' The petitioner was married to respondent No,
1. Out of the wedlock one son and one daughter namely Muhammad Arshad and Saima Naureen were born. Age of minor son is stated to be 9 years at present while the minor daughter is stated to be aged 8 years, 5 months. Respondent No,1 filed a petition under section 25 of the Guardians and Wards Act for custody of the minors. Learned Guardian Judge allowed custody of the minor son to respondent No,1 while custody of the minor daughter was not disturbed. Petition was disposed of vide order, dated 29-4-1997. Both the parties filed appeal challenging order of the Guardian Judge which was dismissed by the learned Additional District Judge vide order, dated 8-7-1997. The parties have now filed Writ Petitions Nos.16410 and 23991 of 1997 to assail the orders passed by the learned Guardian Judge as well as by the learned Additional District Judge. The first mentioned writ petition was filed by Mst. Aslam Khatoon while the second was filed by respondent No, 1 .
2. Learned counsel for the petitioner in Writ Petition No,16410 of 1997 submitted that learned Guardian Judge as well as the learned Additional District Judge were persuaded only by the fact that minor was over 7 years and petitioner was a poor lady. It was argued that both these grounds could not be made basis for disturbing the existing custody of the minors particularly when it was established on record that minors were being properly looked after by the respondent. Learned counsel for respondent No,1 argued that respondent No,1 was entitled not only for custody of the son but also for custody of the daughter as the petitioner being illiterate lady could not render proper education to the children and she did not have resources to ensure proper upbringing of the minors. It was added that respondent No,1 was a teacher, therefore, he was in a better position to impart education to the minors.
3. I have given due consideration to the submission made by the learned counsel for the parties and have been taken through the evidence on record.
4. From the judgments recorded by the Courts below, it is discernible that the main reason which prevailed upon the two Courts was that minor son had attained the age of 7 years, therefore, respondent No,1 was entitled to custody of the minor son. It is a settled rule that mere fact that minor has attained the age of 7 years cannot be a solitary ground for disturbing the custody of the minor. The paramount and supreme consideration in custody matters is welfare of the minor and nothing else. In the present case, it is evident that for the last 5 years minors are with the mother who is taking care of them. It is also evident that respondent No,1 did not pay maintenance to the minors and for this purpose, the petitioner filed a suit for maintenance. So much so, respondent No,1 contested the suit and then filed appeal which was dismissed on merits. This conduct of respondent No,1 demonstrates that he was not interested to maintain the children or take care of the minors.
5. Minors are present in Court and I have myself examined them. Muhammad Arshad son, on being asked, stated that he is in K.G.-1 Class, in Lasani Cadet Public School. On being further questioned, minor son stated that he was getting education in subjects of English, Urdu, Riazi and Moasharti Aloom. The minor further disclosed that his sister was also getting education in the same school.
On being asked, Muhammad Arshad the minor present in Court stated that name of his school teacher was Zahira. The minor in the course of Court questions was found quite alert and mostly answered in English by saying 'yes' or 'no'. Both the minors are enjoying good health and appear to be intelligent. In this view of the matter, the allegation that minors were not getting proper education and were not of good health, do not appear to be sound enough. The other arguments that petitioner is a poor lady, cannot be given due consideration as poverty is not ground in the custody matters. It is duty of the husband to maintain the minors wherever they reside. If they are maintained by the father then obviously they will be in a position to get proper education. In case, respondent No,1 is interested in the education of the minors, he should give maintenance to the minors properly. The conduct of respondent No,1 indicates that he was contesting the liability for payment of Rs,500 each and in this situation the allegation that minors could not be provided better education by the petitioner do not sound well. In 1998 SCM R 593, it was ruled by the Honourable Supreme Court that where the minors were brought up by the maternal aunt, the custody shall not be disturbed, if it is in the interest of the minors. It was further ruled that paramount consideration in determining custody of the minors should be the welfare of the minors and not any interest of the parents. In the present case, it is observed that right from the beginning, minors are being looked after by the petitioner. Respondent No,1 repeated in the cross-exami .Ation that for the last three years, minors were with the petitioner. This being so, to disturb either of the two will adversely reflect on the mental growing of the minors and that can positively reflect adversely on their upbringing. It is, therefore, not in the interest of the minors to keep the two apart.
It is observed that during pendency of writ petition respondent No,1 has even divorced the petitioner and according to the petitioner he is also going to contract second marriage. The circumstances demonstrate that minors are getting proper education, enjoying good health, they are in continuous custody of the petitioner and, therefore, disturbance of custody will adversely affect their welfare. Their welfare demands that they should remain with the petitioner.
6. In this view of the matter, Writ Petition No, 16410 of 1997 is allowed and Writ Petition No,23991 of 1997 is dismissed. Resultantly, orders of the learned Guardian Judge is modified to the extent that petition under section 25 of the Guardians and Wards Act shall be deemed to have been dismissed. Respondent No,1 being father of the minors has a right to meet the minors. For this purpose, petitioner shall produce the minors in the Court of Guardian Judge on the first and last Monday of each calendar month at. 8 a.m. Or at the opening of the Court hours. Minors will be allowed meeting with the respondent No,1 during Court hours on first and last Monday of each succeeding calendar month. However, respondent No,1 will not take the minors out of Court premises. The learned Guardian Judge shall ensure that this schedule is continued and acted upon till the age of majority and puberty of the minors.