' IRSHAD HASAN KHAN, J.---This appeal, with the leave of the Court, is directed against the judgment dated 31-1-1994 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No,793 of 1993.
2. The events leading to the grant of leave are reflected in the leave granting order, which reads thus:- "Brief facts of the case are that Adnan Khadim, minor son of the respondent Khadim Hussain, remained in the care of the petitioner Mst. Nighat Firdous since the year 1983 when his mother died and his father could not properly look after him. He executed an agreement dated Ist September, 1983 whereby he allowed the custody of the minor with the petitioner and agreed not to claim him in future. He married in 1985 as per copy of the Nikahnama, available on the paper book, and a son was born to him from the second wife. It is also not disputed that the petitioner has also married and has a daughter. The respondent filed application under section 25 of the Guardians and Wards Act for the custody of the minor before the Guardian Judge which was resisted by the petitioner. After recording necessary evidence in the case the learned Senior Civil Judge accepted the petition and directed the petitioner to hand over the custody of the minor to the respondent.
This order was, however, set aside in appeal by the learned Additional District Judge and the case was remanded to the trial Court for recording the choice of the minor. The remand order was complied with and the minor expressed his willingness to remain in the custody of Mst. Nighat Firdous petitioner. Still the learned trial Court did not consider it proper to allow the minor to remain in the custody of his maternal aunt and directed the petitioner to hand over the custody of the minor to his father. Appeal against it was also dismissed and so was the writ petition through the impugned order."
3. The respondent is absent. He has been proceeded ex parte and he did not enter appearance since the admission of this appeal.
4. Leave to appeal was granted to consider, "whether, it will be in the interest of the minor to remain in the custody of petitioner or he should be given in the custody of his father".
5. Learned counsel for the appellant pleaded that the mother of the minor died when he was only 15 days old. The appellant being real sister of the deceased mother of the minor, was requested by the respondent to bring up the baby. The appellant being unmarried at that time undertook to bring up the baby provided the respondent would not demand the custody of the child later. The respondent agreed and executed an agreement Exh.R-1 to that effect. It is further pleaded that the application moved by the respondent for custody of the minor before the learned Guardian Judge, was mala fide, inasmuch as, the appellant claimed maintenance from the respondent and by way of counterblast, the respondent filed an application for custody of the minor.
6. The main point of consideration, which prevailed with the learned Judge in Chambers, for passing the impugned order, was that after attaining the age of 7 years the right of Hazanat under the Muslim Personal Laws vested in the father.
7. We have heard the learned counsel for the appellant, perused the impugned judgment and the material available on record.
8. Let us examine whether the welfare of the minor, as held by the learned Judge in Chambers, lies with the father, the natural guardian of the minor and whether the evidence on record establishes that the appellant had entitled herself to retain the custody of the minor.
9. Subsection (1) of section 25 of the Guardians and Wards Act (VIII of 1890) provides:-2 "(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."
10. It would, thus, be seen that welfare of the minor is the paramount consideration in determining the custody of a minor. The custody of a minor can be delivered by the Court only in the interest and welfare of the minor and not the interest of the parents. It is true that a Muhammadan father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. The right of the father to claim custody of a minor is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct, depending upon the facts and circumstances of each case. In this case, the respondent-father, who sought custody of the minor, neglected the child since his birth. The minor had admittedly been under the care of the appellant since the death of his mother. Thus, visualized,the mere fact that the minor has attained the age of seven years, would not ipso facto, entitle the respondent-father to the custody of the minor as of right. Furthermore, the respondent filed application for custody of the minor, subsequent to the application made by the appellant claiming maintenance for the minor. This circumstance also cast aspersion on the bona fides of the respondent. We are of the view that the minor, who has been living with the appellant almost since his birth and was being looked after properly, his welfare lies with her and not with his father, who has not taken any interest even in defending this appeal and oppose the interim order dated 5-4-1994 passed by this Court, whereby status quo in respect of custody of the minor was directed to be maintained. The preference of the minor, in guardianship cases, is ordinarily taken into consideration but it is not always relevant because the minor is not the best judge of his/her welfare. It is for the Court to determine as to whom the custody of the minor should be delivered in his/her welfare. In the instant case, we find that the welfare of the minor, who is now about 15 years old, lies in retaining the custody with the appellant.
11. In view of the above, we allow this appeal and setting aside the orders of all the Courts below hold that the welfare of the minor lies with the appellant and she is entitled to retain his custody.
This judgment shall not, however, disentitle the respondent to see his child subject to such terms and conditions as may be determined by the learned Guardian Judge upon application moved in this behalf by the respondent. There will be no order as to costs.