AMIR MAI Versus AHMAD ALI

An application under section 25 of the Guardians and Wards Act was filed by the respondent, Ahmad Ali, father of the minors namely Mst. Salma Mai and Mst. Najma Mai, alleging therein that he married with petitioner No. l as an exchange marriage and both abovesaid minors were born out of that wedlock. Unfortunately sister of the respondent No. l was divorced and under compulsion of circumstances, he had to divorce the petitioner No. 1. It is also alleged that at the time of divorce it was orally agreed that the custody of daughters would be given to respondent No. l after they would attain the age of seven years. It is further averred in the application that since petitioner had contracted marriage with a stranger, who is not related to the minors within prohibited degrees and further the father of respondent No. l was alive and he was in better position to look after the minors.

2. The petitioner/respondent filed her written statement and on the pleading of the parties the following issues were framed:‑‑‑

(1) Whether the interest and welfare of the minors lies with the petitioner? OPA

(2) Whether the petitioner is entitled to the custody of the minors? OPA

(3) Relief.

3. The respondent/applicant appeared as A.W.1. in support of his application, but despite a number of opportunities granted to the petitioner/respondent she failed to produce her evidence and ultimately her evidence was closed by the Guardian Judge. After going through the evidence of the respondent/applicant the learned Guardian Judge accepted the application and ordered the petitioner to hand over the custody of the minors to the applicant/respondent within a period of thirty days. This order was passed on 3‑9‑1996. The petitioner feeling aggrieved preferred an appeal before the Court of District Judge, Dera Ghazi Khan, who vide his elaborate judgment, dated 21‑5‑1997 upheld the judgment of the learned Judge Family Court/Guardian Judge and dismissed the appeal of the petitioner.

4. The petitioner/respondent filed the present writ petition challenging the order of the Courts bellow. I have heard the learned counsel for parties at length and have also gone through the record.

5. The learned counsel for petitioner has failed to point out any illegality in the order passed by the Guardian Judge as well as in the judgment passed by the learned Lower Appellate Court. The petitioner, mother of the minors, having contracted second marriage with a person not related to the minors within prohibited degrees has lost her right of ' Hizanat . Her conduct also shows that she was not serious in contesting the application for the custody of the minors. It is evident from the record that despite of number of opportunities granted to her for production of evidence, she did not produce any witness before the Court and that is why her evidence was closed. If there was any illegality committed by the Guardian Judge she had opportunity to apply for additional evidence before the Appellate Court, but again she did not submit any such application. Both the Courts below were justified in arriving at the decision, which based on the material available on the record. In writ jurisdiction, I am not inclined to interfere in the impugned judgment as the same have been passed by the Courts of competent jurisdiction having exclusive authority to deal with such‑like matters and the same are based on proper appreciation which is factually and legally correct. As a last resort when the case was fixed before this Court on 16‑9‑1997 the parties sought adjournment to settle the matter amicably, but today the petitioner has intentionally absented herself and minors, which shows her conduct.

6. In the light of above discussion, there is no merit in this writ petition, which is dismissed. The parties are left to bear their own costs.

A.A./A‑232/L Petition dismissed.