2000 PLP 2848 (YLR)

This petition is directed against the order of learned Additional District Judge, Khushab, dated 23‑5‑2000 maintaining the order of the trial Court, dated 31‑3‑2000 whereby the application of the petitioner for custody of minor daughter was dismissed.

2. Briefly the facts of the case are that the petitioner was married with Mst. Nasreen Akhtar mother of minor daughter Mst. Nazia who was subsequently divorced by him. The minor is aged seven and a half years. Petitioner submitted an application to the Guardian Judge asserting that the minor is not being educated and properly brought up by the respondent. Petitioner being employee in Pakistan Rangers can bring her up in a proper way. The welfare of the miner lies in handing over her custody to the petitioner.

3. The respondent in her written reply resisted the petition wherein she alleged that the minor is being properly looked after by her. Petitioner failed to maintain the minor and in spite of maintenance decree, dated 20‑3‑1999 he did not pay the decretal amount and instituted an appeal. Respondent also asked for enhancement of maintenance but both the appeals on the basis of compromises were withdrawn on 27‑5‑1999 on the undertaking of the petitioner that he shall pay decretal amount but the same has not been paid so far. In order to avoid payment of maintenance of the minor the present application has been instituted ON the pleadings of the parties the following issues were framed by the trial Court:‑‑‑ (1) Whether it is in the welfare of the minor that her custody be given to the petitioner? OPA (2) Whether the petitioner is estopped by his act and conduct to bring the instant petition? OPR (3) Relief. After recording evidence of the parties application of the petitioner was dismissed against which his appeal failed through impugned order, hence the present petition.

4. Learned counsel for the petitioner contends that the minor is about eight years of age and can make out a choice to live with the father or mother. The trial Court has not asked the opinion of the minor, therefore, the impugned order is liable to be set aside. He also denied the factum of second marriage contracted by the petitioner. He submits that the petitioner is entitled to custody of the minor and the lower Courts on erroneous assumption of law and facts dismissed his petition and appeal.

5. Heard. Record perused. Admittedly petitioner is in service and posted at far‑off place from his home. He has not paid maintenance to the minor despite decree for maintenance allowance passed in her favour. While withdrawing the appeal against the grant of maintenance petitioner gave an undertaking that the decretal amount shall be paid to the respondent but the same has not been done so Mst. Nasreen Akhtar while appearing as R.W.I has categorically stated that petitioner has contracted second marriage with Mst. Amna Bibi. She was not cross examined to rebut this part of her statement which gives an inference that he has contracted the second marriage and for this reason has not cross‑examined R.W.1. Omission on the part of the petitioner to cross‑examine her on this point leads to the inference that he has contracted second marriage and living of minor with step mother would not be in her welfare. Over all assessment of the evidence and the fact that she is seven and a half years of age it will be in the welfare of the minor it her custody remains with the mother. Judgments of, both the Courts below holding, that it will be in the welfare of the minor if she remains in the custody of respondent No.l warrant no interference.

6. There is sufficient evidence on record to conclude that the custody of the minor with respondent No.l is proper and in her welfare. She is studying regularly, in a local school. Disturbing her custody at this stage will effect her educational career adversely. Petitioner has not requested the trial Court for asking choice of minor during trial of case and at this stage she cannot be summoned to record her evidence on this point. The impugned order does not suffer from any legal infirmity warranting interference. The petition has no merit and is dismissed, in limine. H.B.T./S‑70/F Petition dismissed.