ATTA MUHAMMAD Versus BHHLAWAR BIBI
ORDER
1. This Constitutional petition is directed against the judgments/decrees dated 7‑4‑1990 and 24‑5‑1990 passed respectively be the learned Guardian Judge, Mianwali and the learned Addl. Distt. Judge, Mianwali.
2. The facts in brief are that the parties entered into a marriage contract in ‑the year 1985 and out of this wedlock a girl, namely, Mst. Ghulam Zainab was born. Subsequently, the relations between the parties became strained and respondent No.1 was thrown on the road side and was deprived of the suckling baby as well. This led to securing divorce by respondent: No.1 from the Judge Family Court vide judgment dated 11‑8‑1987. She also filed an application under section 25 of the Guardian and Wards Act on 16‑12‑1988 claiming custody of the minor child. The petitioner controverted the stance taken by respondent No.1 and the learned Court framed the following issues:
(1) Whether it would be in the welfare of the minor to return her to the custody of the applicant? OPA.
(2) Relief.
3. The parties led their evidence. Vide order dated 19‑4‑1.989 the learned trial Court accepted the application and granted custody of the minor child to respondent No.1 The present petitioner went in appeal and the learned Addl. District Judge Mianwali vide his judgment dated 27‑6‑1987 remanded the case with a direction for its adjudication as a Judge Family Court/Guardian Judge with a further direction to provide opportunities to the parties to produce further evidence if they so desired. After the remand the learned Judge Family Court/Guardian Judge, Mianwali after scanning the evidence of the parties brought on the record, restored the custody of the minor to respondent No. 1 vide his order dated 7‑4‑1990. The petitioner filed, appeal which was dismissed by the learned Addl. District Judge. Hence this Constitutional petition.
4. Learned counsel for the petitioner has argued that the two Courts below have failed to appreciate the evidence brought on record by the petitioner. It is his argument that the respondent has contracted a second marriage with one Ahmad Din on 11‑5‑19'90 during the pendency of the appeal before the First Appellate Court and as such she had lost her right of custody. It has further been argued that the respondent is a lady of low means and would not be in a position to look after the child properly.
5. I have considered the contentions and gone through the judgments of both the Courts below. No misreading of evidence has been pointed out by the learned counsel for the petitioner. Even if the argument of the learned counsel is admitted that the respondent has not got enough means this by itslef would not negate her legal right of custody. Reliance in this respect is placed upon Mst. Feroze Begum v. Lt:. Col. Muhammad Hussain (1983 S C M R 606) wherein it has been held that
6. "Under the Shariat Law, the mother is entitled to the custody (hizanat) of the male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child Needless to mention here that the father is the natural guardian of his minor children and the mother's custody is a subordiante custody and is subject to the control of the father. But the mere inability to maintain the child is not a ground for depriving the‑mother of the custody of her children. In Harbal v. Usman PLD.1963 Kar. 888 it was held that mother's proverty is no hinderance to the custody of her minor daughter. Indeed in law it is for the father to provide for their maintenance."
7. Reference may also be made to Sakhawat Ali and another v. Mst. Shui Khelay (PLD 1981 SC 454).
8. The other ground taken by the petitioner that the respondent No.1 has contracted a second marriage during the pendency of appeal before the First Appellate Court is also devoid of any force. Simply on the ground that respondent No.1 had contracted a second 'marriage she cannot be deprived of her right of Hizanant of a minor girl of tender age. The paramount consideration for the custody of the minor is the welfare of the child. : he learned First Appellate Court has rightly held that the age of the minor being hardly 3‑1/2 years, the mother would be most suitable to have her custody. There is no justifiable reason to deprive the minor of the affection and natural love of her mother. It cannot be expected that the mother would ever tolerate any adverse effect on the future conduct/character of the minor because of her second marriage as apprehended by the petitioner. It is in evidence that respondent's mother is alive and in case of any such development which appears to be a remote chance, the respondent No.1 could make the minor live with her mother. On the contrary the petitioner has simply been banking upon his sister and paternal aunt to look after the minor. In this situation at the present juncture it is the mother who could look after the minor in a better way as compared to the paternal aunt of the petitioner particularly so when the petitioner had admitted in his evidence that he had to remain outside from his house in connection with his business. Reliance is placed upon Ghulam Sakina v. Ghulam Abbas (PLD 1978 Lahore 1389). Simply on the apprehension of the petitioner, the conclusion drawn by the two Courts below cannot be interfered in the exercise of Constitutional jurisdiction.
9. For what has been stated above, I am of the view that no exception can be taken to the judgments/decrees passed by the two Courts below and accordingly this Constitutional petition is dismissed in limine.
10. AA/A‑1409/L Petition dismissed