Custody of Minor Boy of Over 7 Years Age

 PLJ 2006 Lahore 820

[Multan Bench Multan]

Present: Muhammad Jehangir Arshad, J.

Mst. JAMILA BIBI--Petitioner

versus

SHABIR AHMAD and 2 others--Respondents

W.P. No. 5134 of 2005, heard on 19.10.2005.

Guardians and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan (1973) Art. 199--Custody of minor boy of over 7 years--Contest between father and maternal grandmother--Courts below handing over custody of minor to father on sole ground that he had crossed age of 7 years--Legality--Despite specific issue regarding welfare of minor, neither Guardian Judge nor Appellate Court bothered to record findings with reference to evidence of parties to that effect--Custody of minor boy over 7 years of age can only be handed over to father if the same was in welfare of minor--Judgment of two Courts below being violative of law declared by Supreme Court in Sardar Hussain's case (PLD 2004 SC 357) were not maintainable and the same were set aside--Case was remanded to Guardian Judge to pass fresh judgment after hearing arguments of both parties on issue relating to welfare of minor.              [P. 822] A

PLD 2004 SC 357; 1998 SCMR 1593; 1988 SCMR 608 and Muhammadan Law by D.F.. Mulla Para 357, ref.

Arshad Latif, Advocate for Petitioner.

Ch. Khalil Asghar Sindhu, Advocate for Respondents.

Date of hearing : 19.10.2005.

Judgment

Through this Constitutional petition, Mst. Jamila Bibi petitioner has sought annulment of judgment dated 7.4.2005 passed by learned Judge Family Court/Guardian Judge accepting application of respondent Shabir Ahmad moved under Section 25 of the Guardians & Wards Act, thereby directing the delivery of custody of minor Ali Raza from Mst. Jamila Bibi petitioner to Shabir Ahmad; and also the judgment dated 13.6.2005 passed by learned Additional District Judge, dismissing petitioner's appeal against the judgment of learned Guardian Judge.

2.  The facts in brief are that out of wedlock between Shabir Ahmad and Mst. Khalida Parveen, a son namely Ali Raza was born on 12.11.1996. Mst. Khalida Parveen mother of the minor died sometimes in 1997/98 whereafter, the minor remained with his maternal grandmother Mst. Jamila Bibi, petitioner. On 20.12.2003, however, Shabir Ahmad respondent claiming himself to be natural guardian/father of the minor moved an application under Section 25 of the Guardians & Wards Act, seeking custody of the minor on different grounds. The said application was contested by Mst. Jamila and keeping in view the divergent pleadings of the parties the learned Guardian Judge framed the following issues:--

ISSUES:

1.             Whether the welfare of minor lies with the applicant, hence, he is entitled to his custody?

2.             Relief.

The parties led their respective evidence. On conclusion of the trial, the learned Guardian Judge vide judgment dated 7.4.2005 accepted the said application and directed that custody of the minor be delivered to Shabir Ahmad, respondent. Aggrieved against the said decision, Mst. Jamila petitioner filed an appeal which was dismissed by learned Additional Sessions Judge vide judgment dated 13.6.2006. Hence, this Constitutional petition.

3.  It has been argued by learned counsel for the petitioner that neither the learned Guardian Judge/Respondent No. 3 nor the learned Additional District Judge/Respondent No. 2 recorded any findings about the welfare of the minor and both the judgments have been passed on the assumption that on crossing the age of seven years, father automatically becomes entitled to obtain custody, whereas, it is an established law that despite having crossed the age of seven years, in the absence of any specific findings by the learned Guardian Judge about welfare of the minor, custody of the minor could not be handed over to the father, on account of expiry of above mentioned age alone. In support of his contentions, the learned counsel has placed reliance on the case "Sardar Hussain, etc. versus Mst. Parveen Umar, etc." (P.L.D. 2004; S.C. 357) and "Mst. Nighat Firdous versus Khadim Hussain" (1998 SCMR 1593).

4.  On the other hand, Ch. Khalil Asghar, Advocate appearing on behalf of the respondent argues that apart from recording findings on the question of delivery of minors' custody after attaining the age of seven years, the learned Guardian Judge also came to the conclusion that on appreciation of evidence that welfare of the minor lay in favour of Shabir Ahmad, father being his natural guardian. Learned counsel further contends that the judgments cited by learned counsel for the petitioner are distinguishable, inasmuch as, in the cited judgments, the dispute was between the father and mother, whereas, in the present case dispute is between father and maternal grandmother. In support of his arguments, learned counsel for that respondent has placed reliance on the case "Sh. Abdus Salam another versus Additional District Judge, Jhang and 2 others" (1988 SCMR 608).

5.  I have considered the arguments of learned counsel for the parties, gone through the record and also perused the cited case law.

6.  The only question requiring determination in this Constitutional petition is as to whether, without recording any findings about the welfare of minor, the learned Guardian Judge was justified in handing over custody of the minor to the respondent on the sole ground that he had crossed the age of seven years. Despite a specific issue i.e. Issue No. 1 regarding welfare of the minor, neither the learned Guardian Judge nor the learned Additional District Judge bothered to record findings with reference to the evidence of the parties, to this effect and they were mainly persuaded with the provisions of para 357 of Muhammadan Law by D.F. Mulla (Pakistan Edition) entitling the father to obtain custody of a body over seven years of age, whereas the same is not a rule of thumb in view of the law declared by the Hon'ble Supreme Court of Pakistan in the above referred judgment, that custody of a minor boy over seven years of age can only be handed over to the father where it is in the welfare of the minor. I am therefore, satisfied that the judgments recorded by two Courts below being violative of the law declared by the Hon'ble Supreme Court, are not sustainable and are set-aside. Resultantly, this Writ Petition is allowed and the matter is remitted to the learned Guardian Judge/Respondent No. 3 with the direction to pass a fresh judgment after hearing arguments of both the parties in the above terms. Parties are directed to appear before the learned Guardian Judge/Respondent No.3 on 14.11.2005. This being a guardianship matter, the learned trial Court shall try to decide the case as early as possible but not later than 23.12.2005.

(Aziz Ahmad Tarar)      Case remanded