' RAJA SAEED AKRAM KHAN, J.---This appeal by leave of the Court has been directed against the judgment and decree passed by the Shariat Court on 28-6-2013, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The facts necessary for disposal of the appeal are that the appellant contracted marriage with the respondent. Out of their wedlock, Qasim Saleem was born. Later on, the relations between the spouses became strained and the marriage was dissolved by the Judge, Family Court, Bhimber.
Qasim Saleem, minor, is living with his mother and she is looking after him. The appellant filed an application for the custody of his son, Qasim Saleem before the Judge, Family Court, Bhimber, which was dismissed vide judgment and decree dated 30-4-2013. Feeling aggrieved, the appellant filed an ' appeal before the learned Shariat Court, which also met the same fate vide impugned judgment and decree dated 28-6-2014. Hence, this appeal by leave of the Court.
3. Raja Aftab Ahmed Khan, Advocate, the learned counsel for the appellant, argued that the judgment and decree passed by the learned Shariat Court is against law and the facts of the case, which is not sustainable in the eye of law. He contended that the learned Shariat Court failed to adhere to the dictum laid down by this Court in the numerous judgments that in the matter of custody of the minors, the welfare of the minor is the paramount consideration but the learned Shariat Court has not kept in mind this universal principle while passing the impugned judgment.
He contended that the respondent has contracted second marriage, therefore, the minor has to face cruel behaviour of his step-father. Although, the appellant has also contracted second marriage but the same does not disentitle him for the custody of the minor. The learned counsel further contended that both the Courts below have not taken into consideration that the respondent has no source of income, therefore, she is not in a position to provide better education to the minor. He also submitted that the appellant has already deposited a reasonable amount in the bank account of his minor, which shows his serious concern with the welfare of the minor but the bona fide of the appellant has also not taken into account by the learned Shariat Court, while passing the impugned judgment. He argued that the father of the minor is running the business of 'Dairy Farm' and is earning a handsome amount, therefore, he can easily manage the educational and the other expenditures of the minor. He contended that the appellant is ready to get his son's admission in an institution where the facility of boarding will also available and for this he is also ready to bear all the expenditures. He added that the respondent and her husband do not allow the minor to meet with his real father, in this way, they are trying to deprive the minor of the natural affection and love of the real father. The learned counsel strongly argued that the attitude of the step-father of the minor is also not appreciable. Although, the minor has got recorded his statement before the trial Court that he is willing to live with his mother but the learned Shariat Court failed to observe that the minor is under the influence of his mother and step-father who forced him to make such statement before the Court. In continuation of argument, he submitted that the stepfather of the minor has no independent house and he is living with his brother, therefore, the respondent cannot take good care of the minor. The learned counsel has relied upon the case reported as Khan Muhammad v. Mst. Surayya Bibi and others (2008 SCMR 480).
4. On the other hand, Sardar Muhammad Habib Zia, Advocate, the learned counsel for the respondent, strongly controverted the arguments addressed by the learned counsel for the appellant, while submitting that there are concurrent findings recorded by both the Courts below which have scanned the evidence thoroughly and came to the conclusion that welfare of the minor lies with mother, therefore, no interference warrants by this Court. He argued that under law, while dealing with the matters like in the hand, i.e., the custody of minors, the prime consideration is the welfare of the minors. He further argued that the appellant and the respondent both have contracted second marriages. The mother is also natural guardian of the minor, therefore, she cannot be deprived of the custody of the minor only on the sole ground of contracting the second marriage. He contended that nothing has been brought on record regarding cruel attitude of the stepfather of the minor. He submitted that it is the duty of the appellant to maintain the minor under the teaching of Islam as well as the law of the land. He further submitted that the sound financial position of the father of the minor cannot be made sole criteria to hand over the custody of the minor to the father despite the fact that the minor is living happily with his mother. He lastly argued that during the course of hearing of the suit, the minor appeared before the trial Court and categorically stated that he is not willing to go with his father rather to remain living with his mother, who is properly looking after him. The learned counsel relied upon the judgment reported as Bashir Bibi v. Ghulam Rasool and 2 others 2005 YLR 547.
5. We have heard the arguments of both the learned counsel for the parties and gone through the record made available. There is no cavil with the proposition that while deciding the matters of the custody of minors, the paramount consideration which the Courts have to consider is the welfare of the minor. In the case in hand, the age of minor is of 10 years and he is studying in 7th class. It is spelt out from the record that the minor is matured enough, who can express his independent opinion. During the course of proceedings, he was summoned by the Court, whereupon he appeared before the Court and stated that tie wants to remain living with his mother. Mere contracting the second marriage does not disentitle the parties to get the custody of the minor, however, it varies case to case as each case has its own peculiar circumstances. It is settled principle of law that no order can be passed against the welfare of the minor which is paramount consideration to be considered by the Court being a custodian of the minors. We come to the conclusion that welfare of the minor lies with his mother and the minor also has wish to live with his mother. In a case reported as Shazia Kousar v. Nisar Ahmed [2015 YLR 1917], while dealing with the identical proposition, it is held:-- "6. After hearing the arguments we inquired the respondent that how long the minor is in the custody of the mother. He told that since a long period, the minor is in the custody of the mother.
The age of the minor is 11 years. The respondent in the open Court stated that he has also contracted second marriage. Upon this the appellant informed that it is his third marriage and not the second marriage. The Shariat Court remanded the case on the ground that the appellant has contracted second marriage, therefore, the trial Court shall decide the question in the changed circumstances. Now it has come on the record that soon after divorcing the appellant, the respondent also contracted third marriage. When the father has contracted another marriage the mother has also contracted second marriage and the minor is living with his mother then who is entitled for custody of the minor. The question that on account of remarriage of mother with a person who is not related to the minor within the prohibited degree, whether she absolutely disqualifies herself from custody of the minor, has to be decided while keeping in view the interest and welfare of the minor. The welfare of the minor is of paramount importance. While deciding the question of welfare of the minor, the Court has to consider all attending circumstances. It was observed in the case titled Amar Ilahi v. Mst. Rashida Akhtar [PLD 1955 Lahore 412] as under:-- ' It would thus appear that by marrying a stranger a mother, or a female relation, only loses her preferential right to the custody of a child which means that if there is another relation of the minor who posses a right under the Muslim law to the custody of the person of the minor and to whom the welfare of the minor can be safely and properly entrusted, such a female relation cannot claim the custody of the child as of right. In this view I am supported by the rulings in the case of Mst.
Samiunnisa v. Mst. Saida Khatun, Tumina Khatun v. Goharjan Bibi (1), In re Ghulam Muhammad (2) and Gunna and another v. Dargahi (3). It would be wholly wrong to suppose that the Muslim law of guardianship creates rights in respect of minors for the benefit of their guardians. On the contrary, that branch of the law was evolved for the benefit and welfare of the minor; and certain relations were given preferential right to the custody of the minor because normally those persons are more interested in the welfare of the minor and are, therefore, better suited to act as guardians."
' In the case titled Akhtar Ahmad v. Mst. Hazoor Begum (PLD 1965 Karachi 65), it was observed as under:-- "6. I am in full agreement with the observation made in the last two mentioned cases. In my view also the paramount consideration in these cases is the welfare and the interest of the minor. The mere fact that the mother has lost the right of Hizanat of the minor child will not finally determine the question of future custody of the child. This question will have to be decided always in keeping with the interest and welfare of the minor. It is in this light that the question in this appeal has to be decided. On the point under consideration the learned Subordinate Court has disbelieved the evidence of the appellant that the minor was not properly maintained by the mother or that she was ill- treated by her. He has further found that the appellant has also remarried and has got a child from the second marriage. In his opinion it would not be proper to give the custody of the minor child to the father because she is not expected to get good treatment at the hands of her step-mother. In my opinion this is a weighty consideration which cannot be lightly set aside in this case."
6. The argument of the learned counsel for the appellant that due to the weak financial condition of the respondent, she is not in a position to maintain the minor in a good environment and provide him better education. It may be observed that the appellant being real father of the minor is legally and morally bound to maintain him even if the minor resides with his mother. Nothing is spelt out from the record that the minor is not willing to live with his mother or intends to live with his father, therefore, on the pretext of having limited sources, a mother cannot be deprived of the custody of the minor. In this regard, reliance can be placed on a case reported as Mst. Razia Bibi v. Riaz Ahmed and another (2004 SCMR 821) in which it has been held as under:-- "....It is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father, who is under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with mother and welfare of the child, in the circumstances, also lies in favour of the petitioner. It is true that non- maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would be one of the circumstances for determining the welfare of the minor. This certainly shows the conduct of the respondent and in the case in hand, as already stated, right from the birth of the child the respondent has not maintained his son. The respondent, as stated by the learned counsel, has contracted second marriage. She is devoting her complete attention towards the upbringing of her minor son. Furthermore, it would be harsh at this juncture to hand over the custody of the minor to the respondent leaving him at the mercy of the step-mother in presence of his real mother who is properly maintaining him."
7. We have observed in the preceding paragraph that the right of the mother or father for the custody of male or female child under the personal law, the paramount consideration in determining the question of custody of minor is always the welfare of the minor. During the course of hearing of this appeal, one of the encouraging aspects of the case came before us that the appellant has showed his much concern regarding better education of the minor and he is willing to get his admission in a well reputed school and shall also bear all the expenditures in this regard.
Moreover, he has already deposited a reasonable amount in the bank account of the minor to meet his educational expenditures and the same has not been denied by the respondent. In this scenario, we are of the view that mere on the ground that the appellant has contracted second marriage, he cannot be deprived of to meet with his son.
8. As we have discussed above, the statement of the minor that he is not willing to go with his father and wants to live with his mother, therefore, we do not compel him to live with his father as the custody of the minor is always subject to the welfare of the minor. The minor is matured enough to express his independent opinion. Resultantly, finding no force in this appeal, it is hereby dismissed with no order as to costs.
9. Before parting with the Judgment, we may observe that as the appellant appeared before this Court and categorically stated that he is ready to get him admitted in a well reputed school where the facility of the boarding will also be available and in this regard, he will bear all the expenditures.
The offer made by the appellant seems to be genuine, which shows the close concern of the appellant with his son. In this state of affairs, we are inclined to direct the Judge, Family Court, Bhimber in whose territorial Jurisdiction the minor is living with his mother to arrange the meeting of the minor with his father once in a month on the date mutually agreed by the parties. The appellant is at liberty to move the application in this regard before the Judge, Family Court, Bhimber, who shall entertain the same and make the proper arrangement after mutual consent of both the parties.