' This appeal has been filed against the judgment of the Guardian Judge, Dera Ghazi Khan, dated 4th June, 1979.
2. Briefly the facts of the case are that the appellant was married to the respondent No, 1 and had been divorced later on. Out of the wedlock there were born two sons by the name of Muhammad Ashraf and Muhammad Nusrat and two daughters by the names of Naseem Akhtar and Shamim Mai. With the exception of Mst. Shamim Mai all other were given in the custody of the respondent No, 1 at the time of divorce. The respondent No, 1 filed a petition under section 25 of the Guardians and Wards Act for the custody of Mst. Shamim Mai aged 5 years and 4 months against the present appellant on the ground that it was not in the welfare of the minor to remain in the custody of the appellant for several reasons. It was further stated in the petition that after the divorce an agreement dated 11th March, 1973 (Exb. A/I) was executed between the parties by which the appellant had agreed to hand over the custody of the aforesaid minor to the respondent on her attaining 5 years of age. This application was resisted and on the basis of the pleadings of the parties the following issues were framed :-
(1) Whether it be in interest and welfare of Mst. Shamim Mai minor to make over her custody to the petitioner ? O. P. A.
(2) Relief.
3. The learned Judge, Family Court after appreciating the entire evidence on record came to the conclusion that it was not in the welfare of the minor that she be given in the custody of the mother. In arriving at this conclusion some important facts on record were taken into consideration by the learned Judge, Family Court. It was noted that the appellant had married second husband Mushtaq Ahmad who was not related within the prohibited degree to the aforesaid minor being a female child and as such has lost her right of hizanat. It was further observed that on the appellant losing the right of hizanat no one from the side of the appellant entitled to custody had come forward to claim the custody of the minor and reference was made to the maternal grandmother or any other relation entitled to hizanat after the mother is disentitled to the custody of the female child. It was also appreciated that Mushtaq Ahmad, the second husband of the appellant had before the Marriage trespassed in the house of the respondent 4nd wanted to have sexual intercourse with the appellant but Mst. Amir Mai who was' sleeping nearby woke up and on her alarm Mushtaq Ahmad made good his escape. The F. I. R. (Exh. P.
1.) was exhibited. A copy of the complaint concerning offences under section 498/479/109/312 P. P.
C. Was also placed on record. It was under these circumstances that the agreement (Exh. A/1) was executed by the appellant with the respondent who agreed to hand over the minor Mst. Shamim after attaining the age of 5 years. At the time of divorce Mst. Shamim was only a few months' old.
As already indicated above the respondent had retained the custody of all other children. The anxiety of the father to keep away the child from the custody of the appellant and also to take care to bring back the minor on attaining the age of 5 years is also significant. The agreement (Exh. A/1) was duly proved. The respondent appeared as A. W. 3 and stated that the appellant was abducted by Mushtaq Ahmad and since then there had been litigation between the parties. There was a complaint of abduction and theft of ornaments. The complaint of the respondent is that keeping of Mst. Shamim Mai with the appellant would have the effect of bringing her up in an unhealthy atmosphere.
4. The respondent has also contracted another marriage and all the remaining 3 children out of the wedlock of the appellant are in the custody of the respondent. In the present circumstances of the case I do not think that it would be in the welfare of the minor to continue with the appellant.
The circumstances brought on record fully justified the finding of the learned Judge, Family Court.
5. The learned counsel for the appellant has cited Akhtar Ahmad v. Mst. Hazoor Begum (1). In this case on the dissolution of marriage, the parties, entered into a compromise under which the husband surrendered his right to the custody of his minor daughter aged 4 years in consideration of wife's relinquishing her dower and claim of maintenance. Later the mother of the minor having re-married, the father applied for the custody of the minor on the ground that the new husband was not within the prohibited degrees of the minor. The trial Court found that there was no evidence to show that the minor was not properly maintained by the mother or that she was ill- treated by her or that the mother was leading an immoral life. It was further found that the father had also remarried and had got a child from the second marriage. In the circumstances of that case, the discretion exercised by the trial Court in not depriving the mother of the custody when she was found to be properly looking after the minor was not interfered. The learned counsel for the appellant has also cited Mst. Nazeer Begum and others v. Abdul Sattar (2) for the proposition that only because the mother contracts a second marriage with a stranger she does not lose her right of hizanat if the welfare of infant demands his remaining with the mother. It was further observed that even if she may lose her right of hizanat, maternal grand-mother was the next person entitled to custody of female child till she attains the age of puberty. None of the decisions are applicable to the facts of this case. It is found by the learned trial Court that it is not in the welfare of the minor to remain with the mother and the maternal grandmother had not come forward to claim the hizanat.
(1) F L D 1965 Kar, 65
(2) PLD 1963 Kar. 465
6. The learned counsel has also pointed out that the suggestion made to A. W. 2 Allah Bakhsh by which an attempt has been made to show that Mst. Shamim Mai was born out of the wedlock of the appellant and the second husband Mushtaq Ahmad.
7. After a careful examination of the whole case I am convinced that in the present case it would not be in the welfare of the minor to continue with the appellant. Her appeal has, therefore, no force and as such is dismissed with costs.