MUHAMMAD BASHIR JEHANGIRI, J.--- This is a petittion for leave to appeal from and order, dated 14- 4-1998 passed by a learned Judge of the Lahore High Court Lahore, whereby he dismissed Writ Petition herein against the order of the Additional District Judge.
2. Briefly the relevant facts are these. The petitioner was married to Mst. Rukhsana Kausar respondent No. 1. Out of this wedlock, they were blessed with a child, namely, Amir Shahzad, aged about 11 years. Unfortunately, the relations between the spouses fell out and a divorce was pronounced between them somewhere in the month of April, 1989. Amir Shahzad, minor, remained in the custody of his maternal; grandparents Respondents Nos. 2 and 3. On 28-2-1990, respondent No. 1 contracted second marriage with one Nazir Ahmad and out of this wedlock, she has got three daughters and two sons. The petitioners filed an application against the respondents under Section 25 of the Guardians and Wards Act (VHI of 1890) for the custody of his minor son. The application was opposed by the respondents. At the trial, the petitioner was represented by his father Bashir Ahmad as a special attorney, for, he is employed as a Labourer in Dubai. He has also taken another wife and has got children from her who were living in his ancestral village Mong.
During the trial, the petitioner's attorney/father Bashir Ahmad appeared on his behalf and produced in support of his assertions Haji Raj Wali (P.W.I). Respondent No. 1 apart from herself, examined Muhammad Atzal (R.W.I). The learned Guardian Judge, however, accepted the application and granted the custody of the minor to the petitioner. He was of the opinion that petitioner was as of right entitled to the custody of a minor child and that there was nothing on the record to disentitle him from claiming their custody notwithstanding the petitioner having taken another wife and having got children from her. In conclusion he observed that the petitioner had attained the age of seven years and, therefore, his father was entitled to his custody and that "it has to be presumed that welfare of the minor lies with the father" inasmuch as "there have to be strong reasons for depriving the father, of the custody of his child". The learned Guardian Judge also held that "if the petitioner has divorced mother of the minor and has contracted second marriage he did not forfeit his right to the custody of the minor". In these circumstances, the petitioner was not found disentitled to the custody of the minor who had attained the age of seven years at that juncture. The Guardian Judge, however, conceded that "both the parties have reasonable financial status". Lastly, the reasons which weighed with the learned Guardian Judge in delivering the custody of the minor to the petitioner in his own words are:-- extremely difficult, if not impossible, for a female to watch the activities of a grown-up son and channelise his energies in the right direction especially in the present age when juvenile delinquency is rampant and young boys require strict supervision day and night, both inside as well as outside the home. This arduous duty can be discharged by the father better than the mother. So if at all the minor has association with his female relatives, that becomes of little consequence. Guidance is sought from the case of Mst. Surryia Bibi v. Abdur Rashid (1980 CLC 785)."
3. In appeal, the learned Additional District Judge, Kharian, with an understandable anxiety, tried to bring about an amicable arrangement between the patties in the welfare of the minor. But no compromise could be arrived at between them. The learned Additional District Judge, therefore, held the view that since the petitioner was employed abroad, therefore, the shifting of the custody of his minor son to the old paternal grandparents of the minor in the presence of the real mother or her own parents was not in the interest and welfare of the minor. The learned Appellate Judge doubted the bona fides of the petitioner on account of the fact that he despite pendency of an application for the custody of the minor, "has never thought of payment of even a penhy's worth to his real minor son". He criticized the evidence of Haji Raj Wali (P.W.1) and Haji Bashir Ahmad, attorney and father of the petitioner, on the so-called adjustment of the petitioner with his minor son and termed it as 'hoax' which was only intended to defeat the claim for maintenance of the minor child, which admittedly, as alleged now, has been decreed. According to the learned Appellate Judge when the petitioner was not available in Pakistan to look after and supervise the minor's welfare and education, it was not safe to deliver the custody of the minor child to him. The delivery of custody of the minor to the paternal grandfather was also not found to be in the welfare and interest of the minor and, therefore, accepted the appeal, set aside the impugned judgment of the Guardian Judge and dismissed the petition filed by the petitioner.
4. Feeling aggrieved, the petitioner challenged the order of the learned Appellate Court in Writ Petition No. 18561 of 1995 in the Lahore High Court, Lahore. The learned Single Judge, who was seized of the matter in the High Court, on scrutinizing the material on record concluded that the petitioner had contracted second marriage and is still in Dubai; that he did not appear in-person to make himself available tor cross-examination as to his living conditions in Dubai to adjudicate upon as to whether the welfare of the minor lay in delivering his custody to the petitioner or not.
In this regard, reference was made to the second marriage of the petitioner and having got two children out of the wedlock. After great deal of the discussion, the Learned Single Judge in the High Court reached a categorical conclusion that "it would not be safe to remove the minor from his present family set-up where he is well adjusted and make him live under the shadow of a step- mother". The minor was summoned in Court and was examined by the learned Judge himself. The minor informed the learned Judge that "he was happily residing with the respondents and did not desire to go over to his father". The learned Single Judge also inferred from the facts of the case that the petitioner had filed the petition for custody of the minor just as a counterblast to the petitioner for grant of maintenance of the minor. In this context, the learned Judge observed as under:-- "He has recently started paying a sum of Rs.1,000 per month to the minor. Had he been well-settled at Dubai and had any real interest in the minor's welfare he would have come forward to pay maintenance allowance for the minor even without a decree of the Court."
In conclusion, the learned High Court, therefore, dismissed the petition on 14-4-1998. Hence this petition for leave to appeal from the impugned order.
5. In this Court too, the parties were allowed more than one opportunity to evolve an initiated settlement by way of compromise between them in the interest of the minor but only an interim arrangement was arrived at on 2-7-1999 which is as under:-- "Till the decision of the main petition, the parties have mutually agreed that every 3rd Sunday of each month the petitioner's father Mr. Bashir Ahmed, father of Mr. Zahoor Ahmad, petitioner, will have the opportunity to meet the minor Amir Shahzad between 09-00 a.m. To 12-00 noon in the Court of the Civil Judge/Guardian Judge, Kharian."
6. We have heard the learned counsel for the parties and have perused the record.
7. The whole burden of the case of the petitioner in the two Courts below and in the learned High Court was and is that he is financially better of and well-to-do man of status and can afford to give better education as a father of his minor son and that respondent No. 1 having contracted second marriage and having got five children from her new marriage was ill- equipped to properly bring up and educate her minor son. This stance of the petitioner is regrettably ill-founded. The learned two courts below have reached a definite conclusion that so far as financial status of two families is concerned, they are almost equal. The petitioner being abroad earning his livelihood as Labourer cannot possibly be held to be a fit person to hold the custody of the minor indirectly through his own parents. If the minor has to live with the grand-parents then the learned Appellate Court and the learned Judge of the High Court found the maternal grandparents to be more entitled thereto because the minor has developed grandsons ties with them rather than to the paternal grand-parents. The learned Judge in the High Court has also noted that the petitioner was not interested in the custody and he was pursuing the matter only as a counterblast to the application tor maintenance of the minor filed by the respondents against the petitioner. He also noticed that the minor was being looked after fully and educated by the maternal grandparents of the minor under the general supervision of his mother.
8. For the reasons discussed above, we are fully satisfied with the treatment already meted out to this case in its disposal by the learned First Appellate Court and the learned High Court after going into the evidence on the record. After hearing the parties, we have, therefore, no doubt in our mind that the petitioner is not entitled to the custody of the minor. We, therefore, uphold the impugned order of the learned Single Judge of the Lahore High Court and dismiss this petition leaving the parties to bear their own costs. The prevalent interim arrangement arrived at between the parties on 2-7-1999 reproduced in para. 6 ante is converted into a regular arrangement. Whenever the petitioner visits his village, and if he so desires, he can approach the learned Guardian Judge for meeting his minor son for an hour or so twice a month in the Court of the learned Guardians Judge whereafter the custody of the minor shall revert the respondents Nos. 2 and 3.
9. With the above observations, the petition is disposed of accordingly.