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(1)
If a ward leaves or is removed from the custody of a guardian of his person,
the Court, if it is of opinion that it will be for the welfare of the ward to
return to the custody of his guardian, may make an order for his return, and
for the purpose of enforcing the order may cause the ward to be arrested and to
be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power
conferred on a Magistrate of the First Class by section 100 of the Code of
Criminal Procedure, 1898 (Act V of 1908).
(3) The resident of a ward against the will of his guardian with a person who
is not his guardian does not of itself terminate the guardianship.
Court
Decisions
Custody of minor
-Welfare of minor, a prime consideration and basic criterion - For deciding
the question and other issues relating thereto, welfare of minor is the
paramount consideration for Guardian Court - Any issue regarding the custody
of minor is to be assessed, examined and measured by the Guardian Court on
such yardstick and the Court has to record a definite finding on the point
before passing any order in the matter . PLD 2001 Kar. 371
Essentials.
Welfare of minor is paramount consideration in determining custody of minor
notwithstanding right of father to get custody after seven years of age of
male minor child. Right of father to claim custody of minor son is not an
absolute right in that, father may disentitle himself to custody on account
of his conduct in the light and circumstances of each case. Evidence on
record indicated that father who had sought custody of minor neglected him
since separation of spouses inter se and had voluntarily left custody to
petitioner/mother. Mother had brought him up and educated him till she had to
opt for second marriage. Mother even after her second marriage had not been
negligent in the care other minor son, having entrusted that duty to her
mother and father, and minor is being properly educated till date in local
school. Father had neglected the child during all that period till mother had
applied for maintenance of child; it was only thereafter that father applied
for custody of minor. Father having married again, his second wife was living
in village, where no one would save minor from step-motherly treatment if
custody of minor was allowed to remain with father. High Court' had thus,
erred to interfere in concurrent findings of fact that welfare of minor- lay
in leaving him to custody of mother and that too in exercise of
constitutional Jurisdiction of High Court. Petition for leave to appeal was
converted into appeal and while setting aside impugned order of High Court,
orders of two Courts below that welfare of minor lies with mother and that
she was entitled to retain his custody was restored. P.L.J.2000 SC 1094 =
2000 SCMR 838.
Guardian
of person and property :-- Trial Court had declared mother of minors to be
the guardian of their person and property. District Judge, however, declared
minor's father to be the guardian of person and property of minors and
directed that custody of minors be handed over to him. Petitioner (mother)
had annexed detailed list of cases which .had been registered against
respondent and in which he has been convicted also. No rebuttal was placed on
record from respondent's side that he was not involved, convicted and as not
under trial in cases detailed in the list. Respondent did not mention in
Court his income or his source of income. Neither any document regarding
ownership of property was produced nor any other document showing that he had
been deriving any income from said property was produced nor any proof that
he was working anywhere was produced before Court. Petitioner, however, has
placed on record certified copies of certificates from various educational
institutions that she had been serving in those schools as a teacher and that
at present she was teaching FauJi Foundation School. Petitioner had also
placed on record certificate of tuition fee of minor children being paid by
petitioner as also certificate showing balance of specified amount in her
account in Habib Bank Ltd.. In addition to salary she has been giving tuition
to students and earning hand some amount. Minor children have been admitted
in best available schools, they are getting proper education and being looked
after properly. Respondent in his statement before Court had -admitted that
petitioner was graduate and has been serving in FauJi Foundation School and
that Children were also studying in that school. Welfare of children being of
fundamental importance, preference should be given to their welfare. Respondent
although is natural guardian of minors yet his right was subordinate to
welfare of minors. Evidence on record would suggest that minors were being
well-educated and looked after by petitioner mother who had been supporting
them since their birth while respondent had not spent a penny on them.
Nothing on record was brought to indicate that petitioner was a woman of bad
character. On the contrary she was graduate and teacher in a school of good
standard and leading respectable life, welfare of minors, therefore, lies
with petitioner (mother) and she was, thus, entitled to their custody.
P.L.J.2000 Pesh. 175 = PLD 200 Q Pesh. 23.
Hizanat
of minor. It is true that having married a stranger a second time, mother
losses hizanat, but it is not true that after loosing such hizanat minor
reverts to father. Gurdian Judge still retains discretion to determine
welfare of minor. Father after dissolution of marriage is employed in PIA and
lives alone. He has no mother or other close relative where his minor
daughter could be put up. Father has also married a second time. All children
of second husband of minor's real mother are married, hence, it can be
expected that minor daughter will have more and exclusive care of her real
mother with whom she is living right from her birth i.e., 7 years. Minor
would not be given beneficient treatment by step mother. P.L.J.1998 Lah. 1635
= PLD 1998 Lah. 67.
Whether
personal law will override welfare of child which is question of fact and is
of paramount consideration. It is true that father has preferential right
under personal Law to get custody of male child after period of Hizanat is
over. But, it is also accepted and being persistently followed on basis of
numerous findings of superior courts that welfare of minor is always paramount
consideration while determining question of custody. Personal Law is not to
be allowed blindly or in automatic fashion, but has to be decided
objectively. Guardian Judge has to see as to where welfare of child is
paramount consideration while deciding about custody of child which deeply
concerns character building and his future prospects. Both courts below have
rightly determined that welfare of child demands .that be should be left in
care and custody of his mother till be reaches age of discretion. Petition
dismissed. P.L.J.1998 Lah. 884 = 1998 MLD 1003.
Respondent
has no woman in his house who can look after children if given to his
custody. Respondent claimed that he has a sister in his house who could look
after children. Sister of Respondent could not be a substitute of mother and
she could not provide love and affection to children which mother can, as lap
of mother is God's own cradle for children. Mother was, thus, entitled to
custody other minor children. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.
Children's
capability of making intelligent preference about which of the parents they
choose to live with. Minor's opinion was never obtained by District Judge
while deciding question of their custody. Children being present in Court,
High Court obtained their opinion and they were intelligent enough to express
their opinion as they have been studying in good schools. Minors, stated that
they. would prefer to live with their mother. Petitioner mother would not be
disentitled and disqualified to retain custody of minors on the ground that
she has contracted second marriage with a person who was not related to
minors and is stranger. Courts would preserve to the mother custody of
children if interest and welfare of minor so demanded. Impugned order of District
Judge whereby he had declared father (respondent) to be the guardian of
person and property of minors was set aside. Order of Guardian Judge was
modified to the extent that -father (respondent) was allowed to see his
children once in a month provided their educational programme was not
disturbed. Minor Children can stay with father once in a month preferably on
week ends and also stay for full day on their birth day and for two days on
every Eid. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.
Compromise
between the parties - Compromise or an agreement between the parties does not
absolve Guardian Court from ifs basic responsibility to safeguard and protect
the interest and welfare of the minor, PLD 2001 Kar. 371 Duty of Guardian
Court to examine subsequent developments - Scope - Compromise, agreement or
consent order cannot be lightly upset/rejected by Guardian Court while
re-examining question of welfare of minor in the given facts and
circumstances of each case - Where earlier order passed by Guardian Court is
intended to be modified/altered, the Guardian Court should proceed with, the
presumption that the compromise, agreement or the consent order passed in
earlier guardianship proceedings was in the best interest and welfare of the
minor, and therefore the Court should examine the subsequent developments and
allegations which were made basis for seeking modification/change in the
earlier order. PLD 2001 Kar. 371
Custody
of minor in all cases cannot be effectively settled by private compromise -
Court's powers with regard to custody of minor are in the nature of parental
Jurisdiction, and it must act in a way a wise parent would do - Expression
'welfare' would be construed in a way so as to include in its compass all the
dominant factors essential for determining the actual welfare of the minor -
Technicalities of law are not adhered to in such type of cases. PLD 2002 S.C
267 Grandmother agreed to hand over custody of minor to father on her
attaining age of seven years - Father thereafter contracted second marriage,
who, had an issue from second wife - Father's application for custody of
minor by implementing such compromise was accepted by Guardian judge, which
order was upheld by Appellate Court and High Court - S.C granted leave to
appeal to consider, whether in such circumstances, irrespective of settlement
between the parties. Guardian judge was not bound under law to decide
question of custody of minor keeping in view her welfare. PLD 2002 S.C267
Compromise or an agreement between the parties does not absolve
Guardian Court from ifs basic responsibility to safeguard and protect the
interest and welfare of the minor, PLD 2001 Kar.371 Grandmother
agreed to hand over custody of minor to father on her attaining age of seven
years—Father thereafter contracted second marriage, who, had an issue from
second wife—Father's application for custody of minor by implementing such
compromise was accepted by Guardian Judge, which order was upheld by
Appellate Court and High Court—Supreme Court granted leave to appeal to consider,
whether in such circumstances, irrespective of settlement between the
parties. Guardian Judge was not bound under law to decide question of custody
of minor keeping in view her welfare. PLD 2002 S C 267
Custody
of minor (female suckling child) Father of minor was away to United States.
In such a situation, mother was most suitable and appropriate guardian of
female suckling child. Mere fact that father returned to Pakistan with
intention to reside here permanently would not nullify impugned order. It
shall, however, be open to father to prove during trial of petition under
Section 25 01 Guardians and Wards Act, that he intends to' reside in Pakistan
permanently and that welfare of minor would be promoted if her custody is
allowed to him. No good ground to interfere with impugned orders. P.L.J.1998
Lah. 1671 = 1999 MLD 943.
Custody
of minor boy. Respondent/father's application for lodgment of minor on
Aitchison College as a boarder under his care and supervision was dismissed
by Guardian Judge. Subsequently however, respondent's application for review/
recall earlier order was accepted by Guardian Judge and he withdrew his
earlier order directed that minor be admitted as a boarder in Aitchison
College. Order regarding custody of.minor can be charged till the matter was
finally determined, welfare of minor being of paramount consideration. Once
order of custody had been passed by a Court of Competent Jurisdiction after
full deliberation, same could not be review/changed as of right unless and
until some material change had taken place i.e., where lady marrie's a
stranger, in that eventuality any change can be made. Minor in response to
direction of Court had appeared before Court and had categorically stated
that at no cost he would like to go as a boarder tm Aitchison College, that
be was getting his education in a good atmosphere from his present school by
staying with his mother and maternal grand parents. Minor's version keeping
in view his age of discretion and his intelligence which he had demonstrated
in Court could not be brushed aside lightly. In case minor was lodged as a
boarder in Aitchison College, he would be deprived of love and affection of
his mother as well as maternal grand parents. Above all minor's younger
sister for no fault of her own' would be deprived of the company of her only
brother. Minor having got himself fully adjusted at his present institution,
Court would not like to uproot him from there. Orders of lodgment of minor in
Aitchison College as a boarder wa3 thus, declared to have been passed without
lawful authority having no legal effect. P.L.J.2000 Lah. 2305.
Minor
boy is of more than 7 years of age so presumption of his welfare would
obviously lie in favour of appellant, the father. Nothing has brought on
record suggestive of fact that appellant ever neglected to take care of his
minor son and provide any maintenance to him or his mother and it was only
after initiation of maintenance proceedings against appellant that he moved
an application for securing custody of minor. S.C.is of the view that mere
fact that order of maintenance in favour of minor by court under section 488
Cr.P.C. would not disentitle person from custody if he is entitled to it
under personal law. P.L.J.1996 SC (AJK) 230 = 1996 CLC 1534.
Custody
of minor girl. Trial Court and First Appellate Court •granted custody of
minor girl to mother. High Court in exercise of its Constitutional
Jurisdiction set aside concurrent findings of Courts below and handed over
custody to father. Whether in facts and circumstances of case, High Court was
Justified in pressing into service its Constitutional Jurisdiction for
setting aside concurrent Judgments of two competent Courts leave to appeal is
granted. Execution proceedings pursuant to Judgment of High Court are stayed.
P.L.J.1997 SC 1160 = 1997 SCMR 425.
Minors
remaining in custody of their step-mother after death of their real mother
with whom their father contracted second marriage. After death of their
father, their paternal uncle applied for their custody which was granted.
Petitioner's appeal was dismissed. Constitutional petition. Welfare of
minors. By now it is well settled that while disposing of applications under
section 17 and 25 of Guardian and Wards Act, supreme consideration should be
welfare of minors, coupled with their own wishes* Petitioner is undoubtedly
step mother of female minors, but they are living with her for last more than
8 years, when their real mother expired away. All minors were examined thrice
by trial and appellate court, who on every occasion, insisted to stay with
their step-mother, instead of preferring to live with their real uncle
(Respondent) It is noteworthy that in his statement, he has given his age to
be of 90 years. Moreover, minors have develop intimacy with petitioner (step
mother) and even otherwise, being •female minors, it is necessary that they
should stay with female instead of male. Findings of Courts below are not
based on correct application of law, as well as appreciation of evidence on
record. P.L.J.1998 Qta. 137 = 1998 MLD 1697.
Custody
of minor male child. It is to be weighed whether, it is in the welfare of
minor to face step mother or remain with his real mother and face
step-father. Minor is deeply attached to his real mother and also expressed
attachment for his step father. Minor is of age where he can express an
intelligent preference and his preference has to be taken into consideration
while deciding where welfare of minor lies. It would be harsh and unjust to
minor to deprive him of his mother's company. Judgment of Respondent No. 3
does not suffer from any legal infirmity and accordingly maintained. However,
petitioner was allowed to visit minor through Principal of his school once a
month. P.L.J.1996 Lah. 407.
Interference
in findings of facts,:-- Principal of law discussed by Honable S.C.in case of
Mst. Mehmooda Begum vs. TaJ Din can be invoked, wherein it has been laid down
that findings of facts recorded by Tribunal of special Jurisdiction in
respect of matters, exclusively within its competence, normally is not to be
interfered unless, there has been serious mis-reading or mis-appreciation of
evidence on part of Tribunal or there had been failure on its part to take
into consideration material facts or to apply statutory law or any principle
or rule of law. Both courts below have passed impugned Judgments without
taking into consideration intelligent preference of minors, evidence on
record, that petitioner can look after welfare of minors better than
respondent No. 1, who being male member and of advance age, would not be in a
position to look after female minor girls. P.L.J.1998 Qta. 137 = 1998 MLD
1697.
Interim
custody of minor - Mother of minor died at the time of her (minor's) birth -
Grandmother of the minor girl obtained her custody from her father through
habeas petition - During proceedings before Guardian judge, matter was
compromised and as per term of settlement, custody of minor had to be handed
over to father on her attaining age of seven years - Father, later on
contracted second marriage and had an issue from second wife - Deceased
mother of minor was a serving lady - Share of minor in the amount left by her
mother was deposited by father in his own account, which amount was recovered
from him through decree of Court after issuing his warrant of arrest - During
pendency of another suit for his appointment as guardian of person and
property of minor, father made application for implementation of such
compromise seeking custody of minor - Guardian judge allowed such application
and directed grandmother to hand over custody of minor to her father -
Grandmother remained unsuccessful before Appellate Court and High Court -
Held, paramount consideration in such-like cases was welfare of minor -
Initially parties had settled the dispute through compromise, but later on
due to material change in circumstances, question of welfare of minor had
again cropped up in a more serious manner than before - Since birth minor had
remained with maternal grandmother and suddenly to ask her to live in
different atmosphere would be, if not impossible, at least very difficult for
her - S.C allowed the appeal, set aside impugned order and permitted the
minor to remain with grandmother till petition pending before Guardian judge
was finally decided on merits after recording evidence of the parties. PLD
2002 S.C267
Jurisdiction-District
Judge was not a Family Court competent to hear and adjudicate upon matter due
to total lack of jurisdiction, therefore, irrespective of fact that impugned
order was passed by District Judge, same was appealable under S. 14 of Family
Courts Act 1964 and not under S. 47of Guardians and Wards Act 1890-Court of
Civil Judge being Family Court would have jurisdiction in relation to
guardianship matters and custody of children would be deemed to be principal
Court of Civil jurisdiction of .District. PLD 2003 Quetta 44
Minor
child. Custody. Whether in presence of step mother minor will be brought up
in a congenial atmosphere. This factor per se is no ground for refusing
custody of minor to father if, he is otherwise found entitled to it. If some
safeguards are provided S.C.is of the opinion that this factor by itself does
not-deprive father from obtaining custody of his minor son. In absence of any
adverse circumstance S.C.cannot presume that appellant/father will not look
after or bring up minor with love and affection or due care. If any time some
circumstances seriously prejudicial to interest and welfare of minor are
brought on record duly supported by tangible evidence respondent shall be
free to move Court of competent Jurisdiction afresh on basis of a new cause
of action or grievance. Appellant shall make minor available to live with his
mother (respondent) at least two days every week till he attains majority.
P.L.J.1996 SC (AJK) 230 = 1996 CLC 1534.
Minor
daughter. Custody. Both courts below have merely focused attention primarily
to fact that father had contracted second marriage and mother had not, but
did not give due with to over-riding legal consideration of welfare of minor.
Superiority of claims is relevant but deciding factor is always welfare of
minor. Minor was being brought up by her paternal aunt and properly
looked-after. Judgments of courts below are without lawful authority and of
no legal effect. Petition accepted and custody of minor given to. petitioner
(father) P.L.J.1994 Note 77 at p. 51.
Modification
of order passed earlier on compromise by Guardian Court - Mother of the
minors was given custody and periodical meetings between the father and the
minors were agreed to by the parties - Mother of the minors raised serious
and shameful allegations against the father which pertained to the period of
meeting with the minors-Guardian Court declined to modify the order passed
earlier without making any inquiry into the matter and said decision of the
Guardian Court was upheld by the Appellate Court - Plea raised by the father
was that the Constitutional petition was not filed with clean hands -
Validity - Finding with regard to truthfulness or otherwise of the
allegations levelled by the mother of the minors in her guardianship
application was not recorded by the Court and unless the same was recorded it
could not be held that the mother of the minors had not approached the High
Court with clean hands or she was not entitled to equitable relief in the
matter - Orders passed by the two Courts below were set aside by the High
Court in circumstances, PLD 2001 Kar. 371 PLD 1967 SC 402; PLD 1970 Kar. 619;
1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736
and PLD 1996 Kar. 174 ref. 1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271;
1996 CLC 1603; AIR 1936 Lah.1019; AIR 1930 Lah.250; AIR 1954 SC 82 and PLD
1963 Dacca 816 distinguished.
Mother
was a prostitute. All Courts below found father to be entitled to •custody of
minors. Validity. Mother leaving adultrous life & asking for forgiveness.
Whether right of Hizanat lost. Question of law and welfare of child.
According, to Hassan Basri, right of mother custody does not stop if welfare
of children is to remain in custody of mother. According to Kitab-al-Fiqah,
Hizanat is lost when woman is adultrus, but if she has asked forgiveness, she
will have right of custody. Both Courts below while non*suiting petitioner on
ground that she was prostitute have ignored most material and important
aspect of this case that Mst. "R" married "B" and she was
constrained to file writ petition against her mother contending that
"B" had tried to rescue her from her sinful life, therefore,
finding of Courts below are unsustainable. It is also established from
evidence that minors were being maintained and educated by their mother and
their educational certificate show that they were showing good results in
institution. After marriage with "B" and after divorce with
"S" and eventually she has married persons"" and
according to her statement now she has offered her forgiveness from sinful
life to God Almighty and she is never looking back to her past life and
leading decent and respectful life, her children are being educated in good
Institutions and they are enJoying fatherly love and affection from her
husband. Courts below while nonSuiting Mst. "R" was not. Justified
as "B" was conscious about after effects of his marriage with Mst.
"R". He being man could have pulled her out of sinful life giving
her all protection and decencies of matrimonial life and providing his
children healthy atmosphere quite aware from social set up. He is most
un-deserving person to be wali of minors and other relatives also stand
disqualified to obtain custody of minors. Judgments and decree of both Courts
below set aside minors shall remain in custody, direct supervision and
control of mother as before. P.L.J.2000 Lah. 2419 = 2000 MLD 1967.
Paramount
consideration. Status of respondent (Father) Father is also better as
compared to petitioner-(mother) He is senior officer of Federal Govt.
presently serving as Asstt. Collector of Central Excise and Sales Tax,
Rawalpindi and he can easily bear expenses of schooling, boarding and lodging
of minors at said leading institution of country and their better bringing up
as compared to petitioner, who is statedly working as Teacher in some private
institution. Transferring custody of minors at this stage will definitely
effect their studies and it will.also cause set aback to them if they are shifted
from Murree to Lah.Welfare of minors is of paramount importance and lies in
keeping all three minors in present institution at Murree where they are
studying satisfactorily and getting positions in their respective classes
examination/Test. Impugned orders are based on valid reasons calling for no
interference in constitutional petition. Findings of both courts below are
supported by evidence on record and no illegality has been pointed out in
impugned orders. Petition without merit accordingly dismissed. P.L.J.1996
Lah. 577 = 1996 CLC 1603. Whether living apart of minors in different
environments is in their interest. Family is only Juncture where brothers and
sisters live together under their parents and enjoy natural harmonious
affection and love and share their small secrets of happiness. It is not in
their interest to live apart from each other in different environments, under
disputes and hatred which usually arise from result of broken homes.
P.L.J.1996 Lah. 571 = 1997 MLD 520.
Modification
or alteration of an earlier order - Guardian Court, power of - Scope - Order
passed by Guardian Court in respect of custody of minor (consent order or
otherwise) may be an order in the best interest and welfare of the minor at
that point of time but due to certain future eventuality and subsequent
developments the same, may not serve as such - It is for this reason that the
Guardian Court has been empowered to modify, set aside or alter an earlier
order, and pass an appropriate order at-any subsequent stage to safeguard the
interest and welfare of the minor - Order passed earlier by Guardian Court
with regard to custody of minor cannot operate as a bar of Jurisdiction for
Guardian Court for all time to come. PLD 2001 Kar. 371
Mother of the minors was given custody and periodical meetings
between the father and the minors were agreed to by the parties—Mother of the
minors raised serious and shameful allegations against the father which
pertained to the period of meeting with the minors-Guardian Court declined to
modify the order passed earlier without making any inquiry into the matter
and said decision of the Guardian Court was upheld by the Appellate
Court—Plea raised by the father was that the Constitutional petition was not
filed with clean hands—Validity—Finding with regard to truthfulness or
otherwise of the allegations levelled by the mother of the minors in her
guardianship application was not recorded by the Court and unless the same
was recorded it could not be held that the mother of the minors had not approached
the High Court with clean hands or she was not entitled to equitable relief
in the matter—Orders passed by the two Courts below were set aside by the
High Court in circumstances, PLD 2001 Kar. 371 PLD
1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC
14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref. 1993 CLC 736; PLD
1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah. 1019; AIR 1930
Lah. 250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.
Principles
–
Paramount consideration by the courts must be given to the welfare of minors.
2004 C L C 228
Scope -
Guardian Court, to ensure and safeguard the interest and welfare of the
minor, can grant any relief while deciding guardianship application Substance
and not the form of application was to be examined even if Court was found
lacking the authority to grant relief in strict terms as prayed in the
application, Samar Gul v. Central Government and others PLD 1986 SC 35 ref.
Welfare
of minor, a prime consideration and basic criterion - For deciding the
question and other issues relating thereto, welfare of minor is the paramount
consideration for Guardian Court - Any issue regarding the custody of minor
is to be assessed, examined and measured by the Guardian Court on such
yardstick and the Court has to record a definite finding on the point before
passing any order in the matter PLD 2001 Kar. 371
District
Judge observed that minors having attained age of 7 years respondent (father)
was entitled to their custody. District Judge has failed to consider that
fundamental criteria for deciding application for appointment of guardian and
restoration of custody, is welfare of minors and personal law is subordinate
to it. Custody of minors allowed to appellant (mother) P.L.J.1994 AJK 33 =
PLD 1994 AJ&K 1 = NLR 1994 Civil 331.There is no substitute for a mother
especially when father has re-married and no step mother can give affection
and love* which real mother can give to her children. Respondent (mother of
children) seems quite determined, resolute and firm in her decision to bring
up children even through hard work. She was evenready to forgo her right .of
claiming maintenance of minors. She does not intend to marry in future,
whereas father has remarried with a stranger lady. Under such a situation
scales of Justice tilt in favour of mother. Nature has made a woman most
adorable person on globe as "a mother". Mother and child enJoy
natural sense of safety and protection. It is not in the interest and welfare
of minors to be separated from each other devoid of love and affection which
they enJoy while living together. No infirmity in Judgment of lower Appellate
Court. P.L.J.1996 Lah. 813 = 1997 MLD 520.
Whether
District Court was competent to hear appeal against order of Family Court.
Application for custody of minor filed u/S. 25 of Guardian and Wards Act,
1890 had been challenged on ground that application having been decided by
Family Court in capacity of District Court, appeal against order of Family
Court should have been field before High Court and not before District Court.
Validity. Provisions of S. 14(1), West Pakistan Family Courts Act, 1964 had
overriding effect over provisions of Guardian and Wards Act, 1890. Provisions
of S. 47(1)© of Guardian and Ward Act, 1890, no doubt, had provided that
appeal against order passed under S. 25 of Guardian and Wards Act, 1890 lay
to High Court, but S. 14(l)of West Pakistan Family Courts Act, 1964 which
started with words "notwithstanding anything provided in any other law
for time being in force", had provided that Judgment and decree passed
in Family Court, would be appealable to District Court if such Judgment and
decree were not passed by District Judge or additional District Judge.
Application under S. 25 of Guardian and Wards Act, 1890, having been decided
by Civil Judge as Family Court not by District Judge or Addl. District Judge
as Family Court appeal certainly would lie before District Court under S.
14(l)of Family Courts Act, 1964 which had overriding effect due to non obstante
clause over provisions of Guardians and Wards Act, 1890. P.L.J.1999 Qta. 299
= PLD 1999 Qta. 29.
Whether
mother has preferential right of Hizanat. It is admitted fact that there is
no, substitute for mother especially when father has re-married and no step
mother can give affection and love which real mother can give to her
children. Respondent seems quite determined, resolute and firm in her
decision to bring up children even through hard work and give them proper
education,, care, love and affection and she was ever ready to forego her
right of claiming maintenance of minors. Mother and child enjoying natural
sense of safety and protection and understanding and this sense which
normally prevails between this relationship and keep one day old child quite
safe, by side of a mother sound asleep. Custody of mother is taken away only
where strong grounds exist otherwise. P.L.J.1996 Lah. 571 = 1997 MLD 520.
Mother
of minors, having contracted second marriage with person not related to
minors within prohibited degrees has lost her right of Hizanat. Petition
dismissed. P.L.J.1998 Lah. 146 = 1998 CLC 846.
Poverty
of mother :-- Mother seems firm and resolute to dedicate all her life to
bring up her children and facing hard challenges of life for sake of her children
and does not intend to marry in future. On the other hand, father who has
remarried with a stranger lady is advocating cause of one of his relative to
keep up custody of minors. Mere arguments that mother has no source of income
cannot deprive her from custody of minor. Father is under duty of Law to
maintain his children and enable them for better education, better future and
good.health. P.L.J.1996 Lah. 571 = 1997 MLD 520.
Writ
against interim Order :-- During appeal an application to produce additional
evidence was filed which was dismissed. Writ against. In a writ petition, no
interference is called for, unless it can be shown that order passed by lower
Court suffered from some Jurisdictional defect. Evidence brought by parties
on record was sufficient enough to enable lower court to decide fate of
application. Evidence sought to be produced was admittedly an additional
evidence which cannot be produced as a matter of right. Both parties had
already executed their rights to produce their respective evidence. If the
Court feels in-capacitated for lack of sufficient evidence to enable it to
effectually dispose of controversy before it, it can permit any of parties to
produce additional evidence, whereas in present case it is petitioner who is
insisting to produce additional evidence. Npt being requirement of court,.
additional evidence cannot be allowed. Appellate court has committed no
illegality by refusing application. P.L.J.1999 Lah. 938.
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