1980 PLP 851 (CLC)

2. The `appellant resisted the respondent's claim. The learned Guardian Judge framed two issues arising out of the pleadings of the parties, which are reproduced below :-- "(i) Has the petitioner got no locus standl to file the petition ? O. P. D. (ii) Is it in the welfare of the minors to return their custody td the petitioner ? O. P. P.

3. The respondent examined two witnesses, namely, Bashir Ahmad and Muhammad Boota. In addition to this, her brother and attorney, namely Abdul Ghafoor P. W. 3 also appeared in the witness-box. The case sought to be established by the respondent through this evidence was that the appellant had contracted second marriage ; the minors were not being properly brought up and that, the before, their welfare lay in handing over them to the respondent. On the other hand, the stand taken up by the appellant was that the minors were being properly brought up and given education by him; he was financi ally well-off ; the respondent did not have any means of livelihood and was dependant on her brothers for her subsistence ; and that the reten tion of the minors by him was in their interest. In this connection he examined four witnesses in addition to his own statement. Muhammad Habib (D. W. 1) and Qadir Bakhsh (D. W. 2) corroborated with the version given by the appellant. Muhammad Amin (D. W. 3) and Mahmood Mohsin '(D. W. 4) were the witnesses who proved the certi ficates (Exhs. R/1 & R/2) produced by the appellant to substantiate that the children were being properly educated. The learned Guardian Judge was of the view that the interest and welfare of the minors demanded that they should be placed in the custody of their mother. The main factor which prompted the learned Guardian Judge to come to this deci sion was that the appellant had contracted second marriage and a daughter was born out of this wedlock. He observed that two minors being daughters and the age of the son being less than seven years, the award of their custody to the respondent was in consonance with law. Accordingly, by his order dated 6th October 1976 he accepted the res pondent's application under section 25 of the Guardians and Wards Act. This order has been challenged through the instant F. A. O.

4. Before proceeding further it may be observed that the present age of Mst. Asia Begum is about 17 years and that of Muhammad Sarwar about 13 years. Mst. Yasmin is however of little more than 121 years. It is lamentable that the case regarding custody of the minors could not be decided expeditiously and during course of this litigation at least two of them attained age which disentitles the respondent to the right of hizanat under the Muslim Law.

5. The learned counsel for the appellant argued that Mst. Asia Begum is now of 17 years and that the present age of Muhammad Sarwar is more than 131 years. He contended that even on 6th October 1976 when the impugned order was passed by the learned Guardian Judge, Muhammad Sarwar was more than 7 years of age and thus under the Per sonal Law of the minor he could not be placed in the custody of the res pondent. Relying on Exhs. R/I & R/2 and the oral evidence produced by the appellant, the learned counsel contended that the minors were being pro perly educated by the appellant, who is their natural guardian and is finan cially well-off. In his submission, the welfare of the minors lies in their residence with their father ; as the respondent did not have any means of livelihood and also could not properly bring up the minors. In view of the present age of the two minors, namely, Mst. Asia Begum and Muhammad Sarwar, the respondent's learned counsel pressed his claim only for the custody of Mst. Yasmin. He argued that under the Muslim Law the respondent was entitled to her custody till such time she attained puberty. He contended that the respondent was possessed of means to bring up the minors and that in any case lack of affluent circumstances could not be counted as a valid reason for the respondent's deprivation of the minors' custody to which otherwise she was entitled under law. The appellant's second marriage was also canvassed as a ground for better entitlement of the respondent for the minors' custody.

6. I have perused the record of the case in the light of the submissions made by the learned counsel for the parties. Undeniably, ages of Mst. Asia Begum and Muhammad Sarwar are more than 17 and 131 years, A respectively. The appellant is the natural guardian of the minors. The respondent has merely a right of 'hizanat' but this right is not exercise able in the case of Mst. Asia Begum and Muhammad Sarwar. The learned counsel for the respondent, therefore, rightly did not press his claim in respect of these two minors. As regards Mst. Yasmin, the oral evidence produced by the appellant demonstrates that she is also studying in a school and is being properly looked after by her father.

7. The minors appeared before this Court and in this respect it discernible from the order dated 30th October 1977 that all of them expressed their wishes to put up with their father. The wishes of the minors were ascertained by the Court in the presence of both the parties. The learned Guardian Judge did not assign any cogent reason for holding that handing over of the minors to the respondent was for their betterment. No doubt, the Court is to be guided by that what in consonance with the' minors' personal law, will be conducive to their welfare. But, in deter mining the question of custody, the welfare of the minors is the paramount consideration.

8. After perusal of the evidence led by the parties and keeping in view the attending circumstances of the case, I feel that it will not be in the interest of the third minor, namely, Mst. Yasmin to disturb her pre sent environment ; she is already more than 121 years of age, and under Mohammadan Law the mother can exercise the right of `hizanat' in respect of a female child till she attains puberty. I am of the view that it would be in the welfare of Kist. Yasmin that she may continue to remain in the custody of his father.

9. For the foregoing reasons, this appeal is accepted. The impugn. ed order is set aside and the respondent's application dismissed, leaving the parties to bear their own costs.

10. The learned counsel for the respondent submitted that she may be granted the right of inspection. In this connection, the parties are directed to appear before the learned Guardian Judge, Faisalabad, who shall settle a scheme and ensure that the respondent is granted an opport unity to see the minors at least once in every two months. M. Y. M. Appeal accepted.