' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judge in Chambers of the High Court whereby the custody of minor Shahbaz 7afar was handed over to his maternal-grandmother, respondent No,1, as it was in the welfare of the minor.
2. This case has a chequered history of relationship and litigation as well. Petitioner had married Mst. Naureen Kausar in 1984 and out of the wedlock a male issue, namely Shahbaz Zafar was born on 29-12-1984. On 28-3-1985 divorce was effected and it seems that the petitioner, who is a Doctor in the Army, proceeded to Saudi Arabia. He has remarried and has four children from the second wife. Mst. Naureen Kausar also married and is residing in London. During this period the minor had remained with respondent No,1. The petitioner returned to Pakistan and filed a petition under section 25 of the Guardians and Wards Act on 1-3-1988 for obtaining custody of the minor. The learned Guardian Judge by judgment dated 6-12-1989 disposed of the application with the direction that the minor should be got admitted in any boarding school at Rawalpindi, Islamabad or Murree and the educational expenses shall be borne by the petitioner and in case he fails to do so, respondent No,1 would be entitled to have the custody of the minor child till the age of seven years. The order also specified the meetings of the parties with the child which need not be specifically mentioned here. Mst. Naureen Kausar challenged this judgment by filing an appeal before the District Judge. During the pendency of this appeal, respondent No,1 applied to be impleaded as a party praying that she should be allowed to keep the custody of the minor. This application was dismissed and, the order of the Guardian Judge was upheld. Respondent No,1 challenged the order dismissing her application to be impleaded as a party by a writ petition, which was also dismissed with the observation that she had a right to file an application for the custody of the minor in her own right before the Guardian Judge. Respondent No,1 then filed an application under section 25 of the Guardians and Wards Act for the custody of the minor. Mst.
Naureen Kausar who had challenged the earlier order in a Constitution Petition, withdrew it. The application for guardianship filed by respondent No,1 was allowed by the Guardian Judge, but the appeal filed by the petitioner was allowed. Respondent No, 1 then challenged this judgment in a Constitution Petition which was allowed by the impugned judgment.
3. Mr. Tanvir Bashir Ansari, learned counsel for the petitioner contended that the learned Judge in Chambers of the High Court has not properly appreciated the evidence on record which was not before him and further that the judgment has been pronounced on wrong presumption that on having attained the age of seven years if the father and mother are not considered fit for the custody, it is the mother's mother who has a preferential right to claim the custody of the minor child. The question of custody of the minor was claimed by the father, the mother and the maternal-grandmother. There is nothing on record to show that the paternal/grandparents are alive, are interested in having the custody and are in a position to look after the minor. It is a well- recognised principle of law that while granting custody, the main consideration before the Court is the welfare of the minor. In the facts and circumstances of the case the father and the mother could not be A considered fit for the custody of the minor, particularly as the mother has married and is residing in London while the father with second wife and four children is at present stationed at Somalia. In these circumstances, amongst the contending parties or those who had claimed or could claim the custody of the minor, the maternal-grandmother, respondent No,1, was rightly adjudged to be the best person to have the custody of the minor for his welfare. We, therefore, fmd no force in the petition and dismiss the same.