Lap of Mother is the best school for growing child

 PLJ 2006 Lahore 766

Present: Muhammad Muzammal Khan, J.

Mst. NAZIRAN BIBI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and 2 others--Respondents

W.P. No. 19402 of 2005, decided on 24.1.2006.

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

----S. 25--Constitution of Pakistan (1973), Art. 199--Custody of minor daughter--Mother and father of minor having been separated by divorce were living apart--Both claimants i.e. mother and father of minor had entered into their respective second marriages--Father of minor was admittedly serving in Army where he had to perform his full time duty and he was periodically transferred from one cantonment to another--In absence of father, grandmother of minor was to look after minor, however, she was ill, aged and could not look after minor--Step mother could not be relied upon to take care of minor--Petitioner/mother's second husband was closely related to minor besides being from same brother hood--Lap of mother is the best school for growing child and no one else can look after welfare of minor as compared to woman who had given birth to child--Minor is of four years age and from her birth is living with her mother and thus, must have developed deep association/ attachment with her--Snatching of minor's custody from her mother in such tender age and entrustment to step-mother could not be justified--Evidence on record revealed that welfare of minor was being best served while her living with her mother as compared to respondent who due to his service remains out of house and was not in a position to look after affairs or well being of minor--Appellate Court's judgment handing over custody of minor to her father was thus, not warranted and was declared to be void and non-existence in the eye of law--Trial Court's judgment handing over custody to petitioner mother being in accordance with law was thus, restored. [Pp. 768 & 769] A & B

PLJ 2000 SC 1094; PLJ 2003 Lahore 641; 2004 CLC 160; NLR 1994 Civil 4 and PLJ 2000 Peshawar 242 ref.

Mr. Zafar Iqbal Malik, Advocate for Petitioner.

Rana Muzaffar Hussain, Advocate for Respondents.

Date of hearing : 24.1.2006.

Order

Instant Constitutional petition challenged the appellate judgment/order dated 7.10.2005 to be declared illegal, void and of no legal consequence whereby custody of the minor daughter of the petitioner was ordered to be handed over to father (Respondent No. 2) by reversing the orders of the learned Guardian Judge dated 13.5.2005.

2.  Succinctly, relevant facts are that Respondent No. 2 entered into a tie of marriage with the petitioner, which led to birth of a daughter Mst. Robina on 11.12.2001. Relations between spouses did not remained cordial and resulted in decree for dissolution of marriage on suit by the petitioner, vide judgment/decree dated 26.8.2002 maintenance allowance, was also awarded to the minor daughter of the petitioner at the rate of Rs. 1,000/- per month. Respondents Nos. 2 and 3 filed an application under Section 25 and Guardian and Wards Act, before the learned Judge Family Court, Mianwali averring that the petitioner has solemnized the second marriage with person within the prohibitory degrees of the minor who is also sick and that petitioner did not permit their meetings with the minor.

3.  The petitioner being respondent contested the custody application filed by Respondent Nos. 2 and 3 wherein she asserted that Respondent No. 2 cannot take better care of the minor on account of his heavy work in the Army, where he is employed and Respondent No. 3 being of an old age with ill health, is not in a position to look after the welfare of the minor. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Guardian Judge who was seized of the matter, after doing the needful dismissed the application of Respondents 2 and 3 vide his judgment and decree dated 13.5.2005.

4.  Respondent Nos. 2 and 3 aggrieved of the decision of the learned Guardian Judge, filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and by reversing the order of the learned Guardian Judge, custody of the minor was ordered to be handed over to them. Petitioner, thereafter, filed instant Constitutional petition wherein respondents in response to notice by this Court have appeared and were represented through their counsel.

5.  I have heard the learned counsel for the parties and have examined the record, appended herewith. Undeniably, both the petitioner and Respondent No. 2 have entered into their respective second marriages. It is also not disputed that Respondent No. 2 is serving in Army as a Soldier where he has to perform full time duties. Respondent No. 2 is also not permanently stationed at one place of his posting and constantly remains under transfer from one Cantonment to another. In absence of respondent No. 2 his mother will look after the affairs of the minor who besides being of elderly age, is not keeping good health. As against this, petitioner's second husband is real brother of her stepmother and in this manner is closely related to the minor besides being from the same brotherhood. Besides the lawful reasons which weighed with the learned Guardian Judge while refusing the custody of the minor to the Respondent Nos. 2 and 3, it is known to every body that lap of real mother is the best school for a growing child, and no one else can look after the welfare of the minor as compared to the woman who had given birth to the child. The minor at the present is said to be of four years age and is living since her birth with the petitioner and thus must have developed deep association attachment with her. Snatching of her custody from her mother in such a tender age and entrustment to a stepmother though in the supervision of paternal grant mother, could not be justified on the touch stone of any canon known for administration of justice.

6.  Petitioner might have lost her right of "Hanazat" to retain custody of her minor daughter, on account of her second marriage but earlier to deprive her the supervision of her own blood, welfare of the minor has to be looked into which certainly lies in keeping her in custody of the petitioner. Reference in this behalf can conveniently be made to the judgments in the cases of Mst. Firdous Iqbal versus Shifaat Ali and others (PLJ 2000 SC 1094) Syed Tahsen Razi versus Dr. Farhana Shaheen and another (PLJ 2003 Lahore 641), Muhammad Aslam versus Additional District Judge and others (2004 CLC 160) and Muhammad Nafees Abbas Versus The Guardian Judge Lahore etc. (NLR 1994 Civil 4) and Mst. Shaheen Versus Jafar Khan and another (PLJ 2000 Peshawar 242).

7.  Scan of evidence revealed that welfare of the minor was being best served while her living with mother/petitioner, as compared to Respondent No. 2 who due to his service remains out of house and was not in a position to look after the affairs or well being of the minor.

8.  For all the reasons noted above, the impugned appellate judgment by Respondent No. 1 being contrary to law, evidence on the file and opposed to the welfare of Mst. Robina Bibi, is declared to be void and non-existence in the eye of law being not sustainable. Instant petition is accordingly accepted and the appellate judgment/decree dated 7.10.2005 passed by the learned Additional District Judge Mianwali is adjudged as nullity with the result that judgment/order dated 13.5.2005 by the learned Guardian Judge will stand revived. There will be no order as to costs.

 (Aziz Ahmad Tarar)            Appeal accepted.