' SAAD SAOOD JAN, J.---The petitioner was married to the respondent in 1978-79. There were five issues of the marriage. In February, 1993 their ages ranged between 10 years and 4 years. The eldest is the son by the name of Shahbaz Ahmed. The other four are daughters. The spouses could not pull on together and the marriage ended in a Talaq on 25-7-1992. The petitioner moved an application for the Hizinat of the children before the Guardian Judge at Bahawalnagar. The learned Judge found that she was living with her sister's husband in an immoral union and as such the custody of the children could not be given to her. Accordingly, he dismissed the petitioner's application. The petitioner filed an appeal before the Additional District Judge, Bahawalnagar. The learned Additional District Judge partly accepted the appeal inasmuch as he allowed the custody of the son to remain with the father but granted the custody of the daughters to the petitioner. To call in question the legality of the order of the learned Additional District Judge the respondent filed a Constitution petition in the High Court. It was allowed and the order of the learned Guardian Judge was restored by the High Court. The petitioner seeks leave to appeal from this Court.
2. In support of this petition it is inter alia contended that the finding of the Guardian Judge with regard to her living in an immoral union with her brother-in-law was perverse. It is not unusual these days after the enforcement of the Hudood Ordinance for ex-husbands to involve their former wives in false cases of Zina in order to deprive them of the custody of the children; the petitioner had done the same. She has already been acquitted by the trial Court which re-in forced the presumption of innocence in her lavour. The mere fact that the respondent has filed an appeal before the Federal Shariat Court does not destroy that presumption. In the circumstances, the High Court ought not to have paid any attention to the allegation of bad character being levied against her by the respondent. The observation of the High Court that the petitioner was not in a position to maintain her children was entirely insufficient to deprive her of their custody for it was in any event the responsibility of the respondent to provide for them.
3. Leave to appeal is granted to consider whether the High Court was justified in depriving the petitioner of the custody of her minor daughters.