Abdul Majeed Vs Mst. Robina Bibi

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

W.P. No.455-B/2023.

Abdul Majeed Vs.

Mst. Robina Bibi etc.

JADGMENT

For Petitioner(s): Muhammad Tariq Qureshi Advocate.

For Respondent(s): Haji Farhan Ullah Gran Advocate.

Dateofhearing: 05.05.2025.

ABDUL FAYAZ. J.- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Abdul Majeed has prayed that:-

"It is, therefore, humbly prayed that the instant petition may kindly be accepted and the judgment dated 1l-02-2023 of ADJ-II Lakki Marwat and judgment of civil Judge No.I / Family Cout lakki Marwat dated 28-04-2022 in question May kindly be set-aside and application for custody of minor may kindly be accepted with any other remedy deeming fit.

) Facts of the case are that petitioner/applicant Abdul Majeed filed custody suit No.20ffC of 2020 against Mst. Robina Bibi and others for the custody of minor namely

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Anfas daughter of the petitioner before the Civil Court.

Respondent was summoned who appeared and contested the suit by filing written statement, raising therein many legal and factual objections. Issues were framed by the learned trial Court and both the parties recorded their evidence. The learned trial Court dismissed the suit of the plaintiff and handed over the custody of the minor to the respondent No.1 vide judgment and decree dated 28.04.2022.

J Feeling aggrieved from the judgment and decree dated 28.04.2022, the respondent preferred appeal before the Court of District Judge, Lakki Marwat which was mark to Additional District Judge-II for disposal, who vide judgment and decree dated 11.02.2023, dismissed the appeal of the v{ appellant. Hence the instant writ petition.

4 I have heard arguments of learned counsel for the parties and perused the record.

5 In order to appreciate the controversy regarding custody of minor wisdom is sought from the judgments of Hon'ble Superior Courts as follows:-

6 To resolve the controversy reference is made to several case laws 2018 CLC 452.2012 ]fi'ILD 762 and 2018

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SCMR 590. In case reported as 2018 SCMR 590 'Nasir Raza Vs. Additional District Judge, Jhelum and another, the Honourable Supreme Court of Pakistan, handed over the custody of minors to their father who had not contracted another marriage and had not even returned to his job abroad, so the welfare of the minors was considered to be with their father. In case 2018 CLC Islamabad 452 'Muhammad Shabbir and another Vs. Additional District Judge West, Islamabad and 2 others, the custody of minors was handed over to their mother as she had almost reached the age of puberty. In judgment reported as 2012 MLD S.C (AJ&K) 762 'Mst. Zainab Bibi Vs. Zaffar lqbal, it was held that grandmother is of advanced age and was herself dependent on her sons and daughter-in-law, so she could not properly look- after the minors, moreover, the minors appeared in the Court alongwith mother and stepmother and stated that they did not want to go with their maternal grandmother. It was held that their own opinion could not be lightly ignored.

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7 There is plethora of judgments, wherein the welfare of minor has been kept supreme and the custody has varied from one parent to another and from one relative to another. Reference in this regard is made to case reported as PLD 1998 Lahore 67, titled Muhammad Yousaf Vs. Mst.

Anis Bibi and 2 others. In this case, father had contracted second marriage and when the minor was l-Yq year of age the parents got separated with the result that the minor remained with her mother right from her birth. In the said case, it was also alleged that the mother by marrying the stranger was f { disqualified to maintain the custody of minor daughter.

Similarity of the said case to the instant case is more closer as the custody of minor was refused to the father.

8.In case reported as PLD 2005 Karachi 610, titled Abdul Razzaqae and 3 others Vs. I)r. Rehana Shaheen and another, the children aged about 12years,8 years and 5 years were handed over to their mother when the custody was refused to the grandparents despite the fact that their deceased

father had deep animosity with their mother which was though not proved. The principle of welfare of minor was considered and held that the mother was preferably entitled to the custody of children.

9 In case reported as PLD 2003 Ouetta 131, titled Mst. Farah Iqbal Vs. Muhammad Anwar and 2 others, the custody of minor daughter Mst. Maryum was handed over to her mother because she had not remarried but was a well- educated and her grandfather was a well-established businessman. It was also held, that the custody of minor could not be refused to a mother even if she had no independent income of her own as it is always, the father, who has to provide maintenance, however, it was held that the mother shall make arangements for meeting of minor with her father and grandfather, on every Sunday from 10-00 a.m. to 4-00 p.m. besides Eid days and birthday.

10.In case titled Mst. Gulzar Bibi Vs. Rafaqat Ali

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Shah and another , the custody of

two minor daughters and one sons was involved and the mother being a school teacher, was granted the custody keeping in view the welfare of minor as paramount consideration. Despite her remarriage, the custody of her children was not refused.

11.Honourable Supreme Court, in case titled Mst.

Nighat Firdous Vs. Khadim Hussain, reported as 1998 SCMR 1593, held that since the minor living with his mother since his birth so his welfare lies with his mother and not father who has not taken any interest.

12.In another case reported as PLD 2003 Supreme Court 877, titled Mrs. Seema Chaudhry and another Vs.

Ahsan Ashraf Sheikh and others, custody of a minor child of eight years was involved. In this case, keeping in view the welfare of minor son the custody was handed over to his father but it was also held that forfeiture of right of mother to custody

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of a child after her remarriage could not disqualiff her as a general rule but still the welfare of minor is to be kept supreme. The custody was consequently handed over to his father

13.Reference is also made to judgment reported as PLD 2004 Supreme Court 347, titled Sardar Hussain and others Vs. Mst. Parveen Umer and others, wherein father claimed custody on the ground that the mother had contracted second marriage and had children from the second marriage, but the custody was not handed over to the father, as the welfare of children was considered to remain with their mother

t4. Reference in this regard is also made to case titled Malik Muhammad Hussain and another Vs. Malik Ghulam Qadir and others @, wherein the

custody was handed over to the father after the death of his wife.

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15.In yet another judgment reported as 2004 SCMR 1839, titted Mehmood Akhtar Vs. District Judge, Attock and 2 others, the custody was handed over to father of the minor daughter in preference to her mother.

16.In case reported as PLD 2007 Supreme Court 292, titled Sajjad Ahmad Rana and others Vs. Ms. Louise Annee Fairtey and others, custody of a minor child was handed over to her mother, who was a foreigner."

t7. In the instant case the court has to see only welfare of the minor concerned as the welfare of minor is the paramount consideration in deciding such like cases. Now it is to be seen that who is entitled to the custody of minor. It is imported to note that previously a suit was decreed in favour of respondent No.l/mother of minor against the petitioner wherein the custody of minor was handed over to her mother/respondent No.l. The petitioner aggrieved from the said judgment preferred an appeal but the same was also

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dismissed by the court of ADJ-II Lakki Marwat. Later-on respondent No.1 has contracted second marriage; therefore, the petitioner submitted the instant writ petition. It is also imported to mention here that petitioner has also contacted second marriage and undoubtedly he performing his duty in Pak Army in Lahore and he visits his house after several months. No doubt it is an established law that father/petitioner is a natural guardian but in such like situation it is impossible for petitioner to take best care of minor as he performing his duty in PAK Army at Lahore and he also contracted a second marriage due to which gtant of custody of minor to petitioner would amount leaving her at the mercy of her step mother where she might ,/n suffer from mental and physical torture. Now the minor is residing with her grandmother who is looking-after the minor and she is also attending his education. The minor was also interviewed by the trial court and he is also willing to reside with her grandparents, therefore, custody of child with her grandmother is more in line with her welfare.

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18.In view of the above, the instant writ petition is dismissed being devoid of merits. However, petitioner being father of minor is granted visitation rights as and when he desires at the house of grandparents of the minor.

Announced.

-Sd- Judge Sher Qad Ullah steno

JTIDGE

(S.B) Hon'ble Mr. Justice Abdul Favaz.