ORDER SHEET
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ORDER WITH SIGNATURE OF JUDGE
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1) For katcha peshi.
2) For hearing of C.M.A. No 189/2006.
Counter affidavit as flagged.
Mr. Jamilur Rehman for petitioner.
Mr. Iftikhar Javed Qazi for respondent.
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The petitioner has assailed the judgment dated 28.9.2005 passed by the respondent No. 2 in Family Appeal No. 35/2005 whereby the respondent No. 1 was appointed Guardian of the minor Hamza Shahid.
Precisely the facts leading to the petition are that the petitioner has filed Guardian & Wards Application under section 7 of Guardian & Wards Act for the appointment of Guardian to respondent No. 1 stating therein that petitioner was married to respondent No. 1 at Karachi in the year 2001 against the consideration of dower amount of Rs. 50,000/-. Out of the said wedlock minor Hamza Shahid was borne on 12th August 2002. On account of the short temperament and aggressive attitude of the respondent No. 1 the dispute arose between the parties petitioner was mercilessly beaten and on the report of the petitioner respondent No. 1 was arrested, detained in police custody for three days. Respondent No. 1 restrained the petitioner to meet with her parents and detained the Passport of the petitioner and child and after the efforts of the relatives petitioner was allowed to meet her parents. The respondent No. 1 was not interested in the welfare of the minor nor he wanted to meet the minor as he was residing abroad, petitioner being the mother of the minor be appointed as Guardian of his person.
The respondent No. 1 resisted the Guardianship by filing written statement denied the allegations prayed for dismissal of the said application on the ground that he was fit to be appointed as Guardian of the minor being natural guardian and father. The petitioner’s application was allowed by the Family Judge. Consequently Family Appeal No. 35/2005 was filed by the respondent No. 1 consequently judgment of the trial court was set aside and the petitioner’s application was dismissed.
Mr. Jamilur Rehman learned counsel for petitioner has contended that the respondent No. 2 has erred in law by raising presumption in favour of the respondent No. 1 whereas the paramount and predominant consideration is the welfare of the minor. The respondent No. 1 is residing in United States of America spending luxurious life he had no interest in the minor nor he had paid maintenance. Minor has been residing constantly in the custody of his mother and has been provided love and affection. The respondent No. 1 has no interest in the upbringing of the minor son.
On the contrary learned counsel for respondent No. 1 has contended that the respondent No. 1 father of the minor is regarded as natural Guardian. The custody of the minor always considered to be under father’s control and supervision. In support of the above contention reliance is placed on MUHAMMAD SADIQ BUTT VS. MST. KHALIDA PARVEEN PLD 1967 KARACHI 645. The dictum laid down is:-
“In a case where the father is alive and has not been found to be a person unfit to be the guardian of his minor children he must be regarded as the natural guardian and an application for the appointment of the guardian of the minors in such a case would be incompetent. But the fact that the father is the natural guardian does not disentitle the mother or the mother’s mother, as the case may be, for claiming the custody of the minor children, which order of custody is not necessarily in disregard of the guardianship of the father which continues until an order of unfitness is placed in respect of him. The custody in such a case by the female relation of the minor is always considered to be under the supervision and control of the father. What the courts decide upon an application under section 25 is the question of the custody of the minor children up to a certain age which differs in the case of male and female children.”
In case of MRS. ANNIE BESANT VS. G. NARAYANIAH AND ANOTHER (AIR 1914 Privy Council) from Madras page 41 it has been held that:-
“Under section 19 of Guardian & Wards Act. Guardian can be declared only if minor’s interest required it-Guardian cannot be appointed during father’s lifetime unless in the opinion of the court he is unfit to be guardian.”
In the case of SEEYALI VEETTIL ABUBACKER VS. OVINAKATH VAYYILAPURAYIL MARIYUMMA (AIR (33) 1946 MADRAS 110) while dealing with section 8 of Guardian & Wards Act (1890) it has been held that:-
“A Muhammadan father being the lawful guardian of his minor children does not require an order of the court to support his right to act as their guardian. In fact an application under the Guardian & Wards Act for an order appointing him guardian does not lie.”
Similar view was adopted in the case of MUHAMMAD SIDDIQ VS. MRS. SIDDIQU MIRZA PLD 1963 WEST PAKISTAN LAHORE 54 and SULTANA VS. MUHAMMAD SHAFI PLD 1965 WEST PAKISTAN KARACHI 416, that:-
“Father of minor alive and fit to be guardian of person of minor-No guardian can be appointed under section 7.”
In Manoo Ali Vs. Hawabi (AIR 1936 Rang 63) it was held that if the father did not have the custody of the child he can not apply for custody although he desires to act as a natural guardian when the custody of the minor was all along with the mother.
Petitioner has failed to point out any ground, disentitling the father to act as guardian of his son. It is crystal clear that an application under Section 25 of Guardian & Wards Act is pending adjudication between parties which shall be determined, on the basis of evidence produced, upon the evidence led by the parties and custody of the minor shall be determined, on its own merits.
C.P. No. 33/2006, deserves no merits stands dismissed accordingly.
J U D G E
ORDER SHEET
_____________________________________________________
ORDER WITH SIGNATURE OF JUDGE
_____________________________________________________
1) For katcha peshi.
2) For hearing of C.M.A. No 189/2006.
Counter affidavit as flagged.
18.10.2006.
Mr. Jamilur Rehman for petitioner.
Mr. Iftikhar Javed Qazi for respondent.
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Since a short point is involved in the petition, therefore, it is admitted for hearing. Learned counsel for the parties have addressed their arguments on the issues involved in the petition. Reserved for orders.
J U D G E