Mst: Anila VS Mst: Rafia

2011 Y L R 593

[Peshawar]

Before Mazhar Alam Khan Miankhel and Yahya Afridi, JJ

Mst. ANILA---Petitioner

Versus

Mst. RAFIA and 2 others---Respondents

Writ Petition No. 391 of 2010, decided on 20th October, 2010.

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

----S. 25---Constitution of Pakistan, Art.199---Constitutional petition---Minor girl, custody of--- Contest between real mother and paternal-grand-mother after death of father of minor---Second marriage by mother with a person not having blood relation with minor---Order of Guardian Judge giving custody of minor to her paternal-grand-mother upheld by Appellate Court--- Application by maternal-grandmother of minor for arraying as respondent in constitutional petition pending before High Court claiming to have a legal and preferential right of custody of minor---Validity---High Court impleaded maternal-grand-mother just for interest of justice while mother of minor (petitioner) did not object her impleadment---Such impleadment order had no adverse effect against paternal-grand-mother of minor---Maternal-grandmother of minor had a preferential right of custody above all in absence of real mother and father---Nothing on record to show as to whether welfare of minor would lie with her maternal-grand-mother or paternal- grand-mother----Maternal-grandmother was not party before Courts below---Order regarding custody of minor could not be passed without providing a chance of hearing and rebuttal to all three parties---High Court set aside orders of courts below and remanded case to Guardian Judge for its decision afresh while keeping in view welfare of minor after hearing all three parties, who would be at liberty to produce any further evidence in such regard.

Mst. Gulnaz Bibi v. Refaqat Ali Shah 2001 SD 29 and Mst. Barkat Bibi v. Mst. Rubina Kausar 2009 YLR 1106 ref.

Syed Mushtaq Ali Shah for Petitioner.

Shahid Qayyum Khattak and Muhammad Ajmal Khan for Respondentss.

Date of hearing: 20th October, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein being the real mother of the minor female child has impugned the concurrent findings of the two forums below whereby the petition of respondent No.1, the paternal grandmother for appointment of guardian was accepted and she was held entitled to get the custody of the minor.

2.During the pendency of this writ petition, the maternal grand-mother of the minor applied through C.M. No. 204 of 2010 for her impleadment in the petition being the maternal grand- mother of the minor and having a legal and preferential right of `Hizanat' the custody of the minor. Said application was allowed by this Court vide its order dated 9-4-2008 and she was arrayed as respondent in the petition.

3.Learned counsel for the petitioner submitted that the findings of the two Courts below are totally against the law and record of the case. The petitioner being a real mother and the natural guardian of the minor was entitled to her custody irrespective of the fact that she married another husband by placing reliance on Mst. Gulnaz Bibi v. Rafaqat Ali Shah (2001 SD 29), Mst. Barkat Bibi v. Mst. Rubina Kausar (2009 YLR 1106). He was further of the view that the prime consideration before a guardian Judge is the welfare of the minor which lies with her mother in the circumstances of the case. This very important aspect which varies from case to case has not been considered by both the Courts below while granting the custody of minor to respondent No.1 who otherwise was not entitled to the custody in presence of maternal grand-mother and requested for setting aside of the findings of the fora below.

4.As against that, learned counsel for respondent No.1 while refuting the submissions made by the learned counsel for the petitioner submitted that the husband of the petitioner has no blood relation with the minor female child, so the custody of minor was rightly refused to the petitioner; the findings of the two Courts below are in accordance with law and evidence available on the record. His next contention was that as the provisions of C.P.C. are not applicable to the proceedings under Guardians and Wards Act, 1890 so the impleadment of respondent, the maternal grand-mother, at this stage is totally against law. Besides, the said order of impleadment, was passed at his back which on this score alone is liable to be set aside.

5.The learned counsel for the added respondent was of the view that because of the second marriage of the petitioner with a person who is not related with the minor, so in presence of a maternal grand-mother, no one else is legally entitled to the custody of minor and welfare of the minor also lies with her when her custody is handed over to the maternal grand-mother.

6.We have heard the learned counsel for the parties and have gone through the record carefully. The record would reveal that no doubt the order of impleadment of maternal grand mother dated 9-4-2010 was made in absence of respondent No.1 but that was passed in presence of the petitioner who expressed her no objection for the said impleadment. The same would further

reveal that such impleadment was also made just for the interest of justice as the applicant therein had also a legal right of custody of minor. As there was a simple impleadment order alone and neither any prejudice was caused to him through the said order nor any adverse order detrimental to the rights of respondent No.1 was passed. So, such order of impleadment had no adverse effect against the respondent No.1.

7.As far as main petition is concerned, it is an admitted fact that the petitioner after the death of her husband, the mother of the minor, contracted a second marriage with a person who has no blood relation with the minor what to talk of a relation in a prohibitory degree. The custody of the minor in the circumstances was sought for by the respondent No.1 who happens to be the real paternal grand-mother of the minor and in absence of the maternal grand-mother, the Courts below had no option under the law to pass an order of custody of the minor in favour of respondent No. 1. As during the pendency of this writ petition, the maternal grand mother appeared and was impleaded as respondent in this petition who undoubtedly has a preferential right of custody above all in absence of mother and father. But there is nothing on the record revealing the fact as to whether the welfare of minor lies with maternal grand-mother or paternal grand-mother. So in this view of the matter, we are unable to pass any order regarding the custody of the minor without providing a chance of hearing and rebuttal to all the parties before us as said lady was not before the lower forums.

8.In this view of the matter, instead of discussing the merits of the case, we deem it appropriate that the case be sent back to the learned guardian Judge who should decide the matter afresh by keeping in mind the prime aspect i.e. welfare of the minor and after hearing all the three present before the Court should decide the matter. However, the parties would be at liberty to produce any further evidence in this regard. Keeping in view the importance of the matter, the learned guardian Judge is supposed to decide the application of custody of minor as early as possible but not later than two months positively.

9.Hence, having no option, this writ petition is allowed, the findings of the two Courts below are hereby set aside and the case is sent back to the learned Senior Civil Judge/Guardian Judge, Kohat with the above observations. The parties present before the Court are hereby directed to appear before the Guardian Judge on 5th of November, 2010.

S.A.K./365/P Case remanded.