2019 PLP 2018 (YLR)

RAJA SAJJAD AHMAD KHAN, J.

The captioned appeal has been preferred against the Judgment passed by the Guardian Judge, Mirpur dated 26.08.2017, whereby, the application for appointment of guardian of minor filed by respondent No.1 Nazia Yasmeen, was allowed, whereas the cross application for custody of minor was rejected. Briefly facts of the case are that respondent No.1 filed an application for appointment of guardian of minor Muhammad Ibrahim before Guardian Judge, Mirpur on 11.02.2015 claiming therein that she is the mother of minor and minor is in her custody, whereas, non-applicant has divorced her and contracted second marriage, who want to snatch the minor from her. It was further averred that the applicant can look after very well of minor and craved that the applicant may be appointed guardian of minor and his property. On filing of the application, non-applicant was summoned who appeared before the court and filed objections on the application wherein it was contended that applicant has contracted marriage with a man of foreign nationality and he will take the minor with him to foreign country and non-applicant who is real father of the minor will be deprived to meet the minor, thus, the application of applicant may be dismissed. An application for custody of minor was also moved by Nadeem Afzal, wherein it was contended that his son was born from non-applicant (Nazia Yasmeen) in year 30.11.2009 and on 28.03.2012, non-applicant separated herself from him along with minor and started living at her parent's home. It was further contended that she contracted marriage with non-applicant No.2, Muhammad Tariq on 26.05.2014. He lived in England and got citizenship of the country. It was further averred that non-applicant has no source of income. Finally, it was craved that the custody of minor may be handed over to the applicant (Nadeem Afzal). In reply, the non-applicant Nazia Yasmeen filed objections and contended that applicant himself divorced her on 07.05.2013. It was further averred that applicant filed a suit for restitution of conjugal rights against her, whereupon she also filed suit for dissolution of marriage and suit for maintenance, thereafter, parties were entered into compromise in light of compromise deed dated 07.05.2013, thus, the suits were dismissed. It was further averred that applicant did not pay any maintenance allowance to her and her child since 28.12.2010, and prayed for dismissal of the application. In light of pleadings of the parties, 4 issues were framed by learned Court below. Thereafter, parties were directed to lead evidence. Both parties lead evidence in support of their claims. The learned trial Court after hearing arguments of the parties, accepted the application of respondent herein while the application of the appellant herein was dismissed as being pre-mature vide impugned judgment dated 26.08.2017, hence, this appeal. Raja Munir Ahmed Thakar, the learned counsel for the appellant reiterated the facts narrated in the appeal and contended that appellant being a father and resource able person who can look after properly of his son/minor. He further contended that respondent contracted second marriage and wants to take the minor out of the country and appellant is the father of minor and keeping off the father from minor, negative impact will be on the minor. He further argued that the judgment of the learned Court below is not in accordance with law which may be set-aside and appellant may be appointed guardian of minor. On the other hand, Nasir Farooq, the learned counsel for respondents argued that respondent No.1 is the natural guardian of minor and learned Court below has rightly granted guardianship certificate in favour of respondent No.1, which needs no indulgency by this Court. I have heard the learned counsel for the parties and gone through the record of the case with due care. In the instant case marriage had been dissolved between the spouses through divorce and after divorce both had contracted second marriage. At the time of dissolution of marriage both entered into an agreement that minor will remain under the custody of his mother till the age of 12 years and minor will be attained the age of 12 years on 30.11.2021. On the basis of aforesaid agreement (Exh.DA) learned Court below issued certificate of Guardianship in favour of mother. It may be mentioned here that a private settlement agreed between the parties for the welfare of minor is always considered a relevant factor for deciding the dispute of custody of the minor but in the instant case nothing has been stated in the agreement 'Exh.DA' that parents entered into a settlement for the best welfare of the minor. Nothing has been mentioned in the agreement that minor is handed over to mother for better look after or minor will remain with his mother till on his better cherishing. If mother/respondent started living a sinful life or if she send the minor to the shop of Mechanic instead of school or send him for begging, then she will be entitled to keep child in his custody till the age of 12 years? Definitely the answer will be in negative. Therefore, the learned trial Court while issuing the guardian certificate in favour of mother on the basis of aforementioned agreement fell in error as the same is void and is not enforceable under law. Under section 25 of Guardians and Wards Act, father is entitled to custody of male minor of 7 years of age simply for the reason that after attaining the age of seven years right of Hizanat of male minor child under Muslim Personal Law would vest in the father being natural guardian but mere fact that minor has attained the age of 7 years cannot be a solitary ground for disturbing the custody of minor son by mother. The paramount consideration in custody matter is welfare of minor and nothing else. It reflects from the record that minor is continuously living with mother, getting proper education, enjoying good health and father has levelled no allegation that mother is not looking after him properly neither any question is raised regarding welfare of minor. The father filed application for guardianship only on the apprehension that mother intends to proceed UK along with minor and appellant-father will be deprived from his son. It is useful to mention here that custody of minor once passed can be subsequently changed and varied in a situation which change the complexion of case. The mother has already entered into marriage with a stranger and if she proceeded abroad with minor then circumstances will be changed and in the circumstances of the case it is ordered that without permission of the Court below mother-respondent will not take out the minor from the territory of the Court below. In view of above, impugned judgment is modified in the manner that mother is entitled for the custody of minor until she nourishing the minor properly and in a good manner. Mere on the basis of conditions mentioned in the agreement Exh.DA, the mother cannot be entitled for the custody of the minor. She will furnish the reasonable surety/bond in the trial Court that she will not take away the minor out of the territorial jurisdiction of the court without taking permission. The appeal stands disposed of in the manner indicated above. SA/17/HC(AJK) Order accordingly.