Mother's right of custody after second marriage

 PLJ 2017 Lahore 115

[Multan Bench Multan]

Present: Ali Baqar Najafi, J.

Mst. AFSHAN BIBI--Petitioner

versus

JUDGE FAMILY COURT/GUARDIAN JUDGE KABIRWALA DISTRICT KHANEWAL and 2 others--Respondents

W.P. No. 15670 of 2011, decided 14.4.2016.

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

----S. 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minors--Mother of minors has contracted second marriage with stranger--Custody of minors was given to grandmother depriving mother--Challenge to--Contracting second marriage ipso fecto is not enough to deprive grand mother from custody of minors--Even marriage of the mother with a stranger who is not within the prohibitory degree of daughter has also not been held to be a sole ground depriving mother from custody--Minors never lived with grand mother so there is no question of developing the affinity with her--Conduct of father himself deprived him from custody of minors as he neither paid the maintenance to them nor supported grand mother in the claim for custody of the minors--Welfare of the minor lies with the mother, therefore, petition was allowed. [P. 117] A, B & C

Haji Muhammad Tariq Aziz Khokhar, Advocate for Petitioner.

Mr. Najaf Ali Chawan, Advocate for Respondent No. 3.

Date of hearing: 14.4.2016.

Order

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, orders dated 28.03.2011 passed by Guardian Court and dated 16.09.2011 passed by learned Addl. District Judge are challenged whereby custody of the minors namely, Zaiba Mai, now aged 8 ½ years and Arshad Ali, now aged 7½ years was given to the grandmother/Respondent No. 3 depriving the petitioner on the ground that mother of the minors as well as the son of Respondent No. 3 the father of the minors have re-married and settled in their own lives.

2.  Arguments heard. Record perused.

3.  Respondent No. 3 filed an application under Section 25 of the Guardian and Wards Act for custody of above said minors on 08.02.2010 taking the grounds that since petitioner has contracted second marriage with a stranger and her son i.e. father of the minors is confined in civil prison, and on account of relations established by petitioner with one Muhammad Khalid son of Haq Nawaz, whom she had got married later on 09.12.2009, she has deprived herself from the right of custody of the minors. The written statement was submitted by the petitioner denying the allegations made in the petition. After framing of issues, statement of Respondent No. 3/Mst. Saban Mai was recorded as AW-1, in which she has admitted that her son namely, Manzoor Hussain, has returned after serving the civil prison and has also shown her lack of knowledge about the payment of any maintenance by the father to the minors. AW-2, Allah Ditta, who is the grandfather of the minors also supports the case of Respondent No. 3. However, Manzoor Hussain, preferred not to appear in support of the petition for custody of the minors. On the other hand, petitioner appeared as RW-1 denying the factum of second marriage as according to her she was divorced 3 years prior to her statement recorded in the Court on 08.11.2010. She deposed that children are studying in the school. RW-2 is Ali Akhtar, who admitted that in execution of decree for recovery of maintenance allowance Manzoor Hussain, spent one year in the civil prison. AW-3 is Ashiq Ali, Nikah Khawan, who has produced the record showing Nikah of the petitioner with one Muhammad Khalid, contracted on 09.12.2009.

4.  The Courts below have allowed the application under Section 25 of the Guardian and Wards Act merely on the ground that petitioner has contracted second marriage. Both the Courts erred in law while holding that right of Hazanat is to be based upon preferential order to mother then the mother’s mother, mother’s father, sister and sister’s daughter etc. In fact this order is to be followed in the absence of the father. This principle does not apply during the lifetime of the real father. As Manzoor Hussain, has neither supported the case of the petitioner nor claimed any custody of the minors, it appears that grandmother has filed custody petition in her own individual capacity which, I am afraid, is not a valid ground for the custody of the minors.

5.  Contracting second marriage ipso fecto is not enough to deprive Respondent No. 3 from custody of the minors. Even marriage of the mother with a stranger who is not within the prohibitory degree of the daughter has also not been held to be a sole ground depriving the mother from the custody. It is also not denied that Manzoor Kussain, was a judgment debtor, and in execution of decree for the recovery of maintenance allowance he was sent to civil prison and on his return after one year, he preferred not to appear before the Court. The guardianship petition may have been filed in its counter blast.

6.  It is also not denied that minors never lived with Respondent No. 3 so there is no question of developing the affinity with her. The conduct of father himself deprived him from custody of the minors as he neither paid the maintenance to them nor supported Respondent No. 3 in the claim for custody of the minors. The judgments cited by the respondent’s side are not relevant.

7.  Keeping in view all the facts, the welfare of the minor lies with the mother, therefore, this petition is allowed and the impugned orders passed by the Courts below are set aside.

(R.A.)  Petition allowed