P L D 1959 (W (PLP)

6. On issue No. 4 the trial Court has held that after her statement dated the 7th of February 1958 it could not be said that she was not a Muslim, if she in reality believed in what she had stated, for in her statement in Court she has categorically stated that she was a Muslim. Sultan Ahmad Khan respondent admitted that she had become a Muslim, that the marriage had taken place according to Shariat and that she had remained as a a Muslim in their house as long as she was there i.e., for about 4 years. He adds that he had later heard that she had become a Christian, but his knowledge was hearsay. Her conversion to Islam is admitted. The contest between the parties, therefore, is not that she did not become a convert to Islam but that she had been re‑converted to Christianity. This is denied by her. No evidence, has been led to prove that she had been reconverted to Christianity for which as it has been pointed out by the trial Court, certain formalities are necessary, of which evidence could have been led. It is a well recognized principle of Shariat C that a person, who has read ` Kalma ' even once, believes in the unity of God and that the Prophet Muhammad (peace be upon him) is the last Prophet and professes to be a Mussalman, must be accepted as such Para. 19, Chapter 11, of Principles of Muhammadan Law by Mulla, 1950 Edition, describes a Muhammadan as a person who professes the Muhammadan religion, that is, acknowledges that there is but one God and that Muhammad is His Prophet. In Maula Bakhsh v. Charuk (P L D 1952 Sind 54) it has been held that it is well‑settled law that one of the fundamental principles of Muhammadan Law itself is that " no Court can test or guage the sincerity of religious belief and in order to hold that a person was a Sunni Muslim, it was sufficient for a Court to be satisfied that he professed to be a Sunni Muslim. It is not permissible to any Court to enquire further into the state of the mind and the beliefs of a person, who professed to belong to a particular faith and enquire whether his actual belief conforms to the orthodox tenets of that particular faith ". The learned counsel for the respondents argues that it is clear from her own statement that she does not even know the rudiments of Islam, and she had not kept any fast or even read her prayers ; but all this‑is not really of any importance. When she appeared in Court on 7th February 1958, she stated that she understood by the Prophet that he was a messenger of Christ ; again said, that of God ; that Hazrat Muhammad (peace be upon him) was the last .Prophet of Allah, who brought the Quran for the Mussalmans and Christ was also a messenger, that is, Prophet of God and that this was her faith. She admitted that she did not know all this when she appeared on the first hearing but had made enquiries subsequently and had found out. It is true that she is not a devoted Muslim nor knows much about Islam but how many do know and yet no one can say that they are not Muslims. What is urged as most important and requir ing serious consideration is the fact that the appellant herself admitted that she used to go to the Catholic Church along with her mother regularly each Sunday after her return to her parents' house, as she used to before her marriage, when she was a Christian. She did add that she was not going into the Church and remained outside, but this statement cannot be accepted. Her regular visits to the Church with her mother, were obviously meant to attend the Church service, as there could be no other object and none was suggested on the record. This is a circum stance which strongly supports the contention of the respondents that she was at heart a Christian though she might, outwardly, profess to be a Muslim. It is clear from the circumstances that she did not become a Muslim because she was attracted by the religion and she has taken no interest in acquiring even its rudiments. No blame can on this account attach to her, for her conversion to Islam obviously was for the purpose of marry ing Waris Sultan Khan, that is, the love between them drove her to the change in her religion. After the death of her husband no attachment to Islam could have remained and, being bred and brought up in a devout Christian family, she was bound to revert to or at least have more faith and comfort in Christianity than in Islam. Consequently, there is no wonder that she started going to Church and regularly. In this connection I find it impossible to reject the testimony of Abdul Qadir (R. W. 3), though his evidence has not been accepted by the trial Court, for his evidence that he used to take the appellant and her mother to Church on Sundays since about six months is in accord with the appellant's own statement that she had been attending the Church on Sundays regularly. The evidence of Sayyed Sajid Husain (R. W. 5) is that he had also seen the appellant and her mother at the Convent School Church. It must, therefore, be held that though it has not been proved by direct evidence that she had been re‑converted to Christianity, it is established beyond doubt that her real interest, lies in Christianity in which she had been bred and brought up. It will have to be considered what effect this finding has on the welfare of the minor, but cannot positively be found that the appellant has beers reconverted to Christianity.

7. It is not denied that the appellant, under the Shariat, is a natural guardian of the female minor and that there is not an iota of evidence on the record that she was in any way immoral in character. Her character is beyond reproach. The important question that remains to be considered is issue No. 5 i.e., "is it in the welfare of the minor that she should remain in the custody of the respondents P' In this connection it is necessary to set out the provisions of section 25 of the Guardians and Wards Art :‑ "If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his restoration, and, for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian." Section 17 of the Act may also be quoted :‑ "17. (1) In appointing or declaring the guardian of a minor the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. ' (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4) As between parents who are European British subjects adversely claiming the guardianship of the person, neither parent is entitled to it as of right, but other things being equal, if the minor is a male of tender years or a female, the minor should be given to the mother, and if the minor is a male of an age to require education and preparation for labour and business, then to the father. (5) The Court shall not appoint or declare any person to be a guardian against his will." Section 25 of the Act enjoins the return to custody of the minor ` if it will be for the welfare of the minor'. This is, therefore, the deciding consideration.

8. A comparison of this section with section 17 also goes to indicate that the dominant consideration in an application under section 25 of the Act is the ` welfare ' of the minor. In section 17 in appointing a guardian the welfare of the minor has to be considered consistently with the law to which the minor is subject. Section 25 does not contain the words " consistently with the law to which the minor is subject". It thus appears that in an" application under section 25 which can be made by a legal guardian or a natural guardian, the dominant consideration is the welfare of the minor. This does not, however, mean that the personal law to which the minor is subject is of no conse quence. If a guardian has been appointed under section 17 it will be presumed that the welfare of the minor lies in his or her restoration to the lawful guardian, until it is proved to the con trary. Similarly if a person is a natural guardian under the personal law must be presumed that the interest of tile minor lies in his restoration, to him or her, until the contrary is proved for the personal law must be deemed to enjoin what is for the welfare of the minor. Under the Muslim Personal Law the mother is entitled to the custody of a girl up to her attaining the age of puberty, and, consequently, if she applies for the restoration of her minor daughter the Court must raise an initial presumption in her favour. In Muhammad Bashir v. Mst. Ghulam Fatiman (P L D 1953 Lah. 73 p. 81) Kaikaus J., has held that " all rules of Muhammadan Law relating to guardianship and custody of the minor are merely the application of the principle of benefit of the minor to diverse circumstances. Welfare of the minor remains the dominant consideration and the rules only try to give effect to what is minor's‑ welfare from the Muslim point of view". The conclusion is that " we will regard the rules as raising a presump tion of welfare till exceptional circumstances are proved". Mr. Jafery the learned counsel for the appellant contends that the minor must be restored to the natural guardian entitled to the custody under the personal law, even if the minor's welfare lies elsewhere and it may even be against her welfare. His argument is that the welfare of the child can be ignored if it conflicts with the personal law and he relied for this proposition on Ansar Ahmad v. Sameedan (A I R 1928 Oudh 22), Mst. Miraj Begum v. Yar Muhammad (A I R 1932 Lah. 493) and Mst. Kundan Begum v. Aishan Begum (A I R 1939 All. 215). These are cases under section 17 of the Guardians and Wards Act. In the first case, the mother of a minor girl had married a stranger i.e., outside the prohibited degree. In considering her right to the custody of a female minor and rejecting her claim to her custody it was held as follows :‑ " All the authorities of Muhammadan Law are agreed that the mother is disqualified from guardianship even of her minor daughter if she marries a man who is not related to the minor within the prohibited degrees. Under section 17 of the Act a Court in appointing a guardian must make an appointment ` consistently with the law to which the minor is subject '. Where the law definitely lays down that an appointment cannot be made, it is not proper for the Court to disregard the law even in the interest of the minor." The other two cases being alike on facts followed the first case, and a direction was given that in place of the mother the other persons eligible for appointment as guardian under the Muhammadan Law be considered for appointment as guardian bearing in mind the welfare of the minor. These three cases illustrate the principle that in face of a positive prohibition in the personal law the mother should not be appointed a guardian of the person of a female minor and other persons eligible should be considered and appointed, bearing in mind the welfare and interests of the minor. These cases do not lay down the principle contended for by the learned counsel, and his contention is also opposed to the weight of authority and large majority of decisions in cases under section 25 of the Guardians and Wards Act. The learned counsel for the respondents relied, on the other hand, on Mst. Siddiq‑un‑Nisa v. Nizam‑ud Din (I L R 54 All. 128), a Division Bench Case under section 17 of the Act which holds that " as to the power to appoint and declare the guardian of a minor the personal law of the minor is to be taken into consideration, but that law is not necessarily binding upon the Court which must look to the welfare of the minor consistently with that law." Again in Nadir Mirza v. Munir Begum (A I R 1930 Oudh 471) it was held as follows :‑ "Under the Guardians and Wards Act a Court in appointing or declaring a guardian of the minor is guided first by the provisions of section 17 of the Act, and secondly, by what appears to be for the welfare of the minor consistently with the law to which the minor is subject. If the Court had only got to consider the law, the mother, even although she is no longer a Muhammadan, would be able to take this child away from his father's house and act as his guardian, but the Act allows a Court much wider discretion than this. By placing the provisions of the section above the law to which the minor is subject the Act makes it open to the Court to consider other matters as well as the personal law even if they are opposed to that law." In Winifred MacQuillan v. Winifred Chapman (A I R 1920 Cal. 346) it has been held that in appointing a guardian the welfare of the child must outweigh all other considerations even though the effect may be to deprive the mother of custody of the child. In re Gulbai and Lilbai, Minors, Dhaklibai widow (I L R 32 Bom. 50) it has been laid down that the entire well being and happiness of the minors ought to be the main and paramount consideration of the Court in selecting a guardian. Mst. Haidri Begum v. Jawed Ali Shah (A I R 1934 All. 722) decide: that the main question for consideration is what would be more conducive to the child's welfare i.e., the child would be better looked after and the personal law of the parties should also be taken into consideration. In T. N. Muthuveerappa Chetti alias T. N. Batcha Chetti and another v. T. R. Ponnuswami Chetty (13 I C 16) also it was held that the welfare of the minor was the main considera tion though regard must be had to well recognised right of guardianship. Saraswatibai Shripad Ved v. Shripad Vasanji Ved (A I R 1941 Born. 103) lays down that the paramount consideration is the interest of the minor rather than the right of the parents.

10. That welfare of the minor is the paramount considera tion ; that material, moral and spiritual well being is the deciding and governing consideration in awarding custody of the minors is illustrated by the following cases, which .also throw a light on what constitutes their welfare. 1n case W. v. W (1926 Law Reports (Pro. Div.) p. 111) Lord Merrivale emphasised that the welfare of the minor was the first and foremost consideration (on the construction of the enactment) and that many elements entered into the welfare of an infant and such matters, which were of immediate consideration were the comfort, the health and the moral, intellectual and spiritual welfare of the child. In Mookand Lal Singh v. Nobodip Chander Singha and another (I L R 25 Cal. 881) the question of money, comfort and moral and religious welfare are emphasised in the words below :‑ " Then we have to consider what is really for the welfare of this minor using the term ' welfare ' in its wider sense and looking not only to the question of money and comfort but to the moral and religious welfare of the child and to the ties of affection." In Bindo (opposite party) v. Sham Lal (applicant) (I L R 29 All. 210) the consideration was whether the girl would be as happy in the new home as in previous so that her ' happiness ' was her welfare. In re Gulbai and Lilbai, Minors, Dhaklibai, widow, petitioner, the welfare is more exhaustively defined and is the paramount consideration. It was held that: " But the mere legal right to be appointed a guardian, the preference of the minors and the existing or previous relations are very minor considerations as compared with the main question ‑what order would be for the welfare of the minor ? In making orders appointing guardians for the persons of minors the most paramout consideration for the Judge ought to be‑what order under the circumstances of the case would be best for securing the welfare and happiness of the minor ? With whom will they be happy ? Who is most likely to contribute to their well being and look after their health and comfort ? Who is likely to bring up and' educate the minors in the manner in which they would have been brought up by the parents if they had been alive ? In fact the main question for the Court to consider in the case of the unfortunate minors who have lost their natural guardian is‑who amongst the relations or for the matter of that, friends of the minors can you select who will supply as nearly as possible the place of their lost parent or parents ? The interest, well being and happiness of the minors ought as I said before to be the main and paramount consideration for the Court in selecting the guardian of the person of a minor." In cases of female minors the consideration of who can provide a dowry and marry off the minor suitably is also a strong consi deration affecting her welfare as in Muhammad Bashir v. Mst. Ghulam Fatima. All these cases lead me to the con clusion that the welfare of the minor is the dominant considera tion. 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 G 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.

11. Under the law, a minor must be presumed to have the father's religion and corresponding civil and social status and it is the duty of a guardian to train and bring up his ward in his father's religion. Helen Skinner v. Sophia Evelina Orde etc. ((1871) 14 M I A 309) and Canon S. S. Alluntt v. Mst. Badamo and another (32 I C 897). This is conceded by the learned counsel for the appellant, and he points out that the appellant has undertaken in her statement to bring up the minor as a Muslim. The learned counsel for the respondents relying on Nadir Mirza v. Munni Begam ; Mookand Lal Singh v. Nobodip Chunder Singha and another and Ram Parasad v. District Judge of Gorakhpur and another (57 I C 651) insists that she would not do so and that the minor's faith is not safe in her hands, as she could not bring her up as a Muslim. In Nadir Mirza v. Munni Begam the following observations were made :‑ " Generally speaking a Court of justice is loath to take sides in a case between rival religions, and where a male child has been born and brought up in the faith of his father, he should not be handed over to his mother who left that faith, and has thereby stepped outside the family in which she was married, with certainty that the boy will be induced to leave the religion of his father for the new religion of the mother. Where a child is born to a Shia Muhammadan and has been brought up in that faith by the father till his death, and has not lived for two years with his mother after she changed her religion, the mother should not be allowed to come forward on the father's death and take away from the custody of his paternal grandfather the son, whom she had herself left with his father, from the religion and surroundings in which he has so far been brought up." As the mother had been separated from the child for about two years so that the ties of affection were no longer strong, had left her son with his grand‑parents, as she had one child already with her, as she could not even look after the son, who was with her, as she was living in a charitable home due to her poverty and had changed her religion, it was not considered in the minor's interest to hand over the child to the mother, who was entitled under the personal law to his custody. In Mookand Lal Singh v. Nobodip Chander Singha and another the father who was originally a Hindu had become a Christian and had abandoned his family residence leaving the minor with the paternal and maternal uncles of the boy. It was held that the father though, prima facie, entitled to the custody of the infant child could be deprived of the paternal right if the circumstances justified it, and, in case of a child who had been brought up 4s a Hindu, had expressed a desire to remain a Hindu, by living with his Hindu relations, who were maintaining him and were looking after his education properly, it was not in the welfare of the child that he should be handed over to the father and brought up in the Christian faith. The restoration of the minor to the father was, therefore, refused. The following observation may be quoted with advant age, as applicable to the present case, for the suspicion that the child's custody was desired to bring him up in a different religion weighed for disentitling the father from the custody of his son :‑ " There are some matters incidental to this question,‑and one can scarcely avoid, if not concluding, at any rate suspecting, that the real question in this litigation is as to whether this child is to be brought up as a Christian or as a Hindu,‑which to my mind are fairly well established ". Reliance was placed on the observations of Lord Justice Lindley in the case of In re Newton (Law Reports 1896 Chancery Division, Volume I, 740) :‑ " But as a legal proposition, it is clear that the Court has jurisdiction in a proper case to deprive a father of the custody of his children, and it also has jurisdiction to decline to change the religion in which the children have been brought up ". It was pointed out that the judiciary administered the law that the Judge could not say that one religion was better than another, and that under the Guardians and Wards Act the welfare of the child must be looked to. As the child had been allowed by his father to remain with his Hindu rela tions, who were willing to educate and take care of him, who had in fact maintained and educated him for some years at their own costs, as the child had been permitted to be brought up according to the rights of the Hindu religion, and if the: child was handed over to the father it would have resulted in the breaking of the ties of affection and destroying the associations connected with his Hindu relations, the father was regarded as having abdicated his parental rights this demand of the child's custody was held to be " a capricious, if not a cruel, resumption of his paternal authority " to compel the child to be brought up henceforth as a Christian. In Ram Pershad v. District Judge of Gorakhpur and another which is a case under section 17 of the Guardians and Wards Act, it was held that in considering the question of the custody of a young girl and the appointment of a guardian, regard should be had to the material and spiritual welfare of the child. Having regard to section 17 of the Guardians and Wards Act preference should be given to one who will bring her up in the religion of her people. In this case Mst. Rajeshri was the daughter of Mst. Zagmag, a prostitute, and Ram Prasad, the minor's uncle, in whose custody she was, wanted the child to be taught singing and dancing with a view to adopting the profession of a dancing girl. The Guardian Judge had placed the child in the custody of Miss Booth of the Zenana Bible and Medical Mission, Gorakhpur. Miss Booth w4s 4 lady very highly respected and there was no doubt that the work she did was a labour of love and work done welt ; but all the same it was held by the Allahabad High Court (Sir Grimwood Mears, Chief Justice, and Sir P. C. Benerji) that she was a Christian and unconsciously it must be that the daily teaching in her institution would have a tendency to remove the early traces of the religion, Hindu or Muhammadan, from the minds of children who were in her care and to instil into them the principles of the Christian religion. It was not doubted for a moment that this was done by way of proselytising, but as the mind of the child was very impres sionable, even the simple Bible stories which were only taught, told beautifully and with feeling must, it was held, sink into the mind and bear fruit. Therefore, when the child had reached an age when she could make up a decision for herself, it was very likely that the decision would be one to embrace the Christian faith, and that would particularly be the case if, as was stated, Miss Booth treated the children with loving kindness and they were happy with her. The uncle of the minor having been found unsuitable, a Hindu gentleman Avadh Behari Saran, a stranger, was allowed to have the custody of Mst. Rajeshri, so that she could be brought up as a Hindu, and was removed from surroundings in which she was likely to change her religion for Christianity.

12. On the basis of the above decisions the learned counsel for the respondents urges that it was impossible for the minor to be brought up in the faith of her father if she was entrusted to her mother's custody. In this connection it is pointed out that the appellant had been a devout Christian before her marriage, had had no interest in Islam even after conversion and had started attending the Church regularly after the death of her husband on her return to her parents. In these circumstances, it was argued that there could not be the least doubt that the minor would not be brought up according to the faith of her father, and she must inevitably grow up as a Christian especially because the petitioner's parents are so strongly devoted to Christianity as to entertain the feelings which are contained in Exh. D. I, i.e., the father wanted to poison the appellant rather than that she should marry a Muhammadan. The father is a Protestant and the mother is a Roman Catholic and both are devout Christians, the mother more so. It is argued that no arrangement could be made in the house of her mother for bringing her up as a Muslim for the mother knew nothing at all about Islam. The Guardian Judge has mainly relied upon this consideration in refusing the custody of the minor to the mother. The fear that the minor would not be brought up in the faith of her father, which undoubtedly is the duty of the guardian to do, is real and substantial, in spite of the finding that it cannot be held that the appellant has been reconverted to Christianity. It is clear by her own conduct where her choice lies and what feelings she entertains towards the Christian religion and her parents' feelings are also clear. The minor has to be brought up in her grand‑parents' house and as such must depend upon them and was bound to be influenced by their faith and beliefs. It is thus argued with good reason that she was bound to grow up as a Christian by being influenced by them and there could be no possibility of the minor being brought up as a Muslim even if the mother left her parents, which was unlikely I, therefore, agree, on the basis of the above discussion, with the view of the trial Court that it is not in the welfare of the minor to entrust her custody to the mother, for the minor would not be brought up in the faith of her father. There is really more to this. The application seems to be motivated by an ulterior motive and that appears to be to obtain the minor so that she grows up as a Christian. Mr. Matheus though deadly opposed to the marriage and though he had not cared to meet the children during the life time of Waris Sultan Khan, suddenly supported his daugher for the custody of this minor. He has a large family consisting of a wife, four daughters and a son to feed, clothe arid educate. He was a guard in the N. W. Railways, and is now on leave` preparatory to retirement getting about Rs. 225 p.m., as he told me. He is due to retire on 13th August 1959 when his service will cease. His wife has also ho income now as they are now living at Rawalpindi. Mr. and Mrs. Matheus have not the means, for affection nor the child to show such sudden anxiety for the care of the child, and the only reason one can think of is that they are anxious that the minor should grow up in the fold of Christianity and add to the number. The view expressed in Mookand Lal Singh v. Nobodip Chander Singh and another has an important bearing on this application. It will not be in the interest of the minor to grant such an application.

13. This is not the only consideration which leads me to the decision that if is not for the welfare of the minor that she should be entrusted to her mother. Her welfare in my view lies in her remaining with her paternal aunt and grand parents who admittedly are looking after her and are bringing her up well. It is established on the evidence on the record that the child was fed by and brought up by her aunt Mst. Qamar Sultan, and she used also to sleep with her so that as admitted by the appellant, the child is intensely devoted to her and her paternal grand‑parents. As the first child as is not unusual, she was left to be looked after by the grand parents, for the appellant and her husband must have been engrossed in their own love as young people happily married are, and cared more for their own happiness than the care of the child, whose upbringing was welcomed by her aunt and grand‑parents. The minor is now devoted to her aunt and grand‑parents after four years' association, and it is not in her interest to tear her away from them and break up the ties of affection (which would be a cruel exercise of her maternal right) and hand her over to the mother, whose ties are not so strong and who left the child of her own choice to go to her parents, which shows that her desire to leave for personal comfort was stronger than the affection she had for this child. The child has now been parted from the mother for over a year and a half, has not been seen or visited by her so that the ties of affection are very slender, and it is not the motherly love and affection which could have prompted this application.

13. The next and a very important consideration is that the mother is practically penniless and has not the means to support herself or her children. Though at the time of her making the application she was employed as a teacheress at Rs. 75 per mensem in Y. W. C. A., Multan, she is out of a job now. On the evidence it is clear that even at Multan the son, who is with her, was provided for and looked after by the maternal grand parents. A sum of Rs. 75 could hardly have been sufficient for the needs of the mother and the child for there was an Aya to pay Rs, 20 or Rs. 25 p.m. as salary. They were thus being supported by the appellant's parents. They are now entirely on their mercy, for the appellant is now without a job and has no means even to feed herself or her child, what to speak of providing for their education or their grow ing needs as time passes. Therefore, she is wholly unsuited, because of her utter lack of resources to have the custody of the minor. It is stated at the Bar on the basis of a letter a copy of which has been placed on the file, that the appellant is likely to get a job in the Bern Hall School in the first week of March 1959. No salary is mentioned and no definite post is offered in the letter. It is, however, mentioned orally that the salary that she is likely to get is going to be about Rs. 150 a month. Even so, her resources will be too meagre to bring up two children besides maintaining herself. The job may be of uncertain duration even if the offer be taken as firm. The minor, if handed to her custody, would be placed in straitened circumstances from a position of security and comfort and her prospects, would be jeopardized. The minor is being cared for and well looked after by the respondents on the appellant's own admission and the respondents love her dearly. Another consideration to bear in mind is her happiness. Apart from being taken away from the people to whom she admittedly is devoted she would be extremely unhappy in the new and changed circumstances, where she will be in a home with so many strangers. It is admitted before me that besides the appellant, four daughters and one son are living with Mr. and Mrs. Matheus at Rawalpindi. One of the daughters is married to Mr. Daniels. They have two children and they are also living jointly with them. In this home she could neither have an equal or same status nor consideration or affection as she is getting now. Her position amongst them would be that of a stranger and an interloper particularly if she is to be brought up as a Muslim. She will also be among persons, who are not in the prohibited degree and for this reason on grounds of dictates of rules of personal law also this home is not suitable for her.

14. The appellant is still young and may well marry and in such an event she would be disentitled, under the personal law, to have the custody of the minor. It is not in my view for the welfare of the minor, that she should now, be removed from the people, who are looking after her, to be handed over to a new family and she may have to be driven out of that house, back again. Frequent breaking of ties of affection is not in the interest of the minor.

15. The Court has also to bear in mind the welfare of the minor with regard to her prospects of marriage and dowry. It is clear that the appellant will be in no position to pro vide her with a dowry or to marry her suitably. The respondents are in a far better position to do so. To leave her with them is, therefore, in her larger interests. Mr. Sultan Ahmad respondent No. 1 has had his claim verified to the tune of Rs. 2,96,000 in respect of property left by him in India. He has offered to make a will giving this minor and her minor brother in the custody of the appellant; the share which their deceased father, Waris Sultan Khan, would have got according to Shariat on his death as if he were alive. He undertakes to execute the will and I propose to bind him by this order and direct that he shall make a will and deposit it in Court within a month of today. This is a very material advantage which the minor gets by remaining with the res pondents and she cannot hope to get any property from her mother. The circumstances of the respondents' family are such that the minor can be brought up suitably according to her social status and position. Mst. Qamar Sultan and her sister run a private K. C. School so that they can look after the education and bringing up of the child even in case anything happens to the grand‑parents of the minor.

16. The appellant's father, who was present during the hearing of the appeal, has stated that he is getting Rs. 225 p.m. as pay preparatory to retirement as a guard and is due to retire on 13th of August 1959 when he will cease to have any income. He claimed that he had received Rs. 20,000 as gratuity and another Rs. 9,000 was due to him. This was pressed before me as income of the family. It cannot be considered as income of the appellant and in any case the gratuity, must be treated as a capital saving and not as income which the Matheus will need for themselves and their own children and they are getting on in years. Theirs is not, in my view, a home suitable for the minor and she should not be thrown on the charity of the Matheus.

17. In view of what is contained in Exh. D. 1, it is clear that the father of the minor would not have desired the minor to be brought up in the home of her maternal grand‑parents. He would undoubtedly have liked her to be brought up by her paternal grand‑parents in accordance with Muslim traditions. This circumstance must also be borne in mind. With the mother having no income and considerations of the material, intellectual, moral and spiritual welfare of the minor as stated above outweigh the demands of rules of personal law, and overwhelmingly demand that the minor shall remain with the respondents. The finding on issue No. 5 must, for all these above reasons, be in favour of the respondents. It is not, therefore, for the welfare of the minor that she should be handed over to the appellant. I, therefore, dismiss the appeal but, in the peculiar circumstances of the case, the parties shall bear their own costs. The respondent shall at all times allow the appellant to see and meet Mst. Samar Waris minor without any hinderance. A. H. Appeal dismissed.