Guardianship allowed to mother as father contracted second marriage

2019 Y L R 734

[Peshawar (Mingora Bench)]

Writ Petitions Nos.385-M and 488-M of 2014, decided on 7th February, 2018.7

Family Courts Act (XXXV of 1964)---

----S. 5, Sched--- Suit for recovery of dower, dowry articles maintenance allowance and custody of minors by the ex-wife/mother---Payment of gold ornaments in lieu of dower at the time of marriage---Scope---Non-production of receipts of purchase of dowry articles---Effect---Welfare of minors---Scope---Trial Court had held that payment for claimed dower/gold ornaments had already been paid to the ex-wife/petitioner to which she was entitled to retain---Petitioner/ex-wife contended that Trial Court had wrongly held so as she was minor at the time of her marriage and sister of the respondent (husband) had skillfully taken the said gold ornament on the next day of the marriage; Trial Court had not rightly discarded few items like furniture from list of her dowry articles while passing decree in her favour---Respondent (husband) contended that at the time of leaving his house, petitioner (wife) had taken away the dower/gold ornaments---Validity---No proof was provided by the respondent that petitioner had taken gold ornaments along with her while leaving his house---Female who had been given in Nikah to the respondent being minor at that time, it was more plausible to believe that on the next day of marriage, the sister of the respondent had taken the gold ornaments from her as the same had been temporarily arranged at the time of marriage by the sister of respondent who demanded its return just after the marriage was solemnized---Where there was a list of dowry articles which included household articles such list was to be believed---Normally it was not possible for bride to keep the record of purchase of dowry articles and obtain signature on the list of articles from the bridegroom side, all the dowry articles as per list were either returnable or payment of one third of its value in the alternate---Record revealed that during subsistence of trial, Session Court, on application under S. 491, Cr.P.C, gave children to the custody of mother---Mother/petitioner being natural guardian could best take care of the children; father having had contracted second marriage---Constitutional petition of ex-wife/mother was allowed accordingly.

Zahid Janan v. Mst. Kausar Begum and 2 others 2016 YLR Note 43; Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756 and Mst. Nazeer Begum and others v. Abdul Sattar PLD 1963 (W.P.) Kar. 465 ref.

Muhammad Amin Khan for Petitioner.

Aziz-ur-Rahman Swati for Respondents.