MUHAMMAD NAWAZ vs ADDITIONAL DISTRICT JUDGE

ORDER

' Custody of Tahira Yasmin, a girl of about ten years, is a serious bone of contention between her mother and paternal-grandfather. Mst. Naziran, mother of Tahira Yasmin was married to Muhammad Akram son of Muhammad Nawaz petitioner, approximately eleven years ago. While Mst. Naziran carried a pregnancy of four months, her husband was alleged to have turned her out of his house, whereupon, she took up residence in her parents' house, and gave birth to Tahira Yasmin. Later, Muhammad Akram brought a suit for restitution of conjugal rights against Mst.

Naziran. With his death, it came to an end and Mst. Naziran became a widow. After some time, she contracted remarriage with one Zafar, who was out of prohibited degrees to Tahira Yasmin. Still later, petitioner filed a petition under section 25 of the Guardians and Wards Act to regain the custody of Tahira Yasmin from her mother, Mst. Naziran. It was stated that having contracted marriage with a person not related to the minor within prohibited degrees, Mst. Naziran forfeited her right of Hizanat, and, even otherwise, the minor was not being properly cared for and looked after and, therfore, it was in the interest and welfare of the minor to return to the custody of the petitioner, who was her real paternal-grandfather. Mst. Naziran contested the petitioner's right to get custody of Tahira Yasmin from her. However, she admitted her marriage with Zafar, who was stated to be an educated person and employed in Pakistan Army.

2. Upon consideration of evidence led by the parties, Trial Court concluded that it was in the interest and welfare of the minor to return to the custody of her paternal-grandfather and directed Mst. Naziran to hand over her custody to him, vide its order dated 4-11-1990. In appeal preferred by Mst. Naziran, learned Addl. District Judge held differently and allowed the minor girl to remain in the custody of her mother. It is this order that is being assailed in Constitutional jurisdiction.

3. It is argued that upon re-marriage with a stranger, Mst. Naziran lost her right to retain the custody of her minor daughter. It was further stated that it was in the interest and welfare of the minor girl that her custody should be transferred to the petitioner.

4. Welfare of a minor is the paramount consideration which must weigh with and influence the Court in deciding as to whom his/her custody should be entrusted. Further, welfare is a question of fact to be resolved on material placed before the Judge and not upon mere presumption. Personal Law, in this behalf is subordinated to that of welfare of the minor, which alone must govern the question relating to his/her custody. Tahira Yasmin, first saw the light in the house of her maternal- grandparents, where her mother was passing a deserted and forlorn life. Her parents had fallen out, when she was still a foetus in the womb of her mother. Right from the day of her birth, she remained in the care and custody of her mother, who looked after her and brought her up. Neither father nor the paternal-grandfather ever contributed towards her sustenance. Her mother and the maternal-grandparents shared full responsibility for bringing her up. She was admitted to school also. Second husband, though out of prohibited degree but was shown to be a gentleman belonging to an affluent and a respectable family. He is stated to be an educated person also.

Further, he is an army personnel and is shown to be a man of property. There is no allegation of child-abuse against him nor any moral infirmity in his personality. As against this, petitioner is an old person. Source of his subsistence is daily labour at the brick-kiln. Property, that he owned has already been disposed of by him. He has another son, who is married. Out of the income from daily labour from a brick-kiln, he has to look after his aged wife also. His financial prospects are not bright. As compared to him, the mother and her present husband seem to be well-placed financially and the minor girl is being well protected and looked after by them. Remarriage with a person out of prohibited degree does not entail an absolute forfeiture and disqualification of preferential right of Hizanant by the mother. Minor girl has reached the age where she has to be prepared to shoulder further responsibilities of a woman and mother alone can assist her in that direction. Even otherwise, there is no proper substitute for the care, love and affection of a real mother for her minor children. A careful review of record and its ambient circumstances demonstrated clearly that the learned Court below has correctly assessed the issue of welfare concerning further custody of the minor-girl and there is no room to take a different view.

Disturbance of minor's custody at this stage of her life is likely to disturb her emotional set-up also.

For ten long years, she remained in the custody and care of her mother. During all this period, she must have developed a strong association with her existing present set-up. Its disturbance shall not be conducive to her welfare. For these and other reasons, impugned judgment could not be characterised either as without jurisdiction or without lawful authority. Writ petition is, accordingly, dismissed in limine.