Child custody transfers from grandmother to mother. Mother wins custody despite being accused of murdering her husband.
دادی سے لے کر ماں کو بچے کی کسٹٹڈی کیوں دے دی ؟
پس منظر
نابالغ لڑکے محمد دانیال کے لیے اس کی والدہ حنا امتیاز اور اس کی پھوپھی کے درمیان والد کے قتل کے بعد حراستی جنگ کے گرد گھومتا ہے
یہ مقدمہ ایک نابالغ لڑکے محمد دانیال کے لیے اس کی والدہ حنا امتیاز اور اس کی پھوپھی کے درمیان والد کے قتل کے بعد حراستی جنگ کے گرد گھومتا ہے۔ حنا امتیاز، جسے گرفتار کیا گیا تھا اور اپنے شوہر کے قتل میں ملوث ہونے کا الزام ہے، ضمانت پر رہا ہونے کے بعد کسٹڈی کی تلاش میں ہے۔ ابتدائی طور پر، گارڈین کورٹ نے اس کو کسٹڈی کی اجازت دی، لیکن اپیل کورٹ نے اس کے خلاف سنگین الزامات کی وجہ سے اس فیصلے کو کالعدم قرار دے دیا، اور اس بات پر زور دیا کہ لڑکے کی بہبود اس کی دادی کے ساتھ بہترین تھی۔ تاہم، حنا امتیاز نے اس فیصلے کو چیلنج کیا، جس کی وجہ سے لاہور ہائی کورٹ میں موجودہ درخواست دائر کی گئی ہے۔
لاہور ہائی کورٹ دونوں فریقین کے طرز عمل اور محرکات کا جائزہ لیتی ہے۔ دادی کی حرکتیں تشویش میں اضافہ کرتی ہیں، خاص طور پر نابالغ لڑکے کی جائیداد کے ساتھ اس کی جائیداد کا سرپرست مقرر کیے بغیر، اور متعدد احکامات کے باوجود لڑکے کو عدالت میں پیش کرنے میں دادی ناکام رہتی ہے۔۔ عدالت کو لڑکے کے بہترین مفادات کا تعین کرنے کا کام سونپا گیا ہے، ماں کے خلاف سنگین الزامات کو دادی کے قابل اعتراض طرز عمل کے ساتھ متوازن کرنا ہے۔
نتیجہ
بالآخر، عدالت کو ان عوامل کو تول کر اور نابالغ کی بہبود کو ترجیح دیتے ہوئے سرپرستی کا فیصلہ کرتی ھے اور بچے کی کسٹڈی ماں کے حوالے کر دیتی ھے۔یہ مقدمہ سرپرستی کے پیچیدہ مسائل، قانونی نظام کے الزامات سے نمٹنے اور عدالتی فیصلوں میں بچوں کی فلاح و بہبود کی بنیادی اہمیت کو اجاگر کرتا ہے۔
English version
The case revolves around a custody battle for a minor boy, Muhammad Daniyal, between his mother, Hina Imtiaz, and his paternal grandmother, after the father was murdered. Hina Imtiaz, who was arrested and accused of being involved in her husband's murder, seeks custody after being released on bail. Initially, the Guardian Court allowed her custody, but the Appellate Court overturned this decision due to the serious accusations against her, asserting that the boy's welfare was best secured with his grandmother. However, this ruling is contested by Hina Imtiaz, leading to the present petition in the Lahore High Court.
The Lahore High Court examines the conduct and motivations of both parties. The grandmother's actions raise concerns, particularly her dealings with the minor boy's property without being appointed as guardian of the property, and her failure to produce the boy in court despite multiple orders. The Court is tasked with determining the boy's best interests, balancing the serious allegations against the mother with the questionable conduct of the grandmother.
Ultimately, the court has to decide on the guardianship by weighing these factors and prioritizing the minor's welfare. The case highlights complex issues of guardianship, the legal system's handling of accusations, and the paramount importance of a child's welfare in judicial decisions.
In the case, the Lahore High Court awarded custody of the minor boy, Muhammad Daniyal, to his mother, Hina Imtiaz. Despite the serious accusations against her in the murder of her husband, the court found that the paternal grandmother's conduct and actions raised significant concerns. The grandmother's dealings with the boy's property without proper guardianship and her failure to comply with court orders were pivotal in the court's decision. The High Court prioritized the welfare of the child, ultimately deciding that Hina Imtiaz should have custody.
Must read Judgement
Stereo. H C J D A 38.
Judgment Sheet
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
W.P No.3513/2023
Hina Imtiaz Vs. Additional District Judge etc.
J U D G M E N T
Dates of Hearing 07.11.2023, 15.11.2023, 17.11.2023,
21.11.2023, 28.11.2023, 29.11.2023,
13.12.2023, 02.05.2024, 09.05.2024,
20.05.2024 and 24.05.2024.
Petitioner by:
Mr. Sajid Hussain Bhatti, Advocate along
with petitioner.
State by:
Mr. Mohsin Raza Bhatti, Assistant Attorney
General.
M/s M. Saad Bin Ghazi, Imran Khan and
Hussain Ibrahim Muhammad, Assistant
Advocates General, Punjab.
Muhammad Ali, Sub Inspector with minor,
Shama Ilyas, Child Protection Officer
(Legal) on behalf of Child Protection
Welfare Bureau, Lahore.
Respondents No.
2 and 3 by:
M/s Riaz Ahmad Kharal and Muhammad
Waqas, Advocates alongwith respondent
No.2 and the minor boy.
Anwaar Hussain J: By way of factual background, it has been
noted that the petitioner was married to one Imtiaz Bhatti from whose
wedlock two children were born. The issue in the present petition
relates and is confined to the custody of the minor boy namely,
Muhammad Daniyal (“minor boy”). The other child is the minor girl
namely, Muskan (“minor girl”). Both the minor boy and the minor
girl are hereinafter collectively referred to as “the minors”. The
socio-psychological ordeal of the minors in general and the minor boy
in particular finds its genesis and commenced when the father of the
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W.P No.3513/2023
minors was murdered. The minors have lost their father to a crime and
their misfortune had worsened, as the petitioner who is their mother,
was arrested as a co-accused in the said criminal case. The petitioner
was arrested and the minor girl aged 05-years at that time was left to
spend her infancy/childhood with the petitioner, in jail, until the
petitioner was released on bail whereas the minor boy was kept by
respondent No.2/the paternal grandmother (“respondent
grandmother”). The petitioner after her release on bail, approached
this Court by filing habeas petition, for recovery of the minor boy,
which was admittedly dismissed by this Court primarily, on the basis
that the respondent grandmother had obtained an injunctive order
from the Guardian Court, Okara in an application for appointment of
guardian of the minor boy and order of this Court was upheld by the
Supreme Court of Pakistan. It was left to the wisdom of the Guardian
Court to decide the issue of guardianship of the minor boy. The
petitioner then approached the Guardian Court concerned with an
application for custody of the minor boy and also contested pending
guardian petition filed by the respondent grandmother. The Trial
Court allowed custody petition of the petitioner and dismissed the
guardian petition of the respondent grandmother, however, the
Appellate Court below, vide impugned judgment dated 08.12.2022
has upended the said decision of the Trial Court on the ground that the
petitioner is accused of murder of her husband-father of the minors
and hence, it is not in the welfare of the minor boy to appoint the
petitioner as his guardian. Hence, the present petition.
2.
An attempt, at the outset, was made today by vice counsel of
Sardar Khurram Latif Khosa, Advocate with request to submit power
of attorney executed by respondents No.2 and 3, while superseding
Rai Riaz Ahmad Kharal, Advocate, without obtaining NOC from the
latter, who represents respondents No.2 and 3. The latter confirms this
fact. It is also observed that Rai Riaz Ahmad Kharal, Advocate
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W.P No.3513/2023
himself had superseded another counsel namely, Sheikh Saeed
Ahmad, Advocate with the averments that the matter was earlier being
dealt with by erstwhile counsel whose ill-advice has made respondent
grandmother and respondent No.3 to become fugitive from the Court
and they had disappeared along with the minor boy and the said
Sheikh Saeed Ahmad, Advocate then ceased to appear in this case.
The attempt on behalf of respondent grandmother and respondent
No.3 to engage another counsel who not even bothered to appear
today to argue the matter and has deputed an associate form his office
is deprecated and the power of attorney is not taken on record. It is
imperative to state that this case has been heard on multiple dates so
as to assess and ascertain the welfare of the minor boy, under peculiar
facts and circumstances of the case.
3.
Learned counsel for the petitioner submits that the Appellate
Court below decided the matter on the basis of the assumption that
welfare of the minor boy does not lie with the petitioner as the latter
has been charged with accusation of facilitating murder of her
deceased husband, which is misconceived as the petitioner is merely
an accused at the moment and depriving a child from the love of the
mother, on the basis of mere accusation is prima facie an erroneous
decision. It is the case of the petitioner that she is the natural guardian,
and it is settled principle of law that minor’s welfare is best secured in
the hands of the mother and not the respondent grandmother who has
conflict of interest qua the property of the minors. Conversely, it is
case of the respondent grandmother that the petitioner is accused of
committing murder of her deceased husband/father of the minors,
therefore, preference should be given to the paternal relatives in
general and the respondent grandmother in particular, which aspect
has been correctly appreciated by the Appellate Court below. On a
pointed question as to that if she had love and affection for the
children of her deceased son, why the respondent grandmother was
W.P No.3513/2023
not conscious of wellbeing of the minor girl (her real grand-daughter),
at the time when she approached the Trial Court, by filing the
guardian petition in respect of the minor boy, no plausible explanation
could be extended. However, learned counsel for the respondent states
that petition for guardianship of the minor daughter has been also filed
on 25.01.2023 and is pending adjudication and seeks permission to
submit certified copy of the same, which is taken on record as Mark
‘B’. Adds that this Court has limited scope to review the decision of
Appellate Court below in respect of welfare of the minor.
4.
Arguments heard. Record perused.
5.
While appointing a guardian and/or granting custody of a
minor, the Courts are always obligated to consider a number of factors
and is to be guided by the same as laid down in Section 17 of the
Guardians and Wards Act, 1890 (“Act”). However, the same are
neither conclusive nor exhaustive for the determination as the
overarching and pivotal consideration is always the welfare of the
minor.
6.
A minor of very young age, like the minors in the present case,
ought to be with their mother in ordinary circumstances, as it is the
mother in whose hands a child’s welfare is best secured and her lap is
considered as heavenly abode. However, as stated above, it is trite and
well-established principle that in deciding about a minor’s custody or
his/her guardianship, the welfare of the minor is of paramount
consideration. This principle is embodied under Section 17 of the Act.
The word “ordinarily” has much significance. It takes into account the
circumstances that could be emergent in a case where the mother
might be disqualified to hold a minor’s custody. There could be cases
where the minor’s welfare may not be best secured in the mother’s
hand. Certainly, such circumstances disentitling her from custody/
guardianship would have to be clearly pleaded and undisputedly
W.P No.3513/2023
proved. These could be, the mother being physically or mentally
incapacitated, or demonstrably living in circumstances where the
minors’ welfare - physical, mental and psychological, would not be
secure, or accused of a crime involving moral turpitude, that would
impact the minor’s welfare.
7.
One of the matters which is required to be considered by a
Court of law is the “character” of the proposed guardian. Thus, a
complaint against the petitioner alleging and attributing the murder of
the father of the minors is indeed a relevant factor while deciding the
custody of the minor boy in favour of such a person. On the facts and
in the circumstances of the case, both the Courts were duty-bound to
consider the allegations against the petitioner and pendency of the
criminal case regarding murder of the spouse, as also the dispute
related to the property of the minors.
8.
As welfare of a minor is a social aspect to be determined and
measured with reference to his own distinct social milieu and frame of
reference, the same becomes an objective assessment on the basis of
subjective material of each case available before the Court. Thus, the
factual aspect of a mother having been accused of murder of her
husband-father of the minor(s) would always weigh heavily with the
Court in appointing guardian and granting custody of the minor to the
said mother but the same cannot be considered as conclusive factor as
it is only a measure and mean to determine the ultimate aim of welfare
of minor. There might be other factors which outweigh the mother
being accused of murder in the overall determination of welfare of
minor. Before answering the fundamental question as to whether a
child’s custody could be entrusted to the accused-the petitioner so
long as her guilt or innocence is not determined, it is imperative to
analyze the chain of events that took place after filing of the present
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W.P No.3513/2023
9.
After issuance of notice and appearance of the parties, the
parties were asked to produce the minors before this Court through
order dated 27.09.2023. While the petitioner produced the minor girl
before this Court, the respondent grandmother along with other
respondents kept on lingering the matter on one pretext or the other.
On 07.11.2023, learned Law Officer was directed to ensure that the
respondents are intimated through law enforcing agencies that the
minor boy shall be produced on the next date of hearing. Respondent
No.4 namely, Muhammad Munir, who is real paternal uncle of the
minor boy tendered appearance on 07.11.2023 and submitted that the
custody of the minor is with respondent No.3 who is paternal aunt of
the minor boy and submitted that he has no objection viz-a-viz the
grant of custody of the minor boy to the petitioner. On 15.11.2023,
Station House Officer, Police Station Mandi Ahmadabad appeared
and submitted that he has raided the house of the respondents
(respondent grandmother and paternal aunt, namely, Azra
Bibi/respondent No.3), however, they are not residing at the given
address. When confronted with the sorry state of affairs qua the
conduct of the said respondents who were retaining custody of the
minor boy, Sheikh Saeed Ahmad, Advocate who was representing the
said respondents (including grandmother), submitted that he has also
tried to reach out to the respondents but remained unsuccessful. The
SHO who was in attendance was directed to ensure the recovery and
production of the minor boy before this Court on the next date of
hearing. On failure of SHO to trace out the respondents having
custody of the minor boy, District Police Officer, Okara was directed
to appear in person. Thereafter, on 28.11.2023, Sheikh Saeed Ahmad,
Advocate again submitted that he has been trying hard to reach out his
clients but has remained unsuccessful, therefore, he will be filing an
application for withdrawal of his power of attorney. Mansoor Amaan,
District Police Officer, Okara appeared and stated that despite hectic
W.P No.3513/2023
efforts the minor boy could not be traced out. On Court’s query, the
official in attendance stated that there is piece of land vesting in the
name of the minor boy, which is being cultivated by the lessee of the
respondents, including respondent grandmother and perhaps the same
is the reason as also the bone of contention between the parties. The
Revenue Officials concerned were directed not to create any thirdparty interest in respect of the property of the minor boy and it was
directed that the lessee cultivating the land be also intimated and
directed to appear on the next date of hearing. On 29.11.2023, when
the case was called, at the outset, one Mian Mazhar Hussain,
Advocate appeared and stated that he represents one Mian Asif
Shakir, Advocate (“the lessee”), who is the lessee of the property. He
submitted that the lessee is a practicing advocate and was last
contacted by the respondent grandmother and respondent No. 3,
telephonically, on 13.11.2023 whereafter the said respondents were
not in touch with the lessee. The Police Officials also verified this fact
on the basis of CDR that the last call from the cell number of the
respondent grandmother was made to the lessee, on the said date
whereafter the former switched off her cell phone. Mian Mazhar
Hussain, Advocate, also contended that the police officials have acted
illegally and improperly by harassing the family of the lessee just to
know the whereabouts of the respondents; that the lessee entered into
the lease agreement, in respect of the land, in accordance with law and
sought permission to submit copy of the lease agreement, which was
taken on record as Mark ‘A’. Perusal of lease agreement depicts that
an amount of Rs.9,112,500/- has been purportedly paid in cash by the
lessee to the respondent grandmother and respondent No. 3. It does
not find mention in the lease agreement that the respondents acted as
guardian of the minor boy and the lease money was received for his
benefit. When confronted, learned counsel for the lessee asserted that
there is litigation between the respondents and the minor boy qua the
W.P No.3513/2023
ownership of part of the lease property as the said property was owned
by the grandfather of the minor boy (husband of respondent No.2/
grandmother and father of respondent No. 3) who made a gift of the
same and the said gift has been disputed and challenged. It is worth
mentioning that the respondent grandmother was only appointed as
guardian of person of the minor boy and not guardian of the property.
It was evident from the above-mentioned facts that, prima facie, the
minor boy, in whom valuable immovable property vests, had been
hard done out of the motivation to grab his property, which raised
serious concerns and apprehensions as to the security and safety of the
minor boy and therefore, the Police Officials were directed to ensure
production of the minor boy, on the next date of hearing, and while
proceeding so, they were directed not to exceed the legal limits and
cause unjust harassment to any individual and matter was adjourned to
07.12.2023, where-after more time was sought by Police Officials
when case was taken up on 13.12.2023. However, the case was not
fixed thereafter until 02.05.2024, when the minor boy, was produced
before this Court by the hectic efforts on part of the Police
Department, which were appreciated. On the said date, the
respondents were accompanied by Mr. Rai Ahmed Kharal, Advocate,
who stated that he has been recently engaged as the previous counsel
for the private respondents was not appearing on their behalf. Learned
Counsel for the respondent grandmother candidly conceded that she
was avoiding appearance albeit on account of ill-advice by the former
counsel and it was observed even the ill-advice on part of the counsel
does not warrant disobedience of orders of the Court and to flee the
Courts of law with the minor boy. On a pointed question as to
whether the lease of land, was executed in favour of lessee, on
instructions, it has been acknowledged that the land was given on
lease, however, the lease amount was not fully paid by the lessee to
the respondents.
W.P No.3513/2023
10. The above resume of the chain of events that took place after of
the filing of the present petition has to be put in juxtaposition with the
fundamental question as to whether the petitioner, who is accused of
murder of the father of the minor boy can be entrusted with the
guardianship of the latter. On the one hand is the mother, accused of
charge of committing murder of her husband, and on the other hand is
the respondent grandmother along with paternal aunt/respondent No.3
have adverse interest regarding the property vested in the minor and
their conduct before this Court whereby they willfully disobeyed the
orders of this Court to appear and produce the minor boy coupled with
the fact that they leased out the property of the minor without being
appointed as guardian of the property. At this juncture, it is imperative
to note that while both sides as also the Police Officials have not
given the exact mode through which the lease land has been vested
with the minor till date, only today it transpired that the said land and
other property was originally owned by grandfather of the minors who
gifted the same to his sons that includes deceased father of the minors.
One of the paternal aunt of the minors, namely, Kauser Bibi has laid
challenge to the said gift and the respondent grandmother has not
clearly denied the claim of said Kauser Bibi although respondent
grandmother is dealing with the property, inter alia, vesting with the
minor boy after demise of his father, without being appointed as
guardian of the property.
11. The present case reflects that the principle of welfare of a minor
cannot be considered in absolute terms rather the same is a relative
consideration and, at times, the same may have to be seen and
considered through the prism of what is least detrimental for the
minor, which implies that the Court may have to select a guardian out
of the rival contestants who is least detrimental to the upbringing and
welfare of the minor. In the present case, the fundamental question
which requires adjudication by this Court is to determine the
W.P No.3513/2023
appointment of guardian of a minor between a mother who is accused
of murder of her husband and father of the minor, and the paternal
grandmother of the minor boy who has been dealing with the property
of the minors without being appointed as the guardian thereof.
12. Thus, this Court is to consider the welfare of the minor boy by
juxta-positional and parallel analysis of an accused mother and
respondent grandmother who has acted in a manner which caused
great concern to this Court as to the safety of person and property of
minor boy. It is well evident that in the garb of appointment as
guardian of person of the minor boy, his property has been dealt with,
to the detriment of the minor boy. Perusal of the lease agreement
(Mark ‘A’) reveals that the same was executed on 23.10.2023, well
after filing of the present petition and the respondent grandmother and
respondent No. 3 were served and, on their behalf, adjournments were
solicited on one pretext or the other. On a pointed question, as to why
the respondent grandmother along with respondent No.3 gave away
the valuable property of the minors, on lease to lessee who is statedly
a near relative as well and a lawyer by profession, without seeking
appointment of guardian of the property, there was no plausible
explanation available with the learned counsel for the respondent
grandmother.
13. It is noted that while the Trial Court did not address the effect
of registration of criminal case against the petitioner altogether, the
Appellate Court below was so swayed away with the said aspect of
the matter that it overlooked and swept aside all other aspects such as
the conflict of interest of the proposed guardian (the respondent
grandmother in present case). Another fundamental aspect which was
overlooked by the Appellate Court below was that the minor girl was
also daughter of the deceased son of respondent grandmother but not
only that her custody and/or guardianship was never sought from the
W.P No.3513/2023
Court when guardian petition for custody of the minor boy was filed,
rather, she was left to be brought up in an adverse atmosphere
amongst the prisoners jailed with the petitioner/mother. Similarly,
while seeking the guardianship of the minor boy, the respondent
grandmother never made any effort to bring up siblings in the
company of each other whereas it is right of both the siblings to be
brought up together and spend childhood in each other’s company.
Question arises that if the respondent grandmother was so concerned
about the welfare of the minor boy, what prevented her from
approaching the Court of competent jurisdiction to seek guardianship
of her granddaughter-the minor girl. The application for guardianship
of the minor girl has been filed on 25.01.2023, when the present
petition had already been filed and admitted to regular hearing on
19.01.2023. It is perhaps the property of the minors and not the minor
by himself which has made everyone to plead for his custody/
guardianship. Even the lessee and the respondent grandmother
pleaded adverse positions before this Court regarding the lease
amount as the counsel who appeared on behalf of lessee stated that the
respondent grandmother and respondent No. 3 have been given the
entire leased amount for a period of 03 years in advance to the tune of
Rs. 9,112,500/-, whereas the respondents stated that the entire amount
has not been paid. This factum alone indicates that the welfare of the
minor boy, at least his financial and economic interest are neither safe
nor being carried out in good faith, and this Court apprehends that the
appointment of the respondent grandmother as guardian would put the
person of the minor at peril as well. It is also worth mentioning that
the respondent grandmother acted without good faith as she concealed
factum of filing of the petition at Pakpattan, and approached the
Guardian Court, Okara. When confronted with, learned counsel for
respondent grandmother submits that there was a ‘note’ given at the
bottom of the second petition and there was no concealment, however,
W.P No.3513/2023
he was asked to read the opening sheet of the second guardianship
petition, which contemplates otherwise. Relevant column of the
opening sheet reads as under:
نہیں
۔ آیا کوئی درخواست تقرر ولی عدالت کو پہلے ۷
دی جا چکی ہے اور اس پر کیا نتیجہ ہوا۔
14. The totality of the circumstances on record is to be considered.
There is no cavil to the preposition that moral and ethical values are
even more important and essential considerations over physical
comforts. Had the conduct of the respondent grandmother who was
appointed as guardian by the Appellate Court below been aboveboard
while seeking the appointment in general and after the appointment in
particular, in this case, she could have been preferred by this Court
over the petitioner until the latter is acquitted of the charge against her
inasmuch as it does not augur well for the child's welfare, to be placed
in the custody of a parent, whose fitness to cater to his welfare is in
doubt on account of accusation of committing murder of the spouse. It
is admitted feature of the case that the charge against the petitioner is
one of conspiracy, but true or not, she is accused of her husband’s
murder, along with a paramour. If the charge is proven to be true, the
petitioner would not be an ideal person to groom the minors, whose
welfare not only requires fulfillment of their physical needs, but many
other things, which includes their moral character. One may argue that
if the charge was true, the minors’ safety might also be compromised.
It can also be argued that the petitioner faces a charge about her
husband’s murder, in relation to which, she is facing trial and there is
a possibility, remote or not so remote, that she might be convicted and
sentenced and if that was to happen, while the minors are staying with
her, it would cause great trauma to the minors, to know that their
mother, with whom they have bonded and are living, stands convicted
W.P No.3513/2023
of their father’s murder. But equally important is to keep in sight and
mind that what will happen if the above-mentioned contingency was
not to come true and the minor boy is handed over to the respondent
grandmother. In such eventuality, the minor boy, who has already lost
his father, will be deprived of the love of his mother while he will be
in the custody of respondent grandmother who in instant case has
been dealing with property of the minors without authority, in a
clandestine and suspicious manner. It is certainly a situation which
ought to be avoided. Even otherwise, the petitioner, at present, is
merely an accused and it is settled principle of law that an accused is
the “favourite child of law”, which is the concept based on
farsightedness and prudence that calls for protecting an innocent
person from getting punished. In the instant case, it is not just the
petitioner who will be punished, before the conviction (if awarded) by
deprivation of custody of her son-the minor boy, but the later who
along with the minor girl have already lost their father and through the
impugned decision have been deprived from the love of the mother as
well. It is worth mentioning that the witness of the respondentgrandmother, namely Ibrar Ahmad AW-2, appeared during the
Guardian Court and, while being cross examined, stated that
respondent No.4, before this Court, namely Munir Ahmad, who is real
son of respondent grandmother has filed a complaint that it is the
paternal aunt of the minors (respondent No.3) and her husband who
has committed murder of his deceased brother-father of the minors.
AW-2 stated as under:
ر
W.P No.3513/2023
The above quoted statement of witness of the respondent grandmother
in itself indicates that guilt of the petitioner and/or any other family
member of the deceased is unclear and yet to be determined by the
Court of competent jurisdiction. The respondent grandmother and
respondent No.3 are residing together alongwith the minor boy and
the latter too is accused of the murder of the father of the minors. This
aspect is equally alarming.
15. Moreover, the conflict of interest of the respondent
grandmother qua the minors is further evident from the fact that on
the one hand, paternal aunt of the minor, namely, Kausar Bibi
challenged the gift of property in favour of deceased father of the
minor and arrayed the respondent grandmother as defendant and on
the other hand, the lease agreement (Mark ‘A’) has been jointly
executed in favour of the lessee, inter alia, by Kausar Bibi and the
respondent grandmother.
16. There is yet another angle from which this case can be
examined. While the petitioner and the respondent grandmother
locked their horns to get the custody of the minor boy, welfare of the
minor girl was not considered important by the respondent
grandmother and that deprived the minors to live together as
admittedly, the minor girl is staying with the mother. The respondent
grandmother did not show the same love and affection for the minor
girl, which she has been exhibiting for the minor boy. While
exercising parens patriae jurisdiction, the inter se, separation of the
minors is perturbing for this Court. It is not just parents or
grandparents, who had some rights of custody and/or control over the
minor children but there are rights of the minors to enjoy each other’s
company, as siblings. This Court has already opined in case bearing
Writ Petition No.244677/2018 titled “Imtiaz Hussain Versus District
Judge etc.” (2023 LHC 6165) that the right of minor siblings to
develop bond of love and ownness among themselves by remaining
W.P No.3513/2023
united and grow up in the companionship needs to be kept in sight by
the Guardian Courts to avoid causing additional trauma to the minors
of facing separation from each other. Therefore, if the respondent
grandmother is allowed to keep the custody of the minor boy, the
minors will be deprived of being united that will further add to their
existing agony of losing father as result of a crime, with the mother as
an accused thereof.
17. In view of the above discussion, the impugned judgment passed
by the Appellate Court below is set aside and that of the Trial Court is
restored. The petitioner is entitled to receive the custody of the minor
boy within a period of 30 days from today. For this purpose, she is
directed to appear before the Trial Court on 22.06.2024 alongwith
copy of this judgment and also tender third party surety bond to the
tune of Rs.02-million to the satisfaction of the Trial Court before the
custody of the minor boy is handed over to her. Respondent
grandmother is also directed to produce the minor boy on 22.06.2024.
The visitation schedule chalked out in favour of the petitioner by
Appellate Court below will mutatis mutandis apply in favour of the
respondent grandmother. Before parting with, it is observed that the
respondent grandmother would be entitled to file fresh petition for
custody and guardianship, as the case may be, if the petitioner mother
is proved to be guilty and is convicted for the offence charged.
18. Allowed in above terms.
(The order was announced in open court, dictated on the same
date and signed on 25.05.2024).
(ANWAAR HUSSAIN)
JUDGE