SHAHID ANWAR BAJWA, J.--The petitioner No,1 married respondent No,2 on 18-2-1997, respondent No, 1 is father of petitioner. Out of wedlock one child Master Muhammad Ashar was born on 18-3- 1998. On 18-10-2001 marriage was dissolved by way of divorce through written deed. Dissolution of marriage was with mutual consent through a written deed. Question of custody of child became matter of acrimony Cr. Miscellaneous Application No,21 of 2003 under section 491, Cr.P.C. Was filed by the present petitioner. In that matter the following compromise was entered into between the parties:-- "Both the parties and their counsel are present. The learned District Attorney for the State is also present. The ward has also been brought in Court. The parties have failed compromise application duly signed by them. They admit the contents of the same and request that the petition may be disposed of in terms thereof. Accordingly the petition is disposed of in terms of the compromises."
2. In 2006 petition under sections 7, 10 and 25 of Guardians & Wards Act, 1890 was filed by the present petitioner/mother with the following prayers:-- "The petitioner pray that this Honourable Court may be pleased to pass the judgment and decree as under:---
(a) To declare/appoint the petitioner as Guardian of the Ward namely Muhammad Ashar aged 5- 1/2 years.
(b) To direct the respondents to hand over the custody of the Ward namely Muhammad Ashar aged 5-1/2 years to the petitioner.
(c) cost of the petition.
(d) Any other relief which this Honourable Court may deem fit and proper under the above circumstances of the case.
3. Evidence was recorded and thereafter vide order dated 27-10-2007 application was dismissed concluding part of order reads as under:--
(i) That the minor shall continue to remain in the custody of the respondent No,1 Muhammad Younus, the Maternal Grand- ' Father of the minor, where the minor is already getting education and is quite normal.
(ii) That the petitioner is real mother of the minor and daughter of the respondent No,1 though she got divorced with her consent and remained as disobedient wife, so also she is disobedient daughter of the respondent No,1 is entitled to see and meet her son in the house of her father Muhammad Younus the respondent No,1 when she desires. The minor boy is of about 10 years old, therefore, the respondent No,1 shall send the minor to the residence of the petitioner on each school holidays with the consent of the minor boy.
' The petition is disposed of accordingly with no order as to costs. "
4. An appeal was filed which was dismissed by the appellate Court vide order dated 9-8-2008.
5. It may be pointed that custody of minor was lying with respondent No,1, who is Nana of the minor, by compromise as well as under the orders of two Courts below. When this petition was filed vide order dated 2-1-2008 temporary custody of minor was allowed to mother. That order continued from day to day. It May also be pointed out that after her divorce petitioner/mother remarried and from her second husband she has three children. Father also remarried and has been blessed with a child with his second wife.
6. Learned counsel for the petitioner made following submissions-
(i) That trial Court has neither discussed evidence nor discussed the law.
(ii) That trial Court has observed that petitioner was a disobedient wife and a disobedient daughter. Neither was it pleaded nor there was any evidence in this regard.
(iii) That husband has relinquished his right of guardianship of minor. Courts below have primarily relied upon compromise.
(iv) A Court has responsibility to protect and safeguard interest and welfare of minor. In this regards he relied on Ayesha Tahir Shafiq v. Saad Amanullah Khan and 2 others PLD 2001 Karachi 371.
(v) That maternal grandfather is not one of the guardians named is section 353 of D.F. Mullah's principles of Mohamedan Law.
7. Learned counsel for respondent No,2 submitted that it has come in evidence that petitioner/mother has no independent source of income. Mother has claimed in evidence that step-father is prepared to bear expenses of the minor. Step-father did not come in the witness box.
No evidence regarding his income has been produced. On the other hand maternal grandfather is a retired officer of Karachi Port Trust. He is owner of a house and its two portions have been let out to tenants. On the other hand, petitioner and her (second) husband reside in a rented accommodation and have been frequently changing their addresses. On the question as to how trial Court can observe petitioner disobedient wife and dishonest daughter, learned counsel submitted that such statement was not called for but it does not dislodge essential foundations of the judgments of the Courts below which are firmly and strongly grounded in the evidence.
8. I have considered arguments of the learned counsel for the parties and material placed on record as well as the case-law cite
9. I will first deal with the provisions contained in section 353 of D.F. Mullah's Principles of Mohamedan Law. Said section is in the following words:-- "353. Right of female relations in default of mother.---Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:--
(1) mother's mother, howhighsoever;
(2) father's mother, howhighsoever;
(3) full sister;
(4) uterine sister;
(5) consanguine sister;
(6) full sister's daughter;
(7) uterine sister's daughter;
(8) consanguine sister's daughter
(9) maternal aunt, in like order as sisters; and
(10) paternal aunt, also in like order as sisters."
10. The very opening words are "a boy under the age of seven years". Minor in this case was born on 18-3-1998. Today he is more than 11 and half years. He was more than 7 years even on 27-10-2007 when order was passed by the Family Court. Learned counsel for petitioner stated that for the purpose of section 353 material date would be when petition was filed in the Family Court in 2004. I am afraid, I cannot agree. It is duty of Court to take into consideration circumstances which change and develop during pendency of proceedings. If any authority is needed same would be PLD 1978 SC 220 (Mst. Amina Begum and others v. Mehar Ghulam Dastagir). During pendency particularly when order was passed by the trial Court child had completed his 9th year. Today he has completed his eleven and half years. This efflux of time cannot be ignored by the Court and, therefore, section 353 is no longer attracted to the case.
11. As far as compromise is concerned, I have already reproduced terms of compromise. Although, petitioner has tried to make the case that said compromise was a forced compromise. I cannot accept her such contention, because firstly compromise was filed in the Court, secondly an order was passed on it and that is more important, thirdly; although, this compromise was effected in 2003 it has not been challenged in any proceedings. However, reliance placed by the learned counsel for petitioner on Ayesha Tahir Shafiq's case is perfectly opt. Facts of that case were that petitioner and respondent No,1 were married at Karachi and two children, a son and daughter, were born in 1991 and 1993 respectively later on relationship became strained and result was filing of guardian, and ward application for custody of children,, a suit for restitution of conjugal rights and a suit for dissolution of marriage. It eventually resulted in an agreement between the parties in consequences whereof an order was passed by the Honourable Supreme Court of Pakistan. Terms of that agreement relating to meeting/visitation of the children were adhered to by parties for about 8 months. However, thereafter petitioner/mother addressed an application to the Honourable Chief Justice of Pakistan where she alleged incidents of sexual abuse of minors at the hands of respondent No,1 during visitation/ meeting. Contempt application was dismissed by the Honourable Supreme Court on the ground that no variation in the compromise was called for.
Meanwhile, on 2-4-1997 petitioner/mother filed an application under the Guardians and Wards Act, 1890. Petitioner narrated same facts as were addressed in the application addressed to the Honourable Chief Justice of Pakistan in respect of alleged conduct of the respondent No,1/father and pleaded that the father had rendered himself disentitled to visitation rights. Family Court dismissed the petition and appellate Court dismissed the appeal. Matter ended up again in High Court and the Hight Court observed as under:-- "---A consent order, a compromise or an agreement between the parties will not absolve the Guardian Court from its basic responsibility to safeguard and protect the interest and welfare of the minor. Moreso as in the litigation before a Guardian Court the two parties participating in such proceedings are not adversaries in the strict sense but they plead their own view-point before the Court to enable the Guardian Court to arrive at a just and proper conclusion on the question of welfare of the minor. For these reasons I am of the view that a Guardian Court can re-examine such issue even if a compromise, agreement or consent order in that regard is already in the field.
By expressing so I do not mean to observe that such a compromise, agreement of consent order can be lightly upset/rejected by the Guardian Court while reexamining the question of the welfare of the minor in the given facts and circumstances of each case. In such a situation the Guardian Court will normally proceed with the presumption that the compromise, agreement or the consent order passed in the earlier guardianship proceedings was in the best interest and welfare of the minor and, therefore, the Court will examine the subsequent developments and allegations made basis for seeking modification/ change of such order in this background of the matter. This view of the matter is fortified from various decisions as referred by the learned counsel for petitioner."
12. It is true that compromise in such like matters between the parties , does not mean that Family Court before which a subsequent application is filed should only look at compromise and nothing else and ignore all other aspects of question relevant to the welfare of the minor in question. The Family Court exercise parental jurisdiction and must consider all aspects relevant to C custody of minor and decide as to what would be in the best interest of the minor. In this regard any previous compromise or even any previous order of Court cannot bind hands of the Family Court. It can recal its previous order provided sufficient grounds are made that after previous order what are new and evolving circumstances keeping in view interest of minor. Therefore, compromise must be looked at by the Family Court but is not conclusive and binding, as far as Family Court is concerned. It can in the appropriate circumstances pass an order, even setting at bought the compromise. Prime responsibility and obligation of Family Court is welfare of the minor. That is supreme and should not, in any circumstances be lost sight of. However, in this case there are factors which have been considered by the Courts bellow and which clearly emerged. Firstly, mother has no source of income. Secondly she has remained and has been blessed with three children after her remarriage. Thirdly her second husband is a stranger as far as minor Ashar is concerned. Fourthly her second husband has not come in witness box to depose about his income and whether he is willing to shoulder responsibilities of the minor. Fifthly maternal grandfather is a retired servant and receives pension. Sixthly maternal grandfather has his own house, mother and step-father live in a rented house. Seventhly real father has no objection if child remains with maternal grandfather. Eighthly child has been receiving education while living with maternal grandfather.
13. All these, establish that welfare of the minor should be with maternal grandfather.
14. Learned counsel for petitioner submitted that father has relinquished his right. I requested the learned counsel to point out from affidavit-in-evidence and even from his cross-examination as to where has he relinquished his right. Learned counsel was unable to point out. Compromise order has not been challenged, in any Court. However, learned counsel refer to Para 'J' of affidavit-in- evidence directed to return custody of minor to which para is as under:- respondent No,l.
"(j) That it is fact that no other person is fit to be appointed as guardian of the minor Ashraf except the undersigned deponent and the grand-father Muhammad Younus of the minor Ashar son of Muzzamil."
15. In his cross-examination no question was asked whether he has relinquished his right. Therefore, what father was saying was that he had no objection if child remained with his maternal grandfather. Therefore, two Courts below have rightly observed that for welfare of child Ashar he shall be under custody of his maternal grandfather with consent of father of the child.
16. Before parting with this judgment. I may refer to observations of the trial Court that "present petitioner remained a disobedient wife so also she is a disobedient daughter." I think this observation was not called for. There was no pleading in this regard and there is no evidence in this respect. Even otherwise in custody matter, it is not a trial of character of either of the parents. It is a matter in which what is to be determined by the Court is as to where welfare of the minor lay. It would be appropriate to stay its hands and pen away from any observation derogatory to any of the parties. Fact that petitioner was divorced and fact that she remarried should not prejudice anyone against her. Neither her divorce is a sin nor her remarriage is a sin, therefore, observations of the trial Court to the above extent are deleted.
17. For the above reason, this writ petition is dismissed and petitioner is directed to return custody of minor to respondent No,1.