MUHAMMAD.IQBAL KHETANA Versus THE STATE

ORDER

Dispute involved in this case relates to the custody of a minor daughter of respondent No.3, Mst. Amir Khatoon, hereinafter referred to as the respondent and the petitioner, Matloob Hussain. The minor daughter, namely, Mst. Fayyaz Bibi is aged about 7‑1/2 years. The Guardian Judge, before whom an application was filed by the respondent for the custody of her minor daughter, allowed that application. The petitioners, Mahoob Hussain' and another, therefore, went in appeal before an Additional District Judge but without success. Hence this Constitutional petition.

2. It was contended by learned counsel for the petitioner that the petitioner, who is father of the minor, is Shia and, therefore, he was entitled to have the custody of his daughter before the attaining of puberty by her. This was, however, denied by the respondent. No issue was framed on the basis of the petitioner's plea that he belonged to the Shia sect of Muslims. This shows that he was not serious in pursuing his averment in this regard. There is also no evidence on the record, except his own statement as R.W. 1, to substantiate his plea. Her only witness, Shamsher (R.W.2) did not say anything in the matter. No question was put to the respondent when she entered the witness‑box as A.W. 1 or to her witness Ghulam Akbar (A.W. 2) with regard to the sect of the petitioner. I am, therefore, not inclined to hold, on the basis of solitary statement of the petitioner and in the circumstances referred to above, that he belongs to Shia sect.

3. Normally, a daughter should remain with her mother till she (daughter) attains puberty. It is not disputed that the respondent, who is mother of the minor in the present case, has not contracted a second marriage. Learned counsel for the petitioner has not attributed any other disqualification to the respondent justifying the handing over of her minor daughter to the petitioner when the daughter is of tender, age of about 7‑1/2 years. I, therefore, see no good reason to interfere with the unanimous verdict of the two Courts below.

4. Resultantly, this writ petition fails. It is dismissed in limine.

M.BA./M‑263/1, Petition dismissed.