P L D 1954 Lahore 704 (PLP)

KAIKAUS, J.‑This is an appeal against the order of the Guardian Judge, Sargodha, granting the custody of Ms, Irshad Begum, a minor, to her father Feroze Din respondent 'The appellant before me is the mother of the minor. The parties i. e., the mother and the father of the minor, were married about 25 years ago. On the 18th of April 1940 the respondent divorced the appellant. At the time they had two children Manzur Ali a son aged 8 years, and Mst. Khurshid Begum, a daughter aged 3 years. At the same time the wife was pregnant by four months and she gave birth later to Mst. Irshad Begum whose custody is in dispute before me. After her divorce, it does not appear exactly how long afterwards, the appellant remarried. The present application under section 25 of the Guardians and Wards Act was filed on the 3rd of November 1952 for the custody of Mst. Khurshid Begum whose age was stated to be 13 years and that of Mst. Irshad Begum whose age was stated to be 11 years. During the proceedings Mst. Khurshid Begum minor married and the respondent gave up his claim with respect to her. In his application under section 25 the respondent simply stated that he had divorced the appellant in 1940 ; that she had remarried ; and that Mst. Khurshid Begum and Mst. Irshad Begum being at the time of 13 and 11 years of age respectively should be handed over to him. The appellant contested the application on the ground that the respondent had not taken any interest in the minors who had been brought up by her and that the application was mala fide and submitted with an intention to secure the custody of the minors for the purposes of selling them. The father, it was alleged, had no affection for the minors. The learned Guardian judge granted the custody of the minor to the respondent recogniz ing his undoubted right to custody as against a mother who had married a person not within the prohibited degree and on that account had lost the right to custody. He purported to follow Muhammad Bashir v Mst. Ghulam Fatima (P L D 1953 Lah. 73.) a judgment of my own. There is no doubt that ordinarily a father is entitled to the custody of his minor children and that strong grounds are needed to defeat this right It is for those who deny his right to establish circumstances disentitling him to custody. I have held in the judgment referred to above that although under section 25 of the Guardians and Wards Act what we have to consider is the welfare of the minor, there is a presumption as to such welfare being in the grant of custody to the person who is by Muhammadan Law entitled to custody. I have at the same time, pointed out that there is no inconsistency‑ in this respect between section 25 and the Muhammadan Law relating to custody, and that the welfare of the minor is the governing factor in Muhammadan Law as well as the statute by which the grant of custody is governed. While it requires a strong case to rebut the right of then father to custody, it is not an absolute right and if the father has been guilty of such conduct that in the opinion of they Court custody of the minor should not be granted to him Muhammadan Law does not stand in the way. The circum stances of the present case are that since the time when he divorced his wife the respondent has taken no interest in the minors. The first time he saw them was when they were pro duced in Court by the appellant. It is admitted that he never paid any thing towards their maintenance. He gives no reason as to why he has now felt, after such a long time, the need of applying for the custody of the minors. It appears to me, in the absence of any other explanation, that this application was submitted with the sole object of getting hold of the girls so that the respondent may dispose of them in marriage. The conduct of the respondent supports this inference. One of the girls was married during the proceedings and he has taken no further interest in her. He has made no effort to see her. He states before me that he now wants to marry Mst. Irshad Begum to his sister's son. At the same time, he wants to marry his own son to the daughter of an other sister. It seems to me that it is not a question, at all of Mst. Irshad Begum living with one party or another. She is now about 14 years of age and is to be married soon. The only question is as to who is going to give her in marriage. If I were satisfied that by handing her over to the father there would be chances of securing a better husband, a better dowery and a better position in life, I would, in spite of his previous conduct and of the fact that he has put in this application with the object of disposing of the minor in marriage be willing to make an order in his favour. However, the respondent has failed to satisfy me that any particular advantage will be gained by the minor being handed over to him. So far as the minor is concerned she has made a statement that she does not want to go to her father whom she has never seen and I would not force her unless I find that her interests were being advanced. The learned Guardian Judge, when his attention was drawn to the conduct of the respondent, referred to an explanation given by the respondent that he did not know the whereabouts of the appellant till some time before the application. I find nothing on the record to support such an explanation. The respondent never made any such statement in his application under section

25. He did not say so in his statement in the witness‑box and made no such suggestion in cross‑examination of any witness produced by the appellant, As I have stated already, in the application he had simply stated that he had divorced the appellant, that she had remarried and that Mst. Irshad Begum having attained the age of 11 years should be handed over to him. I regard the explanation as to the respondent not knowing the whereabouts of the appellant an afterthought. For two reasons I would dismiss the application of the respondent for custody. The first is that the conduct of the respondent disentitles him to custody arid the second is that his application is not bona fide being submitted with the object of securing the minor in order to dispose of her in marriage 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 P W R 1917, A I R 1937 Lah

481. A I R 1923 Lah. 283, A I R 1939 Mad 611 and 1951 E P

338. Learned counsel for the respondent relies on A I R 1928 Lah. 896, A I R 1927 All. 581 and A I R 1927 All. 358, and my own judgment in Muhammad Bashir v Mst. Ghulam Fatima (supra). 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. There is nothing in any of the judgment cited by the (earned counsel for the respondent which would negative the proposition that the father may not by his conduct lose his right to the custody of the child or that an application with an ulterior object must in all circumstances be allowed to succeed. I would mention before I conclude that learned counsel for the appellant objected to the maintainability of the application under section 25 on the ground that the respondent never had custody of the minor. I have already held in Muhammad Bashir v. Mst. Ghulam Fatima (supra) that a father has in such cases constructive custody of the minor and a refusal to hand over the minor to him would amount to removal from custody The circumstances of the present case are peculiar for the minor was born after the divorce. But the principle applicable is the same. The custody of the mother would be regarded subject to the control of the father as under Muslim Law it ought to be. I hold therefore, that the application could not be dismissed as not maintainable. Under the circumstances I allow this appeal and setting aside the order of the learned Guardian Judge dismiss the application under section 25 of the Guardians and Wards Act. However. I make an order to the effect that the appellant will not be entitled to give the minor in marriage without the permission of the Guardian Judge, Sargodha. The Guardian judge when he is approached with an application for the marriage of the minor will issue notice to the respondent as well. Also, the respondent himself will be entitled to apply to the Guardian judge with a proposal for the marriage other minor and it would be within the Jurisdiction of the Guardian judge if he be of the opinion that it would be in the interest of the minor to grant the custody of the minor to the father for the purposes of the marriage, he may do so and may also give such other directions as he thinks fit. Parties will bear their own costs in both the Courts. A. H. Appeal allowed.