1. MUHAMMAD GUL, J. ;This leave petition is from the judgment of the Lahore High Court dated 12-2- 1973 in first appeal, arising out of proceeding under section 25 of the Guardians and Wards Act concerning the custody (hizanat) of three minor girls, the contestants being their father, the petitioner herein and their maternal-grandmother, the respondent herein. The peti--petition had been adjourned time and again with a view to enabling the disputants to reach an amicable understanding with regard to the custody of the minors. Unfortunately, this has been a vain hope.
2. The petitioner is a highly placed officer and at the time when this litigation commenced in 1968 was serving the former Province of West Pakistan and stationed at Lahore. Presently, he is Member of the Federal Services (Administrative) Tribunal at Islamabad. The three minors whose custody is dispute with their respective dates of birth are: - NameDate of birth
(i) Naila 6-7-1958.
(ii) Seemin 14-8-1960.
(iii) Assia22-4-1962.
3. The minors' mother Mst. Shamim-un-Naeem died at Lahore on the 6th June, 1968. After the death of their mother they were taken to Karachi by the respondent, with the petitioner to consent apparently on the under--standing that they would return to Lahore by the time their school reopened after vacation. The case of the petitioner is that he personally went to Karachi in September, 1968 and again in December, 1968 but the respondent and her husband prevented the minors to accompany him back to Lahore.
4. This obliged the petitioner to move an application before the Guardian Court at Lahore under section 25 of the Guardians and Wards Act. Alongwith the application, he moved an application for interim custody of the minors which was awarded to him. On revision by the respondent, the High Court set aside the order of the Guardian Judge and the case was remitted to the District Judge for a fresh decision on the main application.
5. The learned District Judge by his judgment dated 3-7-1969 accepted the petitioner's application and awarded the custody of the minors to him on the findings, namely:-
(i) that under the principles of Muslim Law, the petitioner being father was their legal and natural guardian:
(ii) that financially he is much more affluent that the family of the respondent whose husband draws monthly pension of Rs. 150 per mensern with no other ostensible means;
(iii) that the minors were on the roll of Jesus Mary Convent at Lahore which imparts a much higher standard of education than Gulistan High School at Karachi where the minors being educated; and
(iv) that though initially the respondent was validly entrusted with the custody of the minor's her Hizanat had terminated because of her refusal to send the minors to live with their father at Lahore.
6. On appeal by the respondent, the judgment of the learned District Judge was reversed by the High Court. A learned Single Judge on a careful analysis of the evidence produced in the case found:-
(i) that at the time of his marriage with the minor's mother, the petitioner was already married and had children by his first wife but he suppressed that fact and held himself out as bachelor at the time of his marriage with the minors' mother;
(ii) that Mst. Shamim-un-Naeem led an unhappy married life;
(iii) that before-her death, the minors, mother on being taken seriously ill was flown to Copenhagen for treatment by her brother Mr. Muhammad Suleman who bore the entire expenses;
(iv) that the petitioner since the death of the minors' mother is not proved to have remitted any money towards the expenses of their education or maintenance;
(v) that Mst. Nails the eldest of the three girls had appeared before the Guardian Judge to say that she and her younger sisters would like to stay on with their grandmother rather than go to live with their father;
(vi) that even during their appearance in Court the general attitude of the petitioner towards the minors did not show any warmth characteristic of a loving father;
(vii) that the petitioner has since married a third wife with whom he is living and
(ix) that Gulistan High School where the minors are studying at Karachi is a reputable institution apart from the private coaching by their mother's younger sister Mst. Janat-un-Naeem who is a teacher in a local school.
7. Against the background of these facts and after referring to a number of text books on Muslim Law bearing on the Hizanat of minor, the learned Single Judge came to the conclusion that notwithstanding that the petitioner, as father, is natural and legal guardian of the minors, nevertheless it would conduct to their welfare to remain in the cutsody of the respondent. The learned Judge opined that the general rules set out in the various text books are in the nature of guidelines, the paramount consideration always being the welfare of the minor.
8. Mr. A. K. Brohi, learned counsel for the petitioner submitted that the petitioner being the natural and legal guardian of the minors has throughout remained in his constructive custody even when he entrusted their custody to the respondent after the death of their Mother and this right includes the right of personal supervision, which is being wrongly denied to the petitioner. The emphasis was on the petitioner's right to have the minors with him at Islam--abad where he is presently posted so that they grew up under his case. Learned counsel further pointed out that since the commencement of this litigation, Naila has attained the age of puberty. Therefore, apart from any other considera--petition the respondent cannot claim the right to her custody. Learned counsel also expressed the apprehension that now that Naila has attained marriageable age, she might be given away in marriage without the petitioner's consent. Lastly learned counsel pointed out that the petitioner has in affidavit stated that he has on the average been sending Rs. 200, per month to the three girls apart from presents in kind on special. Occasions.
9. Another very significant fact is that the petitioner has led no evidence to show that he had been regularly paying any amount towards the mainte--nance and upbringing of the three girls. In his affidavit he states to have paid on the average Rs. 200 per mensem which to say least is ridiculously a small amount having regard to the high cost of living these days and also his position in life. Lastly, if the girls were to join the petitioner at Islamabad, they will have to suffer the company of a step-mother. In their father's house which human nature as it is, can be anything but congenial. This also explains the choice made by the eldest of the three girls.
10. As to the apprehension expressed by learned counsel that the respondent or her husband might give the eldest of the three girls in marriage, Mr. Jamil Hussain Rizvi Advocate, who appeared as Caveator on one of the intermediate dates in the cape, categorically stated at the Bar that the respondent or her husband had no such intention whatever, and that any such proposal without petitioner's consent was unthinkable.
11. Having anxiously considered the peculiar facts of the case, in our opinion; the case was rightly decided by the High Court. The petition is accordingly dismissed.