' This is an appeal against the judgment of the learned Guardian Judge, Jhelum, dated 30th September, 1979.
2. Briefly stated the facts of the case are that on 31st July, 1978 respondent No. 1 filed a petition under section 25 of the Guardian and Wards Act for the custody of his minor son Muhammad Farooq against the appellant. The appellant was married to respondent No. 1 and in 1969 the aforesaid minor was born out of the wedlock but it seems that the differences arose between the parties and the marriage was dissolved on 24th March, 1971. After the dissolution the appellant was married to one Muhammad Nazeer and has two children out of this wedlock. Similarly respondent No, I also remarried and has two children from his present wife. Respondent No. 1 had also filed an application for the custody of his minor child on 23rd January, 1978 but was withdrawn on 12th March, 1978 on the basis of a unilateral statement of the appellant-in the said proceedings before the Judge, Family Court that there had been a compromise between respondent No. 1 and the appellant as regards the custody of the minor child and that she would not claim the maintenance. In the present petition for the custody of the aforesaid minor it was stated that the appellant has transferred the custody of the child and that he was living with his maternal uncle respondent No, 2 and that the terms of the compromise of which mention had been made in the earlier petition for custody had been violated.
3. This application was contested by the appellant and asserted that the custody of the minor was still with her and that the ward was given proper care and that the application had been moved with a mala fide intention. Certain preliminary objections were also raised and the following issues were framed :-
(1) Whether it is in the welfare of the minor to be given in petitioner's custody ? 0. P. A.
(2) Whether the application is barred by res judicata ? 0. P. R.
(3) Whether the petitioner is estopped by his conduct to file this present application ? 0. P. R.
(4) Whether the application is mala fide ? 0. P. R.
(5) Relief.
4. This learned Guardian Judge vide his judgment dated 30th September, 1979 accepted the application. It was found under issue No. 1 that the custody of minor Muhammad Farooq had been transferred by the appellant to her brother respondent No, 2 who had also filed a petition for the maintenance of the child on 7th March, 1978 which was dismissed in default on 7th December, 1978.
This fact was found sufficient for the appellant to have lost the custody of the minor. Issues Nos.. 2, 3 and 4 were not pressed. However, the learned Guardian Judge, came to the conclusion that the earlier application had been disposed of on the statement of respondent No. 1 himself in which he pleaded a compromise. It was found that the right to custody of the minor was in the nature of a continued right and as such the subsequent application was not barred.
5. The learned counsel for the appellant has only challenged the findings on issue No. 1 and raised the following contentions :-
(i) That there is no positive finding by the learned Guardian Judge that it was in the welfare of the minor to be given in the custody of the respondent ;
(ii) That the ward was being carefully looked after and was studying in a school and no ground had been made out for the delivery of the custody to respondent No. 1 ;
(iii) That since respondent No. 1 did not provide maintenance for the child during his stay with the appellant and as such had disentitled himself to the custody of the minor ;
(iv) That respondent No, I had married another wife and the stepmother is not likely to give affectionate treatment to the minor.
6 None of the contentions raised have impressed me. As noted in the narration of the facts above, after the separation both the appellant and respondent No. 1 had remarried and have children. It appears from the record that respondent No. 1 did not object to the minor remaining in the custody of the appellant, the mother. However. When the custody of the minor was given by the appellant to her brother respondent No, 2, respondent No, I became anxious about the matter and filed the present petition for the custody of the minor. After attaining the age of 7 years the appellant lost the right of Hizanat. It is also correct that the agreement between the parties has no legal effect and the Courts are under a legal obligation to determine the welfare of the minor irrespective of the arrangement between the parties. It was observed in Mst. Tahera Begum v. Salem Ahmad Siddiqui (1) that the custody and guardianship of minors could not be settled by private compromise or even arbitration and such agreements between the parties were not enforceable as contract and the Guardian Judge has to examine the welfare of the minor. At the most such an agreement should be treated as an evidence of the abandonment of the child by one of the parents. In this case it would be appreciated that the statement recorded by respondent No. 1 at the time of withdrawal of earlier petition for the custody of the minor is not accepted by the appellant. The learned counsel for the appellant has specifically stated that the statement was unilateral and no such compromise had ever arrived between the parties. The, learned Guardian Judge after the appreciation of the entire evidence on record had rightly come to the conclus ,'on that the appellant had abandoned the child and gave him in lie custody of respondent No, 2.
' The learned counsel for respondent No. 1 has brought another to my notice that Muhammad Nazeer, the husband of the appellant was not agreeable to the Ward living in his house and it was for this {{FOOT NOTE}}
(I) PLD 1970 Kar. 619 {{FOOT NOTE}} ' reason that the custody was given to his maternal uncle. The learned' counsel for respondent No. 1 has produced a writing purported to be signed by Muhammad Nazeer in which he has expressed his displeasure to his wife i,e, the appellant in meeting with Muhammad Farooq, the minor son. This writing was given in connection with the order of meeting passed by this Court. The custody of the child has been given to respondent No, I who has got him admitted in a school near his house. The child has not been produced by the appellant to show his inclination. I find that it is in the interest of the minor that he should live with his father respondent No. 1.
7. The learned counsel for the appellant has cited several judgments where the custody of the minor has been given to mother. It may be pointed out at the very outset that the question of the custody of the minor is to be decided on the facts of the each case. He has also placed reliance on Aamar Elahi v. Rashida Akhtar (1). In this can a father in order to avoid his liabilities for the maintenance of his minor female child and for the dower-debt of her mother had given up all claim to the custody when the child was of tender age and had taken no interest whatever in her existence. The minor was being well looked after by the mother and ward being mature and of the age of discretion had refused to go to her father, the custody was ordered to be given to the mother in the circumstances of the case. The appeal filed by the father was dismissed. The facts of that case are distinguishable. As already observed above respondent No. 1 felt satisfied so long as the minor remained in the custody of the mother but not when she handed over the custody to her brother. As already observed above the child has not been produced and his wishes are not known to the Court.. The learned counsel for the appellant has also cited Mst. Feroze Begum v. I t.-Col. Muhammad Hussain (2). In this case the only ground made out for giving the custody of the minor children by both the Guardian Judge and the High Court was that the father was a well to do person and could give better education as a father to the minor and that the mother was illiterate, too poor and incapable to look after the minor. In that case two certificates from the institutions where the minors were studying were. Produced to show that the minors were working hard and topped the list of successful candidates. It was observed by their Lordships that under the Shariat Law the mother was entitled to the custody (hizanat) of her male child uptil the time when he completed the age of seven years and her female child only when she has attained puberty and this right continued though she was divorced by the father of the child. The burden of the judgment was that mere inability to maintain the children was not a ground for depriving the mother of the custody of her children. In this case reliance was placed on another judgment of the learned Supreme Court reported as Khizar Hayat Khan Tiwana v, Zainab Begum (3), wherein it had been held that the overriding consideration is always the welfare of the minor, and that the Court was really exercising a parental jurisdiction as if it was in loco parentis to the minor.
8. After the examination of the entire facts and circumstances of the case I am fully satisfied that it is in the welfare of the minor that he should remain in the custody of respondent No. 1, his father and that {{FOOT NOTE}} 1) PLD1955Lah.412 (2) 1978 $CMR 299
(3) PLD 1967 SC 4(12 {{FOOT NOTE}} ' the fact that the appellant has given the custody of the minor to her brother, respondent No, 2.
Justified the respondent No. 1, to apply for the custody of the ward and this appeal has, therefore, no force and is hereby dismissed with no order as to costs.
9. However, the parties have expressed their desire to make a working arrangement for the meeting of the child with her mother. On the suggestion of both the parties the following arrangement is contemplated:
(t) On every alternative Friday, respondent No. 1 shall send the child to the appellant for meeting for one hour ;
(ii) In every one month, respondent No. 1 shall send the minor to the house of the appellant and he shall stay for one night preceding Friday. On the night when the minor has stayed with the appellant it would not be necessary that he should be sent again . For meeting :
(iii) That in the long summer vacation, respondent No. 1 shall send the child to the appellant for staying with her at least for a week and not more than a fortnight. The respondent No. 1 shall also send the minor to the appellant for meeting on the two Eids.
10. This arrangement has been found feasible as the parties are living in the same Mohallah and there shall not be any actual disturbance in the studies of the minor. In case of any difficulty in the implementation, recission or modification of the order the parties have agreed to approach the Judge, Family Court in this behalf.