2002 PLP 73 (MLD)

The petitioner and respondent No.3 were married and were blessed with a son who is stated to be about 11 years of age. On 10‑5‑1999 respondent No.3 filed an application under section 25 of the Guardians and Wards Act, 1890 for the custody of the said child. His case was that the child is more than 7 years of age‑ and he is entitled to his custody as he wants to provide education to him. The petitioner contested the application stating that she is properly bringing up the child who is being educated. She also complained that the application has been filed to defeat a decree for maintenance passed in favour of her son against respondent No.3. Following issues were framed:‑‑ (1) In whose custody the welfare and interest of the minor lies? OPP. (2) Relief. Better statement as well as evidence of the parties was recorded. Learned respondent No.2 allowed the application vide order, dated 25‑3‑2000. A first appeal filed by the petitioner was dismissed by learned respondent No.1 on 8‑5‑2000.

2. Learned counsel for the petitioner contends that respondents Nos. l and 2 have acted without lawful authority inasmuch as they have proceeded to order delivering the custody of the child to the respondent No. 3 on the sole ground that he had attained the age of seven years. This according to the learned counsel his violative of the law laid down by the Supreme Court of Pakistan in the case of Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCMR 838).

3. Ch. Amir Muhammad Khan, learned counsel for respondent No.3, on the other hand, contends that the criteria laid down in personal law of the parties has to resolve the question of Hizanat has been correctly followed by the learned respondents Nos.l and

2. Further contends that the said respondents had duly taken care of the welfare of the minor in the impugned orders.

4. I have gone through the documents placed on, the file of this writ petition, with the assistance of the learned counsel for the parties. After having examined the said record and the impugned judgments passed by learned respondents Nos. l anti 2, I have no hesitation in holding that respondents Nos. l and 2 had mainly been influenced in the course of recording the impugned orders by the fact that the minor is more than seven years of age. I also find some reference in the order of learned Additional District Judge, Chakwal to the effect that the minor need to be looked after by his father having attained the age of more than seven years.

5. I have also examined the evidence on record. The petitioner lady appeared as P.W.1 on 15‑3‑2000. She has stated that she was divorced seven years ago; that the child is 11 years of age and presently is appearing in examination of Class V in Bharwal School; that the child has completed the reading of Holy Book; that the child has been in her custody since his birth; that the respondent would not maintain the child and a suit was filed which is pending; that the respondent is living in the house of his brother who has six children; that the respondent had never cared to meet the child even on the occasion of Eids etc., and that the suit had been filed to avoid the consequences of the maintenance proceedings. She specifically stated that she is the sole child of her father who is alive and is running a shop and also earns agricultural income and spends all the income on her and her child. She has been cross -examined. It has not been suggested to her that the child is not studying or that he has not completed the reading of the Holy Book or that there is something wrong with his health. On the other hand, the respondent has appeared as A. W.1 and has alleged that the child is not being educated and he grazes the cattle and that he wants to keep the child for better education. In his cross‑examination he admits that there is a Government High School in Bharwal. Admits that on 23‑5‑1995 a maintenance decree was passed against him and that he paid the maintenance in Court. He has proceeded to deny that the child is studying in Class‑V. He admits that he is living in a three‑room house occupied by 9 persons including himself. Now I find that his better statement was recorded on 7‑10‑1999 and admitted that the child is studying in Class‑V.

6. I find that the learned respondents Nos. l and 2 have not at all read the evidence on record. The evidence clearly shows that as against C the respondent who is living in his brother's house alongwith 8 other persons in three rooms. The child is living in the house of his grand‑father and his mother is the only child of her father. He is being educated and has finished the reading of Holy. Book. There is no allegation that there is any danger to his health or well‑being. In this view of the matter I find that the evidence on record, properly read, certainly leads to the conclusion that the welfare of the minor lies to the conclusion that the welfare of the minor lies in his custody with his mother. So far as the said sole reason for awarding custody of the child to the respondent, i.e. his crossing the age of seven years is concerned, I find myself in complete agreement with the learned counsel for the petitioner that the said findings are violative of law laid down by the Supreme Court of Pakistan in the said case of Firdous lqbal. I, therefore, do find that 'the learned respondents Nos. l and 2 have acted without lawful authority While passing the impugned orders delivering up the custody of the child to the respondent. This writ petition is allowed. The impugned orders are set' aside and the petition filed by respondent No.3 for the custody of the son of the parties is dismissed.

7. I, however, do feel that respondent No.3 should have a fair opportunity to meet his child. For this purpose the parties shall approach the learned Judge, Family Court who shall make suitable arrangement for the visitation of the child by his father. H.B.T./S‑284/L Petition allowed.