2007 C L C 1612
Guardians and Wards Act (VIII of 1890)---
----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Both Guardian Judge and the Appellate Court concurrently dismissed application of mother of minors under S.25 of Guardians and Wards Act, 1890 for custody of minors---Courts had appointed respondent brother of deceased father of minors as their guardian---Petitioner had challenged the concurrent judgments of courts below---Petitioner, who was mother of minors had claimed that it was in the welfare of minors that minors should live with her---Case of respondent, who was brother of deceased father of minors, .was that petitioner was of bad character who along with others killed her husband and that she had no source of income---Petitioner had failed to produce any worthwhile evidence in support of her claim for custody of minors---Petitioner lady had no source of income, .whereas respondent (uncle) was a teacher and he was looking after the minors and they were getting education---Petitioner allegedly was living with corrupt persons---Respondent (uncle) had deposed that he could look after the minors in better manner and that minors did not want to meet petitioner who had no house---Trial Court had rightly observed that it was in the welfare of minors that they should remain with respondent (uncle)---Trial Court, in circumstances, had rightly dismissed application of petitioner for custody of minors and Appellate Court had rightly' upheld said judgment---In absence of any illegality or infirmity in the impugned judgment, same could not be interfered with in constitutional jurisdiction of High Court--Paramount consideration, in determining the question of custody of minor, being welfare of minor; it was in the welfare of minors that they should remain with their paternal-uncle/respondent.
Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357 rel.
Tahir Mahmood Khokhar for Petitioner.
Muhammad Tariq Awan for Respondents.
Date of hearing: 26th June, 2007.
2007 C L C 1612
[Lahore]
Before Syed Sakhi Hussain Bokhari, J
Mst. MUNIRA BIBI----Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 2 others----Respondents
Writ Petition No.2400 of 2004, heard on 26th June, 2007.
JUDGMENT
SYED SAKHI HUSSAIN BOKHARI, J.--- In this constitutional petition, the petitioner has prayed for setting aside judgment dated 10-10-2003 passed by learned Additional District Judge, Sheikhupura and order, dated 24-7-2003 passed by learned Guardian Judge, Sheikhupura.
2. Relevant facts for the disposal of this writ petition are that Mst. Muniran Bibi, petitioner filed application udder section 25 of Guardians and Wards Act against Master Bashir Ahmad (respondent No.3) and stated that she was married to Nazir Ahmad and out of this wedlock two sons and two daughters (Usman Ali aged 10 years, Nasira Parveen aged 8 years, Iqra Bibi aged 5 years and Ehsan Ali aged 4 years) were born. She further stated that on the night between 1/2-9-2000 her husband was murdered anti case F.I.R. No.185 of 2000 was registered at Police Station Safdarabad against petitioner and others. She was arrested m the said case and sent to jail. The respondent took the minors with him and also rented out the house of her husband. She averred that she was acquitted on 9-2-2002 and she asked the respondent to give the minors to her but he refused, therefore, she was constrained to file application. The petitioner stated that it is in the welfare of minors that they should live with her. The respondent mentioned in reply that on 6-9-2001 the Guardian Judge, Sheikhupura had appointed him guardian of the minors and their property acid succession certificate was issued on 26-11-2001 and that Rs. 1,60,000 belonging to the deceased (Nazir Ahmad) have been transferred in the account of minors on the basis of order passed by Court. The respondent stated that petitioner is of bad character and she had illicit relations with one Liaqat Ali who was murdered and case F.I.R. No.34 of 1997 under sections 302, 34, P.P.C. was registered at Police Station Chowk Azam. She along with others (Sajida and Akram) had killed Nazir Ahmad on 2-9-2000 because her paramour, LiagatAli had been murdered. She had illicit relations with Muhammad. Akram and case F.I.R. No.185 of 2000 dated 2-9-2000 under section 302, P.P.C. was registered at Police Station Safdarabad District Sheikhupw~a and petitioner was challanecl. The petitioner was acquitted and he had filed appeal against her acquittal The respondent stated that it is dangerous for the minors to live with petitioner and it is in the welfare 'of the minors that they should remain with him. The petitioner has not challenged order of leagued Guardian Judge; dated 6-9-2001 whereby he had been appointed guardian of person and property of minors. The petitioner is living with her friends at different places aid she is not in a position to bring up the minors properly. Learned trial Court framed issues, recorded evidence and dismissed the application brought by petitioner vide order dated 24-7-2003. The petitioner filed appeal thereagainst, which was dismissed vide judgment, dated 10-10-2003 passed by learned Additional District Judge, Sheikhupura. Hence this writ petition.
3. I have heard the arguments and perused the record.
4. As mentioned above Mst. Muniran Bibi, petitioner had filed application under section 25 of Guardians and Wards Act for custody of minors (Unman Ali aged 10 years, Nasira Parveen aged 8 years, Iqra Bibi aged 5 years and Ehsan Ali aged 4 years). The petitioner is mother of minors. As mentioned earlier at the tone of institution of application, the minors were aged about 10, 8, 5 and 4 years but now they are aged about 14, 12, 9 and 8 years. The case of petitioner is that, it is in the welfare of the minors that they should live with her. However, the case of respondent is that petitioner is of bad character. Also that she along with others killed her husband and that she has no source of income, therefore, she is not in a position to look after the minors, hence it is in the welfare of the minors that they should remain with him. Admittedly Master Bashir Ahmad, respondent No.3 is brother of Nazir Ahmad (father of minors) and .he is bringing up the minors since the death of their father. The case of petitioner is that it is in the welfare of the minors that they should live with her. However, she has failed to produce any worthwhile evidence in support of her case. She has no source of income. The respondent is a teacher and as mentioned earlier he is looking after the minors. He appeared as R.W.2 and stated that minors are getting education. He further stated that petitioner is living with corrupt persons. He deposed that he could look after the minors in better manner and that minors do not want to meet the petitioner. The petitioner has no house. He also examined R.W.1, Bashir Ahmad in support of his case. The statements of R.W.1 and R.W.2 are convincing and confidence-inspiring and there is nothing on record to disbelieve the same. As mentioned above petitioner has failed to produce any worthwhile evidence in support of her case. The order dated 24-7-2003 shows that learned trial Court observed that it is in the welfare of the minors that they should remain with Master Bashir Ahmad. So in the circumstances of the case, I find that learned trial Court has rightly dismissed the application brought by petitioner. The judgment dated 10-10-2003 shows that learned Additional District Judge has decided the appeal brought by petitioner after appraisal of entire material available on record. Para.7 of the said judgment reads as under:--
"Onus to prove this issue was on applicant. Applicant herself appeared as A.W.1 and produced one Mehmood Ahmed as A.W.2. She also produced photocopy of judgment dated 9-2-2002 passed by learned Additional Sessions Judge as Mark "A". During cross-examination-she admitted that she is working as a Maid Servant. All of emphasis of her cross-examination was that she is a lady of bad character and was having illicit relations with some persons. Due to her immoral life she managed murder of her husband. A.W.2 is employer of appellant. He was also providing livelihood to appellant. On the other hand respondent produced oral as well as documentary evidence regarding study of minors. While scrutinizing evidence produced by both the parties it is established that applicant is having no proper source of income to look after or bring up minors. She is also not having any shelter to live therein. Although she is having share in estate of her deceased husband being his legal heir but in absence of any proper source of income is not in a position to bring up minors in a better atmosphere and to provide them education and livelihood. Welfare of the minors is paramount consideration to be looked into at the time of decision of entitlement for custody of minors. So, appellant remained failed to prove this issue in her favour which is decided against her."
It is well-reasoned judgment. There is no illegality or infirmity in the impugned judgment. It is clear from the evidence on the record that it is in the welfare of the minors that they should remain with respondent. As mentioned earlier, minors are aged about 14, 12, 9 and 8 years. Today they arc present in Court and they are not willing to live with their mother (petitioner) rather they want to live with their paternal-uncle (Master Bashir Ahmad, respondent No.3). Even otherwise in determining the question of custody of minor the paramount consideration is the welfare of the minor. Reliance can be placed on the case of Sardar Hussain and others v. Mst. Parveen Umar and others PLD 2004 SC 357. As such it is in the welfare of the minors that they should remain with their paternal-uncle (Master Bashir Ahmad, respondent No.3). So impugned judgments are just and proper and there is no justification to warrant interference by this Court.
5. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed. No order as to costs.
H.B.T./M-405/L Petition dismissed.
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