FATIMA BIBI Versus DISTRICT & SESSIONS JUDGE, MANDI BAHA-UD-DIN

ORDER

In this Constitutional petition, the petitioner has prayed for setting aside judgment dated 5-9-2003 passed by learned Senior Civil Judge/Guardian Judge, Mandi Bahauddin and judgment dated 25-9-2003 passed by learned District Judge, Mandi Bahauddin.

2. Relevant facts for the disposal of this writ petition are that Mst. Fatima Bibi, petitioner filed a petition for appointment as guardian and stated that her daughter (Mst. Kausar Parveen) was married to Mazhar Hussain, respondent No.3 and she died on 23-10-2002. She further stated that her daughter alongwith her minor son (Danish Kaleem aged 1-1/4 years) were living in her house for the last 6/7 months and she died in her house. She maintained that Mazhar Hussain intended to snatch the minor (Danish Kaleem) from her. Mazhar Hussain mention in his reply that application brought by Mst. Fatima Bibi was baseless and based on mala fide because petitioner had contracted second marriage, therefore, it was of in the welfare of minor to remain with her. He further mentioned that he belonged to a Zimindar Family and he had no other child and that he could bring up the minor in a better manner. Mazhar Hussain also filed application for custody of minor and stated that Mst. Fatima Bibi (maternal grandmother of minor) had contracted second marriage and her husband is not father of Mst. Kausar Parveen. He further stated that he would being up the minor in a better way. Learned trial Court consolidated the aforesaid applications, recorded evidence of parties and dismissed the application brought by Mst. Fatima Bibi, petitioner for appointment of guardian whereas application brought by Mazhar Hussain, respondent for custody of his minor son (Danish Kaleem) was accepted vide judgment dated 5-9-2003. The petitioner filed appeal against the said judgment and the same was dismissed by learned District Judge, Mandi Bahauddin vide judgment dated 25-9-2003. Hence, this writ petition.

3. I have heard the arguments and perused the record.

4. As mentioned above Mst. Kausar Parveen daughter of Mst. Fatima Bibi (petitioner) had contracted marriage with Mazhar Hussain, respondent No.3 and a son (Danish Kaleem) now aged about 2-1/2 years was born out of this wedlock. However, Mst. Kausar Parveen died on 23-10-2002 and since Danish Kaleem minor is with his maternal grandmother (Mst. Fatima Bibi, petitioner). The petitioner had filed application for appointment of guardian whereas Mazhar Hussain, respondent filed application for custody of minor. The case of petitioner is that being maternal grandmother of minor she deserves to be appointed as, his guardian. However, case of Mazhar Hussain, respondent No.3 is that he is real father of minor and that it is in the welfare of the minor that he should be given to him. Learned trial Court observed that "paramount consideration is always the welfare of the minor; that minor is living with his maternal grandmother (petitioner) who has already six children and being an aged woman is not able to look after the minor child and that father being the natural guardian who has also a sister in his house can better look after his minor son" Learned counsel for, the petitioner admits that petitioner has six children. It is in evidence that Mazhar Hussain, respondent has a young sister who can look after the minor properly. The respondent has clearly mentioned in his reply that Mst. Fatima Bibi, petitioner has contracted second marriage and that her husband is not father of Kausar Parveen. So in the circumstances of the case, learned trial Court had rightly rejected the application brought by petitioner and accepted the application brought by respondent and directed the petitioner to hand over the minor to respondent. The perusal or judgment dated 25-9-2003 shows that learned District Judge decided the appeal brought by petitioner after appraisal of entire material available on record. Para. No.12 of the said judgment reads as under:--

"Admittedly the appellant is mother's mother of the minor whereas the respondent is his real father. In her cross-examination the appellant had admitted that she has six children from her two marriages. It is, therefore, clear that she has six children of her own and I cannot believe that she can afford proper attention to the minor who is her daughter's son and she naturally would prefer her own children so far, as their maintenance is concerned. The record shows that the respondent has not contracted second marriage so for which shows that he is very much interested in the well being of the minor. His statement further shows that his younger sister has been living with him who can look after the minor. As I have said earlier the respondent is real father of the minor and I find no justification to appoint any other person as guardian of person of the minor when his father is alive and the record does not make out any justification of his disqualification. So after going through the record I have come to the conclusion that it would be in the welfare of the minor to return hire to the custody of his father/respondent and it would not be in his welfare to appoint the appellants as guardian of his person."

5. It is well-settled that paramount consideration in determining custody or minor would be the welfare of the minor. Learned District Judge too has given cogent reasons for giving custody to father. The respondent is capable of maintaining the minor in a better manner and thus being real father of the minor and natural guardian cannot be deprived of the custody of his minor son. The analysis of the material available on record brings to the irresistible conclusion that it would not be in the interest and welfare of the minor to allow the petitioner keep the child in her custody. So minor should be give to the custody of respondent (Mazhar Hussain, respondent No. 3). As such in the circumstances of the case I find that learned District Judge has rightly dismissed the appeal brought by the petitioner. The petitioner has failed to point out any misreading of record. There is no illegality or infirmity in the impugned judgments, so as to warrant interference by this Court.

6. The upshot of the above discus ion is that this writ petition has no force and the same is accordingly dismissed in limine.

M.H./F-206/L Petition dismissed.