1. Mst. Hifsa Naseer petitioner, through instant petition, assails the vires of judgment dated 09th of October, 2014, whereby the learned Additional District Judge, Gujar Khan, while dismissing her appeal affirmed the order dated 26th of May, 2014 passed by the learned Civil Judge 1st Class/Guardian Judge, Gujar Khan.
2. Precisely, the facts necessary for adjudication of instant petition are that the respondent No.3 filed a petition under Section 25 of The Guardians and Wards Act, 1890, seeking custody of minor daughter namely Hadia Umer. As per averments contained in the petition, the respondent No.3 was married to the petitioner on 06th of February, 2007 and from the wedlock, minor daughter was born on 07th of February, 2008. Due to strained relations, matrimonial tie ended in divorce. It is averred in the petition that the petitioner thereafter contracted second marriage with another person who is not related to minor within prohibited degree. The petitioner contested the petition and filed her reply wherein she not only raised preliminary objections, but also controverted the assertions contained in the petition. The divergent stance of the parties resulted into framing of multiple issues whereafter both the sides produced their respective evidence. Upon completion of evidence and hearing both the sides, petition was allowed vide order dated 26th of May, 2014. The petitioner, feeling dissatisfied from the said order, filed an appeal before the learned Additional District Judge, Gujar Khan, however, the appeal was dismissed vide judgment dated 09th of October, 2014, hence this petition.
3. Learned counsel for the petitioner submitted that the custody petition was nothing but a counter-blast of the suit filed by the petitioner for recovery of maintenance. He added that the petition was filed through attorney and respondent No.3 never appeared before the Court. Learned counsel contended that while disturbing the custody of the minor, both the Courts below were mainly persuaded with the fact of second marriage of the petitioner. Learned counsel maintained that re-marriage can never be the sole fact for deciding the fate of custody of the minor. Learned counsel argued that it is the welfare of the minor which is to be seen, while deciding the matter of custody but both the Courts below did not advert to this material aspect.
4. Conversely, learned counsel representing the respondent No.3 contended that on contracting second marriage, the petitioner lost the right of custody of minor in view of principles laid down in Para No.354 of The Muhammadan Law. Learned counsel submitted that respondent No.3 has not contracted second marriage and he was rightly held entitled for the custody of the minor. It is argued that there are concurrent findings of facts recorded by both the Courts below which are based on proper appraisal of evidence and constitutional petition is not maintainable.
5. I have heard learned counsel for both the sides at some length and perused the record in order to appreciate their respective contentions.
6. Before dilating upon the propriety of the judgments under challenge, it would be advantageous to observe that there are certain admitted facts which crept up from the record. At the time of filing of petition, the minor was about five years of age and she is in the custody of the petitioner right from her birth. The petition was instituted through general attorney namely Abdullah Haris who is real brother of the respondent No.3. It is also an admitted fact that the respondent No.3 is residing abroad. Perusal of impugned judgments reveals that findings of both the Courts below are solely influenced with the factum of second marriage of the petitioner.
7. Law is well settled by now that in the matter relating to the custody of minor, paramount consideration always remains the welfare of the minor. Section 17 of The Guardians and Wards Act, 1890 lays down the necessary considerations for deciding the matter of custody which reads as under:
17. Matters to be considered by the Court in appointing guardian: (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of proposed guardian with minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.
(5) The Court shall not appoint or declare any person to be a guardian against this will
It is manifest from the above that the Courts, while deciding the question of custody shall be guided by the principles enumerated herein above and prime consideration before the Court would always be the betterment of the minor but not claims or wishes of rival contesting parties.
8. Mother of a child always has natural love and affection for his children male or female having no substitute. Apart from care, love and affection of a real mother of which there is no substitute, daughter requires her company and association for preparing her to shoulder responsibilities in future. This is the reason that Muhammadan Law recognized preferential right of mother to custody of infant children which is ordained in para No.352 of The Muhammadan Law by D.F. Mulla’s. No cavil that mother loses her preferential right in case she marries a person not related to the child within prohibited degree but this is not an absolute rule. In the case of “Shabana Naz versus Muhammad Saleem” (2014 SCMR 343), the Hon’ble Supreme Court of Pakistan while taking this issue very elaborately outlined the factors disqualifying the mother and father from the custody of minor in the following words:
“8. It may be noted that in terms of section 7 of the Guardians and Wards Act, 1890 (the Act), the paramount consideration for the Court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children but indeed the Court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could be, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor.
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