Tuesday, 2 December 2014

Custody of Minor by Grandmother

2010 M L D 42


Before Jamila Jahanoor Aslam, J 

Mst. MUHAMMAD JAN---Petitioner 
DISTRICT JUDGE, ATTOCK and others---Respondents 

Writ Petition No. 1052 of 2009, heard on 29th July, 2009.

Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), S.491---Guardian and Wards Act (VIII of 1890), S.7---Constitutional petition---Habeas Corpus---Custody of minor---Welfare of minor---Respondent/mother of the minor after the death of her husband continued residing with her in-laws along with minor, but later on she was expelled by the grandmother of the minor retaining the custody of minor---After being turned out of her home, she being mother of the minor filed petition under S.491, Cr.P.C. for recovery of the minor, which on the statement of minor that he would prefer living with his paternal grandmother/the petitioner, petition was dismissed---Mother of the minor later on filed petition under S.7 of Guardians and Wards Act, 1890 to appoint her as guardian of person and property of the minor, which again was dismissed on the statement of minor in favour of his paternal grandmother---Appeal filed by the mother of the minor against judgment and decree, however having been accepted, judgment and decree of the Guardian Judge, was set aside with direction to the Guardian Judge, to hand over custody of minor to the mother---Grandmother had impugned said order in constitutional petition---Minor was brainwashed to the extent that he abhorred his real mother and was making up stories of her having inflicted physical violence on him even in the court, which was abnormal---Petitioner/grandmother of the minor had not adhered to the visitation schedule as determined by the Guardian Court and was teaching the child how to lie and hate---Danger to a child's life was not only physical, but it was also mental---Extent of the mother's sacrifice for her minor son was that despite being a young woman she had not remarried after the death of minor's father; she was educated, holding a job and seemed to be intelligent woman---Initially the minor may not be happy in his mother's custody, but the tie of the umbilical cord was too strong to be severed---Lady was mother of minor and knew the best of her child---No one take place of real mother--Moreover under Islamic Law the custody of paternal grandmother was subservient to the custody of the mother---What had to be taken into consideration at each and every stage of litigation involving minors and their custody, was the welfare of the minor---Welfare of the minor in the case lay with his real mother---Constitutional petition dismissed.  

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