1. ANWARUL HAQ. C. J.-This petition seeks review of the judgment of this Court dated the 18th of June 1975, by which Civil Appeal No. 18 of 1975 regarding the custody of the petitioner's minor daughter was dismissed with certain observations enabling the petitioner to meet her at stated intervals.
2. The minor girl Mst. Tayyaba Bashir was born on the 14th of December 1964, and soon after her mother started living with her parents owing to differences having arisen between the husband and wife. The petitioner divorced his wife on the 13th of, July 1959, after which the latter contracted a second marriage with the husband of her deceased sister. In these circumstances the minor was left to the care of her maternal grand parents.
3. On an application having been moved under section 25 of the Guardians and Wards Act, the learned Guardian Judge, by his judgment dated the 16th of March 1963, entrusted the custody of the minor to the present petitioner mainly on the ground that the minor's mother had since remarried a person who was not related to the minor within the prohibited degree. However, this order of the learned Guardian Judge was reversed by the High Court by its judgment dated the 5th of February 1974, and the custody of the minor was entrusted to her maternal grand-mother on the ground that she had a preferential right to the Hisanat of the girl until the latter attained puberty.
4. Leave to appeal was granted by this Court to consider whether the High Court was right in entrusting the custody of the minor to her maternal grand-mother without ever consulting the wishes of the minor herself who bad reached the age of discretion. By an interim order made by this Court on the 28th of April 1975, it was directed that during the pendency of the appeal the minor shall remain in. The custody of her maternal grand parents, although hot father would be entitled to meat her every Saturday. When the appeal came up for bearing on the 18th of June 1975, the petitioner and his counsel were absent but his advocate-on---record was present. The Court came to the conclusion that the High Court was right in thinking that it; was in the welfare of the minor if bar custody were to remain for the time being with her maternal grand--parents who had made adequate arrangements for her education and up bringing. Certain directions were, however, given to enable the present petitioner to see his daughter at regular intervals.
5. Sheikh Abdul Haque, the learned counsel for the petitioner, submits that the order made by this Court on the 18th of June 1975; needs to be reviewed for the reason that although leave had been granted to consider whether the High Court was right in not consulting the wishes of the minor, yet no consultation was made by this Court before ordering that her custody shall remain with maternal grand parents. He next submits that it was also incorrectly assumed that the minor had boon admitted to the Queen Marry's College, Lahore, at the request of bar mother and that it was her mother who was bearing the expenses of bar education; a in actual fact it was the petitioner who had made then arrangements and was bearing all the expense a would be clear from an order made by Mr. Justice Shafi-ur-Rehman of the Lahore High Court on the 29th of April 1971. The learned counsel alto states that the reports of the school authorities show that the minor is not doing well at her studies as Ate needs parental affection at home. Finally. Mr. Abdul Haque contends that in any case the minor has attained puberty as she has already reached the age of 13 years, and, therefore, under the Muslim Law, the petitioner, as her father, iv entitled to her custody.
6. After hearing the learned counsel for the petitioner at some length, we am of the view that no justification is made out for a review of the previous order made by this Court on the 18th of June 1975.
7. It will be seen that the minor having been born on the 14th of December 1954, is a little over 13 years of age. It is now well settled that under the Hanafi Law a Muslim girl is presumed to have attained puberty at the age of 15, unless there is evidence to show otherwise. (See explanation to paragraph 251 in Principles of Mahomedan Law by D. F. Mulls). Mt. Abdul Hague was not able to cite any authority to the contrary. Accordingly, the right of Hizanat clearly lies with the maternal giant- mother in preference to the petitioner, unless there are any special circumstances warranting a departure from this rule.
8. The order made by the High Court entrusting the custody of the minor to her maternal grand- mother was in accordance with this rule of Muslim Law. It is true that this Court granted leave to appeal to examine whether the order should hove been made without consulting the wishes of the minor, and it is also correct that at the time of the hearing of the appeal did not consult the minor herself. We consider, however, that this omission is not such as to warrant a review of the order previously made by us. It will be seen that the order was made more than two and a half years ago, and during this period there has been no indication that the minor was unhappy with the arrangements ordered by the High Coral and upheld by this Court. We are entitled to presume that daring this period she must have been meeting the petitioner in accordance with the arrangements envisaged in our order under review; and, therefore, if it was unhappy with the arrangements, then she could have at least complained to her father, but there is no affidavit or evidence on that point. Sheikh Abdul Haque wanted to refer to a statement said to have been wade by the minor about a month ago in certain contempt proceedings, but it is clear that such statement which does not appear to have been reduced to writing, can hardly be taken Into account at- this stage. If indeed the minor was averse to the arrangements envisaged by the High Court, she would have indicated her reaction in one form or another during the ears that have elapsed since that order was made. We are, therefore, of the considered view that this particular ground does not justify a modification of our previous order.
9. The contention that it was incorrectly assumed that the education arrangements for the minor had been made by her mother or that the latter was bearing the expenses, has no real bearing on the question of her custody. The father is under the law, responsible for the maintenance and education of the minor, ape even if we accept the statement made at the Bar that all the expenses in this behalf are being borne by the petitioner, that does not by itself entitle him to the custody of the minor before she attains puberty.
10. We have seen the school reports referred to by Sheikh Abdul Haque. It is only in the report relating so the year 1971 that there is a mention of the minor needing of the home. But that report relates to a period prior to the order of the High Court which is dated the 51h of February 1974. That report, therefore, does not reflect the possible effects of the order under review. It is true that in the subsequent reports educational progress is described as being poor, but on the present record we can not attribute it to the fact that her custody has been entrusted to her maternal grand parents.
11. It needs to be mentioned that it is admitted on behalf of the petitioner that the maternal grand parents of the minor are well to do people and can certainly afford to took after her properly. It is, therefore, not a case where the custody of the minor has been entrusted to a party which does not have the necessary capacity to look after bar.
12. Considering all these circumstances, we have come to the conclusion that there is no merit in the present petition, which is accordingly dismissed. It is, however, open to the petitioner to renew his demand for the custody of the minor when she attains the age of puberty, namely, 15 years.