P L D 1962 (W (PLP)

This judgment will deal with F. A. O. 9 and 10 of 1960, which arise out of an order passed by the Guardian Judge, Rawalpindi, on the 11th of February 1960.

2. Master Muhammad Afsar Khan, who is the appellant in Appeal No. 10 and the respondent in Appeal No. 9, filed an application under section 25 of the Guardians and Wards Act, against his wife Mst. Munawar Jan, for the restoration of the custody of his two daughters Mst. Zubaida, aged about 16 years, Mst. Kubra, aged about 7 or 8 years and Qamar‑uz‑Zaman, his son, aged about 9 or 10 years, who were living with Mst. Munawar Jan, his wife, who had separated from him some time in the year 1952‑

53. The Guardian Judge has ordered Qamar‑uz- Zaman, his son, to be handed over to Muhammad Afsar Khan, while the two girls Zubaida and Mst. Kubra were allowed to remain with their mother, Mst. Munawar Jan. Both the parties have challenged this order. Muhammad Afsar Khan wants the custody of the two girls Mst. Zubaida and Mst. Kubra to be restored to him, while Mst. Munawar Jan wants that Qamar‑uz‑Zaman should continue to live with her.

3. The learned counsel for Mst. Munawar Jan has urged that on the basis of the following facts it was not for the welfare of Qamar‑uz‑Zaman, to be restored to Muhammad Afsar Khan that (1) his father, Muhammad Afsar Khan had married another wife after 6 months of his turning out Mst. Munawar Jan and that he had three daughters from his second wife; (2) that Muhammad Afsar Khan never paid maintenance to his children; (3) That even after an order was passed under section 488, Cr. P. C. for the payment of main tenance, he did not pay the maintenance till he was compelled by the Criminal Court ; (4) that the application was not bona fide as it was made in order to avoid the payment of maintenance ; and (5) that he had a third wife whom he had divorced earlier. The above allegations against Muhammad Afsar Khan except the allegation No. 4 stand proved on the record, but a further question for consideration is whether these circumstances are such which could be regarded as enough to disentitle him from the custody of his son after the age of 7 years. Qamar‑uz -Zaman was born on the 26th of March 1951 and the application for his custody 'was filed on the 19th of June 1956, which would mean that it was made at a time even when Qamar‑uz -Zaman had not attained the age of 7 years, but by now he has attained the age of 10 years. Under Muslim law the father is primarily entitled to the custody of his son after the age of seven years. Qamar‑uz‑Zaman is the only son of Muhammad Afsar Khan. He is a teacher in a school. He can certainly look after the education of his son much better than Mst. Munawar Jan. The fact that a person has a second wife and children from his second wife has never been regarded as a sufficient ground to disentitle him from the custody of his children. The fact that he did not pay any maintenance till he was compelled by the Criminal Court, is also not such a circumstance as to deprive him of the custody of his son. The learned counsel has cited Orang v. Mahboob Elahi (A I R 1926 Lah. 170); Muhammad Bashir v. Mst. Ghulam Fatima (P L D 1953 Lah. 73); Zainab Bibi v. Feroze‑ud‑Din (P L D 1954 Lah. 704); Ali Akbar v. Mst. Kaniz Maryam (P L D 1956 Lah. 484) and Mst. Rashida Begum v. Shahab Din and others (P L D 1960 Lah. 1142). I am in respectful agreement with what has been laid down in all these authorities. The sum and substance of all these authorities is that the paramount consideration in the matter of the custody of a minor of tender years is the interest of the child rather than the rights of the parents. Under Muhammadan Law, there is a presumption that the welfare of the minor lies in living with the party entitled to the hizanat, but this presumption can be rebutted and if in a given case circumstances are brought out to justify depriving the party entitled to the custody under Muhammadan Law, an order can be made to that effect. In the present case, I feel that Mst. Munawar Jan has failed to establish anything against Muhammad Afsar Khan to disentitle him from the custody of his minor son.

4. Similarly, Muhammad Afsar Khan has failed to establish on the record of this case anything to disentitle Mst. Munawar Jan from the custody of her daughter Mst. Kubra. As regards Mst. Zubaida, the application of Muhammad Afsar Khan deserves to be dismissed on this ground also that she has by now attained majority. I consider that the order passed by the Guardian Judge is proper and I would, therefore, dismiss both the appeals. The parties are left to bear their own costs. A. H. Appeals dismissed.