1. JUSTICE QAZI EHSANULLAH QURESHI (CHAIRMAN).- ' Brief facts giving rise to the instant petition are that the petitioner and respondent locked in the ties of marriage on 4-4-1999 at village Gulmit Tehsil Hunza District Gilgit. In duration of marriage thereafter, strain relations developed, between the parties and resultantly the ties of the spouses disconnected and the marriage was finally dissolved on 8-10-2005.
2. ' That out of their wedlock son Solomon Ali Khan was born on 13-8-2003, who is still living with the mother-petitioner' since birth.
3. ' The respondent/husband moved the Court of District and Sessions Judge/Guardian Judge, Gilgit under sections 10 and 25 of the Guardians and Wards Act, 1890, which application was hotly contested, reply, replication, and rejoinder filed pro and contra evidence recorded, ultimately the learned Guardian Judge reached to the conclusion that the respondent/petitioner is entitled for the custody of minor and also allowed him to take the minor abroad, if need be, subject to guarantee in writing for the production of the minor before the Court after every three months, in order to facilitate the meetings of the minor son with his mother, the date of meeting has to be reckoned from the date of handing over the minor to the respondent/petitioner (father). In the event of failure on the part of petitioner/father to produce the minor son as per Court directions, the petitioner/father has to be burdened with cost to the tune of Rs,2,50,000 payable to the respondent/mother now petitioner. The meetings of the son with the mother is to be arranged by the Court.
4. ' Not satisfied with the aforesaid judgment/order announced by the Guardian Judge, dated 23-11- 2006, the petitioner then respondent preferred an appeal in the Chief Court Northern Areas Gilgit.
5. The learned Chief Court after hearing the parties maintained the impugned judgment passed by the District and Sessions Judge/Guardian Judge, Gilgit. The petitioner Fouzia Begum still aggrieved has come to this Court for her redressal.
6. ' The learned counsel for the petitioner addressed that the subordinate Courts below had erred in law; judgment so passed is a result of misconception, misconceivment and misinterpretation of law. No doubt Ismailie Fiqa is sub sect of Shia sect and according to Shia Law the mother can retain his son up to the age of 2 years and daughter up to the age of 7 years, but in the interest of minor paramount consideration for the purpose is the well-being and welfare of the mioner, which has to be kept in view.
7. ' Assailing judgment passed by Chief Court, the learned counsel for the petitioner submitted that the judgment by the Guardian Judge, Gilgit was not properly looked into by the Chief Court and this aspect of the matter was not at all attended that once the minor child is out of Northern Areas what to say of foreign country, the jurisdiction of the Guardian Judge culminates there and then and he is left with no powers whatsoever to call for the child from outside Northern Areas, so such order was nothing but gamble. He also submitted that after the compromise taken place between the parties effected by conciliation and Arbitration Penal Gulmit and accepted by respondent prior to initiating the Court for guardianship the respondent in the circumstances estopped by his own conduct to move the Guardian Judge that the respondent/ petitioner claiming to be Muslim confessed that he is Alcohol Addict and Womanizer, attends Clubs, etc. Often. So being Muslim the conduct of respondent is against the Injunctions of Islam and moral ethics, the so more such admissions on the part of the respondent reflects and recoils his character which otherwise expose the atmosphere, environments and spectrum in which respondent is leading life and where he intends to take his minor son.
8. ' The learned counsel for the respondent in rebuttal hotly pressed that the minor son is aged about 3 to 4 years and under the Shia Law, the father is entitled for his custody as the minor has crossed the age limit of 2 years. Besides justifying Muslim Personal Law, further advanced that the minor can be well-looked after at Canada where he can get good education and high standard society whereas here at Hunza he will be spoiled, as he would neither be able to get good education nor could enjoy happy and prosperous life at backward village Gulmit, all the more the resources of the petitioner mother are limited and meagre, so petitioner would not be in a position to attend to child basic requirements, and in this way the career and future of the minor would be affected adversely and also that it would deprive him from Canadian Nationality in the long run. He also vehemently pressed that the petitioner (mother) of the minor never bothered to appear before Guardian Judge nor appeared in the witness-box, nor brought the son on single date to enable the respondent/father to see his charming, loving son for whom he is striving and crying since long. He was of the view that under the law, in case pleadings are not supported by the party during the statement, the application for guardianship goes un-rebutted and taken to be correct.
9. ' We have heard the learned counsel for the parties at length perused the record carefully and also gone through the relevant case-laws specially on the subject i,e, welfare of the minor and age limit according to Fiqa Jaffria.
10. ' We have also a glimpse on the judgments and findings declared by Guardian Judge and Chief Court. The conclusion drawn by the A District Judge and the Chief Court does not appear to be legal rather against the interest and welfare of the minor. What prevailed upon the subordinate Courts is the foreign charm, attraction and Nationality of the west. Forgetting the spirit of theme and rationale behind the provision. Vis-a-vis sentiments and emotional attachments of mother towards son (Specially the mother of the East) and son towards mother.
11. ' The prime consideration before the court was the interest of the minor and to see whether .In so tender age a minor can be snatched from the mother and could without mother an infant can survive comfortably.
12. ' No doubt according to Fiqa Jafaria the target age is prescribed, but there is no such provision available under section 25 of the Guardians and Wards Act, nor it is given to understand anywhere that guardianship case shall be decided on the basis of the views expressed by different School of thoughts. The Court has to determine the custody of minor notwithstanding the rights of the father or mother, but betterment of the minor.
13. ' As to financial restraints, that she had no independent source of income, poverty is no ground to deprive the mother from the custody of her minor son. As otherwise it is the responsibility of father to maintain his son. However, the wishes of the minor can be taken into consideration, but it is next to impossible that minor can declare his intention at the age of two years. Removing away the child at the age of two years, from the mother, who happens to be always loving and affectionate and whose commitment to the child cannot be matched with any other relation, there is also famous saying that a lap of real mother is 'Gods' own cradle for a child, in this state of affair removal of infant from mother would be tantamounting to height of cruelty.
14. ' In this case the respondent/father failed to establish, that the atmosphere of the mother, where the minor is aboding is detrimental to minor's future or career in any manner or mother could not take care of minor or welfare of the minor in view of financial strangulation.
15. ' Attaining the target age of minor is neither absolute nor settled law. While settling the matter of custody, the supreme consideration is the convenience and well-being of the minor, rather than claims and wishes of the contenders. No doubt, wish of the minor can also be kept in view by Courts, provided the minor is grown up enough to form an intelligent opinion. Each case has to be decided on its own merits. There are bundle of authorities on the subject, where the custody of the minor son was even refused in cases where the age proved to be more than seven years.
16. ' The salient feature of this case as indicative from the record and as stated by the learned counsel for the petitioner that child was born in the year 2003, the respondent father never visited his son nor sent any maintenance, while he was himself enjoying his life fully, on contrary, his demeanour can be imagined from the fact that he had divorced his wife, left her at the mercy of God, now trying to take away his son, the only hope and charm in life of the mother. Enough is enough.
17. ' We in the wake of above discussion are unanimous on the point that in the present circumstances the respondent/father is not at all entitled for the custody of his minor son Solomon Ali Khan. The petition is, therefore, accepted, however, the respondent/father could see and meet his son as and when he likes, once a month at the residence of the minor son Solomon Ali Khan (mother's house) or any third place fully secured, so that the minor may not be mishandled and removed illegally by the father, for that matter the respondent/father would meet the son through S.H.O. Concerned, who will be duty bound to take care of the security of minor at any cost. If the father/respondent being foreigner could not afford to meet his son every month, it is up to him to see and meet, ,whenever he gets opportunity.
18. ' Secondly we are also conscious about the sentimental attachment of the father with son, so in this scenario we are settling time for obtaining the will of the minor, the respondent/father can apply to the Guardian Judge when the minor son Solomon Ali Khan reaches to the age. Of seven
(7) i,e, on 13-8-2010) or thereafter. The Court in this regard may ascertain the choice of the son, as to where, he wants to reside, (with father or mother) if the result is in negative (against the father) even then in accordance with the schedule as streamlined above, meeting of father and son shall continue, however, if the respondent/ father now wants to see and meet his son, before leaving the country, he may move the Guardian Judge, who is directed to arrange the meeting.
19. ' So far the education and maintenance of the son is concerned, it will be the responsibility of the father/respondent.
20. ' In this view of the situation the petitioner/mother is strictly directed to cooperate fully and would not try to make any hindrance or obstacle in the way of meetings of the minor son with father. In otherwise event the Court shall take serious action against the petitioner/ mother for flouting and evading the orders of the apex Court.
21. ' Order announced no order as to cost. File be consigned to record.