1983SCMR606 (PLP)

MUHAMMAD AKRAM, J.‑This is a petition for special leave to appeal from an order dated 19th January, 1976 passed by a learned Judge of the Lahore High Court at Lahore whereby he dismissed the appeal of the peti tioner herein against the order of the Family Judge, Chakwal delivering the custody of. the two minors to the respondent under section 25 of the Guardians and Wards Act, 1980. Briefly the relevant facts are these. The respondent, who is now a Lt. Colonel in the Army, was married to the petitioner and they were blessed with two children Mst. Sajida, born on the 8th February, 1963 and Mazharul Haq, born on the 25th August, 1965 of this wedlock. But unfortunately the relations between the parties got strained and a divorce was pronounced between them in 1966, the two minors remaining in the custody of the mother. In about 1967, the ‑respondent contracted a second marriage and has two daughters and a son from that wedlock. On the 13th November, 1972, the Family Judge,. Chakwal passed an order awarding Rs. 250 per mensem as maintenance to the two minors, namely, Mazharul Haq and Sajida, on their application under section 488, Cr. P. C. This appears to have prompted the respondent to file an application against the petitioner herein under section 25 of the Guardians and Wards Act for the custody of the two minors. The application was opposed by the mother. At the trial the respondent produced two witnesses and also appeared as his own witness in support of his case. The petitioner herein examined three witnesses and also appeared in the witness‑box. The Guardian Judge, without any discussion of the evidence, accepted the application of the respondent on the 5th October, 1975 for the restoration of the custody to the father. He was of the opinion that the respondent was, as of right, entitled to the custody of his minor children and there was nothing on the record to disentitle him from claiming their custody. In conclusion, he observed that the respondent was a Lt. Colonel in the Army and has got a good source of income and was, therefore, in a better position to look after the interest of the minors. But, on the other hand, the petitioner herein was an illiterate lady, has got no source of income of her own for the educa tion of her minors. In appeal, the learned Judge of the High Court, with an understandable anxiety, tried to bring about a negotiated and agreed arrangement between the parties in the welfare of the minors. But no compromise could be arrived at between them. On this, the High Court, without even going into the evidence on the record, accepted an offer made by the respondent herein with certain modifications, for the admission of the two minors in a good school at Rawalpindi or at Murree by putting them in the hostels in the respective schools in which the minors were admitted. In the opinion of the High Court, this was a bona fide offer made by the respondent in the welfare of the minors and the attitude adopted by the petitioner was unreasonable. She was a frustrated divorcee who wanted to cling to the minors even at the cost of their welfare. In conclusion, the Court, therefore, dismissed the appeal of the petitioner on the l9th January, 1976. Hence this petition for special leave to appeal from the order. In this, Court too the parties were allowed more than one opportunity to evolve any negotiated settlement by compromise between them in the interest of the minors, but without any success. We have heard the learned counsel for the parties and also sent for the two minors, who were produced before us in Court by the petitioner:. Mst. Sajida minor was born on the 8th February, 1963 and is more than 13 years in age. Mazharul Eaq minor was born on the 25th August, 1965 and is nearing 11 years in age by now. Both of them appeared to be quite intelligent and have openly expressed their wish and preference to remain with their mother. It is a matter of no small surprise to us that neither the trial Court nor even the High Court in the appeal have at all discussed the evidence led by the parties on the record and have instead proceeded on other considerations. The trial Court in para. 7 of its judgment has merely observed that the respondent herein had tried to prove that he was a Shia by faith, but his answers to' the questions put to him in cross‑examination left no room for doubt that he‑is a Sunni by faith and his assertion that he is a Shia was totally ill‑founded. It also appears from the order passed by the High Court. that the respondent had made allegations' of bad character against the petitioner. But there is no finding on the record by the two Courts in this connection. If indeed the petitioner was of a blameworthy character then it would be unsafe to permit her to retain the custody of the two minors. In case, however, this allegation was recklessly made by the respondent without any regard to the truth, it would naturally reflect against his degraded character as a father who has tried to insult the mother of his own children and was even prepared to give up his own faith in claiming the custody of the minors on the made‑up plea that he was a Shia. He only woke up to the reality by filing of the application in the interest of the minors only after an order was passed against him by the Family Court on their application for their maintenance on the 13th November, 1972. It is in this light that the offers made by the respondent in the High Court should have been judged. The whole burden of the case of the respondent in the two Courts was and is that he is literate and a well‑to‑do man of status and can afford to give better education as a father to the two minors and that the petitioner was illiterate, too poor and incapable of looking after the welfare of the minors. In the impugned orders passed by the two Courts, we have not been able to‑ discover anything to the effect that the two minors are at present not being well‑looked after. In order to fully satisfy us on the point, the petitioner has produced two certificates dated 26th June, 1976. The certificate issued by Headmaster, Government Islamia Primary School, Chakwal, go to show that Mazharul Haq minor is a student of 5th Class in the school. He is doing well and is stated to have stood first in his class. He is reported to be intelligent and bears good character. Similarly, the Headmistress, Government Girls School, Chakwal has certified that Sajida minor is a regular student of 7th class in the school. She is hardworking and has topped the list of successful candidates in her annual examination. She is stated to be obedient, submissive and one of the brilliant students in her class. The question, therefore, that arises for consideration is as to whether it would be at all in the welfare of the minors to uproot the two students from their respective local Government Schools in which they are studying in the hope that they shall do better ' in a more promising institution away from their home town. This question has escaped the attention of the trial Court as well as the High Court and it has remained unanswered in their impugned orders. Under the Shariat Law, the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until' she has attained puberty. The right continues though she is divorced by the father of the child. Needless to mention here that the father is the natural guardian of his minor children and the mother's custody is a subordinate custody and is subject to the control of the father. But the mere inability to maintain the child is not a ground for depriving the mother of the custody of her children. In Harbal v. Usman (P L.D 1963 Kar. 888) it was held that mother's proverty is no hindrances to the custody of her minor daughter. Indeed in law it is for the father to provide for their maintenance. In Khizar Hayat Khan Tiwana v. Zanib Begum ( P L D 1967 S C 402) this Court observed that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor. In Rahimullah Choudhury v. Helali Begurn ( 1974 S C M R 305 ) this Court observed that the question to be decided under section 25 is, however not the right of the guardian to obtain the custody of the ward as that right is given to him by the statute but the welfare of the ward. A natural or a certificated guardian may turn out to be an undesirable person or the Court may find it not for welfare of the minor to deliver him into the custody of the guardian. It is therefore, provided specifically that although the guardian is entitled for such a custody, no rider will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even it' there be al presumption that it is for the welfare of the ward to deliver him into they custody of guardian, the Court will have to weigh it against the other weighty considerations on the record. The over riding and paramount considerations always is the welfare of the minor. Indeed this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in his favour unless it is in their welfare to do so. The welfare of a minor means his material, intellectual, moral and spiritual well‑being. The High Court accepted the offer made by the respondent herein in putting the two minors in a good school at Rawalpindi or at Muree as boarders. But, in doing so, it did not even consider whether or not it would be at all advisable for Mst. Sajida minor, who is about to attain puberty, to admit her in a hostel away from her parents. The parties are Awar, by caste and belong to Makhial, a rural village in Chakwal and were married together. The respondent has risen to become a Lt. Colonel in the Army. The petitioner has since shifted to Chakwal, according to her, simply for the sake of the education of her two children in English Medium Schools at Chakwal. She appears to have dedicated her life for the sake of her children and has not remarried. The respondent contracted a second marriage after he had divorced the mother of the two minors. He already has two daughters and a son from his second marriage look after them. For the reasons discussed above, we are not fully satisfied with the treatment already meted out to this case in its disposal by the two Courts without going into the evidence on the record. After hearing the parties, we have, therefore, decided to convert this petition into an appeal and set aside the impugned judgments passed by the two Courts. There shall be no order as to costs in the circumstances of the case. Appeal allowed.