P L D 1961 (W (PLP)

BASHIR AHMAD, J.--‑This is an appeal under the Letters Patent by Khushi Muhammad, the father of the minor children, directed against the judgment, dated the 9th of May 1960 of a learned Judge of this Court, and arises in the following circums tances.

2. The appellant has from the respondent Mst. Muhammad un‑Nisa, his divorced wife, three children; a daughter Mst. Kaniz Fatima, born on 15th April 1950, a son Muhammad Rafi born on 9th September, 1951 and a child Anis Fatima who was born on 8th May, 1953 after the dissolution of marriage. The first two children by agreement were handed over to the appellant when the marriage was dissolved. Some time later, on an applica tion by the respondent mother made under section 25 of the Guar dians and Wards Act both the children were re‑delivered to her. In those proceedings the respondent was alleged to have had a bad character and also that she suffered from tuberculosis. The learned Guardian Judge negatived both the pleas, though he felt in doubt about her character and on this account allowed her no costs leaving it to the appellant to seek by fresh application the restoration of the minor children in case such a step was necessitated by later circumstances.

3. The appellant some time later moved under section 25 of the Guardians and Wards Act for the restoration of his three children on the plea that the respondent was a woman of bad character and had no means to support the children. The plea that she was suffering from tuberculosis was again repeated. The learned Guardian Judge found the plea that the respondent suffered from tuberculosis against the appellant but held on the second plea that her bad character was established and also that she had no ostensible means of maintaining the minor children. She went in appeal and a learned Judge of this Court reversed the decision on the findings about her bad character and her having no means to maintain the minor children. This appeal is directed against that order.

4. Learned counsel for the appellant has taken us through the record of this case. The respondent, it was alleged, had been carrying on with one Muhammad Taqi which was denied by her both in the previous and the present litigation. The appel lant, in suport of his case, produced two photographs with their negatives, and examined Muhammad Yusuf (P. W. l.) the photographer as well. The learned Judge in Chambers has not correctly reproduced what the witness stated in Court. It is no doubt true that he stated that photographs could as well be fabricated so as to represent a false situation but he stated with equal emphasis that fabrication could be demonstrated by an examination of the negatives of the photographs. The evidence of the photographer is definite that the photographs which were taken by him are true and that they were not fabricated. The negatives were placed on the record but the respondent took no steps to show that they were fabricated. The respondent, accord ing to the witness, used to visit his shop with Muhammad Taqi her paramour. In photographs Exh. P. .1 /A she sits so close to Muhammad Taqi that we are inclined to accept the teatimonl of the photographer that it is a genuine photograph. In the other photo Exh. P. 2/1 a child sits in the lap of Muhammad Taqi. The respondent failed to place the child before tuuA Guardian Judge but a lady who appeared before us and who'd was represented by Mian Muhammad Shafi, learned counsel for the respondent to be the mother of the respondent when asked by us about the child who sat in the lap of Muhammad Taqi in the photo, admitted that the child was Mst. Kaniz Fatima, the eldest child from the marriage of the parties.

5. The matter does not rest here. An application was presen ted to us accompanied with a copy of a report lodged by the res pondent at a police station in which she had acknowledged that she had married Muhammad Taqi but was not being permitted by her brother to go with him. The application also contained the averment that the respondent was pregnant. We directed learned counsel for the respondent, to produce her' before us. She appeared and acknowledged that she was big with child in an advanced stage. The child was ascribed to Muhammad Taqi whom she stated to have married. There is no dispute that he is the same Muhammad Taqi who was represented in both the proceedings to be her paramour. The learned Single Judge has held the photographs to, be spurious, and rejected the oral evidence as insufficient for the finding that the respondent had a bad character. On the facts stated we do not find it possible to uphold the findings of the learned Judge rejecting the evidence furnished by the photographs particularly in view of the circum stances which came to light during the pendency of the appeal. We would proceed, therefore, to assess the evidence on s clear finding that the photographs are genuine.

6. The oral evidence against the respondent consists of Nazir Ahmad (P. W. 2) and Muhammad Hanif (P. W. 4). The learned Single Judge criticised their evidence as vague and of a general character. Muhammad Nazir P. W. has identified Muhammad Taqi as the person appearing in the photograph Exh. P. 1/A. He also deposed to the effect that he had seen the respondent moving in the company of strangers including Muhammad Taqi. Muhammad Hanif stated to the effect that the respondent was not allowed to stay in their mohalla because of her suspicious character. He had seen the respondent with strangers and Muhammad Taqi was one of them. In this he is supported by the appellant as well. We are inclined to think that in the face of the documentary evidence provided by the photographs, the criticism directed against the evidence is not justified. The learned Judge has criticised the testimony of Muhammad Hanif on the ground that if there was a complaint against the respondent, it should have been produced. This observation is based on a misconstruction of the evidence which does not make mention of any written complaint by him. The evidence of Nazir Ahmad has been criticised on the ground that he lives on Egerton Road and could not be in a position to depose against the respondent from personal knowledge. The learned Judge is obviously mistaken because he missed the fact that the business premises of the witness were at Cooper Road near the house of the respondent.

7. As against these witnesses, the respondent has examined Khawaja Abdul Hafiz (R. W. 2) and Muhammad Din (R. W. 3) whose evidence is of a negative character. They merely stated that they had never heard any adverse reports against the res pondent. She went in the witness‑box and stated that she was earning her livelihood by making shoe‑laces. She admitted having posed for a photograph five or six years earlier but said that at that time she was alone. The photograph was made over by her to her daughter a year before. The suggestion by inference was that the daughter had made over the photograph to the appellant who utilised it for the purpose of fabricating evidence against her. The argument is specious but on the finding that the photographs are not fabricated the suggestion has to be rejected as false. The respondent, as pointed out already, took no steps to examine an expert who could by reference to the negatives depose to the contrary. On going through the evidence, we are constrained to hold, in disagreement with the learned Single Judge, that the appellant is entitled to a finding that the respondent's character was far from satisfactory and also that she had no means to maintain the children.

8. The second point urged by her learned counsel need not detain us long. Even if she could not maintain the children, the liability of the father to maintain the children, remains, and the plea even if true cannot be a justification for depriving her of the custody of her children, if she, has not, otherwise disqualified herself.

9. On the permises the crucial point for determination is whether the custody of the children; which the personal law recognises to be the respondent's right as against the appellant, could be denied to her. The mother under the personal law loses the right to custody of the children if she marries a stranger. She has so married and is, therefore, within the prohibition. There is no doubt that the personal law favours the custody of the minors in the case of a boy till he reaches the ‑age of seven and of a girl before she attains puberty to remain with the mother. The principle is unexceptionable if it advances the welfare of the minor which in all cases remains the primary consideration. Hazrat Umar (may God be pleased with him) is reported to have divorced his wife who had a minor child. Hazrat Abu Bakr (may God be pleased with him) stated the rule in the presence of several Companions of the Holy Prophet (God be pleased with them all) that the sticky water which flowed from the mouthl of the mother was more invigorating for the child than the purest honey which a father could provide. It merely illustrates the anxiety of our law‑givers to provide for the physical and emo tional development of the child. At the age of seven, a male child is sufficiently advanced in years to be denied the tender care of the mother and entrusted to the father who is more appropriate to give him the proper training. The mother being better qualified in the case of‑ a minor girl, who has not attained puberty train her for the responsibilities of her sex takes preference over the father. But these are not the only two considerations which are germane to the issue. The moral and spiritual values con stitute the life and soul of every religious system and it is only in cases where the physical and emotional development of a standard level could be secured only by the sacrifice of moral and spiritual values that the former considerations yield to the latter. In essence, therefore, the welfare of the child remains the paramount consideration. The rules of personal law in the last analysis resolve in the formulation of those principles which contribute to the maximum welfare of the minor. The normal rules are to be departed from only on the consideration that otherwise it will result in denying the minor a benefit more fundamental in character. And that rule is part and parcel of the personal law itself.

10. In the present case, there is no escape from the con elusion that the respondent has been leading a life and chosen for herself an environment in which the minors would constantly be under an influence which has the inherent danger of imparing their moral and spiritual values. The Courts are always anxious and indeed it is their duty to secure the moral and spiritual deve lopment of the minor even though in doing so they have to depart from the normal rules governing the custody of minors. We are, therefore, constrained in the present case to allow the appeal and reversing the order passed by the learned Single Judge restore that of the learned Guardian Judge. The case will go back to the learned Guardian Judge who will summon the parties and take steps to deliver the minors to the appellant, the father. The appellant will have his costs of the appeal as well. A. H. Appeal allowed.