P L D 1965 (W (PLP)

"The personal law has been abrogated by the Guardians and Wards Act to the extent laid down in the Act; so where the personal law is not in conflict with any provision of the Act, it cannot be deemed to have been superseded. For instance, when the Muslim Law says that a mother marrying a man, who is not related to the minor within prohibited degrees, is disqualified from guardianship of her minor daughter, section 17 of the Act cannot interfere, and the Court cannot disregard the personal law even in the interest of the minor." The learned counsel has further referred to a passage in Fyzee's Outlines of Muhammadan Law at page 173 which is as under :‑ "As regards the mother or a female guardian, marriage to a person not related to the child within the prohibited degrees is a bar to guardianship; so also immorality or adultery, or neglect to take proper care of the child." In Mulla's Muhammadan Law at page 297 in para. 354 it is stated that‑ "A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody, if she marries a person not related to the child within the prohibited degrees, e.g. a stranger, but the right revives on the dissolution of the marriage by death or divorce."

4. It cannot, therefore, be doubted that the respondent, who is the mother of the daughter, and who has lost the right of Hizanat under the Muhammadan Law cannot claim the custody of the minor on this basis. It is also not disputed that agreement Exh. 40 by which the appellant surrendered his right of custody of the minor child being opposed to public policy is illegal and cannot come in the way of the appellant for claiming the custody of his minor child.

5. But the difficulty in the way of the appellant is the finding of the learned Subordinate Court that it will be in the interest and welfare of the minor that she should remain in the custody of her mother. In order to consider this aspect of the case it would be convenient to mention here that after the appellant divorced his wife in the year 1956, he did not take any interest in his minor child. There is no evidence on the record to show that he ever maintained the minor child or at any time up to 1960 when the application for the custody of the child was made under section 25 of the Guardians and Wards Act offered to educate the minor child. The minor was examined by the learned Subordinate Court and she had not even recognised the appellant as her father. She also wanted to remain with her mother and had made no complaint about the treatment meted out to her at her mother's house. The appellant's counsel, however, contended that these considerations cannot weigh with the Court in refusing to grant the custody of the minor child to the father. In support of his contention the learned counsel has referred me to three decisions. In Mst. Mehraj Begum v. Yar Muhammad (A I R 1932 Lah. 493) a grandfather was given the custody of the child in preference to the mother on her remarriage with a man who was not related to the minor within the prohibited degrees. It was held in that case that‑ "Section 17 of the Act does not interfere with this because where the law definitely lays down that an appointment cannot be made, the Court disregard the law even in the interest of the minor." Similarly in Mst. Munawar Jan v. Master Muhammad Afsar Khan (P L D 1962 Lah. 142). Rizvi, J. gave the custody of the minor children to the father in preference to the mother. It was held in that case that‑-- "Under the 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." It was further observed by my learned brother that‑-- "The fact that a person has a second wife and children from such wife has never been regarded as a sufficient ground to disentitle him to have 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." It may, however, be noted that in that case the minor attained the age of 7 years during the pendency of the father's application under section 25 of Guardians and Wards Act. In a very well considered judgment Mahmud, J. in Mst. Atia Waris v. Sultan Ahmad Khan (P L D 1959 Lah. 205) reviewed the whole case law on the subject and deprived the mother of the custody of the child and gave her to the grand parents on the ground that the mother was not a proper person to have the custody of the minor because she belonged to the Christian religion, which was not the faith of the minor child. It was observed by the learned Judge at page 214 of the report that‑ "In case of female minors the consideration of who can provide a dowry and marry off the minor suitably is also a strong consideration affecting her welfare as in Muhammad Bashir v. Mst. Ghulam Fatima. All these cases lead me to the conclusion that the welfare of the minor is the dominant consideration. In considering the welfare the Court must presume initially that the minor's welfare lies in giving custody according to the dictates of the rules of personal law, but if circumstances clearly point that his or her welfare dominantly lies elsewhere or that it would be against his or her interest, the Court must act according to the demand of the welfare of the minor, keeping in mind any positive prohibitions of personal law."

6. I am in full agreement with the observation made in the last two mentioned cases. In my view also the paramount consideration in these cases is the welfare and the interest of the minor. The mere fact that the mother has lost the right of Hizanat of the minor child will not finally determine the question of future custody of the child. This question will have to be A decided always in keeping with the interest and welfare of the minor. It is in this light that the question in this appeal has to be decided. On the point under consideration the learned Subordinate Court has disbelieved the evidence of the appellant that the minor was not properly maintained by the mother or that she was illtreated by her. He has further found that the appellant has also remarried and has got a child from the second marriage. In his opinion it would not be proper to give the custody of the minor child to the father because she is not expected to get good treatment at the hands of her step‑mother. In my opinion this is a weighty consideration which cannot be lightly set aside in this case. There is nothing on the evidence produced by the parties to show that the mother is leading an immoral life or that the stranger to whom she has married is illtreating the minor child or there is a likelihood of illtreatment in the mother's house. It is also in evidence that the mother, according to her means is giving education to the child. She is getting Quranic education under a competent teacher. I do not, therefore, see any justification to interfere with the discretion exercised by the learned Sub‑Judge in this matter.

7. Mr. Sandeela has not been able to point out anything except the legal grounds taken by him that it will be in the interest and welfare of the minor to remove her from the custody of her mother and to hand her over to the custody of the appellant, the father of the minor child. It was urged that the mother is not giving proper education to the minor child. This can be easily avoided if the appellant is prepared to bear the expenses of the education of the minor. Mr. Azizullah K. Sheikh has expressed readiness of the mother to educate the child according to the wishes of the appellant provided he is prepared to bear the expenses.

8. After considering the facts and circumstances of the present case, I am satisfied that this is not a fit case in which the mother should be deprived of the custody of her minor child. Accordingly', the appeal is dismissed with no order as to costs. S.Q.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.