P L D 1988 Peshawar 57 (PLP)

Date of hearing: 26thJanuary, 1988. Mst. Taj Bibi has challenged the order-dated 6‑11‑1985 of Malik Muhammad Pervez Khan District Judge, D.I. Khan, whereby accepting the appeal of Khuda Bakhsh he set aside the order-dated 25‑5‑1985 of the Senior Civil Judge exercising the powers of Guardian Judge.

2. Facts of the case in brief are that Khuda Bakhsh made an application in the Court of the Senior Civil Judge, under section 25 of the Guardian and Wards Act against Mst. Taj Bibi praying that respondent Mst. Taj Bibi was the legally-wedded wife of the applicant and 'they gave birth to Mst. Zubeda whereafter Mst. Taj Bibi got divorce from the applicant and vide deed dated 18‑5‑1977 it was agreed upon that whenever Mst. Taj Bibi would contract a marriage the minor would be given in the custody of her father (the applicant even if the minor was less than 7 years. It was further agreed upon that whenever the minor would attain the age of 7 years she will be given in the custody of the father and in case of any physical damage to the minor Taj Bibi would be liable to pay Rs. 10,000 to the applicant. It was further alleged that the minor has attained the age of 8 years and 3 months and according to the contract the applicant is entitled to her custody; that the applicant is the father and the natural guardian of the minor and has the capability of the betterment of the minor for her education and brought up while the respondent does not have these qualifications.

3. The application was hotly contested by Mst. Taj Bibi respondent and after recording the evidence of the parties as they wished to adduce the learned trial Judge by his order dated 25‑5‑1985 came to the conclusion that the applicant failed to adduce any evidence to establish that Mst. Taj Bibi respondent did not have the capacity of keeping the Ward, observing further that the interest of the minor did not lie with the petitioner and accordingly rejected the application. Dissatisfied with the said order of the learned trial Judge Khuda Bakhsh applicant went in appeal in the Court of the learned District Judge who by his order dated 6‑11‑1985 accepted the appeal holding that the appellant was a well‑to‑do person and could maintain his daughter and that the personal law applicable to the parties was also in favour of the father and accordingly accepted the appeal and directed the custody of the minor ward to be given to the applicant. Aggrieved by the said order of the learned District Judge, D.I. Khan Mst. Taj Bibi has come in the instant civil revision petition to this Court.

4. Arguments of the learned counsel for the parties have been heard and record of the case has been examined. Khuda Bakhsh applicant while appearing in the Court as his own witness stated that when Mst. Zubeda was about 1 years of age he and his wife Mst. Taj Bibi entered into an agreement according to which the minor ward was to be given in the custody of her father when she crosses the age of seven years and immediately if she contracts a second marriage even if the minor will not attain seven years of age whereafter Mst. Taj Bibi was divorced. On the other hand Ghulam Qasim brother of Mst. Taj Bibi, as her special attorney, while appearing as witness for the respondent lady said on oath that Zubaida Bibi was born to Mst. Taj Bibi in his house and she was about one year old when Khuda Bakhsh divorced her mother Mst. Taj Bibi. It has been established on the record that Khuda Bakhsh applicant has since contracted a second marriage and from the second wife he has three children while on the other hand Mst. Taj Bibi has all along preferred not to contract a second marriage for the betterment of her minor daughter. The parties may have entered into a contract but under section 25 of Guardian and Wards Act the Court has to see the welfare of the ward and is not bound to go by the wishes of the parents who have since separated. It is but natural that Khuda Bakhsh having three children from the second wife would in‑ no manner be capable of treating the minor ward in preference to the children he has from his second wife or even at par with them. The applicant Khuda Bakhsh might have all his affections and love for the minor ward but in case the minor ward is given in his custody naturally she has to live with her stepmother who in no case can treat the minor ward at par with her real children and in such a situation in no words it can be said that the betterment of the minor ward lies with the father. In a similar matter the august Supreme Court in case of Ghulam Hussain v. Mst. Bakhan reported as 1985 S C M R 1917 held that:‑ "We have heard the learned counsel for the petitioner and gone through the impugned judgment. He has not been able to show that welfare of the minor does not lie with her mother. On being questioned he also informed us that while the petitioner (Ghulam Hussain father of the minor) has remarried, the mother of the minor, Mst. Bakhan respondent has not remarried so far. This fact also goes in favour of the respondent and we feel that the Courts below have rightly held that the welfare of the minor lies in her mother." Under section 17 of the Act ibid in considering the welfare of the minor the Court has to consider the age, sex and religion of the minor, the character and the capacity of the proposed guardian and his nearness of kin to the minor etc. It is well‑settled principle that' the father has a preferential right to the custody of a boy over seven years and of the girl who attains puberty. It has no where been proved from the record that the minor ward who is a girl has attained puberty. No doubt Khuda Bakhsh being father is very near to the minor ward but keeping in view the fact that he has contracted a second marriage and has got three children from his second wife the welfare of the ward definitely lies in the mother who has not yet remarried. The assertion of the father that he will keep the ward in a better way than the mother because he has every love for his child cannot be accepted at this stage for' the reasons that about seven years the ward has been living with the mother and during all this interval he has nowhere expressed his love and affection which he is now agitating to get her custody.

6. In these circumstances I feel that the betterment and the welfare of the minor ward still lies with her mother and the learned trial Judge was quite justified in coming to such a conclusion. Accordingly I accept this civil revision petition, set aside the order of the learned District Judge and restore that of the trial Judge leaving the parties to bear their own costs. M.Y.H./590/P Petition accepted