Mst. Zahida Parveen respondent No. 1 was blessed with two sons and a daughter from her wedlock with Muhammad Ayub, who died in the year 1987, where-after she started living with her parents, and the minors were brought up there. In early 1994, she entered into a marriage with Muhammad Ramzan and commenced her marital life with him whereas the minors continued to live with their maternal-grandmother, Mst. Barkat Bibi, the petitioner herein. Soon after this marriage, Mst. Zahida Parveen brought a petition under sections 17 and 25 of the Guardians and Wards Act, 1890, for the custody of the minors impleading therein Mst. Barkat Bibi her mother (grandmother of the minors).
The said petition was contested. The petitioner then also filed similar proceedings. Both the petitions were tried together. Vide order, dated 9-5-1996, the learned Guardian Judge, Toba Tek Singh ordered the custody of minors Ibrar Hussain and Israr Hussain to be given to Mst. Zahida Parveen their mother, whereas custody of Mst. Samina Kausar minor daughter was declined. That order was not challenged by Mst. Zahida Parveen but was assailed in appeal by the petitioner through two separate appeals. Both the appeals were dismissed by the learned District Judge, Toba Tek Singh on 25-6-1996. This petition and Writ Petition No. 11400 of 1996 have been filed by Mst.
Barkat Bibi maternal-grandmother of the minors to assail these orders.
2. It is contended by the learned counsel that on remarriage with Muhammad Ramzan, Mst. Zahida Parveen practically severed her connections with the minors, who have continuously lived with and brought up by the petitioner. It is contended that an improper and illegal order was passed by the learned Guardian Judge ordering the custody of male minors in favour of Mst. Zahida Parveen and of the daughter to be retained by the petitioner i.e. Grandmother. It is contended that the minors having reached the age of discretion had clearly expressed their choice and wishes before the learned District Judge, that they wanted to continue living with their maternal-grandmother.
According to him, the orders passed by the Courts below are contrary to the law on the subject.
Reference has been made to Major Zafar Iqbal v. Mst. Rehmat Jan and another 1994 SCM R 339, Muhammad Nafees Abbas v. The Guardian Judge, Lahore NLR 1994 Civil 4, Syed Hameed Ali Shah v.
Shaista Sultana and 2 others 1994 CLC 81, Muhammad Afzal v. Mst. Sameena Akhtar and another 1995 CLC 1519 and Ch. Nazir Ahmad v. Additional District Judge-III, Sahiwal and others 1988 SCM R 1359. Respondent No. 1 is not represented. She had engaged a learned counsel, who had been appearing on her behalf on certain dates. She has thereafter remained un-represented despite that at the available address notices were repeatedly sent by the office. The petition has thus been heard ex parte.
3. The undisputed position obtaining in this litigation for custody of Ibrar Hussain and Israr Hussain, sons of respondent No. 1 is that ever since the death of Muhammad Ayub, they had been living with the petitioner, their maternal-grandmother along-with their sister Mst. Samina Kausr. It was with the advent of remarriage by Mst. Zahida Parveen controversy about their custody cropped up between the mother of the minors and their grandmother i.e. Mst Barkat Bibi. It was not denied at any stage or before any forum that the minors had lived through--out with their maternal- grandmother, the petitioner herein. The consideration which prevailed with learned Guardian Judge in ordering the custody of the two sons in favour of respondent No.1 was that "the petitioner's husband has sufficient sources of income whereas the respondent is dependent on her son etc. The petitioner is entitled for the custody of two male children. As far as the female minor is concerned, the petitioner is not entitled for the custody of female minor because under Guardians and Wards Act the mother is entitled for the custody of the minors except when she marries with a person who is not Mehrim to the minor. In other words if the mother marries with a stranger and that person is not Mehrim to the minor girl, the mother is deprived for this reason to have the custody of the minor". No appeal was filed by respondent No. 1 against the order of the Guardian Judge, qua the custody of Samina Kausar, but on the appeal filed by the petitioner, the learned District Judge noted in his order that after the death of Muhammad Ayub in the year 1987, Mst.
Zahida Parveen, had shifted from Karachi to the house of her mother Mst. Barkat Bibi. It, was also noted that children had been admitted in different schools and had been getting education.
Another undisputed aspect noted by the learned District Judge was that "the petitioner contracted Nikah on 23-2-1994 with A.W.3 and since February, 1994 the minors are in the custody of their maternal --grandmother i.e. Respondent No.1 Mst. Barkat Bibi who wants to keep their custody at all costs. Both the minor sons also want to live with their maternal-grandmother as against the real mother who even refused to see their mother on 23-6-1996 before the Court but when asked to meet with their mother keeping in view her high status, they sat alongwith her and remained conversating. Mst. Barkat Bibi also moved an application for recording of the statements of both the male minors in order to know their desire but I did not feel it necessary to record their statements because during the oral examination they preferred to live with their maternal- Grandmother". (Underlined for emphasis). The learned District Judge, however, took the view that "it appears that the status of the real mother in handling the minors during the minority is on better footing than that their maternal --grandmother". The learned counsel for the petitioner has taken me through the material on the record to show that in a case of this nature, when the mother of the minors was settled with her husband and children far away in Karachi, she was in fact not interested in the welfare of these minors and had not even shown her inclination and interest in meeting them. Suffice it to observe that while settling a matter of custody of the minor the supreme consideration to be kept in view -is the welfare and betterment of the minors rather than the claims and wishes of the respective contenders. The wishes of the minors concerned have also to be kept in view by the Court if the minor is grown up enough to form an intelligent opinion. No doubt the mother of a minor is entitled to the custody to view of section 352 of Principles of Mahomedan Law by D.F. Mulla, but she loses that right in the stated circumstances i.e. Marriage with second husband. In matter of preference, the mother's mother i.e. Maternal-grandmother of the minor is the next in standing after the mother (section 353 of Mahomedan Law by D.F. Mulla).
The outstanding aspect that swings in favour of the petitioner i.e. Maternal-grandmother of the minors (who are statedly now almost major) is that since after the death of their father they have remained with the maternal-grandmother throughout and brought up and educated by her. They indeed have developed extreme love and affection with each other where their sister Mst. Samina Kausar has also been brought up. It is a family unit in itself. Any effort to break the same would have adverse effect qua their welfare. It has been mentioned above that the children were averse to meet and talk to their mother as noted by the learned Judge in his order dated 25-6-1996. The order-sheet of this Court also shows that the respondent never showed any eagerness to meet the minors despite the orders of the learned Guardian Judge and of this Court. It was rather noted on 7-4-1998 that "although the petitioner has been producing the children before the Guardian Judge for meeting purpose but respondent No.1 has not responded for a number of dates and as a result thereof the learned Guardian Judge has consigned the file". It was further noted that "the conduct of respondent No. 1 is indicative of the fact that she is not interested in the proceedings or meeting the children in Court. This fact shall be considered at the time of final hearing". Respondent No.1 thereafter has continuously remained in different and unconcerned with the matter, neither she appeared herself nor was represented. It all supports the assertion of the learned counsel for the petitioner that she is happily settled with Muhammad Ramzan and of-springs of that relationship.
The lack of interest of respondent No.1 in the matter is quite apparent and obvious. Court in such a matter when it is placed in locus parentis position cannot ignore these aspects and the custody of the minors cannot be thrusted on an unwilling contender.
4. The welfare of the minor besides material, intellectual, moral and spiritual well being includes various other things. Any force applied in the matter of custody against their wishes when they have attained sufficient maturity in exercising their preference would not be consistent with their welfare and rather may have adverse effects. Taking all these aspects into consideration, I am persuaded to hold that in the peculiar facts and circumstances of this case, the Courts below were not justified in ordering the custody of two male minors in favour of respondent No.1. They were being well---looked after by their maternal grandmother. Both the judgments are, therefore, unsustainable in law and are declared so.