2018 S C M R 590

2018 S C M R 590
[Supreme Court of Pakistan]
Present: Mian Saqib Nisar, C.J., Faisal Arab and Ijaz Ul Ahsan, JJ
NASIR RAZA---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, JHELUM and another---Respondents
Civil Petition No. 2393 of 2017, decided on 3rd January, 2018.
(Against judgment dated 19.05.2017 of Lahore High Court, Rawalpindi

Bench, Rawalpindi, passed in Writ Petition No. 1746 of 2014)
Guardians and Wards Act (VII of 1890)---
----Ss. 7 & 25---Custody and guardianship of minor children after death of

their mother---Father as the natural guardian of minors in comparison to
maternal grandmother---Petitioner/father was the natural guardian of
the children after their mother's death---On account of their respective
ages, the right of Hizanat of the minors (in the present case) no longer
vested in their maternal grandmother---Father of the children was ready
and willing to look after them and had the financial resources to fulfil
their material needs and educational requirements---Father had neither
returned to his job abroad nor remarried keeping in view the welfare
and best interest of his children---Children could not be deprived of the
company, love and affection of their real father---Paternal grandmother
of the children was also available in the father's house to help him look
after and raise the children---Father did not suffer from any legal
disability that may deprive him from his legal right to have custody of his
children---Prima facie, the best interest and welfare of the minors laid in
handing over their custody to their real father---Supreme Court directed
that the custody of the minors shall be handed over to their father within
one week, and that the father shall ensure that the minors spent week-
ends with their maternal grandmother for a specified time period.
Basharat Ullah Khan, Advocate Supreme Court and Syed Rafaqat

H. Shah, Advocate-on-Record for Petitioner.
Saeed Yusuf Khan, Advocate Supreme Court along with

Respondent No.2 and Minor for Respondents.
Date of hearing: 3rd January, 2018.

ORDER
IJAZ UL AHSAN, J.---The petitioner seeks leave to appeal against a

judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated
19.05.2017. Through the impugned judgment, a Constitutional Petition
(W.P. No.1746 of 2014), filed by Respondent No.2 was allowed; judgment
and decree of the learned Additional District Judge, Jhelum, dated
29.04.2014 was set aside and the orders dated 16.12.2013 passed by the
learned Guardian Judge, Sohawa, District Jhelum were restored.
2. Brief facts necessary for decision of this lis are that the petitioner was
married to Mst. Shamim Akhtar, daughter of Respondent No.2 on
07.11.2001 in accordance with Muslim Rites. From the wedlock, four
children namely Areej Nasir, Aiman Nasir (daughters), Ahsan Raza and
Ahmed Raza (sons) were born. Mst. Shamim Akhtar died on 26.09.2011
and disputes arose regarding custody of the minors. At that time, Areej
Nasir, Aiman Nasir and Ahsan Raza were in the custody of their
maternal grandmother/Respondent No.2 Walayet Begum. She filed a
petition under Section 25 of the Guardians and Wards Act, 1890 ("The
Act") for custody of minor Ahmed Raze and also filed an application
under section 7 of the Act for her appointment as guardian of the minors
who were already in her custody. The petitioner, who is the real father of
the children, also moved an application seeking custody of the three
minors. The learned Guardian Judge allowed the applications of
Respondent No.2 (Walayet Begum) and dismissed that of the petitioner
through separate orders on 16.12.2013.
3. Being aggrieved, the petitioner preferred appeals before the learned

Additional District Judge, Jhelum. Through judgment and decree dated
29.04.2014, the said appeals were allowed and Respondent No.2 was
directed to handover custody of the minors to the petitioner. Against this
order, Respondent No.2 approached the High Court in its constitutional
jurisdiction. Through the impugned judgment, the Constitutional petition
was allowed; the orders of the learned Guardian Judge were restored
and while granting custody to Walayet Begum, the High Court fixed a
schedule of visitation to enable the petitioner, who is real father of the
children, to visit end meet the minors off and on.
4 The petitioner is dissatisfied with the impugned judgment of the High

Court and has approached this Court.
5. The learned counsel for the petitioner submits that Respondent No.2
has lost the right of Hizanat with the passage of time. She is 67 years of
age and in bad health; and the children are being looked after by their
step maternal aunt who is not in a position to look after and educate the
children properly. He submits that being the real father, the petitioner
has natural love and affection for his children, has not returned to his job
abroad and has not remarried. He further submits that petitioner's
mother who is a sister of Walayet Begum and is younger in age is
available in the house to look after the children. Further, the petitioner is
financially sound, resides in the city and can better look after and
educate his children.
6. The learned counsel for Respondent No.2 on the other hand submits
that the children have lived with their grandmother since they lost their
mother. They have developed emotional attachment with their maternal
grandmother and their welfare lies in remaining in her custody.
7. We have heard the learned counsel for the parties and gone through
the record. There is no denial of the fact that the father is the natural
guardian of the children. On account of their respective ages, the right of
Hizanat of the minors no longer vests in their maternal grandmother.
The petitioner, who is real father of the children, is ready and willing to
look after the children and has the financial resources to fulfil their
material needs and educational requirements. He has neither returned
to his job abroad nor remarried keeping in view the welfare and best
interest of his children. His mother, a younger sister of Respondent No.2,
is also available in the house to help him look after and raise the
children. Therefore, prima facie, the best interest and welfare of the
minors lies in handing over their custody to the petitioner, the real
father. There is nothing on record to suggest and it has not even been
alleged that he is unfit, unable or unwilling to perform his duties as a
guardian of his children. In our opinion, it would be unjust and unfair to
deprive the children of the company, love and affection of their real
father. Specially so, where the father does not suffer from any legal
disability that may deprive him from his legal right to have custody of his
children.
8. In these circumstances, we are unable to agree with and subscribe to

the reasoning and conclusions recorded by the learned High Court.
9. In view of the foregoing, we convert this petition into an appeal and

allow the same. The impugned judgment of the High Court is set aside
and judgment and decree dated 29.04.2015, passed by the learned
Additional District Judge, Jhelum is affirmed. We direct that custody of
the minors shall be handed over to the petitioner within one week from
today.
10. We are also mindful of the fact that the children have spent sufficient
amount of time with their maternal grandmother Walayet Begum and
have developed emotional attachment to her. It would therefore neither
be appropriate nor advisable to sever such bond. We, therefore, direct
that the petitioner shall ensure that the minors spend sufficient time with
Respondent No.2 Walayek Begum, the, grandmother. They shall be
allowed to spend weekends with their maternal grandmother. They shall
be dropped at her house on every Saturday at 2:00 p.m. and picked up
the next day i.e. Sunday at 4:00 p.m. The parties may, however, seek
modification of this arrangement to cater for their mutual convenience
by moving joint applications before the concerned Guardian Court.
MWA/N-2/SC Appeal allowed.

;

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2018 S C M R 590

[Supreme Court of Pakistan]

ADDITIONAL DISTRICT JUDGE, JHELUM and another---Respondents

Civil Petition No. 2393 of 2017, decided on 3rd January, 2018.

(Against judgment dated 19.05.2017 of Lahore High Court, Rawalpindi

Guardians and Wards Act (VII of 1890)---

----Ss. 7 & 25---Custody and guardianship of minor children after death of

Basharat Ullah Khan, Advocate Supreme Court and Syed Rafaqat

Saeed Yusuf Khan, Advocate Supreme Court along with

Date of hearing: 3rd January, 2018.

IJAZ UL AHSAN, J.---The petitioner seeks leave to appeal against a

3. Being aggrieved, the petitioner preferred appeals before the learned

4 The petitioner is dissatisfied with the impugned judgment of the High

8. In these circumstances, we are unable to agree with and subscribe to

9. In view of the foregoing, we convert this petition into an appeal and

MWA/N-2/SC Appeal allowed.

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