare of the minors, which is the central theme of a Guardians and Wards Act. In the circumstances, the plea of the respondent that the petition was filed as a counterblast to the suit for recovery of maintenance would also gain magnitude. Since no misreading or non-reading of the record was pointed out, therefore, no interference is called for.
5. In result the petition is found to be meritless, therefore, the same is dismissed.