1. CHAUDHAR Y KHALID YOUSAF , J.---The captioned appeal has been directed against the judgment of Civil Judge empowered as Guardian Judge, Fatehpur Thakyala, dated 22.3.2019, whereby , the application filed by the appellants herein for custody of minor was dismissed.
2. The facts precisely stated are that appellants herein filed an application for custody [Hizanatj of a minor being father and paternal grandmother of the said minor before Civil Judge/Guardian Judge Fatehpur Thakyala on 01.03.2017 stating therein that the marriage of the petitioner No.1 was solemnized with Mat. Fazeelat Begum on 02.06.2008 as per sharia and couple blessed with a male child. The petitioner No. 1 divorced her wife in 2013, thereafter she was died. It has been alleg ed that the minor is in the illegal custody of respondents, petitioners being natural guardian of the minor entitled the custody of the said minor . Further alleged that minor is not being look after properly by the respondents, it has been further alleged that the respondents wants to keep the custody of minor with mala fide intention just to receive the maintenance allowance of the said minor .
3. The application was resisted by the respondents, they refuted the claim of appellants herein in toto and prayed for dismissal of the application.
4. The learned Guardian Judge fatehpur Thakyala after due process of law, dismissed the application vide its judgment dated 22.03.2019, hence this appeal.
5. Mehmood Akhter Qt reshi Aleeg, Advocate learned Counsel for the appellants contended that mother of the minor has died therefore, the father being natural guardian has the right of custody of male child over seven years of age.
6. Learned counsel further contended that nourishment and other factors likewise education etc have not been properly observed by the respondents. Learned counsel further contended that section 353 of Muslim Personal Law is not applicable rather the instant matter becomes under the section 355 of Muslim Personal Law. He further submitted that atmosphere of respondents' house is not good for minor and he is not being look after in appropriate manners. Learned counsel further submitted that respondents wants to retain the illegal custody of minor only for receiving the maintenance allowance of the said minor and the Court below has wrongly dismissed the application without considering the facts and overall circumstances of the case therefore, the impugned decision is not sustainable.
7. On the contrary , Chaudhary Muhammad Illayas, Advocate, learned Counsel appearing on behalf of respondents submitted that the Court below has rightly dismissed the application of appellants. He further contended that father of the minor is living abroad for his livelihood and paternal grandmother appellant No.2 is an old lady, unable to take care of minor . Learned counsel submitted that instant application has been filed just to avoid the payment of maintenance allowance of the minor . Learned counsel contended that the minor is under the custody and care of his maternal grandmother since his birth, whereas father of minor contracted second marriage from whom he has four children and it is not in the interest of minor to put him in alien atmosphere. Learned Counsel submitted that it is paramount duty of the Court to see convenience and welfare of the minor . He prayed for dismissal of appeal.
8. Learned counsel placed his reliance upon case law reported as; (1998 SCMR 1593 ), (1986 CLC 2138 , Lahore) and (2008 CLC 1317 , Lahore)
9. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
10. It is pertinent to mention herein that welfare of minor alone is the determining factor while deciding the question of his custody , paramount consideration must be given to the welfare of the minor . As per Mohammdan Law father is entitled to the custody of a son over seven years of age, but this right of custody of a minor is not an absolute right, it commensurate with the welfare of the child, where the circumstances were brought on record that in fact the welfare of minor would lie with a person other than the one who was entitled to have the custody of minor under personal law, the Court could refuse custody to the person entitled, and in case where the minor is intelligent enough to form his or her opinion, the opinion of the minor shall be considered. Reliance can be placed on case law reported as Tahira Zaib v . Ghaf far Ahmed and others 2017 CLC 96 .
11. In the instant case mother of the Minor is died and father of the minor is living abroad for his livelihood and also contracted second marriage from which he has four children, minor is living with his maternal grandmother since death of his mother . As the father of the minor is living abroad, therefore in the instant case, this Court has to see the preference of custody in between the paternal grandmother - appellant No. 2 and maternal grandmother- respondent No.3. It is evident from record that the minor remained with his maternal grandmother from his childhood, therefore, he is more familiar and akin to her as compare to his father or paternal grandmother .
12. It is established record that father neglected the minor since his birth, the minor admittedly been under the care of his mother for two years and after her death remained under the care of his maternal grandmother . Conduct of father is evident from his own statement, he deposed as under:-- {{URDU TEXT}} It is important to note her that as the mino r attained the age of twelve years, he was summoned and his intelligence preference was taken by this Court on 28.02.2020,who was apparently intelligent, categorically stated that his maternal grandmother brought up him from his child hood he also shows his desire and affection to his maternal grandmother . As the minor has shown his intelligence preference and in view of the dictum laid down by the Hon'ble apex Court same cannot be ignored. Reliance can be made on case law reporter as (PLD 1994 AJ&K 01), wherein, it was observed as under; "Welfare of minors being a paramount consideration, children if capable of making intelligence preference, their opinion should not be ignored"
13. In another case reported as Mst. Talat Nasira v. Munawar Sultana and 2 others (1985 SCMR 1367 ) which is usefully reproduced herein:- "It is axiomatic that the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases."
14. Therefore, it would not be in the interest of minor to put him an alien environment. No cogent and sound reasons have been brought on record to change the custody . The impugned decision has been recorded in a legal fashion, which does not call for any interference by this Court. For the foregoing reasons, finding no force in this appeal, the same is hereby dismissed. No order as to the costs.