2003 PLP 1337 (YLR)

Mohel Shoaib Khan for Respondent. Date of hearing 28th January, 2003. MALIK HAMID SAEED, J:‑‑‑In this case, the learned Courts below have given the custody of two minor children namely Sajjad Muhammad, aged about 15 years and Waqas Muhammad, aged about years to their father Mirza Muhammad on his application for the said purpose, who has divorced his wife Mst. Jamila Bano, mother of the two children in the year 1992. At the time of separation, it was decided that out of the four children borne to the couple, the two children namely Mst. Naheed and Riaz Muhammad would remain with their father whereas the minor child Sajjad Muhammad and Waqas Muhammad would remain with their mother. Since then the two children are residing with their mother.

2. On the application of Mirza Muhammad, the learned trial Court ordered the custody of minor children Sajjad Muhammad and Waqas Muhammad to be handed over also to their father as the welfare of the minors was found to be lying with the father for the reason that he has contracted second marriage and these two children shall also be maintained by him in his house with the help of that wife. On the other hand, the real mother of the wife was found incapable to properly maintain the children due to her poverty.

3. We have heard the learned counsel for the parties and also perused the record of the case.

4. The learned Courts below not only have deprived the real mother from the custody of the minor children on the sole ground of poverty but on the other hand have misread the evidence wherein it is categorically stated that the children in possession of the mother are happy and receiving proper education. Though the minors are studying in Government School in 7th class and 4th class respectively but it is also in the evidence that the father of the children is a Crane Operator in Tarbela Dam Project, who in his meagre pay without any other source of income could not be expected to impart education to the children in some high standard educational institutions. Hence the education of the minor children in the custody of the mother is properly going on according to her resources and the maintenance allowance which she received from the husband for them. Moreover, the father of the minor children has contracted two other marriages and in presence of two step mothers in the same house, the welfare of the minors cannot be stated to be safe than in the custody of her real mother. The law gives the custody of a child which is too young to be independent of own's help in feeding, clothing and like, for the boy the limit is fixed at 7 years, but the right o custody of father is required to be institutes solely for the benefit of the minor and in absence to that the right cannot be conferred on the father at all costs. The mother is the best guardian for her minor children unless it is proved that she has married a man who is not closely related to the minor, or she lives a life of open immorality or her occupation be such as to make it difficult for her to look after the child properly. All the above factors go in favour of the mother. Neither she has contracted marriage nor her character and occupation is such that custody of the minors could be refused to her.

5. As the minor children were of the ages, who could exercise their option to the extent with whom they want to reside, therefore, this Court had directed the petitioner/mother to produce the minors in the Court. They were produced before the Court today and when they were asked as to with whom they want to reside, they, wholeheartedly showed their willingness to live with their real mother.

6. In the above circumstances, the impugned judgments of the learned Courts below are, therefore, set aside and it is directed that the custody of the minors child Sajjad Muhammad and Waqas Muhammad shall remain with their real mother Mst. Jamila Bano, petitioner, in the best interest of the minors.

7. The parties are however, left to bear their own costs. H.B.T./738/P Petition allowed.