' This petition is directed against an order dated 18-7-1983 passed by the learned VIIIth Additional Sessions Judge at Karachi in Family Appeal No,11 of 1980, whereby the learned Appellate Court set aside the judgment dated 26-11-1979 passed by the 1st Family and Senior Civil Judge, Karachi in Suit No,1761 of 1972.
2. The brief facts leading to the filing of the above petition are that petitioner and respondent No,1 were married on 17-4-1969. This was the second marriage of both the parties i,e, the petitioner was a divorcee, whereas the respondent No,1 had his first wife with six (6) children. Out of the above wedlock a son was born on 16-1-1971. It appears that a dispute arose between the petitioner and respondent No,1. The petitioner ceased to live with respondent No,1. After that she filed an application under Section 25 of the Guardian and Wards Act on 16-11-1972 which was registered as Suit No,1761 of 1972. The above suit was resisted by the respondent No,l. On the basis of the pleadings of the parties the learned Family Court framed two issues and decided the suit in favour of the petitioner. The respondent No,1 filed the aforesaid Family Appeal No,11 of 1980, which was allowed by the impugned judgment dated 18-7-1983.
3. I have heard the learned counsel for the parties and I have noticed that the learned Family Court has given detailed reasons in recording the finding that the custody of the minor should be given to the petitioner, whereas the learned Appellate Court has not dealt with the reasoning given by the learned Family Court but has recorded the finding to the effect that since the petitioner had abandoned her child from the first marriage she would have no love for this child and also to the effect that she was having social life and, therefore, she would not be able to look after the minor properly. However, the learned Appellate Court has not dilated upon the question that admittedly respondent No,1 resides in Gulf States and visits Pakistan for a short period. According to the petitioner after every two years the respondent No,1 visits Pakistan, whereas according to respondent No,1 he visits after every 2-3 months. Be that as it may, admittedly the age of the minor was over 12 years when the learned Appellate Court was dealing with the matter and now the age of the minor is 161 years. The Appellate Court has not taken into consideration the wishes of the minor which should have been taken into consideration in terms of section 17 (3) of the Guardian and Wards Act.
4. In my view this legal defect is fatal to the impugned order. I would, therefore, allow the above petition and declare the impugned order as without lawful authority but would remand the case to the Appellate Court with the direction to send for the boy and to record his statement and thereafter pass equitable order which may satisfy the petitioner as well as to the respondent No,1 There will be no order as to costs.