PLJ 2012 Peshawar 88 (DB)
Present: Dost
Muhammad Khan and Malik Azmatullah,
JJ.
ARIF
SAEED--Petitioner
versus
HUMAIRA QAZI and
2 others--Respondents
W.P. No. 1580 of
2009, decided on 29.9.2011.
Guardians and
Wards Act, 1890 (VIII of 1890)--
----S.
25--Constitution of Pakistan,
1973, Art. 199--Constitutional petition--Custody of minors--Natural
guardian--Application for custody of two children filed by mother was
decreed--Challenge to--After executing divorce deed, father contracted second
marriage whereas mother devoted her entire life to her children and not contracted
second marriage--Validity--Where real mother sought custody of children for
welfare not only of specified physical well being of a child, its curriculum
activities and its mental health was paramount importance for balance
personality of a child and they would not be deprived from love and care of
their natural mother, nothing match to pure love and affection of real mother,
a step mother was not substituted for a child however she might be substituted
to first wife to the father of minors--There was also possibility that due to
preferential attitude to her real children a sense of deprivation could be
developed to step minors in such atmosphere custody of children under law was undefeasible right of real mother--Petition was dismissed. [Pp. 89 & 90] A
Mr. Muhammad
Ali, Advocate for Petitioner.
Date of hearing:
29.9.2011.
Judgment
Malik Azamtullah, J.--Through the instant writ petition, the
petitioner has impugned the judgment and order dated 30.03.2009 of learned
Additional District Judge-II, Mardan whereby the
order/judgment passed by Judge Family Court-VII/Guardian Judge, Mardan vide order dated 07.04.2008 was upheld.
2. The respondent # 1 brought an application
under Section 25 of Guardians and Wards Act, 1890 before the Family Court Mardan for the custody of two children namely Rashna Arif and Haider Arif (daughter and son of
Defendant # 1) and the petitioner contested the suit by filling written
statement where after recording of pro and contra evidence the trial Court
decreed the suit in favour of respondent. Feeling
aggrieved from the said order the petitioner preferred appeal whereupon
impugned judgment was passed by learned ASJ-II, Mardan.
3. Counsel for petitioner contended that two
children named above were born from the wed lock of petitioner and respondent #
1 and unfortunately the married life of couple spoiled and marriage tie was
broken culminating into divorce announced by the petitioner by sending a
divorce deed to the respondent on 13.07.2005. He also argued that since
divorce, the children are in his custody and he being father is taking care of
their needs and requirements properly. Father is natural and legal guardian of
the children he added. It was lastly argued that second marriage of the
petitioner is not an infirmity to deprive him from the custody of the minors.
4. We have heard the arguments of the counsel
for petitioner and have also gone through the record.
5. Admittedly the petitioner after executing
divorce deed contracted second marriage and from the said wed lock other
children have also born, whereas the respondent according to her has devoted
her entire life to her children and she has not contracted second marriage.
Father no doubt is a natural guardian of the children but keeping in view the
circumstances of this case where the real mother seeks the custody of children
for their welfare not only of specified physical well being of a child, its
curriculum activities, and its mental health is paramount importance for a
balance personality of a child and they should not be deprived from love and
care of their natural mother, nothing
match to pure love and affection of a real mother, a step-mother is not
a substitute for a child however she may be substituted to first wife to the father
of minors. There is also a possibility that due to preferential attitude to her
real children a sense of deprivation could be developed to the step minors in
such atmosphere. Thus the custody of children under the law is indefeasible
right of real mother. From the evidence recorded at the trial it has also
proved that the Defendant # 1 (mother) is serving as Executive Manager at P.C.
Hotel and her financial position is sound and sufficient to meet the needs of
the children.
6. We could not find any illegality in the
judgment/order of both the Courts below who attended the issue very wisely
according to the law and the finding arrived at by them was the result of
proper appreciation of evidence recorded in the case. No case of interference
into the well reasoned order passed by both the Courts below is made out hence
the instant petition being devoid of force is hereby dismissed in limine.
(R.A.) Petition
dismissed
