Muhammad Ejaz Swati, J.--The Writ Petition No, 355 of 2013 has been filed by Mst. Naseem (the mother of minor) against the judgment dated 27th March 2013 (hereinafter "the impugned judgment") passed by the Additional District Judge-III, Quetta (hereinafter "the appellate Court") whereby, the appeal filed by the Respondent No, 1 Ali Akbar (the father of minor) was partially allowed and custody of the male children was ordered to be handed over to him. The Writ Petition No, 603 of 2013 has been filed by the petitioner Ali Akbar (father of minors) against the order of the Family Judge-II, Quetta (hereinafter "the executing Court") dated 5th April 2012 (hereinafter "the impugned Order"), whereby, application for termination of execution proceedings for maintenance of the minors filed by the petitioner was dismissed and against the judgment dated 17th July 2012 ("impugned judgment"), passed by the Additional District Judge-II Quetta ("appellate Court") whereby, the appeal filed against the said order was dismissed, however, to the extent of daughter Mst. Aneela, the appellate Court terminated the execution , proceedings of maintenance. Since both the petitions are related to the custody and maintenance of the minor sons and daughters of the petitioner and respondent, having common question of law and fact, therefore, the same are decided through this common judgment.
2. The facts of the case are that Ali Akbar and Mst. Naseem entered into a marriage contract in the year 1991 and out of the wedlock 6 children, namely, Anila, Asgher, Adnan, Numan, Faiza and Nida were born. After the birth of the children, the row of marriage between the spouses ended in divorce. Sometime, in the year 2003 Ali Akbar filed an application under Section 25 of the Guardians and Wards Act for custody of the minors, which was dismissed vide judgment dated 27th October 2004, passed by the Family Judge-III, Quetta, whilst Mst. Naseem, the mother of the minors filed a suit for maintenance of minors which was decreed on 25th May 2004, whereby, maintenance of each child was fixed as Rs, 800/-, however, the appellate Court vide judgment dated 6th October 2004 fixed the maintenance of each child as Rs, 500/- with 25% increase after three years. Ali Akbar after lapse of 9 years again filed an application under Section 25 of the Guardians and Wards Act for custody of the 6 children, which was dismissed by the Additional Family Judge, Quetta vide judgment dated 8th June 2012, however, the appellate Court i,e, Additional District Judge-III, Quetta vide judgment dated 27th March 2013 partially allowed the appeal in favour of Ali Akbar, whereby, the-custody of .3 male children were directed to be handed over to the father. The mother Mst.
Naseem assailed the said order of the appellate Court by filing Writ Petition No, 355 of 2013.
The record of the case further reveals that on 12th December 2011, the decree holder Mst. Naseem filed an application before the Executing Court i,e, Family Judge, Quetta for increase of maintenance @ of 25% and subsequent thereto. Due to non-payment/deposit of maintenance for 2 months by the father, a contempt application was filed, which was dismissed. However, the petitioner of Constitutional Petition No, 603 of 2013 moved an application dated 21st March 2011 before the Executing Court/Family Judge, for the termination of execution proceedings on the ground that all the minors have attained age of majority. The Executing Court on 5th April 2012,- passed the following order: "Called. Counsel for the Decree Holder is not present. The counsel for the Judgment Debtor is present. Orders on the application under Sections 3 and Contempt of Court Ordinance 2003 are announced wide (sic) separate Orders in English as dismissal. However the point of non- compliance of the orders dated 12-12-2011 cannot be ignored, therefore after hearing the arguments of the counsel and perusal of the record it is - ordered on the main applications that it is proceed that the Judgment Debtor is not complifing (sic) with the Court order and is not depositing the decretal amount i,e, Rs, 117803/- of the previous and 468771- of December 2011, January 2012 and February 2012 further March 2012 which is a total of. Rs, 18748/- the last 4 months and the amount of Rs, 17803/- to be deposited in instalments of Rs, 500/-. Hence in view of the above situation the Judgment Debtor is strictly d irected to deposit the dues from December till March amounting to Rs, 1874 end further the instalment of Rs, 500/- from December till march which are not deposited amounting to Rs, 3000/-bt (sic) the next date of hearing and to keep on depositing the other instalment of Rs, 500/--'per month of the previous dues from March onwards after the closing liabilities as is directed. To come up on 10-4-2012 for the payment of decretal amount."
The petitioner (father) Ali Akbar assailed the above order in appeal which was dismissed by the Additional District Judge-II, Quetta vide judgment dated 17th July 2012, however, the appellate Court determined that the daughter of petitioner, namely, Aneela has attained the age of majority and to that extent the appeal was partially allowed. The petitioner Ali Akbar has assailed the above judgment and order of the Family Judge qua the maintenance of remaining children in Constitutional Petition No, 603 of 2013.
3. The learned counsel for the petitioner in C.P. No, 355 of 2013 contended that the respondent Ali Akbar had previously filed an application under Section 25 of the Guardians and Wards Act for the custody of minors, which was dismissed vide judgment dated 27th October 2004; that the subsequent application on the same ground in respect of said minors was hit under section 11, C.P.C.: that the age of 1 daughter, namely, Aneela was 20 years and application to her extent was not maintainable; that the respondent has contracted 2nd marriage and in presence of stepmother the welfare of the minor would be affected; that the minors are living with their real mother since their birth and a mother has more love and affection with the minors; that poverty of the mother has never been considered a ground to disentitle her for the custody of the minor; that entitlement of the father to have custody of male child after 7 years is not an absolute rule as the welfare of minors is of the paramount consideration, therefore, the impugned judgment passed by the appellate Court to the extent of male children is liable to be set aside.
4. The learned counsel for the respondent Ali Akbar in C.P. No, 355 of 2013 contended that the ages of all the three male sons are more than 7 years and the father is legally entitled for their custody; that the petitioner (mother) has no means as compared to the respondent, therefore, the appellate Court on the principle of law and after appreciation of evidence had rightly directed for the custody of male children to the father.
In respect of C.P. No, 603 of 2013, the learned counsel for the petitioner contended that the mother of minor while filing suit for maintenance for minor and also provided the age of minor in the year 2004, and on 21st March 2012 when application for termination of decree was filed, all the minors had attainted the age of majority, thus, the decree for maintenance ceases to exist; that the Courts below have failed to consider this material aspect of the case in its true perspective; that the impugned judgments are result of misappreciation of evidence and misconception of law, hence liable to set aside.
The learned counsel on behalf of Mst. Naseem stated that despite of decree of the Court, the father had failed to provide maintenance for minors; that father had filed an application for termination of execution proceedings related to the maintenance of the minors merely on the ground that the minors have attained majority, but this plea has not been substantiated through any authentic document; that filing of application under Section 25 of the Guardians and Wards Act by the father and filing of application that minors have attained the majority are two conflicting assertions which have been put forth by the father and both could, not be considered simultaneously.
5. First dealing with C.P. No, 355 of 2013 filed by the petitioner against the judgment dated 27th March 2013, passe4 by the Additional District Judge-III, Quetta, whereby, the custody of male children, namely, Asghar, Adnan and Nouman have been directed to be handed over to the father (respondent) on the following grounds: "So in this case, welfare of male minors would deem to be given them in the custody of their father, because the father has sufficient sources of income and being father and natural guardian cannot be deprived of the custody of male minors who had attained/ crossed the age of seven years.
Although female children have also attained the age of puberty but still their marriages have not been consummated, their welfare would deem to be retain by their mother."
It transpires that the appellate Court has ordered for the custody of the male minors children to the father mainly on two ground, firstly, that the welfare of the minors lies with father because he has sufficient source of income as compare to the mother, and secondly, that after crossing the age of 7 years the father is entitled for the custody of the male minor children. The basic criteria for appointment of guardian and restoration of custody was the welfare of the minors and the appellate Court was required to pass its findings on the condition laid down in Sections 17 and 25 of the Guardians and Wards Act, 1890. The right of parent regarding the custody and control of children was not 0 to be exercised in the interest and benefit of the parents, but in the interest and welfare of the children themselves. The father is though the natural guardian and his right of custody was also subordinate to the welfare of the minors, with regard to the custody of minor.
Admittedly the father of the minors Ali Akbar has contracted a second marriage and there are issues from his second marriage (as admitted during the course of proceedings), while the mother has not contracted second marriage rather she has devoted for her 6 children and after taking the custody of 3 male children from their real mother, the same cannot be handed over to the stepmother. Admittedly, since birth the minors are with their mother Mst. Naseem and now at this point of time when they are about 14, 16' and 17 years-of age, the change of custody would naturally damage the personality of the minors psychologically and this jerk could not at all to be considered in their welfare. This Court examined the children, namely, Asghar, Adnan and Nouman, who are grownup and they appeared before this Court on 30th July 2013. The relevant portion of the order of this Court is reproduced hereunder: "I ursuant to the last order, the children namely Asghar, Adnan and Mouman appeared and stated that they are aged about 17, 16 and 14 respectively and are students. They made a statement that they want to live with their mother (the petitioner). They need not to appear, unless otherwise directed In the present case the above minors who have reached an age where they can formulate an opinion for preference and the Court may also consider their choice.
6. In the case of Zahoor Ahmad v. Mst. Rukhsana Kausar and 4 others, (2000 SCMR 707), in a similar circumstances the apex Court held custody of minor with mother and observed as under: "The minor was summoned in Court and was examined by the learned Judge himself. The minor informed the learned Judge that "he was happily residing with the respondents and did not desire to go over to his father". The learned Single Judge also inferred from the facts of the case that the petitioner had filed the petition for custody of the minor just as to counterblast to the petitioner for grant of maintenance of the minor."
The above stance/desire of the grown up children who are near to majority age could be well gathered as an element of their welfare which according to them as well as circumstances of the case lies with mother.
7. The finding of the appellate Court that the age of the male children are more than 7 years and as per law father is entitled for their custody is also not tenable. The Hon'ble Supreme Court of Pakistan in the case of Mst. Firdous Iqbal v. Shifaat Ali and others, (2000 SCMR 838) having discussed all the questions in the light of Muslim Personal Laws and the provisions contained in Guardians and Wards Act, has held that notwithstanding the right of father for 7 custody of minor after 7 year under Muslim Personal Law, this right is always subject to welfare of, minor which is the paramount consideration for determining the question of custody of minor and held as under: "As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court or making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of ' Hizanat' of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under Section 25 of the Guardians and Wards Act, (VIII of 1890). The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor, neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage. Even then she had not been negligent in the care of her minor son. She had entrusted that duty to her mother and father and minor is being properly educated till date in a local school. All along this entire period, the father never bothered even to go to meet the minor muchless than providing maintenance to him, when the petitioner-mother sued him for providing maintenance allowance to the minor. It is only then that he had made an application for custody of the minor. Again the respondent-father has also taken another wife who has got one or two children out of the wedlock. The second wife of the respondent is living in the village of the respondent whereas the respondent himself is an Army Personnel in service of Pakistan Army and remains under posting from one cantonment to another.
Consequently, he would also not be present in the house where he proposed to lodge his son. The minor would be exposed to the onslaughts of the step-motherly treatment of his second wife.
There would be no one to stop the step-mother from the well-known step motherly treatment. It was in these circumstances that the learned Courts below had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of the real mother through her parents rather than giving him to the respondent who is himself away from his household which had been left to the charge of the step-mother."
8. T he appellate Court fell in error while holding that the father having sufficient source of income as compare to mother is entitled for the custody of male children is also not tenable. The father having sufficient source of income as compare to the mother, is also not a ground for the determination of welfare of minor. In the case of Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1978 SCMR 299), the father having much income than grandmother, the Hon'ble Supreme Court found that the minor will join the company of stepmother in father house and observed as uader: "Under the Shariat Law, 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. Needless to mention here that the father is the natural guardian of his minor children and the mother's custody is a subordinate custody and is subject to the control of the father. But the mere inability to maintain the children is not a ground for depriving the mother of the custody of her children. In Harbai v. Usman (1) it was held that mother's poverty is no hindrance to the custody of her minor daughter. Indeed in law it is for the father to provide for their maintenance."
9. In the present case, we thus, find that in C.P. No, 355/2013 the appellate Court has not only mis- appreciated the evidence on record, but has also not taken into consideration the relevant law in its true perspective and the findings, arrived at are not correct in the peculiar circumstances of the case. The Writ Petition No, 355 of 2013 is allowed, in result, the impugned judgment and decree dated 27th March 2013, passed by the Additional District Judge-III, Quetta to the extent of handing over the custody of male children is set aside.
10. Now adverting to the Writ Petition No, 603 of 2013, filed by the petitioner Ali Akbar (father). The learned counsel for the petitioner mainly contended that decree for maintenance was passed by the Civil Judge III/Family Judge Quetta on 25th May 2004 where the ages of the minors were given as under: Aneela 10 years.
Asghar 08 years.
Adnan 07 years.
Nouman 06 years.
Faiza 04 years.
Nida 03 years.
11. According to the learned counsel for the petitioner keeping in view the ages of the minors, the application dated 21st March 2012 filed by the petitioner for termination of execution proceedings on the ground that the above minors have attained to the age of majority and decree of maintenance have cease to exist. The Executing Court vide impugned order dismissed the plea of the petitioner and directed the petitioner to make payment of maintenance of the minors as mentioned in the order. It is the main contest Of the petitioner that in the suit for maintenance filed by the respondent (mother) the ages of minors in 2004 were given and according to said ages all the minors on 21st March 2012 had become major. The record reveals that at the time of filing application dated 21st March 2012 by the petitioner before the Executing Court, the age of Asghar Ali was 16 years, Adnan 15 years, Nauman 14 years, Faiza 13 years and Nida 11 years, while the age of Aneela was 18 years. According to section 4 of the Guardians and Wards Act, the definition of minor is given as under: "minor" means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his majority"
The Majority Act, 1875 defines the age of majority as under: "3. Age of majority of persons domiciled in Pakistan.--Subject aforesaid, every minor of whose person or property or both a guardian, other than a guardian for a suit within the meaning of Order XXII of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908) has been or shall be appointed or declared by any Court of justice before the minor has attained the age of eighteen years, and every, minor of whose property the superintendence has been or shall be assumed by any Court wards before the minor has attained that age shall, notwithstanding anything contained in the Succession Act, 1925 (No, XXXIX of 1925) or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty one years and not before.
Subject as aforesaid, every other person domiciled in Pakistan shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before."
12. The executing Court and the appellate Court while considering the legal and factual aspects of the matter related to age of minors rejected the appeal of the petitioner and in this respect the learned counsel for the petitioner has failed to point out any factual or legal infirmity in the impugned orders. The appellate Court, however, partially accepted the appeal to the extent of Aneela and held that she is 20 years of age and to her extent execution proceedings for maintenance were terminated. The order of the appellate Court to this extent is contrary to law.
Section 370 of the Muhammadan Law provides as under: "370. Maintenance of children and grandchildren.--(1) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married."
13. The father according to the law and principle emulated in this regard is bound to maintain his sons until they attain to the age of prberty and majority and he is also bound to maintain his daughter until she or they are married. In the case of Mian Muhammad Sabir v. Mst. Uzma Parveen and 2 others, (PLD 2012 Lahore 154) it was also observed as under: "It is settled law that a daughter is entitled to receive maintenance regardless of her age till such time she is married. Thus, a father is not exonerated from his liability to maintain his daughter as long as she is unmarried. In support, reference may be made to Muhammad Shafi v. Surrava Begum and 7 others (2000 MLD 2030) and Hafiz-ur-Rehman v. Najam Bano and others (2001 CLC 1273). It will also be of advantage to refer to Syed Ziaul Hassan Gilani v. Mian Khadim Hussain and 7 others (PLD 2001 Lahore 188), wherein it was observed as under: in case of male child on his attaining the age of majority, the father is not legally responsible for his maintenance but in case of a female, the parents despite attaining age of majority by the female child are still responsible for her maintenance till she is not married. The young girl in Muslim society even after-attaining majority cannot be deprived of their right of maintenance by her parents as they cannot lead an independent life and are always in need of protection of their parents."
14. In the present case, keeping in view the above provision of law and dictum laid down in the case supra. The daughter of the parties namely Aneela is 20 years of age, but she has not contracted marriage, therefore, she is also entitled for maintenance tit she is married. Though respondent (mother) has not challenged the findings of the appellate Court nor filed any crass-objection, but We in exercise of powers under Order XLI, Rule 33, C.P.C. Only reverse the findings of the appellate Court to the extent of Aneela and hold that she is also entitled for maintenance unless contract a marriage.
In view of the above, the Writ Petition No, 355 of 2013 is allowed in the terms as mentioned in Para 9 and Writ Petition No, 603 of 2013 with the above modification is dismissed. Consequently, the execution proceedings related to the maintenance of minor are deemed to be pending before the executing Court and it is directed to proceed the same in accordance with law, However, the petitioner Ali Akhtar is at liberty to file fresh application before executing Court for termination of execution proceedings qua the male child if any of the male child attained the age of majority.