' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, arises out of an application under section 25 of the Guardians and Wards Act, filed by respondent No,1 against the petitioner, seeking custody of the minor son of the parties, namely, Mazhar Iqbal, who at present is about 10 years of age, having been born on 1-4-1982. The application was allowed by the learned Guardian Judge vide order dated 27-6-1989, which was confirmed in appeal by the Additional District Judge. Hence this petition.
2. The learned counsel for the petitioner has argued that the Guardian Judge, while giving custody of the minor to respondent No,1, did not take into consideration the welfare of the child. It has been pointed out that the minor is living with the mother for the last about 10 years and during that period, the minor had not been maintained by the petitioner. The learned counsel emphasised that after dissolution of marriage between the parties, the respondent No,1 has contracted second marriage.
3. On the other hand, the learned counsel for respondent No,1 has defended the impugned orders and has asserted that the Courts below rightly come to the conclusion that it was in the welfare of the minor that his custody be handed over to the father.
4. After hearing the learned counsel for the parties and perusing the record, it becomes obvious that the impugned order is not sustainable.
5. It stands established on the record and is not specifically disputed by the learned counsel for respondent No,1 that the minor is living with his mother for the last about many yeaRs, During this period of time, no efforts was made by respondent No,1 to meet the minor or to supervise his custody. His lack of interest in the welfare of the minor is borne out by the fact that he admittedly did not provide anything for the maintenance of the minor and even after an order of maintenance was passed against him by the Family Court on 5-9-1988, he in definance of that order did not provide any maintenance to the minor. This conduct was not considered in its proper perspective by the Courts below. The Guardian Judge, took the view that the mere non-maintenance by the father does not divest him of his right to the custody of his minor son.
6. Another development which needs to be noticed is that respondent No,1 has re-married and is living with his second wife. In the overall circumstances of the case, there cannot be two opinions that it would not be in the welfare of the minor, rather it would be cruel to uproot him from the custody of his mother and to force him to live in the house where his stepmother is residing. The minor appearing as a witness before the Guardian Judge unequivocally expressed his preference to continue living with the mother. Although the preference of minor is not conclusive but it is one of the factors which must be taken into consideration by the Court, expecially as the minor had attained the age of discretion.
7. The Additional District Judge as also the Guardian Judge have gone mainly by the consideration that under the Muslim Personal Law, the father is entitled to the custody of a minor son, who has attained the age'of 7 years and there is a presumption that the welfare of the minor lies in handing over the custody to the father. This approach, on the part of the Courts below, is wholly erroneous.
The Supreme Court of Pakistan in Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1983 SCM R 606) observed that:- "A natural or a certificated guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specifically that although the guardian is entitled to such a custody, nor order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of guardian, the Court will have to weigh it against the other weighty considerations on the record.
The overriding and paramount consideration always is the welfare of the minor. Indeed this is the sole consideration that must prevail in the final analysis and the fact that the father is the lawful guardian of his minor children does not compel the Court to pass an order in his favour unless it is in their welfare to do so. The welfare of minor means his material, intellectual, moral and spiritual well-being."
' Consequently, the fact that the petitioner, according to the Courts below, had not been able to establish or point out any defect of character of respondent No,1, was not sufficient for directing that the custody of the minor be handed .Over to the father. Even otherwise, surprisingly the Courts below totally failed to note the indifference of respondent towards the minor and his failure to provide maintenance despite the order of cue Family Court. The plea could not be rejected outrightly by the Courts below.
' As a result of what has been stated above, this petition is allowed, the impugned orders are declared to be without lawful authority and of no legal effect and the application for custody of the minor, filed by the respondent is dismissed, with no order as to costs.
' At the request of the learned counsel for respondent No,1, it is directed that he can meet the minor on the 1st and 3rd Thursday of every month.