JAMILA JAHANOOR ASLAM, J. --- The facts briefly narrated for the disposal of this petition are that the petitioner and respondent No. 2 were married and in this wed-lock two children were born, a by named Umar Khan aged 10 years and a daughter named Asima Khan aged 7 years. Both the minors have been in the custody of the petitioner since their birth.
2. Respondent No. 2 divorced the petitioner on 3.8.2006 and turned her alongwith the minors, out of the marital abode. The petitioner now resides with the minors and her mother in a house to her by her uncle.
3. Respondents No. 2 moved a petition under Section 12/25 of the Guardian & Wards Act, 1890 for the custody of the minors.
4. The issues were framed as follows:---
(i) Whether welfare of the minors lies in custody of applicant? OPA
(ii) Whether application is not maintainable in the light of objections by the respondent in her written version? OPA
(iii) Relief.
5. During the evidence, it transpired that Respondent No. 2 was already married and has children in that wedlock too, whereas the petitioner is still un-married and has been tending to her minor children, who incidentally are & doing very well in all aspects of their lives.
6. Respondent No. 2's stance is that he is in a better financial position to take care of the needs and wants of the minors thus the welfare of the minors lies with him. He has also stated that he married the petitioner only because he wanted a male heir. His other were has produced four daughters.
7. The Guardian Court dismissed the petition under Sections 12 & 25 of the Guardian & Wards Act, 1890 filed by respondent No. 2, vide his judgment/decree dated 17.3.2008 and the custody of the minors remained with the petitioner. However, being aggrieved of the judgment/decree dated 17.3.2008, respondent No. 2 preferred an appeal which was put up before the Additional District Judge, Attock (Respondent No. 1) who vide his order dated 3.9.2008 allowed the appeal and reversed the findings of the Guardian Judge to the extent of the minor by and gave his custody to respondent No. 2 while allowing the custody of the minor girl to remain with the petitioner.
8. Being aggrieved of the judgment/decree dated 3.9.2008, the petitioner has invoked the writ jurisdiction of this Court.
9. I have heard the contentions of the learned counsel for the parties and have gone through the entire record, with extra-judicial emphasis on the impugned order.
10. The learned respondent No. 1 seems to have considered only the socio/economic persuasions.
He has dwelt at length on the fact that respondent.No. 2 married the petitioner only to beget a male child and now because there is a male child, respondent No. 2 will dedicate his attention and care to him. Respondent No. 2 has observed in his order "that a male child is given priority in bringing-up over female child". It has also been noted by respondent No. 1 and not without a certain amount of pride for the sake of a male issue. This is a sexist approach.
11. Nowhere in the entire judgment/decree has any consideration been given to the welfare of the minor it has been overlooked that respondent No. 2 has been a negligent father. The minors were compelled to file a suit for recovery of maintenance. Even after the suit was decreed. Respondent No. 2 did not pay the maintenance. His counsel stated at the bar that Respondent No. 2 was paying the maintenance regularly. He was asked to put up copies of the challans of regular payment. He did so today i.e. 9th April, 2009. A cursory glance at the challan shows, the contention of the petitioner that respondent No. 2 is not paying any maintenance inspite of the decree, is correct. The challan Form 32-A produced by respondent No. 2 today shows that Rs. 26,000/- was paid in a lump sum, yesterday i.e. 8th April, 2009, only in order to establish his bona fides, whereas execution proceedings were initiated by the petitioner on 20th October, 2008.
12. Although this does not disentitle respondent No. 2 to the custody of the minor by, it certainly does not behave well for respondent No. 2. He neglected to maintain the minors who are his progeny. It has been observed in 2004 SCM R 819 by their Lordships that "It is true that non- maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would be one of the circumstances for determining the welfare of the child." f subscribe to this theory: too. I have also noted that since the divorce of respondent No. 2 and the petitioner on 3.8.2006 respondent No 2 neither claimed the custody of the minors nor bothered to offer to maintain them and it was only after the petitioner filed a suit for maintenance of the minors of 13.9.2006 that .Respondent No 2 filed his petition for custody of the minors on 5.12.2006.
Respondent No 2 wants the custody of the minor son for self-aggrandizement whereas the petitioner, who has been looking after the minors since birth wants their custody because of her unconditional love for them. She is looking after their health, education, wants and needs to the best of her abilities. Moreover, separating the minors, who were before me and seemed very attached to each other, would be too harsh a decision for them to sustain.
13. In view of this discussion, I am of the opinion that the welfare of both the minors lies in their custody remaining with the petitioner. The impugned judgment/decree dated 3.9.2008 of the Additional District Judge Attock is set aside and judgment/decree dated 17.3.2008 is restored.
Writ petition is disposed-of in the above-mentioned terms .