' JAMILA JAHANOOR ASLAM, J.--- The counsel for the petitioner contends that the petitioner had filed a petition under sections 25 and 12 of the Guardians and Wards Act, 1890 on 24-11-2005, for the custody of his minor son Talha Ammar aged 11 years.
2. The petition was decided in favour of the petitioner, by the Guardian Judge, Talagang, vide judgment/decree dated 14-7-2007 with directions to respondent No,3 to hand over the custody of the minor boy to the petitioner within a period of two months.
3. Respondent No,3 being aggrieved of the judgment/decree dated 14-7-2007 preferred an Appeal No,162 of 2007 on 1-12-2007. It was put up before the Additional District Judge, Talagang who allowed the appeal vide his judgment/decree dated 29-3-2008.
4. In reaction to the judgment/decree dated 29-3-2008 the petitioner preferred to invoke the Constitutional Jurisdiction of this Court. The contention of the petitioner is that the impugned judgment/decree of the Additional District Judge, Talagang is against the law and facts of the case.
5. The brief history of the relationship of the petitioner and respondent No,3 is that they were married in 1996 and minor Talha Ammar was born on 16-6-1997, in this wedlock.
6. Unfortunately the matrimonial 'bond of the parties could not survive the test of time and was dissolved on the grounds of Khula in 1998. After her marriage was dissolved on grounds of Khula respondent No,3 contracted a second marriage on 5-12-1999. However, this marriage too, broke up after a short period of three months. It is not specified by the petitioner as to whether this marriage was dissolved on grounds of Khula or did her second husband divorce respondent No,3. Be that as it may, after respondent No,3's second divorce the petitioner and respondent No,3 remarried on the telephone because the petitioner lives in England. Their Nikah took place on 6-1-2001.
7. The second time round a baby girl, namely Aqsa was born in the wedlock.
8. The petitioner further contends that respondent No,3 persuaded one Zia Mahmood to pronounce Talaq on his wife and she proceeded to get into the contract of marriage with the said Zia Mahmood. This wedlock has apparently been blessed with a child.
9. The petitioner claims that he is paying maintenance @ Rs,2000 per month to each of his minor children in the custody of respondent No,3. He states that although respondent No,3 is with her third husband, he, the petitioner, has not married again.
10. Apparently and as per the averment of the petitioner, he and respondent No,3 resided in England after their second Nikah and during this period the minor Talha Ammar was admitted into the Lancashire County, Stony Home Community Primary School on 6-1-2005. The second Nikah of the petitioner and respondent No,3 ended in a divorce on 2-5-2006, in the exercise of the petitioner's absolute right of divorce. When respondent No,3 returned to Pakistan she brought the minors along with her to Pakistan. It is stated that the minors are in respondent No,3's custody since January, 2005. Apparently there was some unpleasant incident between the petitioner and respondent No,3 whilst they were in England and the police was called in. I will not dwell on this as there is no evidence on record qua the incident.
11. The petitioner's reasons for filing the petition under sections 25 and 12 of the Guardians and Wards Act, 1890 were that it is his dream that his minor children get a foreign education and that respondent No,3, by token of the fact that her present Nikah is the fourth one has forfeited her right to the custody of the minors. However, he has only claimed the custody of his son and not that of the daughter.
12. The petitioner has also stated that the Additional District Judge, Talagang has based the judgment/decree dated 29-3-2008 entirely on the opinion of the minor and that the minor is not old enough to know what is in his welfare. To give his contention a back up he has relied on 1995 CLC 800 wherein it was held "the minor of tender age would not be given the right to choose between either of the parents". Reliance has also been placed on 1993 SCM R 2303, 1999 CLC 2084, 1981 SCM R 635 and on 1980 CLC 785.
13. After perusal of the record a number of questions have come up. Undoubtedly the rulings relied upon by the petitioner have a lot of substance and I respect the opinions therein. However, as the circumstances of each case are different, it has to borne in mind under all circumstances that notwithstanding the personal law of the minor, the predominant consideration has always got to be the welfare of the minor. What exactly is the welfare of the minor needs to be dilated upon. In my opinion welfare is not only monetary it is also emotional. Matter of fact the emotional welfare of the minor is more important than the monetary aspect because regardless of who has the custody of the minor the father being the natural and legal guardian is bound to maintain him. A father pays the maintenance of his minor children because it is his bounden duty. A duty he cannot be absolved of under any circumstances. Thus the needs and wants of a minor are taken care of, whereas traumatizing a minor by making him or her go through an emotional upheaval would debilitate him irreparably and an emotionally debilitated person cannot be a stable individual and therefore he cannot be an asset to the world at large and to the society he belongs in particular.
14. From the record it is obvious that it is not the first round of litigation between the petitioner and respondent No,3. Earlier respondent No,3 had been compelled to file a suit for recovery of maintenance for the minors as well as recovery of her dower amount. Had the petitioner been a concerned father he would have at least, to the extent of the maintenance of the minors not put respondent No,3 in a position whereby she was compelled to file for recovery of the same.
15. Perusal of the judgment/decree of the trial Court leads me to observe that it has been unnecessarily harsh and speculative about the multiple marriage of respondent No,3. Islam propounds that a divorced or widowed woman should be married as soon as possible after the break up or cessation of a marriage. .By being fairer, as is expected of the Courts, her multiple marriages could also have been taken in a positive sense that she was trying to find a kind and caring partner who would also treat her children with love and affection. I grant that no man can love the minor, who is the main actor in this round of litigation between the petitioner and respondent No,3, as much as the petitioner however, it would be wrong to conclude that the welfare of the minor does not lie with respondent No,3. She has another child in the wedlock with Zia Mehmood and the minor girl Aqsa is also in her custody, which incidentally has not been claimed by the petitioner. He should also be concerned for the welfare of the minor girl which he obviously is not and that is not because he does not love his daughter but because there is no one there to look after a girl of such tender years. Whilst impugning the judgment/decree dated 29-3- 2008 his main ground for impugning the judgment/decree is that the learned Appellate Judge has relied on the opinion of the minor who is of tender years and that the minor is too young to form his own opinion as to where his welfare lies. There is a contradiction in terms here as later on the petitioner has taken a stand that the minor boy is grown up enough to be with his father who can thereafter lead him through life as a man. This contradiction by the petitioner has obviously been considered by the Appellate Judge.
16. Handing over the custody of the minor to the petitioner would be to subject the minor to becoming a "latch key child". Latch key children, in England is a term given to children whose parents work and they leave the latch key in a hidden place for the children to use when they return home after school and their parents are still at work, in order to let themselves into the house, where they fend for themselves till the parents return home after work. Although the petitioner has stated in his petition in the trial Court that he is willing to relocate to Pakistan for his son he has not done so yet. I find it a bit difficult to give credence to this offer of the petitioner as inthese times people prefer to live abroad rather than return to Pakistan and it cannot be forgotten that the petitioner has already said that it is his dream that his children study abroad. The constant supervision required for an 11 year boy will not be given to him by a father who has to go out and earn a living, regardless of whether he is living in Pakistan or abroad.
17. Another extremely important consideration is the fact that the minor, whose custody has been contested, has two other siblings, who are also in respondent No,3's custody. To take the minor away from his mother as well as his siblings will cause further unwarranted emotional agony to the minor boy.
18. I conclude that the judgment/decree dated 29-3-2008 is well thought out and the predominant consideration has been the welfare of the minor. In, view of this I dismiss the writ petition and uphold the . Judgment/decree dated 29-3-2008.
' Writ petition disposed of in the above mentioned terms.