HAFIZ TARIQ NASIM, J.--- Facts leading to this writ petition are that the petitioner and respondent No 2 married on 23.10.1997, out of wedlock a daughter namely Nargis Batool (since died) was born on 20.5.1998 and a son namely Ali Salman was born on 19.8.2000 but the respondent No. 2 divorced the petitioner on 2.12.2000.
2. Respondent No 2 filed an application for the custody of Ali Salman before the Guardian Judge, Mianwali. The said application was dismissed vide judgment dated 2.2.2008. Aggrieved by that, the respondent No. 2 filed appeal before the learned District Judge, Mianwali and the same was allowed vide judgment dated 5.4.2008, which caused serious prejudice to the petitioner.
3. Learned counsel for the petitioner submits that the learned appellate Court has not properly considered The evidence available on record, did not advert to the most important aspect of the matter that respondent No. 2 has contracted second marriage, having another son from his second were, whereas the petitioner being real mother of Ali Salman did not contract second marriage, 'having full love and affection for her son and it shall be the interest of All Salman to be retained with her real mother instead of going to live with his step mother. Further submits that the poverty for her inability to maintain her child should not be treated a valid ground tor losing the right of the mother when the father and brothers of the mother' re maintaining the mother as well as her minor child to their best ability.
4. Learned counsel for respondent No. 2 supports the judgment of learned Additional District Judge and submits that the welfare of the minors lies with the father and not with the mother because the respondent No. 2 is getting a considerable monthly salary, he can maintain his son according tb the present requirements, he can afford the minor facility as well as the educational facilities according to his on status, whereas the mother being a-poor lady having no source cannot be treated a well wisher for the minor son and hence the writ be dismissed.
5. Arguments heard. Record perused.
6. To resolve the present controversy suffice it so say that respondent No. 2 i.e. The father of Ali Salman had contracted second marriage and the petitioner, the mother on the contrary had not married again, she has devoted her complete attention towards upbringing of her son and even today respondent No. 2 is present in the Court, who is repeatedly asked that how a step-mother can upbring. Her stepson, particularly when she has her on real son, the respondents No. 2 could not answer the query of the Court and only insist for the custody for son.
7. Practically the litigation seems to be an outcome of making of prestige of respondent No. 2, otherwise respondent No. 2 does not seem to be serious and sincere in upbringing of his on son.
This assessm ent is not in the air but is fortified by the real fact that this Court repeatedly asked the respondent No. 2 if he is getting Rs. 1,00,000/- per month as salary why he is not ready to give his son Rs. 10,000/- per month but unfortunately respondent No. 2 is not ready to even give Rs. 5000/- to his son until and unless his custody is given to him.
8. Relying on a judgment reported as Mst. Razia Bibi v. Riaz Ahmad (2004 SCM R 821) it is held that it would be harsh to hand over the custody of Ali Salman to the father leaving him at the mercy of step-mother in presence of his real mother, who otherwise is maintaining her child properly.
9. Unfortunately the learned Additional District Judge did not advert to the well settled law laid down by the apex Court while reversing the well reasoned findings of the learned Judge Family Court, Mianwali dated 2.2.2008.
10. It shall be advantageous to reproduce para. 25 of the judgment passed by the learned Judge Family Court, Mianwali as under:- "Keeping in view the landmark motif of welfare of minor, the family court is duty bound to search out in whose custody the welfare of minor lies. Many factors have to be taken into consideration with reference to the real concept of welfare of minor such as factor of health, education, sex, age and environment. In this case, in the presence of step-mother welfare of ill minor cannot be laid with the, petitioner. So in my opinion if the minor be removed from 'the custody of real mother and handed over to the father; who has' second were and a son. The future of the minor would be spoilt.
The real mother of the minor although depending upon her family, but is educated and F.A. Pass can look after the ill minor carefully. In this way keeping in view the paramount consideration of welfare of minors my humble view is that the welfare of this particular minor lies with the respondent and she is entitled for the custody of minors. So this issue is decided against the petitioner".
10. Resultantly for what has been stated above, the instant writ petition is allowed, the impugned judgment dated 5.4.2008 passed by the learned Additional District Judge, Mianwali is set aside, the judgment passed by the learned Judge Family Court, Mianwali dated 2.2.2008 is restored. .