2021 Y L R 743
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
TAUK ALI ---Petitioner
Versus
The ADDITIONAL DISTRICT JUDGE -VI, QUETTA and 3 others ---Respondents
Constitution Petitions Nos. 329 and 330 of 2016, decided on 29th October, 2019*.
Guardians and Wards Act (VIII of 1890) ---
----Ss. 25, 7 & 19(b) ---Custody of minor ---Guardian not to be appointed by the Court of a
minor whose father is living ---Father, living abroad--- Scope ---Petitioner (father of minor)
and respondent ( maternal grandmother of minor) both sought custody of minor ---Petitioner
sought custody of minor on the grounds that the mother of minor was murdered by unknown
assailants; that he (father), among others, was nominated in the FIR; that he himself had hande d over the custody of minor to the respondent for some days, however she later on
refused to hand over the custody; that she was an aged woman and that she had no source of income ---Trial Court dismissed both the petitions whereas appellate court accepted the
appeal of respondent and dismissed that of petitioner ---Validity ---Petitioner and stepmother
of minor were nominated in the FIR for murder of minor's mother ---Petitioner was a
businessman who remained outside the country for his business and in such si tuation minor
would have to live with the stepmother who was an absconder in murder case of her real mother ---Petitioner could not prove that the environment of respondent's house was not
conducive to upbringing of the minor ---Order passed by appellate court in respect of
appointment of respondent as guardian of minor in view of S.19(b) of Guardians and Wards
Act, 1890 was set aside ---Judgment and decree passed by Trial Court was upheld ---Petitions
were dismissed.
Syed Ayaz Zahoor and Muhammad Ali Kanrani for Petitioner.
Ahsan Rafiq Rana for Respondent No.3.
Date of hearing: 16th October, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The titled constitution petitions are being disposed of
through this common judgment as both the petitions arise out of one and same judgment.
2. Brief facts of the case are that respondent No.3 namely Yasmin Akhtar wife of
Tajammul Shah filed an application under section 7 of the Guardians and Wards Act, 1890
for guardianship of minor Maria Ali with the averment that the applicant 's daughter namely
Sehrish Tajammul Shah (late) mother of the minor contracted marriage with the petitioner namely Tauk Ali out of love but later on unfortunately she was murdered by brother of her husband and in this regard FIR was registered at Police St ation Dera Bugti. It was further
averted in the application that after murder of late Sehrish Tajammul Shah the applicant
(respondent No.3) being maternal grandmother of minor Maria Ali is looking after her
welfare and well -being, besides the late Sehrish Tajammul Shah had neither made any debit
nor made will in her life time, and now the minor is in safe custody of her maternal grandmother (respondent No.3). It was further stated in the application that now the applicant (respondent No.3) wants to get guar dianship certificate of the minor Maria Ali for the
purpose of her welfare and convenience in this downtrodden society purely for benefit of the minor.
3. The petitioner also filed an application under section 25 of the Guardians and Wards
Act, 1890 for custody of minor before the learned Family Judge -II, Quetta with the averment
that mother of the ward/minor was murdered by unknown assailants behind his back and matter was reported, whereas many persons were nominated in the crime report/FIR and
name of th e applicant/petitioner was also mentioned in the report; that at that time the ward
namely Maria Ali was with the petitioner when respondent No.3/grandmother of the minor
and his uncles being defendants Nos. 2 and 4 in the said application requested for cu stody of
minor for some days. The petitioner handed over custody of the minor to them, however they did not keep their promise and refused to hand over custody of the minor back to petitioner; that minor is in custody of respondent No.3, who is widow of la te Tajammul Shah and she is
an aged woman, resides with her sons and has no source of income; that there is every
likelihood of threat to welfare of minor. He lastly prayed that custody of minor be handed over to the petitioner.
Both the applications were consolidated and out of the pleading of the parties the trial
court i.e. Family Judge -II, Quetta framed the following issues:
"1. Whether the respondent/Yasmeen Akhtar is entitled to be appointed the Guardian of the minor Maria Tauk Ali?
2. Whether the better welfare of the minor namely Maria Ali lies in the custody of
applicant (Haji Tauk Ali)?
3. Whether in presence of maternal grandmother father can be appointed as guardian to the person of the minor?
4. Whether the respondent/Yasmeen Akhtar is entitl ed to the relief claimed for?
5. Whether the applicant/father (Haji Tauk Ali) is entitled to the relief claimed for?
6. Relief?"
4. In support of respective issues respondent No.3 produced AW -1 Abdul Wahid, AW -2
Sajid Ahmed, whereas respondent No.3 also got recorded her own statement in support of plea so taken in her application. The petitioner in application filed under section 7 of
Guardians and Wards Act, 1890 produced RW -1 Rauf Jabbar and RW -2 Muhammad Naeem
and his attorney Syed Adil Shah, who got rec orded their statements.
After hearing arguments of learned counsel for the parties the trial court dismissed
both the applications filed by respondent No.3 under section 7 of Guardians and Wards Act,
1890 (the "Act, 1890") as well as application filed by petitioner under Section 25 of the Act, 1890 for custody of minor vide judgment dated 10.07.2015. Being aggrieved from the judgment passed by the trial court, petitioner filed Appeal No. 15 of 2015 and respondent No.3 filed Guardian Appeal No. 01 of 2015 before the learned Additional District Judge -IV,
Quetta (appellate court) under Section 14 of the Act, 1890. The appellate court accepted the appeal filed by respondent No.3 and dismissed the application filed by the petitioner for custody of minor through common judgment dated 16th December, 2015. The petitioner, feeling aggrieved from the judgment passed by appellate court, filed separate constitution petitions bearing Nos. 329 and 330 of 2016.
Since both the petitions arise out of one and same judgment t herefore, same are being
decided through this common judgment.
5. It is an admitted fact of the case that mother of minor (Maria Ali) namely Sehrish
Tajammul Shah was murdered and in this behalf FIR No. 8 of 2013 was registered at Police Station Dera Bugti under sections 302, 120, 109 and 34, P.P.C. The petitioner and his other
brothers and step mother of minor were nominated in the said FIR. Subsequently the matter was patched up by petitioner and legal heirs of deceased Sehrish Tajammul Shah, whereafter a compromise was effected between the parties on basis whereof petitioner was acquitted of
the charge by Additional Sessions Judge Dera Bugti at Sui. According to compromise it was
decided that minor Maria Ali would remain with her maternal grandmother (res pondent
No.3). AW -2 Sajid Ahmed was produced by the petitioner, who admitted these facts during
cross -examination that he was also nominated in the FIR; that it was written in the
compromise deed that minor Maria Ali daughter of late Sehrish Tajammul Shah would remain in custody of her maternal grandmother. It has also come on record that the petitioner (father of minor) being a businessman remained outside the country for his business. It is stated earlier that the petitioner, his brother and his other wif e (stepmother of minor Maria)
were nominated in FIR for murder of minor's mother. According to the witnesses produced by petitioner, the petitioner goes to Saudi Arabia and Dubai for business purposes, which means that when petitioner is not available in t he country to look- after the affairs of minor,
she will have to live with her stepmother without her father being around. Under such circumstances if custody of minor is handed over to petitioner, how can it be expected that minor who has lost her mother w ould be provided a loving environment and how can it be
expected that it would be conducive to her upbringing to live amongst strangers while her father/petitioner is also usually not around. Mother of minor girl late Sehrish Tajammul Shah was murdered and the petitioner along with his brothers and other relatives were nominated
and the name of wife of petitioner i.e. stepmother of minor was also mentioned in the FIR, who is still an absconder in the said FIR and her perpetual warrants were also issued by t he
Additional Sessions Judge Dera Bugti at Sui. Under such circumstances, how can safety of
the minor lie with the step mother who is an absconder in murder case of her real mother. The stepmother under such circumstances cannot be expected to give real lo ve and affection
to minor as can be given by maternal grandmother. The minor has been living with
respondent No.3 i.e. her grandmother since long. It is not proved by the petitioner that the environment of respondent No.3's house is not conducive to upbrin ging of the minor who is a
very tender aged and required love and affection and care of a female at this stage and through the evidence it is clear that love that can be provided by maternal grandmother
cannot be expected to be provided by stepmother, who is absconder in murder case of real
mother of minor.
6. There is also no denial of the fact that the father is natural guardian of children but
while dealing with the question of custody of minor, the welfare of the minor, is a paramount
consideration. Since, father is not around for most of the time, it means that stepmother will be holding custody of the minor and if custody is handed over to the petitioner it would definitely have an adverse impact on the physical, moral, spiritual and psychological wellbeing of the minor. The trial court as well as appellate court after considering the evidence produced by the parties rightly decided the issued in respect of custody of minor in favor of respondent No.3.
7. However, as far as question of appointment of respondent No.3 as guardian of minor
by appellate court, is concerned, according to clause B of section 19 of the Act, 1890, no Court is authorized to appoint or declare a guardian of the person of a minor whose father is alive and is not u nfit to be guardian of the person of that minor. This provision of law is
based on the assumption prevailing in all civilized systems of law that the father is the natural guardian of his children, and, therefore, during his lifetime no person can be appoi nted a guardian, unless the father is deemed to be unfit for guardianship. That being the
case, the father himself also cannot be appointed a guardian, because the very fact that he is
the father constitutes him the guardian. For these reasons we consider the order passed by the appellate court dated 16.12.2015 in respect of appointment of respondent No.3 Mst. Yasmin Akhtar as guardian of minor as erroneous in law, therefore same is set aside.
8. While disposing of the applications of petitioner and respondent No.3 the trial court
passed the order in respect of meeting of the petitioner with minor and it was scheduled that "meeting of the applicant with minor is scheduled to take place once in a month at the office of Civil Nazir on 3rd Sunday of each month from 11:00 a.m. to 1:00 p.m". Admittedly the
petitioner is real father of the minor and mother of minor has passed away. In the absence of real mother, father has the right to see and meet with minor. Denial of such legal right is tantamount to deprive the minor from love and affection of her real father, which is against
the welfare of minor, for the reason that a minor needs love and affection of both his paternal and maternal relations. She could not be deprived of love and affection of either of two blo od
relations. The minor should have maximum interaction with her real father and other relations as well. Even, otherwise if her permanent custody is with her maternal grandmother, otherwise, it may cause distress in the mind of the child, which may ultima tely
leave a vacuum in the development of her personality. In fact the maternal grandmother should not create undue hurdle in enabling the minor to develop healthy relationship with her father side, which can only be developed if she is allowed to spend a reasonable period of time with him. In our humble view, the trial court has wrongly chalked out the visitation schedule of minor, which is hereby modified in the following manner:
"(i) The interim custody of minor shall be handed over to the petitioner on every
Saturday of the Calendar month at 10:00 am and shall return the custody of the minor to respondent (Yasmeen Akhtar) at 5:00 pm on the same day.
(ii) On the occasion of Eid- ul-Fitr and Eid- ul-Adha, the petitioner (father) shall be
entitled for interim custody of the minor on second day of both Eids from 10:00 am
and he shall return the interim custody of the minor to the respondent on the same day at 5:00 pm.
(iii) On the occasion of birth day of the minor, the petitioner father) shall be entitled for interim custody of the minor from 10:00 am and he shall return the custody of the minor to the respondent on the same day at 5:00 pm.
(iv) On the occasion of birth day of the petitioner (father) of the minor, the petitioner shall be entitl ed for interim custody of the minor from 10:00 am and he shall return
the custody of the minor to the respondent on the same day at 5:00 p.m.
(v) The Civil Nazir or bailiff be deputed by the trial Court (Family Judge -II Quetta) to
collect the minor from the residence of respondent and maternal grandmother (Yasmin Akhtar) at 10:00 am along with a representative of the petitioner, take her to residence arranged by the petitioner, and thereafter along with representative of respondent (grandmother of minor) c ollect her from the petitioner on the same day
and drop her hack at the residence of respondent (Yasmin Akhtar)."
In view of above the judgment and decree dated 16th December, 2015 passed by the
learned Additional District Judge- IV, Quetta is set aside. H owever, the judgment and decree
dated 10.07.2015 passed by learned Family Judge -II, Quetta is upheld except the above
modification in the visitation schedule of minor.
These petitions are otherwise dismissed on merits.
ZC/115/Bal. Petition 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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