Mst. MARYAM MAI vs JUDGE FAMILY COURT, D.G. KHAN and 4 others
This petition for leave to appeal challenged a Lahore High Court judgment that upheld concurrent findings of lower courts regarding the custody of a minor female child. The dispute arose between the maternal grandmother (petitioner) and the natural father (respondent No. 3). The core legal question was whether the welfare of the minor necessitated removing her from the custody of her maternal grandmother, who had raised her since birth, and placing her with her natural father. The Supreme Court observed that while the petitioner had raised the child, she was an elderly woman with physical infirmities, and evidence indicated the child had suffered an injury due to inadequate care. Furthermore, the petitioner admitted to failing to provide the minor with schooling or religious education. Conversely, the father, who had not remarried, was found capable of providing better care and education. The Supreme Court affirmed the concurrent findings of the lower courts, holding that the paramount consideration in custody matters is the welfare of the minor, which in this case favored the natural father.
- Is the welfare of the minor the paramount consideration in custody disputes between a natural father and a maternal grandmother?
- Can the physical infirmities of a custodian be a relevant factor in determining the welfare of a minor?
- Does the failure to provide schooling and religious education to a minor weigh against a current custodian in a custody dispute?
' MIAN MUHAMMAD AJMAL, J.---Leave to appeal is sought against the judgment of the Lahore High Court, Multan Bench, Multan. Dated 7-11-2001, whereby Writ Petition No, 751 of 2001, filed by the petitioner was dismissed.
2. Brief facts of the case are that Karim Bakhsh respondent No,3 and Mst. Saddan Mai got married in 1974. Out of the wedlock a female baby was born in the house of the petitioner, maternal grandmother of the minor. After about 15 days of the birth of the baby, Mst. Saddan Mai died and minor remained with the petitioner. On 31-3-2000, the petitioner filed a petition for guardianship of the minor before the Guardian Judge, Dera Ghazi Khan. Respondent No,3 also filed a counter- application for custody of the minor baby. Both the applications were consolidated by the Guardian Judge and consolidated issues were framed. Parties led their evidence in support of their respective pleas. The learned Guardian Judge on assessment of the evidence dismissed the application of the petitioner and allowed that of respondent No,3 vide his judgment, dated 5-7- 2000 with the direction to respondent No,3 to pay Rs,20,000 to the petitioner within a month. The petitioner filed an appeal before -the learned District Judge, Dera Ghazi Khan which was dismissed vide his judgment, dated 15-1-2001 with the modification that minor's custody be handed over to her father (respondent No,3) without payment of compensation amount of Rs,20,000. Feeling aggrieved with the said judgment, the petitioner filed Writ Petition No, 751 of 2001 before the Lahore High Court, Multan Bench, Multan and a learned Judge in Chambers of the High Court dismissed the same vide his judgment, dated 7-11-2001, impugned herein, operative paragraph wherefrom reproduced hereinbelow:--- "Heard. Record perused. There is no cavil to the proposition that in the nature of the case in hand, when there is contest for the custody of the minor between the maternal grandmother on the one hand and grand-parents and father on the other hand, the paramount consideration has been the welfare of the minor. It has been concurrently found by both the Courts that father has not contracted second marriage and he is residing with his parents. The female minor would be having the supervision ofthe paternal grandmother as well as that of father. The judgments of the two Courts below are in accordance with law. No legal infirmity has been pointed out in the findings of the Courts of exclusive jurisdiction to attract the Constitutional jurisdiction of this Court."
3. We have heard the counsel for the petitioner and have perused the record of the case. The contention of the learned counsel for the petitioner that respondent No,3 or his parents have never shown any interest in the welfare of the minor child who was brought up and looked after by the petitioner ever since her birth, thus respondent No,3 has lost the right of guardianship of the minor.
4. In view of the evidence on record, we are not impressed by the aforesaid arguments. No doubt that the minor has been living with the petitioner ever since her birth but she is an old lady with weak eye-sight and hard of hearing. It is on record that the minor's arm was fractured and due to careless treatment, her arm has not been fully recovered. It is also admitted by the petitioner in her statement that a school and a mosque are adjacent to her house but the minor was neither admitted in the school nor any arrangement was made for her religious studies. She also admitted that neither she nor her husband has learnt the Holy Qur'an. As against it, the respondent's case is that he and his parent who own sufficient land can take care of the minor in more appropriate manner that the petitioner being natural guardian. The learned three Courts on proper appreciation of the evidence have concurrently held that the minor's welfare is that she should live in the guardianship of her real father who can better look after her interest.
5. For the foregoing reasons, we find no ground to interfere with the concurrent findings of the learned Courts below, consequently, this petition is dismissed and leave refused.