1993 PLP 2088 (CLC)

SECTION 25 OF THE GUARDIANS AND WARDS ACT: (1) 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 any order for his return 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. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the First Class by section 100 of the Cr.P.C. 1898 (Act V of 1898). (3) The residence of a ward against the will of his guardian with a person who is not guardian does not of itself terminate the guardianship. PARAGRAPH 352 OF MULLA'S MAHOMEDAN LAW: The mother is entitled to the custody (Hizanat) of her male child until he has competed the age of 7 years and of her female child until he has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in Which case the custody belongs to the father. ARTICLES 2A AND 227 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN ARTICLE 2‑A: The principles and provisions set out in the Objectives Resolution reproduced in the annex are hereby made substantive part of the Constitution and shall have effect accordingly,. ARTICLE 227: (1) All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah, in this part referred to as the Injunctions of Islam and no law shall be enacted which is repugnant to such injunctions. (2) Effect shall be given to the provision of (1) only in the manner provided in this part. (3) Nothing in this part shall affect the personal laws of non‑Muslim citizens or their status as citizens:'

15. Question of custody of minors under section 25 of the Act has been dealt with in various reported cases as follows. In case of 'Muhammad Bashir' (PLD 1953 Lahore 73) it has been held that a 'minor though in actual custody of the mother shall be deemed to be in constructive custody of the father and therefore, if the father is not allowed to see his minor children and minor is removed to another place, it shall \be presumed that the minor has been removed from his custody. It has been' further held that in case of mother entering into second marriage after getting divorce from her husband with a stranger who is not related within prohibited degree to the minor girls the mother shall lose her right of Hizanat. It is further held in this case that there is a presumption that the welfare of the minor lies in living with the person entitled to his custody under the personal law unless facts proved lead to a contrary inference. In case of 'Muhammad Sadiq v. (Mrs.) Sadiq Safoora' (PLD 1963 (W.P.) Lahore 534 it has been held that father being natural guardian of the minor children until they attained majority not according to Muhammadan Law but according to Majority Act IX of 1875 and merely because Hizanat vests in mother, does not detract the right of the father to have a complete supervision and control of the minors and, therefore, in case of loss of control at the behest of the mother, the husband is entitled to apply under section 25 of the Guardians and Wards Act for restoration of the custody of his minor children. In case of Mst. Zohra Begum v. Sh. Latif Ahmed Munawar (PLD 1965 (W.P.) Lahore 695) it has been held that the mother's right of Hizanat of minor children is not supported by any Qur'anic verse or Traditional Text on the point and that the Courts while deciding the question of custody are competent to come to their own conclusions. In this case, however, on facts it‑was held that where a minor son and a daughter remained in the custody of their mother for 9 years and were brought up by her, welfare of the minors lay in remaining in custody of their mother. In case of Sultan Mirza v. Mst. Shahnaz Akhtar (PLD 1975 Lahore 194) where the question was as to whether the minor children living with the divorced mother should be restored to the father who has taken two wives subsequently and in spite of passing of the order for payment of maintenance has failed to pay the maintenance to the minors? Custody of the minor boy though above the age of 7 years was not handed over to the father as the minor was being well maintained and it was held that in case custody of the minor is restored to the father it will amount to forcing the minor to live with the father and step‑mother who has exhibited hatred for him. In case of Mst. Feroze Begum v. Lt.‑Col. Muhammad Hussain (1978 SCMR 299) it has been held that overriding and paramount consideration while deciding question of custody of minor under section 25 of the Guardians and Wards Act, is the welfare of the minor and inability of the mother to properly maintain the minor is not a ground for directing the restoration of his custody to the father who is responsible for maintenance of the minors even if they are living in the custody of their mother. In case of Tassadaq Hussain Shah v. Mst. Surraya Begum (1980 CLC 1802) where the father had married and had brought a step‑mother in the house custody of the minor child was refused to him on the ground that mother's lap is God's own cradle. Paras. Nos.15 to 30 of the judgment are reproduced as under:‑‑ "

15. The sole criterion for decision as to who is entitled to have the custody of the minor, is the welfare of the,‑minor and as held in the Manjit Singh v. Bakhshish Singh AIR 1952 Punjab 129 the right of the father is liable to be defeated if it is found that the application of the father is not bona fide. In this case the father who sought the custody of his minor son has separated from the mother of the boy, had remarried and had two children by the second wife. In the instant case before us also the appellant (father) had divorced the respondent, remarried and on the top of it has children from the second wife and also neglected to maintain the minor till today. His application as such for the custody of the minor cannot be said to be made in good faith.

16. We cannot for a moment, conceive that the step‑mother will be any susbtitute for the mother in the matter of rearing up the minor. We have no doubt in our mind that mother's lap is God' s own cradle for a child and as between the father and mother, other things, being equal, a child in the circumstances of a given case should remain with the mother. We are not prepared to say that the appellant is a fit person to have the custody of the minor, Of course when the mother is found to be leading a bad and immoral life, which is not the case here, the father is entitled to take the custody of the minor children.

17. It is now settled law that decision of each case depends upon its circumstances. However, paramount the right of a father may be, that right, in our opinion is liable to be defeated where it is shown that it is better in the interest of the minor and for its welfare that it should remain where it is. If a minor has for many years from the tender age, as in the present case, lived with his mother and has been well cared for and during that time the minor's father has shown lack of interest in the minor, these are in our opinion, circumstances of very great importance. They bear both upon the question of the interest and welfare of the minor and on the bona fides of the appellant.

18. The learned Judges in Bal Tara v. Mohanlal Lallbuhal and others AIR 1922 Bombay 405) remarked:‑‑ `The petitioner has marred again and it is obvious that the boy, who was only 7 years old at the time this application was made will be much better off living with his mother than with his father. No suggestion whatever has been made as to the character of the mother which would be a good ground for taking the body from her tender care and handing him over to the father who would be a perfect stranger to him. The step‑mother cannot be expected to be very much interested in his welfare.'

19. In `T. Sivasankara Mudallar v. Radhobal Animal and another' (AIR 1939 Mad. 611) it was observed:‑‑ `Where a father delivers his infant daughter to the custody of another and for over 15 years takes no interest in her but allows others to do what he as a father should do, it is evident that he is not entitled to exercise the rights of a father. He is certainly not a person in whose favour the Court should pass an order under section 25, Guardians and Wards Act. It is abundantly clear in this case that minor will be in far better custody if she remains with respondent No.1.

20. Summarising the deductions that could be drawn from the above cases it will be seen that while all priority in preference is given to the father the mother's custody is being preferred more and more because of the warmth of affection, and equal to which the Courts have been definite, could not be got elsewhere. The step‑mother in the household of the father has been taken almost as a factor against the welfare of the minor, A father may render himself unfit for the custody of the minor children and without rendering his house unfit for the minor's residence by bringing in step‑mother for him. The appellant in this case did not visit minor since a long time throughout minor's life and he had not taken the slightest notice of him and so he has disentitled himself to have his custody.

21. Ch. Muhammad Taj, learned counsel for the appellant has cited 'Ali Akbar v. Mst. Kaniz Maryum (PLD 1956 Lah. 484), Mst. Munawar Jan ~ Master Muhammad Afsar Khan (PLD 1962 W.P. Lah.142) in Supt>ort of his contention that the welfare of the minor lies with the applicant and he in all circumstances is entitled to the custody of theminor and presumption is that welfare lies with the legal guardi;a., i.e. the father in the present case. '

22. Ch. Sher Zaman, learned counsel for the respondent, as against this has cited `Mst. Zohra Begum. v. Sh. Latif Ahmad Munawar (PLD 1965 Lahore 695) to show that it is the Judge who decides as to in whom the welfare of the rpinor lies in accordance with the circumstances of each case.

23. In Ali Akbar v Mst. Kaniz Maryum (PLD 1956 Lah. 484), it was held:‑‑ "If by Muhammaden Law a particular relation is entitled to the custody of a minor we should resume, in the absence of proof to the contrary, that the welfare of the minor lies in his being delivered to that person. There is no conflict between the Muhammaden Law and section 25 of the Guardians and Wards Act which deals with the welfare of the minors. I have fully explained in Muhammad Bashir v. Mst. Ghulam Fatima that all rules. of Muhammaden Law governing custody of minors are rules relating to the welfare of the minor and are in all cases subject to the dominant consideration. They are rules which simply raised the presumption of welfare. It should be obvious that there cannot be any conflict between the right of custody under Muhammaden Law anti section 25 of (lie Guardians and Wards Act. It cannot possibly be assumed that Muhammaden Law grants the custody to a person the grant to whom of custody is not in the interest of minor. Any other interpretation of section 25 of the Guardians and Wards Act would, as I have explained in the abovementioned case, leads to an anomaly." It was further observed:‑‑ "It has to be presumed that the welfare of the minor lies with the father and there should be strong reasons for depriving the appellant of the custody of his child. I have only to consider whether any such reasons exist."

24. This clearly shows that the father for entitlement to the custody of the minor can lose such right if such circumstances of a given case show that welfare of the minor will not lie with the father In the present case as stated earlier the father has neglected to look after the minor with a father's eye since for 14 years and also cared not to maintain him and for that reason he has disentitled himself to have custody of the minor. If the appellant puts him in a convent or some other good school the mother would not put any hindrance in the way of father.

25. In Mst. Munawar Jan v. Master Muhammad Afsar Khan (PLD 1962 (W.P.) Lahore 142) it has been observed that paramount consideration in the matter of the custody of a minor of tender year is the interest the child rather than the rights of the parents. Under Muharnmaden Law there is a presumption that welfare of the minor lies in living with the party entitled to the Hizanat but this presumption can be rebutted and if in a given case circumstances are brought out to justify depriving the party entitled to the custody under Muhammaden Law, an order can be made to that effect.

26. Apart loom it, judicial decisions primarily applied to the facts on which they are given. Such observation generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other cases, it is likely that it may result in miscarriage of justice. A case is in fact an authority applicable to the facts of a particular case and not for any general purpose that may seem to follow logically from it. Obviously it would not be safe to rely on general proposition of law decided in any individual case to form foundation of general principle because the observation in a judgment separated from the context would not support the isolated data in another case. It would consequently be misreading to apply the inference drawn from certain facts and circumstances to other cases based on different facts and circumstances.

27. It, therefore, follows that law laid down in a case naturally only applies to the facts of that case and it cannot be said that such a law attains authenticity for every case of the nature.

28. In Mst. Zohra Begum v. Sh. Latif Muhammad Munawar (PLD 1965 Lahore 695) it has been. observed:‑‑ Where there is no Qur'anic or Traditional Text or an Ijma on a point of law and if there be a different view between A'iamma and Faqihs, a Court may form its own opinion on a point of law. It would therefore, be permissible for Courts to differ from the rule of Hizanat stated in the text‑books on Muslim Law where there is no Qur'anic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusion by process of Ijtahad which according to Imam al Shafi, is included in the doctrine of Qiyas. Where the rule propounded in different textbooks on the subject of Hizanat is not uniform, it would be permissible for the Courts to depart from the rule stated therein if on the facts of a given case, its application is against the welfare of the minors. Where, therefore, in an application under sectionr25 of the Guardians and Wards Act 1890, it was found that the mother for nine years had reared and brought up her two minor children, a son and a daughter without any shortcoming and all these years the father had not only not seen the children but had not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother.'

30. If the minor is capable of making an intelligent performance the Courts may consider the preference alongwith the welfare of the minor. But before the Court gives effect to the personal inclination o; a minor, ii must be satisfied that the opinion is an intelligent opinion and in the interest of minors. The Courts, therefore, have been interrogating the minor almost in every case. In many cases, minor inclinations have been the deciding factor. In Mural Lal v. Sarwati (AIR 1925 Lahore 375) it was held that Mst. Ramon, who was merely of sixteen years of age and Mst. Durgi, her sister, fourteen years of age, are not willing to live with Lala Murari Lal and they are in a position to exercise their discretion in this matter, they ought not to be forced to live under the guardianship of the appellant towards whom they have feelings of antipathy. Again in Mst. Janak Dulari v. Mst. Ganga Dil (AIR 1931 Oudh 326) it was held that the step‑son whose custody was wanted by the step‑mother did not want her as a guardian for himself and in the circumstances of the case, step‑mother cannot be appointed as guardian". , In case of Sakhawat Ali and another v. Mst. Shui Khelay (PLD 1981 SC 454), poverty of mother was held not to be a ground for refusing of custody of her minor children. In case of Mst. Sughra Begum v. Ashfaq Ahmad Butt (PLD 1981 Lahore 393), when a dispute arose with regard to the custody of minor son aged 7 years and minor daughter aged 9 years, it has been held that paramount consideration for decision of the question is the welfare of the minors and that the minors living in the custody of the mother for six years developing love and affection for her and their interest being properly looked after by mother by getting them admitted in good school and the minors not prepared to part with company of the mother rather categorically declining to go with the father. Mere fact that father of the minor was rich person and there was an agreement executed between the parties regarding custody of the minors will not debar Courts for holding that the welfare of the minor lies to live with their mother. In case of Ghulam Ullah Memon v. Mst. Rashid Begum (1983 SCMR 793) the minor girls after the death of their mother were living with their maternal grandmother. Father applied for restoration of the custody. It was established on record that treatment of the father with the mother of the minors was not congenial and that he had failed to pay any amount towards maintenance and upbringing of minor girls, it was held that the father who was living with step‑mother is not entitled to the restoration of the custody of the minor girls who were allowed to remain with maternal grandmother. In case of Muhammad Noman Malik v. Mst. Rukhsana Noman and 2 others (1983 CLC 2846) it was held that if mother's right of Hizanat is not established and even if all other things are equal, it is the mother who should have preference to the custody of the tender‑aged minors. It has further been held that even after the minors have crossed the age of Hizanat, welfare of the minor being sole consideration for deciding the question of custody, any order passed by the Guardian Judge after taking into the consideration over all circumstances of the case could not be said to have been passed without jurisdiction or in excess of jurisdiction or otherwise illegal, and improper and, hence, is not liable to be interfered with in exercise of writ jurisdiction. In case of Mst. Khalida Begum v. Muhammad Altaf (1983 CLC 678) where the father had brought a step‑mother :n the house and the question arose as to whether the minors should be restored to the custody of the father, in paragraphs Nos.11 to 16 of the judgment, their Lordship of the Supreme Court of AJK have held as under:‑‑ "

11. Another factor which tilts the balance in favour of the mother is that the respondent (husband) has got a step‑mother who is not expected to give so much love to the infant as is given by their mother. We cannot, for a moment, conceive that the step‑mother of the respondent will be any substitute for the mother in the matter of rearing of the minors. Mother's lap "is God's own Cradle for a child and as between the father and the mother, other things being equal a child in the circumstances of a given case should remain with the mother". If a minor has for some years from the tender age lived with his mother and has been well cared for and during that time the minor's father has shown lack of interest in the minor, these are in our opinion circumstances of very great importance. They bear the question of the interest and welfare of the minors and on the bona fides of the appellant. The crux of the matter is that only in the absence of the evidence to the contrary and not otherwise, it should be presumed that the welfare of the minor lies in such minors being handed over to a relation under Mahmmaden Law entitled to the custody. The welfare of the minors is a dominant factor and such welfare does not necessarily lie in the custody of natural guardian. In Mst. Zenab Bibi v. Abdul Karim AIR 1926 Lah. 117 it has been observed that the. Court passing an order appointing a guardian of a minor should not solely base his order upon who is entitled to be guardian under personal law of the minor but the Court has also to consider the welfare of the minor. Same view prevailed in Seeyali Veettil Abubacker v. Ovinakath Vayyila Purayil Mariyumma AIR 1946 Mad.

110. It has been held in that case that a Muhammaden father as the lawful guardian of his minor children under his personal law is entitled to make an application under section 25; but the fact that he is a lawful guardian does not compel the Court to pass an order in his favour. The Court can only make an order for return of the ward to the custody of the guardian if it is for the welfare of the minor which is of primary importance. In Zainab Bibi v. Feroze‑ud‑Din PLD 1954 Lah. 704 it was said by Mr. Justice B.Z. Kaikaus, J. (as he then was) that while it requires a strong case to rebut the right of the father to custody, it is not an absolute right and if the father has been guilty of such conduct that in the opinion of the Court custody of the minor should not be granted to him; Muhammadan Law does not stand in the way. The proposition that the father may disentitle himself to custody on account of his conduct is one to which hardly an exception can be taken and is well supported by authority. I may refer to 32 PWR 1917, AIR 1937 Lahore 481, AIR 1923 Lahore 283, AIR 1939 Mad. 611 and 1951 E.P.

338. Learned counsel for the respondent relies on AIR 1928 Lah.896, AIR 1927 All. 358 and my own judgment in Muhammad Bashir v. Mst. Ghulam Fatima. Once we accept the principle that it is the welfare of the minor that is the dominant consideration, it is a matter to be decided on particular circumstances of each case. Case reporied as Mst. Zohra Begum v. Sh. Latif Ahmad Munawar PLD 1965 (W.P.) Lah. 695 is also in line with the above‑cited authorities. It has been observed in that case:‑‑ "Where there is no Qur'anic or Traditional Text or an Ijma` on a point of law, and if there be a difference of views between Aimma and Faqihs a Court may form its own opinion on a point of law. It would, therefore, be permissible for Courts to differ from the Rule of Hizanat stated in the Textbooks of Muslim Law where there is no Qur'anic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which, according to Imam AI‑Shari is included in the doctrine of Qiyas. Where the rule propounded in different textbooks on the subject of Hizanat is not uniform .it would be permissible for the Courts to depart from the rules stated there if, on the facts of a given case, its application is against the welfare of the minors. Where, therefore, in an application under section 25 of the Guardians and Wards Act, 1890 it. was found that the mother for 9 years had reared and brought up her two minor children, a son and a daughter without any shortcomings and all these years the father had not only not seen the children but had not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother.

12. It would appear that welfare of the minors is the main consideration under the Guardians and Wards Act and Personal Laws have been subordinated to the welfare of the minors. This view also prevailed in a case decided by this Court reported as Tassadaq Hussain Shah v. Mst. Surraya Begum PLD 1965 Lah.

695. It has been observed in that case:‑‑ Under section 25 of the Guardians and Wards Act emphasis is laid on the welfare of the minors. Welfare of the minor, therefore, is the guiding factor in the matter of delivery of the custody. Under the Guardians and Wards Act, Personal Laws have been subordinated to the welfare of the minors and a Court may order the return of the Ward to the custody of the guardian only if it thinks it as necessary in the interest of minors'.

13. The learned counsel for the appellants also submitted that the above cited case was quoted before the learned Single Judge of High Court. This submission of the learned counsel is also owned by the Raja Lehrasab Khan, the learned counsel appearing on behalf of the respondent. Unfortunately this case has no mention in the report under appeal. If the learned counsel are correct, then it may be said that the learned Judge has acted in violation of the provisions of section 42‑B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which is to the effect:‑‑ Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Azad Jammu and Kashmir."

14. It is thus manifest and admits of no exceptions that all the subordinate Courts including the High Court are bound to obey the dictum and pronouncement of this Court. Violation ‑f this Constitutional requirement, we are afraid, cannot be appreciated and at times it may create unhappy situation. We hope that in future the learned Judges in the High Court ensure that their orders do not run counter to the judgments of this Court. The superior judiciary of a country is to protect the Constitution in letter and spirit.

15. It is also significant that the learned Judge in the High Court has also overlooked the dictum of Mr. Justice Sardar Muhammad Sharif Khan, the learned Acting Chief Justice of the High Court, in a case entitled Mst. Surraya Begum v. Syed Tassadaq Hussain Shah earlier decided and relied upon by the learned Guardian Judge in his report. The Supreme Court in fact in the case mentioned in para. 12 above, felt advised to agree with the pronouncement of Mr. Justice Sardar Muhammad Sharif Khan resulting in the dismissal of the appeal of Syed Tassadaq Hussain, the husband. This case, which also decides that the welfare of the minors does not necessarily lie in the custody of the natural guardian should not have escaped the attention of the learned Judge as the judgment of the learned Guardian Judge under appeal before him was mainly based on the judgment recorded by Mr. Justice Sardar Muhammad Sharif Khan. In these circumstances even in the absence of the dictum of this Court if the judgment of the learned Single Judge of the High Court earlier recorded was not to be followed the appropriate method to resolve the issue was to refer the matter to the larger Bench of the Court for decision. 16: The learned counsel for the respondent, Raja Lehrasab Khan has cited Aii Akbar v. Mst. Kaniz Maryam PLD 1954 Lah. 434, Mst. Zahida Begum v. Muhammad Nazir Khan PLD 1966 Azad J&K 1 and Juma Khan v. Mst. Gul Ferosha PLD 1972 Pesh.l in support of his argument that a minor male, after attaining the age of 7 years, must necessarily be given in the custody of the father and his welfare in all circumstances shall be presumed with him. We rave gone through these citations. There is nothing in any of the judgments cited by the learned counsel for the respondent which would negative the proposition that the father may not by his conduct, lose right of the custody of the children or that an application with ulterior object must, in all circumstances be allowed to succeed. In the case of Mst. Feroze Begum v. Lt: Col. Muhammad Hussain (1983 SCMR 606), it has been held that the mother is entitled to the custody of her children till expiry of the age of Hizanat and at any rate welfare of the minor is the paramount consideration and as in this case the mother had shifted from village to city for the sake of education of minors and intended not to re‑marry and had dedicated her life for the sake of minors and the father had contracted second marriage after divorcing mother of the minors and had children from the second wife, custody of the minors was refused to the father. In case of Mst. Aisha v. Manzoor Hussain and others (PLD 1985 SC 436) it has been held that the statement of the minors is not conclusive to determine his welfare and when the mother had remarried soon after leaving the husband's house and father had not married although a period of 6 years had passed and maternal grandmother holding custody of the minor not sending the minor to school for education though minor was of age and the father was living with his mother and sister, the minor was directed to be restored to the father. In case of Ihsanur Rehman v. Mst. Najma Parveen (PLD 1986 SC 14) it has been held that the Guardian Courts exercise parental jurisdiction and technicalities should not be allowed to frustrate substantial justice. In case of Shoukat Pervez Butt v. Mst. Nargis Sultana and another (PLD 1988 Lahore 290), it has been held that while determining the question of custody of the minor under section 25 of the Guardians and Wards Act welfare of the minor is the determinative factor and is within the exclusive jurisdiction of the lower Courts. The minor daughter was allowed to live with the real mother when the father had remarried and had children from the second wife. The order passed by the, learned Guardian Judge was not interfered with in exercise of discretionary Constitutional jurisdiction. In case of Muhammad Ashraf v. Mst. Sakina and 2 others (1989 SCMR 1277),. where the father had remarried and had children from second wife it was held by the learned Guardian Judge that he is not entitled to the a custody of the minor children as welfare of the minor lies that they should remain with their real mother. The order was refused to be interfered with in the Constitutional jurisdiction. The order passed by the High Court was challenged before the Hon'ble Supreme Court of Pakistan. Leave to appeal was refused and CPSLA was dismissed. In case of Mst. Tahira v. Additional District Judge, Rawalpindi and others (1990 SCMR 852), it has been held that when there is a competition between the‑ mother and father and the father has re‑married whereas the mother has not, the right of Hizanat of the mother is not affected even if there is an agreement in writing to the effect that she will not claim the custody of the minors. . In case of Mst. Saddan v. Muhammad Nawaz and another (1991 CLC 1238) where the father had failed to maintain the minor children who were living in the custody of the maternal‑ grandmother, father was refused custody of the minor due to his conduct and poverty of the maternal grandmother was held not to be a ground to grant custody of the minor to the father. In case of Mst. Zahran v. Umar Draz, etc. (1993 CLC 907), it has been held that the father is not entitled to the custody of the minor son aged 10 years when he has remarried inasmuch as it will not be in the welfare of the minor to uproot him from the mother's custody and to force him to live in a house where the step‑mother is residing. It has further been held in this case that although the preference of the minor is not conclusive, it is, however, one of factors which can be taken into consideration by Courts while deciding question of restoration of the minor particularly when the minor is of grown up age. Non‑payment of maintenance to the minor has. been considered as a ground to disentitle the father to claim custody of his minor son who is aged 10 years. Learned Single Judge of this Court interfered with the order passed by the learned Guardian Judge where the custody of the minor had been granted to the father who had remarried and had failed to pay maintenance to his minor son. The writ petition was accepted and the application filed by the father under section 25 of the Guardians and Wards Act was dismissed.

16. A close reading of various provisions as well as the case‑law referred to above shows that the following principles have been authoritatively laid down for deciding the question of restoration of custody under section 25 of A the Guardians and Wards Act,‑ (i) That the father is the natural Guardian and, hence, has a right of control and supervision over his minor children even if they are living in actual custody of the mother. (ii) That the father is bound to maintain the minors even if they are living with the mother against his wishes and his failure to maintain the minors particularly when there is an order for payment of maintenance passed by a Court of competent jurisdiction disqualifies him to claim the custody of his minor children even if they have crossed the age of right of Hizanat of the mother. (iii) That the mother even if poor, if looking after the children normally and giving them education and intends not to remarry after having been divorced by her husband, has a better entitlement to retain the custody of minor children as compared to the father who has taken second wife after divorcing the mother of the minors. iv) That the welfare of the minor is the paramount consideration for decision as to who should hold custody of the minor children and that the Court of learned Guardian Judge which is equivalent to the Court of Qazi is the best Judge to take a decision in exercise of his discretion as to who should hold the custody of the minor children and ordinarily no interference is possible in writ.

17. Admittedly the spouses were married in this case in the year 1976. They have been living in Abudahbi for a period of about 3 1/2 years. A document of separation Exh. D1 was executed between the parties with their free consent. Although there is no substantial evidence of giving beating to the respondent No.1 by the petitioner yet the material on record clearly proves that thee was rift between the spouses which stands established from document EAD1 and also by a visual examination of the two video cassettes produced by he petitioner during the course of these proceedings. It appears that the spouses have been living together but the conduct of the petitioner towards his wife does not appear to be unexceptionable as claimed by the learned counsel for he petitioner. For example, while standing in reception line in Abudhabi in Pakistan Embassy it can be felt that the husband and wife are not living with a very happy union which usually stands reflected in such like functions. Similarly is tie position if the videocassette is seen regarding other occasions. The minors while appearing before this Court have also stated that their father was not communicative and was unconcerned regarding their health and education. During the pendency of the proceedings to get the custody of the minor children the petitioner has admittedly married a young virgin girl aged 27 yeas, although he himself is a father of two grown up daughters, out of whom one is presently aged 15 years. He had failed to pay maintenance to the minor children in spite of the order passed by the lower Courts. He rather challenged his liability to pay the maintenance by filing of appeal which appeal has been dismissed on 10‑5‑1993. On my asking the petitioner stated that he will challenge that order before this Court as and when the copy of the order is mace available. He has admitted before me that he is doing nothing these days and is living in Rawalpindi. The petitioner has further stated before this Court during the course of arguments on my query that he will keep his minor children in Peshawar where his old mother aged 70 years and unmarried sister will remain with the minor children. It .clearly shows that if the minors are restored to the custody of the petitioner, they will be uprooted from the lap of their divorced mother, which has been held to be a cradle of "God Almighty" and will be put at the mercy of their step‑mother which will be a cause of constant torture for the minors which torture shall definitely adversely affect their personality as well as education. The children being grown up will not be in a position to digest the presence of a stranger woman sharing their father by living in the same premises or even living elsewhere. Restoration of their custody to the father will definitely put them in a situation which can be described by an Urdu proverb namely, or an English proverb namely, "rubbing the salt on wounds". Mother of the petitioner is aged 70 years, who is supposed to live with the minors in case their‑custody is given to the father. Such an aged woman herself requires constant care. How can she look after the minors? Similarly an unmarried sister of the petitioner who is intended to be shifted from the village to Peshawar to live with the minors is also not in a position to look after the minors, as she herself needs protection and care. Even if it is assumed that the treatment of the petitioner has been very fine with the minors, the developments which have taken uptodate have to be taken into consideration while deciding the question of retention/restoration of the custody of the minors. The petitioner who has taken second wife quite recently and has also failed to maintain the minors has got himself disentitled to ask for restoration of custody of the minors who are a living with their mother who is working as a school teacher and is admittedly living with the minors who are getting education in very good educational institution of the Islamabad. Presently the minors are getting best of mother's care, protection and best of education. The progress reports mark ANA to A.W. 3 which have been placed on record of this case clearly demonstrate that the minors are getting very good marks in their examinations. Two of the minors are grown up girls. They need motherly cere and guidance at this age of adolescence. Uprooting them from the present set‑up will definitely result in their complete breakage. Direction of restoration of their custody to the petitioner in view of the above circumstances seen in the light of law declared in various judgments referred to above cannot be said to be in accord with Injunctions of Islam as argued by the learned counsel for the petitioner. Argument of the learned counsel for the petitioner to the effect that as per provisions of Articles 2‑A and 227 of the Constitution of Islamic Republic of Pakistan, 1973, this Court should not give effect to the provisions of Fiqah which confer a right of Hizanat upon the mother is also misconceived. There is no cavil with this proposition that in view of Articles 2A and 227 of the Constitution of Islamic Republic of Pakistan 1973 as held in various judgments of their Lordships of the Supreme Court of. Pakistan, while interpreting and enforcing the law in vacant areas the Islamic principles, of law are to be applied. Case of Mst. Zahran Begum cited by the counsel for the petitioner supports the view that in case there is no specific verse or pus regarding the right of Hizanat, Qazi is to formulate its own conclusion, taking into consideration the overall circumstances of the case. It is also not correct that there is no Hadees in favour of right of Hizanat of the mother. In case of Rahimullah Choudhury v. Mrs. Sayeda Helali Begum and others (1974 SCMR 305) the report it has been held as under:‑‑ "The rules on Hizanat of children of tender age under Muslim law are based on the following tradition of the Holy Prophet (may peace be upon him): A woman once applied to the prophet, lying `O prophet of God! that is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care'; to which the prophet replied, 'thou hast a right in the child prior to that of thy husband, so long as thou does not marry with a stranger'." The tradition is quoted in Hedaya.(2nd Edition, Vols I‑IV, page 138) in Chapter XIV of Hizanat, or the care of infant children and under section "in case of separation, the care of the infant children belongs to the wife". It is followed by the comment that:‑‑ "A mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so, that committing the care to her is of advantage to the child and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying, `the spittal of the mother is better for thy child than honey, O Omar, which was said at a time when separation had taken place between Omar, and his wife, the mother. As ‑in the latter being then an infant at the breast spoken in the presence of many of the companions, none of whom contradicted him." It is clear, therefore, that there is a tradition from Holy Prophet (may peace be upon‑him) which supports the right of the Hizanat of the mother. Even otherwise, I am of the view that due to the further development in the case particularly a second marriage of the petitioner with a young virgin girl of aged 27 years about 5 months earlier, it is definitely in the welfare of the minors that their custody should remain with their mother. The minors who are of grown up age have also stated before me that they wanted to live with their mother who is very well catering their personal as well as educational needs. Their maternal‑uncle is also living in the same vicinity. He also could be of a great help to the minors as well as his sister. The petitioner who has failed to discharge his liability should immediately pay the maintenance amount which has been directed to be paid to the minors by a Court of competent IR jurisdiction instead of contesting his liability, to pay the maintenance to the minors. It is his bounden duty in accord with Injunctions of Islam to maintain his minor children even if they are living with their mother. Contribution I towards maintenance of the minors by the petitioner will be a good gesture on his part. Grievance of the petitioner regarding difficulty in meeting the minors can be brought to the notice of the learned Guardian Judge by filing of an application, which shall be decided by the learned Guardian Judge in accord with the law declared in the case of Ihsan ur Rehman v. Mst. Najma Parveen (PLD 1986 SC 14) at page 28 of which report it has been held as under:‑‑ "Before parting with this judgment it needs to be observed as held by G this Court in the case of Khizar Hayat Khan Tiwana v. Mst. Zainab Begum PLD 1967 SC 402 the Family Court when acting as a Guardian Judge exercises parental jurisdiction and the technicalities in so far as it is possible should not be allowed to frustrate substantial justice. A second application wherever it is permissible and is in accordance with the condition for filing such an application before the Family Court (if there is substantial change of circumstances and situation) is not barred under the relevant law. And the Family Court when acting as a Guardian Judge is empowered also (when it is necessary) to regulate the conduct or proceedings of any guardian appointed or declares by it. This principle will apply to the regulation of the custody of the minors/wards in cases like the present one. The relief sought by the respondent regarding visits to the respondent on question of meeting between the minors and the parent can be regulated through an application to the Family Court." , Consequently, it stands established beyond doubt that the two Courts below have exercised their jurisdiction quite in accordance with law and, therefore, the impugned orders are unexceptionable and cannot be said to have been passed illegally and without a lawful authority. The two learned Courts below having concurrently held in exercise of their conclusive jurisdiction after scanning of whole evidence that it is in the welfare of the minors to live with their mother, therefore, in exercise of Constitutional jurisdiction of tills Court, no interference is possible in this case as held in cases of Muhammad Hussain Mumr and others v. Sikandar and others (PLD 1974 SC 139), Muhammad Sharif and another v. Muhammad Afzal Sohail etc. (PLD 1981 SC 246) and Muhammad Zahoor and another v. Lai Muhammad and 2 others (1988 SCMR 322).

18. Resultantly, I see no ‑force in this writ petition. The same is dismissed with no order as to costs. M.B.A./1‑79/L Petition dismissed.