1. ANWARUL HAQ, C. J.-The petitioner Rashida Bibi is aggrieved by an order made by a learned Judge of the Lahore High Court on the 24th of October, 1979, by which he has upheld, with a modification, an order of the Guardian Judge, Faisalabad, dated the 22nd of April, 1976, granting the custody of the minor son of the parties to the father.
2. The petitioner was married to the respondent about 10 years ago and from the wedlock two children were born, namely, a daughter. And the minor son named Tariq Mahmood. It is stated that at the time the respondent applied for the custody of the boy, the latter was about 7 years old. After their divorce the respondent had married another wife and there were two daughters born from his second wedlock. He had claimed the custody of the boy mainly on the ground that the boy was not being properly looked after and educated, as the petitioner did not have sufficient means to do so, and that the boy needed the care of the father for his proper upbringing and welfare. The respon-- dent's application was accepted by the learned Guardian Judge, who made a conditional order for handing over the custody of the boy to the respondent on the condition that the father would make all the arrears of maintenance and that the respondent would afford an opportunity to the boy to meet his mother and sister. This was required to be done, in the first instance, by mutual agreement, failing which either party could approach the Court in this behalf.
2. This order has been maintained by the High Court, with the modi--fication that the custody of the boy would not be abruptly handed ever to the father, and instead he would meat the minor on several occasions before shifting him to his own house. The learned Judge has noted in the order under appeal, that the boy had been so brought up that he was not able to recognize his father in Court, and it was due to the fact that he was not properly treated. These considerations enabled him to hold that it was for the welfare of the minor that his custody should be given to his father.
3. Leave to appeal is sought on the ground that the learned Guardian Judge as well as the High Court have been unduly influenced by the fact that under the Muslim Law there was a presumption that the welfare of a male child above the age of 7 years lay in his custody being with the father and that sufficient attention was not given to the conduct of the respondent, who had failed to pay any maintenance for the minor, nor had he cared to meet the boy during all these years, and had thus disentitled himself from receiving the custody of the child. In support of these submissions, the learned counsel for the petitioner has referred us to Rahimullah Choudhury v. Mrs. Nayela Helali Begum and others (1974 SCMR 805).
4. It is correct that in the case cited by the learned counsel it has been observed by this Court that "As against a mere presumption attributed to Muslim law, section 25 of the Guardians and Wards Act recognises it as a right of the guardian that his ward, who leaves or is removed from his custody, be returned into his custody, but subject to his welfare. Welfare being a question of fact will, therefore, have to be resolved on the material placed before the Guardian Judge and not on the basis of any presumption". We find, however, that in the present case, there is no reason to hold that the Courts below have merely acted on the presumption that the welfare of a male child over 7 years lies in his custody being given to the father on the contrary they have examined the entire evidence adduced by the parties, and have come to the conclusion that the boy was not being properly looked after and educated by the mother, and, therefore, it would be in the interest A of his welfare if his custody was entrusted to the father, who had the necessary means to give him proper education, and who was entitled, under the personal law applicable to the minor, to his custody. In other words the question of custody has not been decided merely on the basis of the presumption arising under the Muslim law, but in the light of all the attendant circumstances of the case.
5. It seems that there has been litigation between the parties regarding the payment of maintenance for the child but the failure of the father to pay maintenance regularly would not automatically disentitle him to the custody of his, son, irrespective of the other circumstances of the case.
6. We are, accordingly, satisfied that the Courts below have acted properly, and no justification has been made out for our interference in the matter. The petition, therefore, fails and is hereby dismissed.