2020 M L D 368 03/03/2025, 1:04 PM

2020 M L D 368
[Lahore]
Before Shujaat Ali Khan, J
MUKHTAR AHMED SHAHZAD---Petitioner
Versus
MUHAMMAD ADEEL and others---Respondents
Writ Petition No. 20142 of 2019, decided on 28th November, 2019.
Guardians and Wards Act (VIII of 1890)---
----S. 25---Custody of minor---Welfare of minor---Second marriage by father---Contest between
maternal grandfather and real father of minor---Scope---Petitioner / grandfather impugned order of
Appellate Court whereby custody of minor granted to grandfather by Guardian Court, was set aside---
Validity---Minor had been living with maternal grandfather since last six years when the minor's now
deceased mother had been abandoned by the husband / father---Husband / father had contracted
second marriage out of which he had two children, therefore handing over minor to him would leave
minor at mercy of step-mother---When a father contracted second marriage, his right for appointment
as guardian in routine vanished, and the Court was supposed to be more cautious in such cases---
Father, in the present case, had made no effort to see minor over the years, which showed his lack of
interest in minor's welfare---Grandfather was ready to arrange meeting of minor with real father---
High Court set aside impugned order and held that petitioner / maternal grandfather was to be
guardian of minor, and prescribed schedule / conditions of meeting of minor with father---
Constitutional petition was allowed, accordingly.
Para Nos.353 and 353 of Mohammadan Law by D.F. Mullah ref.
Muhammad Ashraf v. Mst. Sakina and 2 others 1989 SCMR 1277; Mst. Naseem and another v. Ali
Akbar and another PLD 2015 Bal. 30; Fazlur Rehman v. Mst. Shazia Bibi and 2 others 2015 CLC
116; Shaukat Pervez Butt v. Mst. Nargis Sultana and another PLD 1988 Lah. 290 and Jamshed Sultan
Taimoori v. Mst. Anisa Begum PLD 1980 Kar. 299 rel.
Rana Rashid Akram Khan for Petitioner.
Mian Muzaffar Hussain for Respondent No.l.
ORDER
SHUJAAT ALI KHAN, J.---Briefly put, both the petitioner (maternal grandfather) as well as
respondent No.1 (real father) filed their independent Guardianship Petitions for custody of the Ward,
namely, Tooba Noor. The learned Guardian Judge, Toba Tek Singh vide consolidated judgment and
decree 19.10.2018, while accepting the Guardianship Petition filed by the petitioner dismissed that of
respondent No.1 against which respondent No.1 filed an appeal and succeeded to get reversed the
findings of the learned Guardian Judge as the appeal filed by him was accepted by the learned District
Judge, Toba Tek Singh (learned Appellate Court) through judgment and decree dated 4.3.2019, hence
this petition.
2. Learned counsel for the petitioner contends that learned Appellate Court omitted to note that
since desertion of her mother respondent No.1, the Ward has been living with the petitioner, thus, she
has developed love and affection with him; that after solemnization of second marriage respondent
No.1 had no vested right to claim custody of the Ward; that learned Appellate Court though discussed
Para Nos.353 and 353 of Mohammadan Law by D.F. Mullah but misapplied the same; that mala fide

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2020 M L D 368 03/03/2025, 1:04 PM

on the part of respondent No.1 is evident from the fact that neither he ever made any effort to see the
Ward nor got prepared Form-B just to deprive her from admission in a renowned educational
institution.
3. Conversely, learned counsel representing No.1 states that since the maternal grandmother never
filed any proceedings seeking custody of the Ward it cannot be believed that the Ward is being looked
after by her; that in presence of real father nobody else can be appointed as guardian and that the
petitioner being old man and dependent upon income of others cannot maintain the Ward in a
befitting manner.
4. I have heard learned counsel for the parties at considerable length and have also gone through
the documents, annexed with this petition.
5. Admittedly, the Ward is living with the petitioner since the year 2013 when her late mother was
deserted by respondent No.1, thus, it is natural that the Ward has developed attachment with him.
Further, respondent No.1 has contracted second marriage out of which he has two siblings, thus,
handing over of Ward to respondent No.1 would amount to leave her at the mercy of step-mother.
When a father contracts second marriage his right for appointment as guardian in routine vanishes
rather the court is supposed to be more cautious. Reliance in this regard is placed on the case reported
as Muhammad Ashraf v. Mst. Sakina and 2 others (1989 SCMR 1277), Mst. Naseem and another v.
Ali Akbar and another (PLD 2015 Balochistan 30), Fazlur Rehman v. Mst. Shazia Bibi and 2 others
(2015 CLC 116), Shaukat Pervez Butt v. Mst. Nargis Sultana and another (PLD 1988 Lahore 290) and
Jamshed Sultan Taimoori v. Mst. Anisa Begum (PLD 1980 Karachi 299).
6. Admittedly, respondent No.1 neither made any effort to see the Ward nor arrange any gift for her
at any occasion especially Eid or Birthday etc. which shows his lack of interest towards welfare of the
Ward which fact was ignored by learned Appellate Court.
7. During the course of arguments, learned counsel for respondent No.1 took clear cut stance that
since the petitioner himself is dependent upon others he cannot maintain the Ward in a proper way but
did not point out anything to show that either the Ward was physically undergrown or she was
suffering from malnutrition. On the other hand, the petitioner has brought on record documents
relating to education of the Ward which shows that the Ward is being properly looked after.
8. During the course of arguments, learned counsel for the petitioner, when confronted with the
query as to how the Ward can be kept away from her real father, states that the petitioner is ready to
arrange for meeting of the Ward with respondent No.1/real father.
9. It is imperative to note that though consolidated judgment was passed by the learned Guardian
Judge in two independent Guardianship Petitions and respondent No.1 was supposed to file separate
appeals but he contented with the one out of which instant petition has emanated.
10. For what has been discussed above, instant petition is accepted and the impugned verdict
rendered by learned Appellate Court is set-aside, as a result, the appeal filed by respondent No.1
before learned Appellate Court shall stand dismissed and the verdict of learned Guardian Judge shall
hold the field. However, following meeting schedule is devised for meeting of the Ward with
respondent No.1.
i. Respondent No.1 would be entitled to have meeting with the Ward on every alternate Saturday
from 10.00 a.m. to 2.00 p.m. in the court of learned Guardian Judge Toba Tek Singh, however,
the parties would be at liberty to change the venue to another place with their mutual consent.
ii. Respondent No.1 would be entitled to custody of the Ward for first two weeks in summer
vacations.
iii. In winter vacations which generally start from 21st December and end on 30th December,
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2020 M L D 368 03/03/2025, 1:04 PM

respondent No.1 would be entitled to have custody of the Ward for half of winter vacations.
iv. The Ward shall be handed over to respondent No.1 on the second day of Eid-ul-Fitr and
respondent No.1 shall return her to the petitioner on the next day before the sunset.
v. Respondent No.1 would be entitled to have custody of the Ward on second day of Eid-ul-Adha at
10.00 a.m. and shall return her to the petitioner on the next day before sunset.
vi. To ensure that the Ward is not shifted beyond the territorial limits of the learned Guardian
Judge concerned, respondent No.1 shall furnish surety in the sum of Rs.2,00,000/- to the
satisfaction of learned Guardian Judge concerned.
KMZ/M-200/L Petition accepted.
;

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