' The respondent married the appellant and out of that wedlock one Mst. Irshad Iqbal daughter, aged about 16 years, Muhammad Raman aged 10 years, Muhammad Aslam aged 7 years (minors) and Shahnaz minor daughter aged 3 years were born to the parties who in fact are the subject- matter of this unfortunate litigation. It is also an undeniable fact that the respondent has contracted another marriage and out of that marital union one son was horn who has become young and mature by this time and is elder than the minors in question. On account of some differences between the wife and husband the respondent consequently divorced the appellant in 1978 in a proceedings before the Judge Family Court. The appellant had also instituted a suit for maintenance before the Judge Family Court and ultimately a maintenance decree was awarded in appeal by the learned Additional District Judge at the rate of Rs, 50 p. m. In favour of the aforesaid minors and the appellant against the respondent on 11-2-1979, meanwhile an application under section 25 of the Guardians and Wards Act was moved on behalf of the respondent for the recovery of the custody of his aforesaid minor children against the appellant on the grounds that the appellant was a lady of ill-repute and could neither look after the minors properly nor provide to them better education and healthy bringing up. This petition was resisted by the appellant by filing written statement controverting all the allegations levelled against her in the petition. The learned trial Court, out of the pleadings of the parties framed the following issues :-
(i) Whether the petitioner is entitled to the custody of the minors ? 0. P. P.
(ii) Relief.
2. The respondent in support of Issue No. 1 produced as many as three witnesses including himself as his own witness. P. W. 1, Bhag Din is a stepbrother of the present appellant who explained the ages of minors in detail and stated that the appellant had been divorced by the respondent. He further stated that the minors were leading their life as wanderers. He admitted that he and the appellant were from different mothers. He also denied the suggestion that the minors were properly looked after by their maternal relations. P. W. 2 Muhammad Sharif simply stated that the appellant had no land and on this ground opined that respondent was in a better position to maintain his minor children. The respondent while appearing as P. W. 3 narrated the ages of his minor children, and supported the fact of dissolution of marriage on account of divorce.
3. On the other hand P. W. 1 Sadiq and P. W. 2 Bakhsha deposed on the appellant's side. The appellant herself appeared as her own witness, P. W. 1 disclosed that the father of the appellant owned Ili acres of agricultural land while the respondent owned 4 acres of land. He also disclosed that the appellant and her father had been maintaining the minors with great care and proper attention. Similarly P. W. 2 Bakhsha categorically stated that the proper care and attention had been extended to the minors by the appellant. Mst. Akbar Bibi appellant herself deposed in support of her defence. The learned trial Court after recording the evidence and hearing the arguments of the learned counsel for the parties accepted the petition directing the appellant to hand over the minors with the exception of Shahnaz Bibi the youngest baby aged about 3 years to the respondent vide impugned judgment dated 24-10-1979. It was further directed that the respondent would be eligible . To get the custody of Shahnaz Bibi minor daughter on her attaining the age of 5 years.
4. Having felt aggrieved thereby the mother of the minors has assailed the judgment of the trial Court in this first appeal.
5. I have heard the learned counsel at length and perused the entire evidence led by the parties carefully. The learned counsel for the appellant vehemently contended that the learned trial Court while deciding the petition under section 25 of the Guardians and Wards Act was mainly influenced by the poverty of the appellant. He seriously contended that the poverty of mother itself is no ground for depriving her from her right of custody over her minor children. He further contended that the welfare of the minor should have been the paramount consideration but while deciding the petition the learned trial Court absolutely ignored this guiding factor.
' On the other hand the learned counsel for the respondent seriously contended that under Muslim Law after the completion of prescribed age limits the mother ceases to retain the custody of her minor children and the same reverts back to the father who is a natural guardian. On the basis of this proposition he contended that out of the aforesaid minors at least 3 will have to be handed over to the father respondent as they have crossed the maximum age limits fixed by their personal law.
6. During the course of arguments I felt the necessity to examine the minors personally in the open Court and consequently the minors were produced before me by the appellant and her father. Mst.
Irshad Iqbal who was born on 2-2-1965 vide Exh. P. 3 and is aged 16 years who on my questioning, showed her strong unwillingness to join her father. Similarly other two minor sons who have crossed the age of 7 years, unequivocally refused to go along with their father complaining of his constant noxious and averse attitude towards them. I found that all the minors neat, clean and well-dressed, having a good physique and sound health. Per their disclosure, they have been receiving education in a local primary school according to the custom of the locality. They wrote Urdu alphabets correctly at my dictation and were conversant with counting and tables. I specially inspected their hands, heels and feet which were quite normal, soft and tender indicative of the fact that they were never put or subjected to any hard manual labour as alleged by their father.
7. The respondent produced scanty oral evidence of unconvincing nature which in no way does advance his case. The only point which requires determination in this case is that in the given circumstances of the case with whom lies the welfare of minors. In order to solve this controversy one has to advert his attention towards various relevant provisions of Guardians and Wards Act.
The welfare of the minors has been pointed out as the guiding factor is section 7 of the Guardians and Wards Act in the matter of appointment of a guardian. Section 17 of the Act has expressly subordinated the personal law of the minors regulating guardianship to the paramount consideration of welfare of the minors and certain directions in which the welfare of the A minors should be considered are also laid down therein. Again in section 25 of the Act it is enacted that the Court may order the return of the ward to the lawful custody of the guardian only if it thinks, it necessary for the "welfare" of the ward. What this "welfare" is has been considered in the decisions given under section 7 of the Act. In Mst. Masna Devi v. Makhar (1) it was clarified that the word 'welfare' meant both material and spiritual welfare of the minor. In AIR 1944 Cal. 433 it was held that the word 'welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its well-being nor can the ties of affection be disregarded. Similar views were also expressed by the Supreme Court of Pakistan in Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (2) and Rahim Ullah Choudhury v. Mst. Sayeda Halali Begum and others (3).
The principal considerations which have been laid down under section 17 of the Guardians and Wards Act in order to secure this welfare are at least nine in number, namely (a) age, (b) sex, (c) religion of the minor, (d) character and capacity of the proposed guardian, (e) nearness of kin to the minor, (f) wishes of the deceased parent, (g) any existing or previous relations of the propose guardian with the minor or his property, (h) if the minor is old enough to form an intelligent preference, that preference has to be considered. These tests are no doubt laid down under section 17 of the Act but are equally relevant in considering the welfare of the minor under section 25 of the Act. Therefore an arduous duty falls upon the Court to arrive at a just conclusion in such matters and the Court should place himself in the position of a {{FOOT NOTE}}
(1) AIR 1936 Pesh. 207 (2) 1978 SCMR 299
(3) 1974 SCMR 305 {{FOOT NOTE}} ' wise father in selecting a person best fitted to assure the welfare of the minor.
8. In the instant case, considerations of age, sex and intelligent preference require examination in the light of the material placed on the record as to find out whether a case has been made out for giving respondent (father) the custody of the minors. As regards the "age" consideration, Mst.
Irshad Iqbal aged 16 years, is a virgin girl who has undeniably attained the age of puberty. While the other minor girl whose handing over is directed on her attaining the age of 5 years is still a baby of 3 years. In these given circumstances it is the mother who ought to have the custody of the aforesaid girls rather than the father who is living as a widower with his major son who having an inimical attitude towards the minors seems responsible for the trouble between the husband and wife and naturally cannot be expected to give that care and attention to the girls as the mother would.
9. There is nothing on the record to suggest that the appellant has been leading an immoral life and is a lady of ill-repute. On the other hand it is proved on the record that the mother has been leading proper family life after divorce in the house of her parents and there is no allegation whatsoever against her moral character. The mere fact that she herself does not enjoy sound financial position is of no significance while dealing with the question of custody of minors.
Generally the poverty of mother or her inability to maintain her minor children has not been treated to be a valid ground for losing the right of the mother to custody of her minor children. Apart from this, in the instant case that the father of the mother being a man of fortunes, has been maintaining the appellant as well as her minor children to his ability. Contrary to that, the father seems to be under the influence of his major son on whose account the marital relations between the parties came to an end and the father aid not care to maintain the minors but left them at the mercy of their maternal relations. As stated above, the minors and their father also had entered into a prolonged litigation and the minors have succeeded in getting a maintenance decree in their favour against him from a Court of competent jurisdiction. The existence of such litigation further throws light on the strained relations existing between the parties.
10. The consideration of sex gains more importance when we consider the age of the girl. In the instant case both the girls are about 16 years and 3 years respectively. Mst. Irshad Iqbal has attained the age of discretion and in that difficult period it should be the mother who should have the custody of girl and not the respondent father living with a major son in a lonely house accessible to all having no female therein. The other girl of tender age still requires great care and motherly affection and treatment and according to the personal law mother is entitled to her custody till she attains the age of puberty. It is said that the sex of the minors which assumes importance in deciding the question of custody has been absolutely ignored by the learned trial Court.
11. The next consideration whether the minor is aged enough to make an intelligent preference is also of an equal importance and plays a decisive role in determining the suitability and desirability of a person desirous of the custody of the minor. Therefore the wishes of the minor should be considered by the Court but the same has also not been taken into account by the trial Court in arriving at a conclusion. In the present case, the wishes of aged minor girl namely Afst. Irshad Iqbal were expressed in such a way which impressed me very much. According to her, a young virgin girl may usually feel herself safe and secure in all respects only in the hands of a mother and not of mankind father. The preference expressed by her was quite intelligent in the circumstances of the case as mentioned above. Therefore all these relevant considerations apparently seem against transferring the custody of the minor girls to the father. As it has already been pointed out that the interest of the minors is paramount, the fact that the father is the natural guardian would not ipso facto entitle him to custody.
' Similar is the case of other minors who are neglected sons and were equally forced to resort to obtain a maintenance decree against the respondent father through the process of law. I feel that the mere existence of maintenance decree itself is quite sufficient to hold and declare the respondent a negligent and most irresponsible father who instead of thinking of the welfare and betterment of his minor children preferred to plunge into the ocean of said and nasty litigation against them and instead of adopting a conciliatory course to preserve marital union with the appellant who by that time had become the mother of his for children, severed it through untimely divorce in utter disregard of the betterment and welfare of the minor.
12. No doubt the respondent is a natural guardian of his minors but due to his culpable negligence and inimical attitude cannot be held to be a fit person for the custody of the minors. In Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1) the Supreme Court of Pakistan while affirming its view taken in 1974 SCMR 305 observed as under :- "The question to be decided under section 25 is however, not the right of the guardian to obtain the custody of the ward as that right is given to him by the statute but the welfare of the ward. A natural or a certificated guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specifically that although the guardian is entitled to such a custody, no order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of guardian the Court will have to weigh it against the other weighty considerations on the record The overriding and paramount consideration always is the welfare of the minor. Indeed this is the sole consideration that must prevail in the oral analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in his favour unless it is in their welfare to do so."
13. In view of what has been stated above, I, therefore, have no other option but to conclude that a mala fide application was filed by the respondent as a counterblast to the maintenance decree passed against him, and the impugned judgment is not sustainable in the eye of law and the same is liable to be set aside. I, therefore accept this appeal, reverse the impugned judgment of the learned Guardian Judge and dismiss the petition with no order as to costs. {{FOOT NOTE}}
(1) 1978 SCM R 299 {{FOOT NOTE}}