' This appeal is directed against the order dated 10-12-1975, whereby the learned Guardian Judge, Jhelum, directed the delivery of the female minor into the custody of the father.
2. It is stated that the appellant, Mo. Ghulam Sakina married Ghulam Abbas respondent, in 1968 and out of this wedlock, a daughter, Ma. Ghulam Robina was born on 4-9-1969. The relationship between the spouses became strained and the respondent ultimately divorced the appellant on 2- 11-1973. As is evident from the order Exh. R/2, the appellant claimed maintenance for her aforesaid minor child on 7-7-1973 and it was allowed on 25-9-1974 at the rate of Rs, 35 per month. However, for the appointment, as a guardian of the minor's person, the respondent made an application on 9-5-1974 apparently under section 8 of the Guardians and Wards Act (VIII of 1890) on a printed form showing particulars as prescribed under section 10, It was alleged in the application that the appellant was disqualified to be a guardian as she was divorced and that she led immoral life, whereas the respondent, being a teacher, was a respectable person. The application was opposed by the appellant stating that the relations of man and wife were strained on account of the respondent's own misdeeds and that he ultimately divorced her on 2-11-1973 which became affective on 30-4-1974. She further contended that she made an application in the Family Court for the maintenance of the minor daughter and Rs, 35.00 per month were fixed, but in spite of the fact that the respondent had failed to pay any amount, the minor was being looked after properly for the last five years. She averred that the respondent had contracted a second marriage, therefore, it was not in the interest of the minor that he should be appointed to be her guardian, and that the application was malafide as it was moved to escape the liability to pay maintenance.
3. Since the respondent was a natural guardian, and an application under section 8 of the Act was not maintainable, therefore, it was treated by the learned Guardian Judge as one under section 25.
On the pleadings of the parties, the following issues were framed :-
(1) Whether it is in the interest and welfare of the minor that her custody should be restored to the petitioner ?
(2) Whether the application is mala fide?
' Issue No, 2 was decided against the appellant as she was said to have led no evidence in this behalf. On issue No 1, the learned Guardian Judge was of the view that the respondent, who was the Headmaster of a High School, being an educated person, was comparatively a better person to look after the minor. Relying on the statements of the respondent's witnesses, the learned Court held that the appellant was a bad character, she had lost her right of custody. It was observed that the second marriage of the respondent would not dis-entitle him from the Hizanat of his female child as he, otherwise, was fit to claim custody of the minor. The application was allowed and the child was ordered to be handed over to the respondent, Hence this appeal.
4. There is very little doubt that the appellant is illiterate, whereas, the respondent is an educated person, but that by itself is not a sufficient ground to snatch away a female child from her mother.
It is evident from record that the minor having been born on 4-9-1969, was only aged less than five years when the application was made. A child, especially a female of such a tender age, needs education from the company, love and warmth of its mother rather than from an educational institution. There is no reason to believe that an illiterate mother in no circumstances can look after the welfare of her child and is always incapable of bringing it up in the manner the present society requires. As a matter of fact, it is on record that the child has been going to school since 15-5-1975.
Allah Ditta (R. W. 2), the maternal uncle of the minor, deposed to that effect, and in support thereof he produced her school certificate Exh. R/1. However, not much importance can be given to this plea as it was not a ground urged in the application. It was never the case of the respondent that the illiteracy of the mother would tell upon the educational development of the child. It is therefore, not a ground which could be given weight to by the learned Guardian Judge.
5. The main allegation against the mother was that she led an immoral life and was thus disqualified from keeping the minor in her custody. It was argued that the appellant did not specifically deny in her written reply that she was a bad character. This contention has no force because the very application was misleading and vague in nature. However, an imprecation of such a serious nature having been made by the respondent, it was for him to prove it. The learned Guardian Judge referred to the statements of the respondent's witnesses and found that the charge was proved. I fail to understand how the learned Court could arrive at such a conclusion from the type of evidence led by the respondent. In this behalf, the first witness is Ghulam Mandi P.
W. Who is silent on this point. He is otherwise an interested witness because the respondent had appeared as a witness for him in his civil case at Chakwal. P. W. 2 has, however, stated that the appellant's "character" was not good, therefore, the respondent divorced her. He further stated that such "Kirdar" was likely to affect the "Kirdar" of the minor. This evidence is not enough to show that the appellant was a bad character. This witness has stated in cross-examination that the appellant had illicit connections with a man whom she married after divorcing the respondent. It is a wild allegation without any indication that the witness had personal knowledge. He cannot, otherwise, be believed because he showed animosity against the appellant's father. He stated that he had pre-empted a sale which his brother had made to the appellant's father. He admitted that during that litigation he had severed connections with the vendee. Then comes the respondent himself. He, no doubt, levelled a charge of adultery against the appellant with one Tasaddaq Hussain but there is no corroboation. A bare statement of a person who is a party does not inspire confidence and cannot be believed. In the circumstances, it is wrong to say that the appellant was guilty of leading an immoral life and that she was disqualified from keeping in her custody her minor child. The evidence has been misappreciated by the learned Guardian Judge and the conclusions of fact arrived at by him cannot be upheld.
6. All rules of Muslim Law relating to the guardianship and custody of the minor are merely the application of the principle of benefit of the minor Welfare of the minor remains the dominant consideration and the rules only try to give effect to what is minor's welfare from the Muslim point of view. Therefore, when personal law gives the custody of the minor to the mother, it is presumed that the welfare of the minor is with the mother unless facts leading to a contrary inference are proved. In the present case, no disqualification is established against the appellant except that she is allegedly married to another person. It is in evidence that her present husband is not a stranger.
He is the cousin of the appellant, therefore, the appellant is not deprived of her right of custody simply because of her second marriage.
7. For the reasons aforementioned, the appeal is accepted, the order of the learned Guardian Judge is set aside and the application of the respondent is dismissed with no order as to costs.