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Civil Petition for Special Leave to Appeal No. 103 of 1980, decided on 16th November, 1980.
(On appeal from the judgment and order of the Lahore High Court, dated F. A. O. No. 203/79).
----- S. 25-Appointment of guardian-Welfare of minor-Mother of minor daughter at time of taking divorce voluntarily agreeing to surrender minor to her previous husband, father of minor, after five years-Minor's mother marrying another husband and having a son from him-Custody of minor daughter cannot, in circumstance, be given to her mother, so as to amount to placing minor in custody of mother's new husband not falling within prohibited degree to ward- Order of Courts below giving custody of minor daughter to her father supported by sound reasons and no factual or legal error or violation of any principle of law pointed out-No interference called for with such order.-[Custody of minor].
Mahfuzul Haq Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate- on-Record for Petitioner.
Nemo for Respondents.
Date of hearing : 16th November, 1980.
-Hafiz Ghulam Mustafa respondent filed an application under section 25 of the Guardians and Wards Act VIII of 1890, for return of the custody of his minor daughter Mst. Shamim Mai (now aged about 8 years). The application was accepted by tile learned Guardian Judge by his order dated 4-6-1979, who directed the petitioner, who is a divorcee of Ghulam Mustafa to return the custody of the child to him.
2. The petitioner filed an appeal being F. 10. No. 203/79 but without any success as the same was dismissed by the High Court on 10-12-1979.
3. The petitioner has now come up in petition for special leave to appeal against the same to this Court.
4. It is conceded before us that after the divorce, the petitioner ha married another husband and is living with him. It is also conceded that from the new wedlock the petitioner has a son. In these circumstances it is obvious that the custody of minor daughter of the petitioner from her previous wedlock with Hafiz Ghulam Mustafa cannot bf given to her because in the very context hereinbefore mentioned, it will amount to placing the minor in the custody of a new husband of the petition; who does not fall within a prohibited degree to the ward. Another thing to be taken note of is that Mst. Nazir, petitioner at the time of taking divorce from the previous husband voluntarily agreed to surrender the custody of Mst. Shamim Mai to him after five years. This agreement in the overall context explained above, in our opinion, is in the welfare of the minor and the circumstances of this case, we do not find any justification to ignore it. The orders of the Courts below contain sound reasons in their support, and as the learned counsel has not been able to point out any factual or legal errors therein, or violation of any principle of law, in our opinion it is not a fit case for grant of leave to appeal.
5. The result is that this petition has no merits and is dismissed.
Petition dismissed.
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