' SARDAR M. ASHRAF KHAN, J.--- The above titled appeal has been directed against the judgment of Family Judge, Bhimber dated 31-1-2008 whereby, the application for the custody of minor child, Rizwana Naz was allowed in favour of the respondent by the said Court.
2. The brief facts forming the background of the instant appeal are that respondent Ameer Hamza filed an application for the custody of minor child, Rizwana Naz before Judge, Family Court, Bhimber on 27-12-2006. The said Court after due process of law allowed the application for the custody of minor filed by the respondent vides its judgment dated 31-1-2008. Hence this appeal.
3. Despite repeated calls, the learned counsel for the appellants did not appear before the Court however, the appellant Muhammad Zaman himself argued the case. He contended that both the mother and the father of the minor have contracted their second marriage and the minor is in the custody of her maternal grandmother. It is further contended that the welfare of the minor lies with the mother and minor cannot be laid on the mercy of step-mother and it is not the requirement of relevant law on the subject. Finally, he prayed that by accepting the appeal, the impugned judgment may be set aside.
4. On the other hand, Fiazan Haider, the learned counsel for the respondent argued that the judgment of the, trial Court is quite in accordance with law which warrants no interference by this Court. It is further contended that the mother of the minor has contracted second marriage with a stranger therefore, no proper look after is possible there, therefore, the trial Court has rightly allowed the application for the custody of the minor in favour of his client. The learned counsel finally, argued that in presence of mother and father the maternal grandmother or grandfather has no right for the custody of the minor. The learned counsel defended the impugned judgment on all counts.
5. I have heard the appellant as well as the learned counsel for the respondent and also gone through the record of the case.
6. Under Sharia Law, a mother is entitled to retain the custody of her minor male child till the age of seven years and of female child to the age of attaining her puberty. This right continues, even if she is divorced, as in the present case. However, if she contracts the second marriage, then of course, she loses her right of custody. But at the same time, if husband also contracts the second marriage and live and enjoys with second wife, then it is incumbent upon the trial Court to see the convenience and welfare of the minor and keeping in view the question of welfare, decide the question of custody of the minor.
7. In the present case, it appears that the trial Court has totally failed to take into consideration the above principle. Admittedly, the respondent, the husband and appellant, the wife both have contracted the second marriage, as such it was obligatory on the part of the trial Court, C to look into the matter, with reference to Sharia Law along with the question of welfare of the minor.
8. The learned counsel for the respondent has contended that, as the mother of the minor has contracted the second marriage, that too with a person not related to the minor within the prohibited degree, as such she has lost the right of custody of the minor. The contention is not well- founded, because the question is not of a second marriage of mother or otherwise, the main focus for the Court is the welfare of the minor. If both claimants of the minor have contracted a second marriage then the matter of the custody of the minor has to be looked into carefully, keeping in view the welfare of the minor.
9. In the present case, the father of the child is a police employee, who by virtue of his profession is compelled to remain away from his house. In such state of affairs, the minor (female child), if given in the custody of the father, she will ultimately remain on the mercy of her step-mother, who cannot be a substitute of real mother having natural love and affection for her female child. A female child wile-also be happier and familiar with the company and association of her mother.
10. It has also been contended that the minor is presently living with her maternal-grandmother and mother is not taking interest in her welfare. A perusal of the statement of mother of the child indicates that due to her illness, the minor child was sent to maternal-grandmother's house and she is studying there, and after her examination she will return back to her mother. Thus, the contention appears to be devoid of any force.
11. It will not be out of place to mention here that, appellant was appointed as a guardian by the competent Court and the respondent's request for custody of the child was rejected, prior to the present application.
12. For the reasons listed above, I accept this appeal by setting aside IF the impugned judgment and it is ordered that the custody of the minor shall remain with the mother.