Mst. AISHA vs MANZOOR HUSSAIN AND OTHERS
This matter concerns a petition for leave to appeal against a High Court judgment that dismissed a revision petition regarding the custody of a minor girl. The core legal question was whether the custody of a 12-year-old minor should remain with her maternal grandmother or be restored to her natural father. The Supreme Court upheld the decision of the District Judge, which had restored custody to the father. The Court held that while courts generally prefer the mother in custody disputes, the welfare of the minor is the paramount consideration. In this instance, the Court found that the father was the more suitable guardian because the mother had remarried, and the maternal grandmother had failed to provide the minor with education. The Court further observed that the minor's own preference is not always the decisive factor, as children can be influenced by the custodian. The key principle laid down is that the welfare of the minor is the primary test in custody matters, and a father may be preferred over a maternal grandmother when the mother has remarried and the grandmother has failed to ensure the minor's education.
- Is the preference of a minor child always the decisive factor in determining custody?
- Can a father be granted custody of a minor over a maternal grandmother when the mother has remarried?
- Does the failure of a guardian to provide education for a minor impact the determination of the minor's welfare?
ORDER
1. ' ASLAM RIAZ HUSSAIN, J.--Mst. Aisha petitioner has filed the present petition against the judgment of the High Court, Multan Bench, dated 22-5-1982, dismissing her revision petition in a guardianship matter.
2. 2.The facts giving rise to this petition are, briefly, that Manzoor Hussain respondent was married to Mst. Tasleem Akhtar daughter of Mst. Aisha, petitioner. A daughter Mst. Samina Shaheen (now aged 12 years) was born out of the wedlock. Relations between the spouses, however, became strained after sometime, and Mst. Tasleem Akhtar left her husband's house and filed a suit for dissolution of marriage against him, while the latter filed a suit for restitution of conjugal rights against her.
3. 3.The learned Judge Family Court dismissed the suit of Mst. Tasleem Akhtar but decreed the respondent's suit for restitution of conjugal rights. According to Manzoor Hussain respondent, his wife Mst. Tasleem Akhtar had developed relations with one Sher Alam. Therefore, despite the dismissal of her suit for dissolution of marriage he divorced her himself. Soon thereafter Mst.
4. Rasleein Akhtar married the aforementioned Sher Alam, while Manzoor Hussain has not remarried till now. It may be mentioned that at that time the custody of the minor girl was with Manzoor Hussain respondent but sometime later Mst. Tasleem Akhtar moved an application for the custody of the girl in the Court of the Guardian Judge, Multan. She made her own mother Mst. Aisha (petitioner herein) a party in that application. The learned Guardian Judge, by his order dated 19- 2-1981, gave the custody of the minor to Mst. Aisha, the maternal grandmother, in view of the fact that Mst. Tasleem Akhtar had remarried.
5. ' Manzoor Hussain, the father of the minor girl therefore filed an appeal before the District Judge, Muzaffargarh which was allowed and the custody of the minor was ordered to be restored to her father vide order dated 16-2-1981 and the minor has been living with him ever since.
6. 4.Mst. Aisha challenged the order of the District Judge through a civil revision in the High Court and the learned High Court Judge after considering the facts of the case, dismissed the same on merits. The learned Judge also observed, inter alia, that the civil revision was not maintainable.
7. Feeling dissatisfied Mst. Aisha has filed the present petition before this Court.
8. 5.We have heard the learned counsel for the petitioner and the Caveator at some length, and have also gone through the judgment of the Courts below.
9. 6.The petitioner's counsel argued half-heartedly that the revision petition before the High Court was maintainable. Even if that be so it would not advance petitioners' case because even if the judgment of the High Court dismissing the Revision filed by Aisha before it is excluded from consideration the judgment of the learned- District Judge whereby custody of the minor was restored to her father, would hold the field.
7. As for the merits are concerned, after considering the entire case we feel that the learned High Court Judge has rightly come to the conclusion that in the circumstances of this case the welfare of the minor (who is now 12 years old) lies with her father, who, according to the evidence on the record, is living with his own mother and sister. It appears that after being divorced, Mst. Tasleem Akhtar lost no time in marrying Sher Alam and knowing that she would thereby lose the right of custody of her minor daughter, she used the device of impleading her mother (the present petitioner) as a party claiming the custody of the minor. She succeeded in her design and the custody of the minor was given to the mother of Mst. Tasleem Akhtar. As already noticed, the mother of the minor remarried soon-after leaving her husband while, on the other hand, minor's father has still not married although a period of more than 6 years has passed since his wife left him.
10. ' We notice that usually the Courts tend to prefer the mother over the father in disputes over the custody of minor children. But surely there must be some circumstances in which the father of the minor- has a preferential right to the custody of his minor- child. The case in hand appears to as to be an eminently a fit case where the father ought to have been given the custody of the minor, specially in view of the fact that the minor's mother has remarried and maternal grandmother of the minor has not been able to send her to school for education although according to the record she (i,e, the minor) was of school going age, at the time when she was living with her.
11. 8.It may be mentioned that although preference of the minor may, in such cases, be taken into consideration but it is not always relevant because the minor is not the best Judge as to where his (or her) welfare lies. We have noticed generally that a child is apt to prefer to continue living with the parents or relative with whom he/she has been allowed to live for sometime as such person is in a position, be it the father or the mother, to brainwash the child against the other claimant to the child's custody.
12. 9.In view of the above discussion we find no merit in the petition which is consequently dismissed, with no order as to costs.
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