' The appellant filed an application under section 25 of the Guardians and Wards Act, for the custody of his minor son and a daughter, namely, Mubashar Ahmad and Shahida Nasreen, who were residing with their mother even since the respondent was divorced. His case was that the respondent was divorced by him and she removed away the minors from his custody but was not in a position to properly maintain them.
2. The respondent resisted the application and raised the plea that decree for payment of maintenance to the minors was passed against the appellant by the Family Court: he even then did not pay any main tenancy and dishonestly filed an application under section 25 of the Act, to avoid the payment. She also asserted that the appellant contracted a second marriage and that it was against the interest of the minors to hand over their custody to him.
' During the proceedings before the learned Guardian Judge, the appellant withdrew his application so far as it related to Shahida Nasreen. The parties, thus, contested the case only in respect of the custody of their son.
3. The appellant produced one witness, namely, Maqbool Ahmad, A. W. 1, and appeared as his own witness. A. W. 1, deposed that the respondent was not possessed of any source of income to maintain the the minor. In cross-examination he admitted that on account of the appellant's failure to pay maintenance to the minor, warrants for his arrest were issued by the Court concerned. He further stated that the minor was then studying in 7th class. While appearing in the witness box, the appellant claimed that he could bring up and educate the minor better than the respondent. He denied the allegation that he did not pay the maintenance to the minor but admitted the factum of the second marriage and birth of a daughter out of this matrimonial relationship.
4. The respondent, on the other hand, besides her own testimony, examined two witnesses, namely, Miran Bakhsh R. W. 1 and Bashir Ahmad, R. W.
2. It is in their testimony that the minor was a student of 8th class and that it was in his interest that he should remain in the custody of his mother. The respondent, while appearing as her own witness stated that the appellant paid maintenance to the minor through execution of warrants and that his mother and grandmother had died. She controverted the appellant's claim that the welfare of the minor laid in handing over his custody to him.
' The learned Guardian Judge, held that the appellant moved the application for the custody of the minor after the order regarding payment of maintenance was passed against him. The minor was produced before the learned trial Court who recorded his statement and found that from the very beginning he was residing with his mother and wanted to continue to reside with her. In the opinion of the learned Guardian Judge, both the minors had all along been residing together and as the appellant had already withdrawn his application regarding Shahida Nasreen, it was not proper to separate the brother from his sister. In view of his these findings he held that it was not in the interest of the minor to hand over his custody to the appellant. Accordingly by his order dated 2nd May, 1978 he dismissed the application. This order has been called into question through this appeal.
5. The learned counsel for the appellant argued that the minor had crossed the age of seven years and, therefore, the appellant who was his father had the superior right of custody unless he was found to be suffering from some disqualification. He urged that no such disqualification was proved against him. It was contended that the respondent did not have any means of income, and therefore, could not bring up the minor properly. He also asserted that the appellant had been regularly paying the maintenance to the minor. He relied on Mukhtar Ahmad Khan v. Aziza Begum
(1) and Juma Khan v. Mst. Gul Ferosha (2).
' In the first case the custody of a minor son who had crossed the age of seven was awarded to the father and in the second precedent, the learned counsel made specific reference to the observations of the Privy Counsel in Imam Bandi v. Mustaddi (3) which were relied upon in this report, and are reproduced below :- "It is perfectly clear that under the Muhammadan Law the mother is entitled to the custody of the person of her person of her minor child upto a certain age according to the sex of the child. But she is not the natural guardian ; the father alone, or, if he be dead, his executor (Under the Sunni Law) is the legal guardian."
6. It was argued on behalf of the respondent that the appellant contracted second marriage and had children out of this wedlock and neglected to maintain the minors ; the respondent, therefore, had to initiate proceedings against him for recovery of maintenance ; orders for maintenance of the minors were passed against him ; he paid maintenance only when warrants were issued. It was contended that the application filed by the appellant was merely a counterblast. Reliance was placed on Mst. Zohra Begum v. Sh. Latif Ahmad Munawar (4) wherein it was held that there was conflict of views in authentic text books on Muslim Law, regarding mother's right of hizanat, and therefore, the Courts were competent to formulate their own opinion. The learned counsel also cited Mst. Fahmida Begum v. Habib Ahmad (5). A reference to this precedent will provide that- ti.................. It is permissible for Courts of law to differ from the rules of hizanat stated in the text-books of Muslim Law since there was no Quranic or Traditional Text on the point and Courts which have taken the place of Qazis can, therefore, come to their own conclusion by process of ijtihad which according to Imam-Al-Shafei is included in the Doctrine of Qiyas. Therefore, it would be permissible to depart from the rules stated therein if on the facts of a given case its application is against the welfare of the minor.
7. I have gone through the entire record in the light of the sub mission made by the learned counsel for the parties. The admitted position is that the appellant has contracted a second marriage and has children from his present wife, whereas the respondent has not remarried. Ever since her divorce, the minor is residing with her. His present age is 15.1-2 years. On 24th April, 1978 when he appeared before the learned Guardian Judge, he was studying in the 9th class and expressed his preference for the mother. There is nothing against the respondent to disentitle her to retain the custody of the minor except that it was argued that she was not possessed of means of income.
But I do not think that this ground, in the circumstances of the case, can be used against her to award custody of the minor to the appellant. It is the duty of:
(1) PLD 1975 Lah. 86
(2) PLD 1972 Pesh. 1
(3) (1918) 45 I A 73
(4) PLD 1965 Lah. 695
(5) PLD 1968 Lah. 1112 ' the appellant to maintain the minor. It will not be without significance to observe that the appellant did not pay maintenance to the minor and warrants for his arrest had to be issued. The submission, that the application for custody of the minor was filed by the appellant out of retaliation, cannot lightly be brushed aside. No doubt, under Muhammadan Law, normally, mother is entitled to retain the custody of her male child only up till the age of 7 years. But it is now well settled that for determination of the question of custody of a minor, his welfare has primarily to be kept in view by the Court. In this respect I am inclined to uphold the findings of the learned Guardian Judge, and I have not been persuaded to hold otherwise.
8. For all these reasons I do not find any merit in this appeal which is hereby dismissed leaving the parties to bear their own costs.
9. To remove the estrangement between the father and his son, the appellant may move the Guardian Judge, to provide him the opportunity to meet the minor, periodically. If such an application is moved before the Guardian Judge, he shall formulate a scheme in this respect after hearing both the parties.