Find a Lawyer

Civil Petition for Leave to Appeal No. 510 of 1986, decided on 16 June, 1986.

(On appeal from the judgment and order of the Lahore High Court 12‑2‑1986 in W.P. No. 30 of 1986).

‑‑‑Art. 185(3)‑‑Guardians and Wards Act (VIII of 1890), S.25 Custody of minor‑‑Paramount consideration, welfare of minor‑‑Divorced mother‑‑seeking custody of minor girl aged 8 years on ground that minor was, being treated badly at her father's house‑‑Application allowed‑ ‑Appeal against that order failed and writ petition filed by appellant‑father minor also dismissed‑‑Leave to appeal‑‑Child and parents summoned Court where minor stated that she was being educated, being look after very well and would like to remain with her father‑‑Plea raised that question of welfare of minor was not given due consideration Courts below and that evidence on record having been misread same required re‑appraisal‑‑Evidence placed on record showing that divorced mother did not enjoy good reputation, had married thrice but eves time was divorced; lived in a house where her mother was working maid‑servant‑‑Father financially well off and had made proper arrangements for education and welfare of minor‑‑Welfare of minor held, was best served if she continued to remain with her father-order of courts below set aside and minor allowed to remain with her father.

Mst. Nazi, v. Hafiz Ghulam Mustafa etc. 1981 S C M R 200;

Mst. Surraya Bibi v. Abdur Rashid 1982 S C M R 892 and 1981 SCMR 200 rel.

‑‑‑S. 25‑‑Custody of ward‑‑Paramount consideration is welfare of minor.

Mst. Nazi, v. Hafiz Ghulam Mustafa etc. 1981 S C M R 200; Mst. Surraya Bibi v. Abdur Rashid 1982, S C M R 892 and 1981 SCMR 200 rel.

S. Ahmad Saeed Kirmani, Advocate Supreme Court and R. Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioners.

Kh. Abdul Waheed, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Respondents.

Date of hearing: 16th June, 1986.

Petitioner Haji Muhammad Shafi and respondent No. 1 Mst. Maqbool Afza were married in the year 1976. Out of this wedlock a daughter Mst. Hadiba Saima was born on 2‑1‑1978 who is now about 8 years old and is stated to be living with her father, the appellant and grandmother Mst. Barkat Bibi appellant No. 2 in this case. It is alleged that respondent No. 1 was a woman of bad reputation, and, therefore, appellant No. 1 divorced her on 29‑5‑1981 While the minor daughter Mst. Hadiba Saima remains with her father appellant No. 1 Mst. Maqbool Afza filed an application for the custody of the minor in the Court of Guardian Judge, Lahore, which was not entertained due to lack of jurisdiction. She then filed another application under sections 7 and 25 of the Guardian and Wards Act, 1890 before the Guardian Judge at Sialkot praying for restoration of the abovenamed child on the grounds that appellant No. 1 lives in Kuwait and the grandmother appellant No. 2 is an old woman and the ward namely Mst. Hadiba Saima is being treated badly by her step‑brothers. The learned Guardian Judge, vide his judgment, dated 5‑6‑1985 accepted the petition and directed restoration of the minor to respondent No. 1 Mst. Maqbool Afza. An appeal was preferred by the appellants which was dismissed by the learned District Judge, vide order, dated 2‑12‑1985. Appellants thereafter filed a constitutional petition in the Lahore High Court which was also dismissed, vide the impugned order, dated 12‑2‑1986.

2. On the last date of hearing of the petition it was directed by this Court that the minor and her father who were stated to have gone to Saudi Arabia for performing Umrah, shall be present in Court on 16‑6‑1986. The parties as well as the minor were ordered to be present in Court on‑ 16‑6‑1986. Respondent's counsel was also present on the last date of hearing i.e. 27‑5‑1986 but he did not insist on an interim order as no action, according to him, was proposed to be taken by the respondent regarding the custody of the minor until the next date of hearing.

3. We convert the petition into an appeal. Heard the learned counsel for the parties. Appellant, along with the minor girl, and respondent No. 1 Mst. Maqbool Afza are present. We asked the girl Mst. Hadiba Saima as to whether she was happy with her father or she would like to go with her mother respondent No. 1. She stated that she was looked after very well by her father and she was studying in a school and her father appellant No. 1 had arranged transport for her that takes her from home to school and back home; that her grandmother Mst. Barkat Bibi appellant No. 2 was looking after her very lovingly, and, therefore, she would like to remain with her father appellant No. 1.

Syed Ahmad Saeed Kirmani, learned counsel contended that paramount consideration in this case is the welfare of the minor which has not received due consideration by the trial Court as well as the Court of the learned District Judge who failed to appreciate this aspect of this case in a judicial manner; that the learned High Court Judge did not give proper judicial consideration as well to this question; that the evidence on record has been misread and calls for re‑appraisal as laid down by this Court consistently in such‑like cases. He further contended that the minor girl remains with her father and grandmother since respondent No. 1 was divorced in the year 1981; that her character was doubtful and as such she was divorced and it would, therefore, not be in consonance with the principle laid down by this Court to hand over the minor child to a mother who had been divorced thrice. The learned counsel added that the minor is admitted in an English medium school in Sialkot and her father has arranged for the transport to take her to school and bring back home in village Langrianwali.

4. We have gone through the evidence placed on record and agree, with the contentions of the learned counsel. Appellant No. 1, according to evidence on record, is a well‑off person having worked for a long time in Kuwait with monthly income of about Rs.15,000/Rs.20,000, which fact has been admitted by A.W.1 Muhammad Sharif in cross‑examination. Respondent No. 1 Mst. Maqbool Afza has also admitted in her cross‑examination that she married three times but every time she was divorced. She lives in the bungalow of Mian Fazal Ahmad where her mother, is working as a maid‑servant.

Learned counsel relied on Mst. Nazir v. Hafiz Ghulam Mustafa etc. 1981 S C M R 200 and Mst. Surraya Bibi v. Abdur Rashid 1982 SCMR 892, 1981 S C M R 200 it has been observed:

"It is conceded before us that after the divorce, the petitioner has 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 be 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 petitioner 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 ."

Perusal of the cited authorities reveal that paramount consideration is the welfare of the minor. In the circumstances of the present case we are of the view that welfare of the minor girl is best served if she continues to remain with her father appellant No. 1. We, therefore, set aside the orders of the lower Courts and direct the minor girl to remain with her father appellant No. 1 Parties to bear their own costs. Appeal allowed

M.I. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.