Instant writ petition is directed against the judgment, dated 17-5-1999 passed by the learned Additional District Judge, Rawalpindi, whereby he confirmed the judgment, dated 13-12-1997 passed by the learned Guardian Judge, Rawalpindi.
2. Briefly stated the facts are that the petitioner moved as application under section 25 of the Guardians and Wards Act for the custody of minor, namely, Abdul Rehman alias Haider Rashid, aged about 4 years. The said application was resisted by the respondent. Divergent pleadings of the parties gave rise to the following issue:,
(1) Whether it is in the welfare of the minor to hand over his custody to the petitioner? OPP
(2) Relief.
3. After going through the evidence produced by the parties, the trial Court dismissed the application vide order, dated 23-12-1997. Feeling aggrieved of the said order, the petitioner filed an appeal which was dismissed by the learned Additional District Judge, Rawalpindi, vide order, dated 17-5-1999. Hence the instant writ petition.
4. Preliminary arguments have been heard and record perused.
5. Contention of learned counsel for the petitioner is that the Appellate Court has mainly been influenced by the fact that as petitioner was residing abroad, so he was not in a position to look after the welfare of the minor and secondly the minor had refused to see him i.e' petitioner when he was required so in the open Court. He submitted that so far as first disability pointed out by the Appellate Court is concerned, that has ceased to exist, as he has got his visa cancelled and has decided to live in Pakistan. So far as second limb of reasoning is concerned, it has also got no legal force, as the said attitude of the minor was the result of constant stay with his mother i.e. Respondent. He next argued that petitioner is financially well-off than the respondent as such even on this score he is entitled to the custody as he would be in a better position to look after the welfare of the minor. He next argued that minor has attained age of 7 years so even on this score he is entitled to his custody.
6. Conversely, the impugned orders have been supported by learned counsel for the respondent.
His contention is that as orders of the Courts below being concurr6nt and suffering from no illegality or perversity the writ petition is not maintainable, that as the minor is being brought up by the respondent since his birth, so welfare of the minor lies in allowing his custody with her, that even if it is assumed that minor has attained the age of 7 years, even then the petitioner is not entitled to its custody as welfare of the minor requires that he be allowed to stay with his mother who is looking after him properly and providing necessary education in an institution of good repute and standard as is evident from the statement of R.W.1. In support of his contention, he placed reliance on Lt.-Col. (Retd.) Ijaz A.I Khan v. Mst. Shaheen and 2 others 1993 CLC 2088, Muhammad Afzal v. Mst. Sameena Akhtar and another 1995 CLC 1519 and Syed A.I Mehdi v. Baqar A.I Rana, Additional District Judge, Islamabad and 2 others 1998 M LD 1003.
7. The basic point which needs adjudication is if welfare of the minor lies in handing over custody to the petitioner or to the respondent. There is no doubt that petitioner has got his visa cancelled and has now opted to settle down in Pakistan permanently, yet this fact alone is not to be kept in mind while deciding the question of welfare of the minor. All other attending circumstances have to be kept in mind. As the custody of minor who is living with his mother since birth cannot be handed over to an. Alien father who at the fag-end has decided to settle in his motherland. The past conduct of the parties has to be evaluated while deciding this sensitive issue. It is fact that petitioner was abroad when the minor was born. It is also fact that he did not pay even a single penny to his wife as maintenance allowance since April, 1991 to October, 1997 when his statement was recorded. He also does not know since when his son is studying and in which school. He admits that he is under-Matric, whereas he is ignorant about the educational qualification of his wife i.e. Respondent. He also admits that respondent filed suit for maintenance in May, 1995 and he instituted the petition in July, 1995. Thus, it is clear that instant petition has been filed as a counterblast and not for any love and affection for the minor.
8. In the light of facts stated above, it is proved that welfare of the minor lies in allowing his custody with the respondent. Both the Courts below have passed the impugned orders in accordance with law and same are hereby upheld.
9. Since the petitioner is father of the minor, so neither-he can be deprived of the love of minor nor the minor can be deprived of his love and affection. It is, therefore, ordered that arrangement regarding meeting between the petitioner and minor shall hold good as per order, dated 6-1-2000.
10. With this observation, the writ petition stands disposed of.