' MUHAMMAD ALAM, J. --- This civil appeal is directed against the order/judgment dated 23-2- 2015 of the learned Guardian Judge/District Judge Hunza/Nagar. Through the impugned order, the learned Guardian Judge passed the following order:-
9. In view of what have been stated above the application of the petitioner for the care and custody of the minor is dismissed holding devoid of merits. However, the respondent is directed to produce the minor for his meeting with the petitioner's family at the place of anyone of the common relatives of the parties namely Qasim and Muhammad Ali on every Sunday and the said notables will ensure that the order of the Court is complied with in letter and spirit."
2. The case in hand is a case of custody of minor namely Mr. Arman Abbas. Father of the minor has died and the minor was born on 16-10-2012. After birth of the minor, appellant approached the then Guardian Judge Hunza/ Nagar for his custody, but the said Guardian Judge passed the following order on Miscellaneous No, 46/2013 on 04-10-2013 and held as under:--- 04-10-2013..........................................
"Reader's report perused. Petition be entered in the relevant register. Notice be issued to respondents to appear before the Court with child namely Arman Abbas aged 11 months to hand over to mother as per Shariat and Law till consiguine period with the 'direction to petitioner that Grand-Father and Grand-Mother are allowed visiting the child to the house of mother and are not allowed to take it away with out....
The child handed over to the mother before the Court as per orders. "
' On 20-11-2014, when the minor cross the age of 2 years, appellant again approached the Guardian Judge Hunza/Nagar through C.M. No, 67/2014, seeking custody of the minor. Through impugned order, the said petition was dismissed, hence this appeal.
3. We have gone through the file and have heard learned counsel for parties. It is not disputed that parties to the case belong to the Shia Sect of Muslims, therefore, the Personal Law of the said Sdct is obviously relevant. It is also not disputed that appellant is real grandfather of the minor while respondent is mother. The learned counsel for parties argued, on attraction and application of the Personal Law of parties. We have gone through the impugned order also because through impugned order, the learned Guardian Judge has held that the welfare of the minor will prevail on the Personal Law. We reproduce hereunder the views of the learned Guardian Judge which are operating as basis of the impugned order. The same views go as under:---
8. "It is an admitted position in the case that previously the petitioner had got the custody of the minor without the consent of the respondent whereon the respondent filed an application under 'Section 25 of Guardian and Wards Act and got the care and custody of the minor through this Court vide order dated 04-10-2013. The main ground for filing the application in hand is that the minor has attained the age of two years as such under the Muslim Personal Law the petitioner is entitled to the care and custody of the minor but it is by now a settled law that for the purpose of deciding the custody of a minor welfare of the minor is the paramount consideration and in that behalf personal law is subordinate to the welfare of the minor, which alone must govern question relating to custody of minor. The minor is presently of the age of only two years and four months and needs the tender care of his mother which by any stretch of imagination the grand-father cannot provide to the minor. As far as the issue between the parties regarding not allowing the petitioner's family to visit the minor is concerned the respondent is ready to produce the minor for his meeting with the petitioner's family anywhere and anytime."
4. From perusal of impugned order, it is evident that the learned Guardian Judge has placed the welfare of the minor in juxtaposition with the attraction and application of Personal Law of parties.
In the opinion of the learned Guardian Judge, the welfare of the minor to prevail on the Personal Law. We have considered this view of the learned Guardian Judge thoughtfully. In this connection the above-quoted part of impugned order is very important, wherein, while holding that the welfare of the minor to prevail on the Personal Law of the Sect that attracts in the case in hand, the Guardian Judge has omitted to elaborate the circumstances in which the welfare of the minor is in case of his custody with the respondent. In our opinion, the learned Guardian Judge could not elaborate the welfare of the minor as he did not record any evidence of the parties on the said issue. Once the learned Guardian Judge took the ground of welfare of minor as a prevailing factor if compared with the a application of Personal Law the learned Guardian Judge was bound to show the welfare of the minor in custody of respondent and that was possible only on the basis of any evidence. In the case in hand, admittedly, the learned Guardian Judge did not record any evidence showing welfare of the minor, in his custody in the hands of the respondent as compared to the same custody in the hands of the appellant. Obviously, the question of welfare of the minor is a question of fact and can only be determined through evidence. So the question that why the welfare of the minor is not in his custody in the hands of the appellant, remained unanswered. It is not disputed that according to the Personal Law of the parties, custody of the minor goes to the appellant after his custody in the hands of respondent for two years. So appellant is the correct guardian of the minor in accordance with the Personal Law of the parties. In our opinion, custody of a minor can be handed over to any person other than the appellant only after determining that the welfare of the minor is not in his custody in the hands of appellant and instead the same is in the hands of any other person or respondent. And so happens very rarely and the impugned order is devoid of any evidence showing the circumstances that existed where welfare of minor was in his custody in the hands of respondent as compared to the appellant. In our opinion, the views of the ,learned Guardian Judge are based on mere conjectures.
5. We, therefore, accept this appeal, set aside impugned order and direct the learned Guardian Judge for proceedings arranging the transfer of custody of the minor to the appellant. Learned Guardian Judge to take necessary steps in the light of this order for shifting the custody of the minor from the respondent or any other person on her behalf to the appellant. Anyhow, respondent is held entitled to see the minor once in a week if she so wishes, and for that purpose the learned Guardian Judge is free to pass any order. Parties are directed to appear, before the learned Guardian Judge on 06-07-2015 for further directions. Parties to bear their own costs. File be consigned to record.