' This is an appeal from an order of Mr. Muhammad Akram Zaki, Guardian Judge, Faisalabad dated 22-1-1980, whereby he accepted the application filed by the respondent for the custody of her minor daughter Mst. Nemat Bibi.
2. The facts of the case are that from out of the wedlock of appellant Khushi Muhammad and respondent Mst. Bashiran Bibi, Mst. Nemat Bibi, minor, was born on 20-9-1971. Exh. P. 1 is a copy of her birth-entry. When Mst. Nemat Bibi was hardly two years and three months of age, the relations between her parents became strained, and the appellant turned the respondent out of his house.
Ever since, Mst. Nemat Bibi has remained in the custody of the appellant, her father. The appellant ultimately divorced the respondent on 30-6-1977.
3. The application for the custody of Mst. Nemat Bibi was made by the respondent on 13-11-1977, which was allowed by the impugned order dated 22-1-1980, on the grounds (i) that the minor being eight years of age, the welfare of the child, according to the principles of Muslim Law, lay in remaining with her mother ; (ii) that the appellant had contracted a second marriage, out of which wedlock he had two daughters who were living with him ; and (iii) that the appellant was a tonga- driver who remained out of his house most of the time, and his mother having died, the only female relation who could look after the minor, was her step-mother, the appellant's second wife.
4. It is urged on behalf of the appellant that the respondent had applied for the custody of the minor after the child had been separated from her for more than five years, with the result that the minor has now become a stranger to the respondent, her mother, and that in these circumstances, it would be a great torture for the minor, if she is given in the custody of the respondent. It is also submitted that according to the evidence on record, the minor is studying in a school in the appellant's village, whereas there is no school in the village of the respondent. In this behalf, a reference is made to the statements of Muhammad Din (P. W. 1) and Dilbar Hussain (P. W. 2), who did state so. It is urged that the welfare of the minor lies in living at a place where she can get schooling.
5. According to the principles of Muslim Law, the mother is entitled to custody (hizanat) of her female child until she has attained her puberty. In this behalf, a reference may be made to section 352 of Mulla's Principles of Muhammadan Law (13th Edn.), the relevant portion of which is reproduced bellows: "The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."
6. There is nothing on record to suggest that the respondent is an unfit person to be given the custody of the child. There is no allegation that she lacks material resources to bring up the child.
The child is admittedly about nine years of age. According to the principles of Muslim Law, the respondent is entitled to be given the custody of the child.
7. The respondent wanted to place on record some papers to show that there was a school in her village too. However, I declined to examine those papers, because the same had not been filed before the trial Court. In any case, in view of the fact that the only person who looks after the minor in the house of her father, is her step-mother, I feel that it would be in the interest of the minor to remain in the custody of her own mother, even if there be no school in her village. In any case, there is no reason to doubt. That the respondent should be able to impart to the child such education as is regarded as sufficient from the standards of the child's parents. There is also no warrant for the view that the appellant's village school has any higher standard or education to offer.
8. I also do not find any force in the argument that since the respondent has up till now remained a stranger to the child, it would be in the interest of the minor to continue to live with her step- mother. Learned counsel for the appellant has submitted in this behalf that the statement of the child should be recorded because she is old enough to form an intelligent preference to the parent with whom she wishes to reside. In this behalf, provisions of subsection (3) of section 17 of the Guardians and Wards Act, 1890, are referred. The relevant portion is reproduced below : "If the minor is old enough to form an intelligent preference the Court may consider that preference."
' Learned counsel for the appellant has also relied on Mst. Fahmida Begum v. Habib Ahmad (1), in which case, the statements of the minors were recorded by the High Court. The circumstances of that case, however, were somewhat peculiar, inasmuch as the Guardian Judge had not framed any issue, nor recorded any evidence, nor had he called the children to enquire as to their preference in the matter of their custody. Two of the three minors had become majors and all the three had expressed their preference to remain with their mother. In the present case, the minor is merely a child of about eight years and seven months. Since she has remained in the custody of her father only and has been looked after by her step-mother alone, she is not expected to be conscious of the affection that her own mother might haw, for her. I, therefore, did not consider it necessary to record her statement to ascertain her preference. A mother's affection for her child is to a great extent a biological phenomenon. When the mother and the child will come close to each other, the nature will have its course. Therefore, the fact that the respondent has not had occasion to meet her daughter for five years is a weak ground to disentitle her to the custody of the child. In the absence of any indication to the contrary, it is to be presumed that it would be in the welfare of the child to live with her own mother than with her step-mother. From the circumstances of the case, I am satisfied that it would be in the welfare of the child if her custody is handed over to her mother. The impugned order of the Guardian Judge, therefore, does not call for any interference.
9. The appeal having no merit is dismissed. However, there shall be no order as to costs. {{FOOT NOTE}}
(1) PLD 1968 Lah. 1112 {{FOOT NOTE}}