' MUHAMMAD AZAM KHAN, C.J.---The titled appeal by leave of the Court arises out of the judgment of the Shariat Court dated 18th May, 2009, whereby the appeal filed by the respondent has been accepted and case has been remanded to the Family Court for decision afresh in respect of the custody of the minor.
2. Brief facts of the case are that the appellant and respondent married to each other on 18-8- 2001.. Out of the wedlock a son, Sheraz was born. The respondent divorced the appellant on 30-5- 2006 and snatched away the minor, Sheraz. The appellant filed an application before the Judge Family Court, Mirpur for custody of the minor. Along with the application an application for interim custody of the minor was also filed. The same was allowed on 22-6-2006 and interim custody of the minor was given to the appellant. The Judge Family Court accepted the application on 13-2- 2007 and the minor was handed over to the appellant. The respondent filed an appeal before the Shariat Court of Azad Jammu and Kashmir. The Shariat Court vide impugned judgment dated 18- 5-2009, accepted the appeal and remanded the case to the trial Court for decision afresh on the ground that during pendency of the appeal in the Shariat Court the mother of the minor has contracted second marriage, therefore, it is necessary that trial Court shall decide the case in the light of the changed circumstances.
3. Sh. Masood Iqbal, Advocate, the learned counsel for the appellant argued that while deciding the application for guardianship of the minor, the paramount importance is given to the question of welfare of the minor. The trial Court after perusing the evidence reached the conclusion that welfare of the minor lies with the mother, therefore, custody of minor was rightly given to the mother. The learned counsel further contended that the respondent, father of the minor after divorcing the appellant immediately contracted second marriage and the learned Shariat Court has ignored this important aspect. He contended that from the evidence the appellant has successfully proved the bad character and conduct of the respondent, the father of the minor. Prior to the marriage with the appellant there was an allegation against the respondent that he tried to burn in to ashes his first wife, as such the minor cannot be given in his custody as there shall always be a continuous threat and danger to the life of the minor if he remains in the custody of the father. He 'asserted that conduct of the respondent could also be judged from this angle. This argument was categorically raised before the Shariat Court but the Shariat Court failed to consider it. He submitted that the learned Judge in the Shariat Court has passed the remand order illegally.
4. While controverting the arguments, Mr. Zubair Ahmed Raja, Advocate, the learned counsel for the other side, argued that the judgment of the Shariat Court is perfectly legal. The appellant has contracted second marriage and welfare of the minor is not lying with the mother who is living with a person, who is a stranger to the minor.
5. A notice was issued to the respondent to appear personally before the Court but he failed to appear in the Court. Repeated notices were issued to him but despite service, he failed to appear in the Court, therefore, bailable warrant was issued. After service of bailable warrant, he failed to appear and ultimately non-bailable warrant was issued and he was brought in the Court in police custody. The appellant was also ordered to produce the minor.
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 re-marriage 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 4123 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 possess 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."
' In the case titled Mst. Nazeer Begum and others v. Abdul Sattar [PLD 1963 W.P. Karachi 465], it was observed as under:-- ' It is true that the applicant has denied the suggestion made by the appellant, but the fact remains that he has not been able to give any cogent reason whatsoever for the custody of the children while making the application after such a long time. In this connection where the father has failed to care to maintain his children I would Bk. Tc cite a passage from Muhammadan Law by Syed Ameer Ali, 4th Edition p.
301. It runs as under:-- ' Where the Hazina contracts a second marriage and the father does not, within a reasonable space of time from the date of such marriage, or from the date of his knowledge thereof, claim the person of the infant, he should be supported to have abandoned his right over it, and it should remain thenceforward definitely under her care."
7. The application for custody of the minor was moved on 19th May, 2006, wherein the applicant alleged that the respondent has snatched the minor, aged 3 years, on 13th May, 2006 after divorcing her. The interim custody was given to the mother on 22nd June, 2006. The respondent right from 22nd June, 2006 till today, never tried to see the minor. He never paid the expenses to the minor. The second marriage of the mother in the circumstances not dis entitlesher from the custody of minor. There is another aspect that the petition for leave to appeal in this Court was filed on 18th June, 2009. A number of notices were sent to the respondents, father, but he did not appear in the Court. Bailable warrant was issued which was served upon him but despite that he failed to appear and ultimately he was brought before the Court after being arrested, where he stated that he has contracted another marriage. This conduct also shows that he is not interested in the custody of the minor who is in the custody of mother for the last about 8 years. His conduct throughout remained such as that he has no interest in the minor. Soon after, divorcing the mother of the minor, he has contracted another marriage. The father has disentitled himself by his conduct for the custody of the minor. The welfare of the minor from the whole record appears to be in the custody of mother.
8. The minor who is more than 11 years old, appeared in the Court. He is well dressed, neat and clean. He appears to be intelligent enough to form an independent opinion. We inquired him where he lives. He stated that he lives with his mother and is studying in a school. He has never seen his father for the last 7/8 years. He stated that neither his father met him nor he ever gave him any expenses, clothes or anything during this whole period. The minor stated that, he is living happily with the mother. He wants to live with his mother and does not want to live with his father.
9. While deciding the question of custody of the minor, paramount importance is given to the welfare of the minor. Apart from considering the whole circumstances and the record, the opinion of the minor has also to be considered, if the minor is intelligent enough to form an independent opinion. The application for custody can be decided on the basis of the statement of the minor.
This view finds support from the case titled Sughran Bibi v. Akhtar Hussain 2007 CLC 474. It was observed as under:-- "....The prime consideration for appointment of guardian is the welfare of the minor which must weigh with the Court irrespective of the provisions of Personal law. Similarly the conduct of the father or mother must also be considered and in view of subsection (3) of section 17 the choice of the minor cannot be taken lightly and must be given due weight."
' In another case titled Zainab Bibi v. Zaffar labal 2012 MLD 762 it was observed as under:-- "9. Under Section 17 subsection (3) of the Guardians and Wards Act, the opinion of a minor has to be considered if the minor is old enough to form an intelligent preference. In case titled. Sughran Bibi v. Akhtar Hussain [2006 SCR 301] it was held as under:- '14. By what has been stated above, we find that in spite of the fact that her mother has contracted second marriage with a stranger, Mst. Yasrah Bibi, on inquiry of the Court has categorically submitted that she desires to live with her mother and does not want to stay or go to her father or grand-father. Thus father has failed to maintain her which culminated into filing of an application for maintenance. The present proceedings are in fact a counter blast to defuse that situation. The economic condition of her mother and father are almost equal. Thus, keeping in view the circumstances of the present case, we cannot brush aside the desire of the minor to stay with her mother."
Thus, after considering all the circumstances and on the basis of statement made by the minor, the welfare of the minor lies with the mother. The judgment of the Family Court is perfectly legal.
The remand order passed by the Shariat Court is set aside. The appeal is accepted with no order as to the costs. Before parting we may observe that if the respondent, father of the minor wants to meet the minor, the appellant shall provide him an appropriate opportunity at a mutually agreed or the father may apply to the Family Court, Mirpur for the purpose.