P L D 2015 Lahore 401

Before Shah Khawar, J

Miss FAUZIA IQBAL---Petitioner

versus

FARHAT JAHAN and others---Respondents

Writ Petition No.15 of 2014, decided on 12th August, 2014.

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

----S. 25---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---

Welfare of minor---Adoption of minor by her paternal aunt---Preference of minor---High Court
directed that minor be allowed to accompany her parents for a whole day and determine her
preference---Mother filed an application for custody of minor daughter who was given in the
care of her paternal aunt which was accepted concurrently---Validity---Preference of minor had
not been considered by the courts below---Minor who was 12 years of age was intelligent and
capable for performing preference---Minor had preferred to live with respondent-paternal aunt---
Minor was in the custody of respondent-paternal aunt ever since she was 5 days old who was
handed over to her by her parents with their own free will---Both the parties were not stranger to
the minor---Present application for custody of minor had been filed at a belated stage and minor
had accustomed to the atmosphere provided by the respondent-paternal aunt---Minor had
developed love and affection for the respondent-paternal aunt---Custody of minor children
should be claimed promptly which was missing in the present case---Welfare of minor was to be
taken into account---Parties were directed to establish cordial relations with each other and to
bring up the minor jointly and her parents would be at liberty to visit the minor at respondent's-
paternal aunt's place---Constitutional petition was accepted in circumstances.
 Arshad Ali Ch. for Petitioner.

Muhammad Ajmal for Respondents Nos. 1 and 2 with minor.

Muhammad Arif Awan, A.A.G.

Date of hearing: 12th August, 2014.

ORDER

SHAH KHAWAR, J.---The instant writ petition has been preferred against the
concurrent findings of facts arrived at by the learned Addl. District Judge, Rawalpindi and the
learned Judge Guardian Court, Rawalpindi whereby the learned Addl. District Judge, Rawalpindi
vide judgment and decree dated 4-11-2013 ordered the restoration of custody of the minor in
favour of respondent No.1.

2. Brief facts of the case are that respondents Nos.1 and 2 Mst. Farhat Jahan and Mr. Sikandar
Iqbal are the parents of the minor namely Hira Iqbal, who according to the version of the present
petitioner was handed over to her by respondents Nos.1 and 2 when the minor was 5 days old. It
is pertinent to mention here that the present petitioner Miss Fauzia Iqbal is the real paternal aunt
(Phophi) of the minor. The case of the petitioner is that the minor Hira Iqbal was the third
daughter of respondents Nos.1 and 2 and they were not in a position to properly up-bring and
raise the minor. On the intervention of the paternal grand-father of the minor and real father of
the petitioner and respondent No.2 the minor, who was 5 days old, was voluntarily given in the
care and custody of the petitioner and thus, the petitioner adopted the minor. Although, it is the
version of respondent No.1 Mst. Farhat Jahan mother of the minor that she had not consented
such transfer of custody of the minor but had to accept the same due to the obedience and honour
of her father-in-law.

3. The minor Hira Iqbal is almost 12 years of age and admittedly is in the care and custody
of the petitioner.

4. Respondent No.2 Mst. Farhat Jahan filed an application under section 25 of the
Guardians and Wards Act, 1890 against the present petitioner before the learned Judge Guardian
Court, Rawalpindi for the custody of her daughter minor Hira Iqbal by contending that being
mother of the minor she has superior right to have custody of the minor. Further contended that
the minor is growing/tender age and needs special attendance to be a good human being but the
present petitioner is denying access of the minor to her.

5. Conversely, the present petitioner also filed an application under section 7 read with
section 17 of the Guardians and Wards Act, 1890 for appointment of guardian in respect of the
minor Hira Iqbal. Both the suits were consolidated by the learned Guardian Court at Rawalpindi
who passed his judgment and decree dated 8-5-2013 whereby the application under section 7
read with section 17 of the Guardians and Wards Act, 1890 for her appointment as guardian to
the person of minor was dismissed and the application under section 25 of the Act, filed by
respondent No.1 Mst. Farhat Jahan was allowed and the present petitioner was directed to hand
over the minor to respondents Nos.1 and 2 within 30 days of that order. An appeal under Section
14 of the Family Courts Act, 1964 was preferred by the present petitioner before the learned
District Judge, Rawalpindi which was entrusted to the learned Additional District Judge who
vide impugned judgment dated 4-11-2013 upheld the decision of the learned Judge Guardian
Court and dismissed the appeal of the present petitioner. Hence, the instant writ petition.

6. I have gone through the entire record of the case and heard arguments advanced by the
learned counsel for the parties.

7. One of the important aspects of the matter has not been considered by both the learned
courts below i.e. the preference of the minor. This Court vide order dated 7-8-2014 made
directions that the minor be allowed to accompany respondents Nos.1 and 2, parents for a whole
day. The petitioner while obeying the order of this Court sent minor to her parents, brothers and
sister and she spent almost 1-1/2 day with them. Today i.e. 12-8-2014 when the case was fixed
for final arguments the minor was asked to place her preference. The minor, who is about 12
years of age, is intelligent enough and capable of performing intelligent preference. She stated
before the Court that during her stay with the parents, brothers and sister she had pleasant
feelings and stated that rather she will be happy in frequently visiting parents and her brother and
sisters but will prefer to live with the petitioner Miss Fauzia Iqbal. The minor further stated that
she is accustomed of the company of her Phophi who is properly taking care of her and she has
developed love and affection for the petitioner. On this the elder sister of the minor pointed out
that the educational results of the minor are not up to the mark and she is not being properly
looked after by the petitioner. Whereupon, the minor very confidently stated that she gets
disturbed when she is dragged in the courts due to litigation inter se the parties and finally
concluded that she will prefer to remain under the custody and care of her Phophi, the petitioner.

8. This is not the case of ordinary impression. The instant case has its own facts and merits.
It is admitted fact that the minor is in the custody of the petitioner ever since, she was 5 days old.
Prima facie it seems that the minor was handed over to the petitioner by respondents Nos.1 and 2
with their own free will. It is also admitted that the petitioner and his family members are not
strangers to the minor as the petitioner is living with her father and brother who are also father
and brother of respondent No.2. It reflects that this arrangement continued till 2011 when some
differences arose between the parties resulting into divergent litigation inter se the parties for the
guardianship and custody of the minor. Admittedly, respondent No.1 filed application for
restoration of custody of the minor on 29-10-2011 at a belated stage as at the relevant time, the
minor had accustomed to the atmosphere provided by the petitioner and naturally minor had
developed love and affection for the petitioner. Even otherwise, it is settled that claim of custody
of the minor needs prompt recourse to the legal remedies, which is lacking in case of the
respondent No. 1. Reference could be made of judgment reported in Mst. Shaheen Bibi (Nusrat
Shaheen) v. Zulfiqar Ali Shah Kazmi and 2 others [(1995 CLC 306 (Lahore)].

9. Rather both the learned Courts below have recorded concurrent findings of facts which
normally are not interfered but keeping in view the peculiar circumstances of the instant case the
same are liable to be interfered with.

10. The minor herself appeared before this Court and was allowed to meet with respondents
Nos.1 and 2 brother and sisters. She spent almost 1-1/2 day with them and finally made an
intelligent preference of living with the petitioner. She also volunteered that she will be
frequently visiting respondents Nos.1 and 2, brother and sisters but maintained that she may not
be disturbed by way of abandoning her Phophi, the petitioner. This aspect of the matter has not
been taken into account by both the learned Courts below. It is an admitted principle of law that
in matters of the custody over all welfare of the minor is to be taken into account. The instant
writ petition is allowed with the following observations and directions:--

(i) Both the parties shall establish cordial relations with each other and will jointly
endeavour to up bring the minor.

(ii) Respondents Nos.1 and 2 shall be at liberty to visit the minor at petitioner's place and the
petitioner will not deny access of the minor to them. The minor shall spend half of the vacation,
whenever occur, with both the parties.

(iii) The petitioner shall send the minor at the residence of respondents Nos.1 and 2 on week-
end, fortnightly and shall not estrange the minor against her parents.

(iv) When the minor reaches the age of marriage her relations for marriage will be decided
mutually by the parties with the consent of the minor.

AG/F-27/L Petition allowed.