Monday, 1 December 2014

Judgment on Custody of Minor

2009 MLD 33 ref.

Azhar Masood Khan for Petitioner. 

Nasir Mahmood for Respondent.

Date of hearing: 29th July, 2009. 

JUDGMENT

JAMILA JAHANOOR ASLAM, J.---Facts of the case are that after the death of her husband; Mst. Asima continued residing with her in-laws along with minor Bilal Ahmad, but after a while she was expelled by the present petitioner after retraining the custody of the minor. After being turned out of her home respondent No.3, being real mother of the minor, filed a petition under section 491, Cr.P.C. before the District and Sessions .Judge Attock for recovery of the minor. However, based on the statement of a minor aged 5 years, that he is studying in a school in the village and prefers living with his paternal grandmother, the District and Sessions Judge, Attock dismissed the petition under section 491 vide order dated 18-12-2008. Thereafter respondent No.3 filed a petition under section 7 of the Guardians and Wards Act, 1890 on 22-12-2008, to be appointed as guardian of the person and property of the minor. Along with the petition under section 7 she also filed application under section 12 for the interim custody of the minor before learned Guardian Judge, Attock which was again dismissed on the statement of the minor in favour of the petitioner (his paternal grandmother) vide judgment, dated 25-3-2009. Respondent No.3 preferred an appeal against the judgment/decree of the Guardian Judge, which was accepted vide judgment, dated 14-5-2009. The judgment of the Guardian Judge was set aside with directions to the learned Guardian Judge to hand over custody of the minor to respondent No.3 and to proceed in accordance with law.

2. The petitioner being aggrieved of the judgment, dated 14-5-2009 has impugned the same in this constitutional petition.

3. The counsel for the petitioner argues that under the provisions of section 47 Guardians and Wards Act, respondent No.3 could not have appealed the judgment of the Guardian Court as the petition dismissed was under section 12 which is qua the interim custody of the minor and that the judgment, dated 14-5-2009 was ultra vires and void ab initio, due to the fact that the District Judge could not have adjudicated upon the matter and the Court of competent jurisdiction was this Court. However, he admits that he had not brought up the matter of jurisdiction at the time of hearing of appeal. This fact is also apparent from the record. He further contends that section 12 of the Guardians and Wards Act is only to be invoked when there is imminent danger to the life and health of the minor and that these grounds were not available to respondent No.3 when she filed the application under section 12.

 

4. Further contended that the appellate Court has relied upon PLD 2004 Lahore 395 and 2009 MLD 33, which .rulings were distinguishable from the matter in hand as in those two circumstances the minors were at the suckling stage. He is of the opinion that as respondent No.3 resides in Haripur there is imminent danger to the life of the minor.

 

5. On the other hand the counsel for respondent No.3 has contested the arguments extended by the counsel for the petitioner.

 

6. I have heard both the counsel for the parties and perused the record with their able assistance.

 

7. Record reveals and it is admitted by the counsel for the petitioner that he did not raise any objections to the jurisdiction of the learned District Judge at the time, the appeal was before him. Having surrendered to the jurisdiction at the relevant time the petitioner cannot now agitate the matter of jurisdiction.

 

8. I have personally questioned the minor and he has been brainwashed to the extent that he abhors his mother and is making up stories of her having inflicted physical violence on him even in Court. This is abnormal. To start with the petitioner has not adhered to the visitation schedule as determined by the Guardian Court and to top it all she is teaching the child how to lie. The minor's abhorrence towards his real mother is abnormal and unnatural. Danger to a child's life is not only physical it is also mental. He is being brainwashed into hating his real mother, who is the first woman a boy loves in his life. If he hates his mother he will be unable to form a healthy lasting relationship with his wife when he gets to the age of marriage, thus I am inclined to observe that the child's mental health is in extreme danger. The extent of the mother's sacrifice for her son is that despite being a young woman she has not remarried after the minor's father's death, which was more than six years ago. She is educated, holds a job and seems to be an intelligent woman. Her longing for her child is apparent from the fact that she has not given up the fight for her child's custody all this time and has been constantly pursuing the matter of custody of the minor. I grant that initially the minor may not be happy in his mother's custody but the tie of the umbilical cord is too strong to be denigrated or severed. She is a mother and knows the best for her child. Nobody can take the place of a real mother. Moreover, under Islamic Law the custody of the paternal grandmother is subservient to the custody of the mother and even the maternal grandmother. What has to be taken into consideration at each and every stage of litigation involving minors and their custody is the welfare of the minor. In this particular case the welfare of the minor lies with real mother. I do not undermine the love, the petitioner must have for her grandson but it is to be borne in mind that she has other grandchildren as well while respondent No.3 has only her son.

 

9. In view of the above discussion I am not inclined to accept this writ petition, therefore, dismiss it.

 

Disposed of.

 

H.B.T./M-626/L                                                                      Petition dismissed.

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