GANJ BIBI vs MUHAMMAD YOUNAS and another

1. MRS, SYEDA TAHIRA SAFDAR, J.--- (sic) been filed by appellant Ganj Bibi, being aggrieved of judgment dated 28-7-2009 of Civil Judge-II with the powers of District Judge, Quetta, whereby the application filed by her for appointment of guardian was dismissed, being not maintainable. It is her contention that the trial court has not properly appreciated the evidence produced by her, while the relevant law has also not been taken into consideration. She being mother of the minor, and being the natural guardian cannot be deprived of custody of her minor son. She prayed for setting aside of impugned judgment, and thereby her appointment as guardian of her minor son Muhammad Yousaf.

2. Counsel for the parties heard, while record is perused.

3. 'Learned counsel for the appellant raised almost same contention as made in the appeal. He contended that the trial Court has misunderstood section-19 of Guardians and Wards Act 1890. He placed reliance on judgment in case titled as Mst. Hamida Begum and another v. Ubedullah and others reported in 1989 CLC (Karachi), Page-604. In reply learned counsel for respondent contended that the law is properly appreciated. Further, there is no evidence that respondent ever tried to take custody of minor forcibly. He prayed for dismissal of appeal.

4. ' The perusal of record reveals that the appellant filed an application under sections 7 and 25 of the Guardians and Wards Act 1890, praying for her appointment as guardian of her minor son namely Muhammad Yousaf, aged 7 months. Wherein she raised contention that due to bad conduct and maltreatment-of respondent Muhammad Younas, she filed suit for dissolution of marriage, which was decreed in her favour through judgment dated 4-7-2008 by Family Judge-I, Quetta, whereby the marriage was dissolved on basis of Khula. In the application the applicant/appellant mainly contended that the minor is her real son and in her custody, she being the real mother, thus in better position to secure the welfare of the minor, and provide him love and affection. She prayed for her appointment as guardian of person of the minor. The application was contested by respondent Muhammad Younas, thereby raised objection on maintainability of the application to the effect that in presence of de jure guardian (father), mother being de facto guardian is not entitled to be appointed as guardian of the minor. The trial Court after framing issues on 23-2- 2009, called evidence from both the sides, and on completion, decided the application through judgment dated 28-7-2009, impugned before this court. The trial Court relying on section 19 of the Guardians and Wards Act 1890, arrived to the conclusion that the applicant/appellant being not entitled to be appointed as guardian of the minor, thus dismissed the application. The appellant bail aggrieved of the order preferred instant appeal.

5. In instant case it is an admitted position that the minor Muhammad Yousaf is in custody of the appellant, being his mother, while on' the other hand the respondent is real father of the minor.

6. There is nothing on record, that any step was taken by the respondent, in order to deprive the appellant from the custody of the minor. Despite having custody the appellant is now trying to appoint herself as guardian of the person of the minor. Section-19 of the Guardians and Wards Act 1890 provides certain instances whereby the court is restrained to appoint or declare a guardian of property or person of a minor. Clause (b) of the section is relevant in present case, which states as under:-- "19(b) of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor,"

7. ' Though the main consideration while appointing a person as guardian of a minor, is the welfare of the minor, which is to be seen in relevance to noted provision of law. In present case, there is nothing on record, nor even asserted by the appellant, on basis of which the respondent can be considered unfit to be guardian of person of his minor son. Under the principles of Muhammadan Law mother is entitled only for custody of her minor son till he attain age of 7 yeaRs, But in present case the situation is quite different. As the appellant, being his mother, is already in custody of the minor, but she is now intended to be appointed herself as guardian of her minor son. For the purpose, in view of section 19(b) Guardians and Wards Act 1890, she has to establish that the father/respondent is unfit to remain as guardian of person of the minor. But she has completely failed to disclose any reason, nor she has placed on record any material due to which the father has been disqualified to remain guardian of his minor son.

8. ' In view of above discussion the appellant has failed to make out any case in her favour. No such irregularity or illegality is pointed out in the judgment, which requires interference by this court. The appeal is hereby dismissed being without merits. The judgment of trial Court dated 28-7-2009 is hereby upheld.

9. ' No orders as to costs.