Law: Guardians and Wards Act (VIII of 1890)

Section: 7,25

Law: Constitution of Pakistan, 1973

Section: 199

(a)  Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 25---Constitution of Pakistan, Art. 199---Custody of minor---Welfare of minor---Determining factors---Scope---Judgments at variance---Guardian petition filed by maternal grandmother/ respondent through her daughter being special attorney against the father of minor/petitioner was dismissed by the Guardian Court, but the same was allowed by the Appellate Court---Petitioner challenged appellate decision through a constitutional petition in which despite grant of stay of execution proceedings, executing court went on to pass the impugned orders and handed over the custody of the minor---Validity--- Paramount and supreme consideration in custody of minor is the welfare of minor and nothing else---Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Courts on such yardstick and the Court has to record a definite finding on the point before passing any order in the matter---Guardian Court, while passing order, has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law to which the minor is subject to---Nothing had been alleged against petitioner, which could disqualify or disentitle him from custody of the minor---Petitioner had better capacity to look after and educate his daughter and did not have any disqualification envisaged by law and even otherwise he right from inception was vigorously pursuing the remedies to obtain the custody of his daughter, whereas the respondent/maternal grandmother was aged about 80 years and in bad health having no source of income---Factum of ailment of the respondent was admitted by her daughter being her special attorney during her cross-examination---Respondent was fully dependent on her daughters, who were working ladies and most of the time they remained at their job places and one of them converted from Islam to Bahai religion---Minor was studying at Lahore after shifting from Rawalpindi to Lahore and she was getting proper education at a private school---Executing Court instead of complying with the stay order passed by High Court proceeded to continue execution proceedings, which was highly objectionable---High Court directed the District Judge to probe into the matter and submit a report for further necessary action---Constitutional jurisdiction vested in terms of Art.199 of the Constitution casts a duty upon the court to curb the illegality or gross misreading committed by any of the courts below, while determining the rights of the parties-

--Constitutional petitions were allowed, in circumstances.