2011 C L C 1062
[Quetta]
Before Mrs. Sy eda Tahira Safdar, J
GANJ BIBI ----Appellant
Versus
MUHAMMAD YOUNAS and another ----Respondents
Guardian Appeal No.2 of 2009, decided on 1st February, 2011.
Guardians and Wards Act (VIII of 1890) ---
----Ss. 7, 19(b), 25 & 47 ---Appoint ment of guardian of minor ---Application by mother of
minor son for appointing her as the guardian of minor had been dismissed ---Minor aged 7 -
years was in custody of the applicant (mother), while respondent was father of the minor ---
Nothing was on record t hat any step was taken by father of minor to deprive the mother from
custody of the minor ---Despite having custody, mother was trying to get herself appointed as
guardian of the person of the minor ---Validity ---Section 19 of Guardians and Wards Act,
1890, provided certain instances whereby the court was restrained to appoint or declare a
guardian of property or person of minor ---Main consideration, while appointing a person as
guardian of a minor, was the welfare of the minor ---In the present case, nothing was on
record, nor even asserted by the applicant (mother) on basis of which the respondent (father)
could be considered unfit to be guardian of person of minor son ---Under Islamic Law, mother
was entitled only for custody of her minor son till her attaine d age of 7 years ---Situation was
quite different in the present case as applicant being mother of minor, was already in custody
of the minor, but now she intended to get herself appointed as his guardian ---Mother, in view
of S.19(b) of Guardians and Wards Act, 1890 had to establish that father was unfit to become
guardian of person of minor, but she had completely failed to disclose any reason, nor she
had placed on record any material on account of which father had been disqualified to
become guardian of h is minor son ---Applicant had failed to make out any case in her favour --
-In absence of any irregularity or illegality in the judgment of the Trial Court, same could not
be interfered with ---Impugned judgment was upheld, in circumstances.
Mst. Hamida B egum and another v. Ubedullah and others 1989 CLC 604 ref.
Shams -ur-Rehman for Appellant.
Abdul Wadood for Respondent No.1.
Date of hearing: 15th October, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- (sic) been filed by appellant G anj Bibi, being
aggrieved of judgment dated 28 -7-2009 of Civil Judge -II with the powers of District Judge,
Quetta, whereby the application filed by her for appointment of guardian was dismissed,
being not maintainable. It is her contention that the trial c ourt has not properly appreciated
the evidence produced by her, while the relevant law has also not been taken into
consideration. She being mother of the minor, and being the natural guardian cannot be
deprived of custody of her minor son. She prayed for setting aside of impugned judgment,
and thereby her appointment as guardian of her minor son Muhammad Yousaf.
Counsel for the parties heard, while record is perused.
Learned counsel for the appellant raised almost same contention as made in the app eal. He
contended that the trial Court has misunderstood section -19 of Guardians and Wards Act
1890. He placed reliance on judgment in case titled as Mst. Hamida Begum and another v.
Ubedullah and others reported in 1989 CLC (Karachi), Page -604. In reply l earned counsel for
respondent contended that the law is properly appreciated. Further, there is no evidence that
respondent ever tried to take custody of minor forcibly. He prayed for dismissal of appeal.
The perusal of record reveals that the appellan t filed an application under sections 7 and 25 of
the Guardians and Wards Act 1890, praying for her appointment as guardian of her minor son
namely Muhammad Yousaf, aged 7 months. Wherein she raised contention that due to bad
conduct and maltreatment of re spondent Muhammad Younas, she filed suit for dissolution of
marriage, which was decreed in her favour through judgment dated 4 -7-2008 by Family
Judge -I, Quetta, whereby the marriage was dissolved on basis of Khula. In the application the
applicant/appellan t mainly contended that the minor is her real son and in her custody, she
being the real mother, thus in better position to secure the welfare of the minor, and provide
him love and affection. She prayed for her appointment as guardian of person of the min or.
The application was contested by respondent Muhammad Younas, thereby raised objection
on maintainability of the application to the effect that in presence of de jure guardian (father),
mother being de facto guardian is not entitled to be appointed as g uardian of the minor. The
trial Court after framing issues on 23 -2-2009, called evidence from both the sides, and on
completion, decided the application through judgment dated 28 -7-2009, impugned before this
court. The trial Court relying on section 19 of the Guardians and Wards Act 1890, arrived to
the conclusion that the applicant/appellant being not entitled to be appointed as guardian of
the minor, thus dismissed the application. The appellant being aggrieved of the order
preferred instant appeal.
In instant case it is an admitted position that the minor Muhammad Yousaf is in custody of
the appellant, being his mother, while on the other hand the respondent is real father of the
minor. There is nothing on record, that any step was taken by the respon dent, in order to
deprive the appellant from the custody of the minor. Despite having custody the appellant is
now trying to appoint herself as guardian of the person of the minor. Section -19 of the
Guardians and Wards Act 1890 provides certain instances w hereby the court is restrained to
appoint or declare a guardian of property or person of a minor. Clause (b) of the section is
relevant in present case, which states as under:
"19(b) of a minor whose father is living and is not in the opinion of the Co urt, unfit to be
guardian of the person of the minor."
Though the main consideration while appointing a person as guardian of a minor, is the
welfare of the minor, which is to be seen in relevance to noted provision of law. In present
case, there is no thing on record, nor even asserted by the appellant, on basis of which the
respondent can be considered unfit to be guardian of person of his minor son. Under the
principles of Muhammadan Law mother is entitled only for custody of her minor son till he
attain age of 7 years. But in present case the situation is quite different. As the appellant,
being his mother, is already in custody of the minor, but she is now intended to be appointed
herself as guardian of her minor son. For the purpose, in view of sect ion 19(b) Guardians and
Wards Act 1890, she has to establish that the father/respondent is unfit to remain as guardian
of person of the minor. But she has completely failed to disclose any reason, nor she has
placed on record any material due to which the father has been disqualified to remain
guardian of his minor son.
In view of above discussion the appellant has failed to make out any case in her favour. No
such irregularity or illegality is pointed out in the judgment, which requires interference by
this court. The appeal is hereby dismissed being without merits. The judgment of trial Court
dated 28 -7-2009 is hereby upheld.
No orders as to costs.
H.B.T./38/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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