' SARDAR M. ASHRAF KHAN, J.---The above titled appeal has been directed against the judgment of Judge Family Court Dhir-Kot, dated 30-10-2004 whereby, the application for appointment of Guardian of the minors Tuyyab son and Tuyyba daughter was disallowed by the said Court.
2. The brief facts forming the background of the instant appeal are that Abdur-Rauf Khan, the appellant herein, filed an application for appointment of guardian and custody of the minor Wards Tuyyab Khan son aged 6-1/2 years and Tuyyaba Begum aged two years before Guardian Judge Dhir-Kot. The said Court after due process of law, disallowed the same vide its order, dated 30-10- 2004. Hence this appeal to reverse the same.
3. Sardar Atta-Ellahi, the learned counsel for the appellant argued that the trial Court admitted grave illegality while passing the impugned order. The learned counsel submitted that the appellant and respondent No,2 were husband and wife. The appellant has divorced her and contracted the second marriage whereas the respondent has also contracted second marriage.
The learned counsel further contended that the welfare of the minors lies with the appellant (father), under the personal law, but the Family Court failed to apply the relevant law. According to the learned counsel the mere fact that the appellant had contracted a second marriage does not disentitle him from obtaining the custody of the minors. According to the learned counsel, the minors are not properly being looked after nor they are educated by the respondent therefore, by accepting the appeal, the custody of the minors may be given to him for the welfare of the minors.
The learned counsel cited the following case-law in support of his contention:--- 2005 YLR 547 and 2003 YLR 3245
4. On the other hand, Fahim Abbasi, the learned counsel for respondent No,2, fully defended the judgment recorded by the Guardian Judge. The learned counsel submitted that keeping in view the facts of the case and welfare of the minors the Court below felt advised to retain the custody of the minors with the mother, respondent, and did not disturb the same as the minors were being properly brought up and educated under her supervision. The learned counsel for the respondent submitted that the authorities cited and relied upon by the learned counsel for the appellant are distinguishable and have no bearing on the facts of the instant case. The learned counsel defended the impugned judgment on all counts.
5. I have heard the learned counsel for the parties and perused the relevant record with utmost care.
6. The appellant, Abdur-Rauf Khan and respondent were husband and wife. The appellant has divorced the respondent and has contracted his second marriage. They are contesting for the custody (Hizanat) of their minor childern namely, Tuyyaba and Tuyyab who are stated to be of 2- 1/2 and 6-1/2 years of age respectively.
7. Under Sharia law, a mother is entitled to retain the custody of her male child until the age of 7 years and her female child to the age of attaining he puberty. This right continues, even if, she is divorced. However, if she contracts a second marriage, then of course she looses her right of custody. But at the same time, if the husband opts for second marriage and lives and enjoys his life with his second wife, then it is paramount duty of the Court to see the convenience and welfare of the minor.
8. In the present case, the trial Court rejected the application of the appellant on the basis of welfare of the minors. The trial Court after appreciating the evidence has rightly concluded, that as the appellant has contracted the second marriage, and he being a driver of the truck, cannot himself look-after his minor childern, as such the minors cannot be given at the mercy of a step- mother.
9. It has been contended by the learned counsel for the appellant that the respondent has also contracted the second marriage and the male child is now eight years of age as such, the respondent has lost the right of custody. The contention of the learned counsel is not well-founded, because the question is not of the age or of second marriage of the mother of the minors. The main focus for the Court is the welfare of the minors. If both claimants for custody of the minors have contracted second marriage, then the matter of custody of the minors has to be decided with more care and caution and that what is in the interest of the minors and more importance has to be given to welfare of the minors.
10. In the present case, the father of the minors has been stated to be a driver of the truck, who by virtue of his profession has to remain away from his house, as such the minors if given to his custody, they will ultimately remain at the mercy of their stepmother, who cannot be a substitute of a real mother having a natural love and affection for his children. The female child naturally needs the company and association of a mother while, male child, even if crossed the age of seven years also needs the same atmosphere, especially when he throughout the period has been living with his mother.
11. The case-law cited by the learned counsel for the appellant has no relevancy with the facts of the present case, therefore, needs not be discussed.
12. Therefore, in view of what has been stated above, I find that the trial Court has rightly passed the impugned judgment which warrants no interference by this Court. Thus, the appeal stands dismissed having no force in it.