Mst. HAMEED MAI vs IRSHAD HUSSAIN

NAZIM HUSSAIN SIDDIQUI, J.--This appeal by leave of this Court is directed against judgment dated 28-4-2000 of a learned Judge in Chamber, Lahore High Court, passed in C.P. No,3659 of 1999, whereby the said petition filed by appellant was dismissed and appellant Mst. Hameed Mai was directed to hand over custody of the minor to respondent No,1, Irshad Hussain.

2. The facts relevant for decision of this appeal are that the dispute is between the appellant, the maternal grandmother and respondent No,1, the father, about custody of minor Mst. Humera Khurshid, now aged about 11 years. The mother of the minor expired at the time of her (minor) birth.

It is alleged that custody of the minor was handed over to the appellant through habeas petition.

The respondent No,1 filed an application before learned Guardian Judge, Shorkot and the matter was compromised and, as per term of the settlement, the custody of the minor was to be handed over to respondent No,1 on her attaining age of seven years.

3. After above settlement certain developments took place and the respondent No,1 solemnized second marriage. Deceased mother of the minor was a serving lady. The respondent No,1 deposited the share of the minor and the amount left by the deceased in his own account against which objection was taken and he even did not abide by the decree of the Court. Thereafter, his warrant of arrest was issued and to avoid his arrest he deposited the share of the minor in her account.

4. The appellant has filed another application/suit in the Court of learned Guardian Judge, Jhang for her appointment, as guardian of person and property of the minor, which is being contested by the respondent No,1 and is yet to be decided on merits. During pendency of above suit, the respondent tiled an application before, learned Guardian Judge, Shorkot for implementation of said compromise, seeking custody of the minor. Learned Guardian Judge, Shorkot allowed the said application and directed the appellant to hand over custody of minor to respondent. The appellant preferred appeal against said order before learned Additional District Judge, who dismissed it vide order dated 8-2-1999. Being dissatisfied with above orders the appellant filed writ petition before High Court, which was also dismissed by the order, which has been impugned in this appeal.

5. Leave to. Appeal was granted to consider whether, under the circumstances, irrespective of settlement between the parties, the Guardian Judge is bound under the law to decide the question of custody of minor keeping in view her welfare.

6. It is contended on behalf of the appellant that it is a question of welfare of the minor and learned Guardian Judge, Shorkot ought to have decided the matter in the light of the changed circumstances, but he decided it mechanically on technical grounds.

7. During course of arguments, the husband of the appellant submitted that minor is residing with the appellant alongwith her 5 sons and daughters and all her sons are employed and getting handsome salary. He also submitted that the respondent is a mason and he gets salary only when he is on job. It has also been pointed out that, during last 11 years, the respondent never cared for the minor and did pay nothing to her. He also stated that the respondent No,1 has got an issue from his second wife.

8. As against above, learned counsel for the respondent No,1 submitted that, as per term of the settlement, the respondent is entitled to the custody of the minor, but the appellant for one reason or the other is not inclined to do so. Learned counsel also argued that even otherwise the respondent No,1 being natural guardian is entitled to her custody.

9. It is settled proposition of law that in such cases the paramount consideration is welfare of the minor. No doubt initially the parties had settled the dispute as above, the fact, however, remains that later on the circumstances, stood materially changed and the question of welfare of minor again cropped up in a more serious manner than before: Issue of custody of minor in all cases cannot be effectively settled by private compromise. The Court's powers with regard to custody of minor are in the nature of parental jurisdiction.

Therefore, the Court must act in a way a wise parent would do. The expression 'welfare' shall be construed in a way as to include in its compass all the dominant factors essential for determining the actual welfare of the minor. Technicalities of law are not adhered in such type of cases. Since birth minor remained with the maternal grandmother and suddenly to ask her to live in different atmosphere would be if not impossible at least very difficult for her.

10. Under the circumstances, we allow this appeal, set aside the impugned judgment and permit the minor to remain with the appellant, till the petition, pending before Guardian Judge, Jhang, is finally decided on merits after recording the evidence of the parties. It is, however, emphasized here, if the emphasis is at all necessary, that above observations are with regard to this appeal and this appeal alone and same would have no bearing when the matter would be decided by learned Guardian Judge, Jhang, who is also directed to decide it within six months from receipt of this judgment.