' TALAAT QAYUM QURESHI, J.--- Petitioner Mst. Abida Bibi and Abdul Hameed respondent No,6 were married in the year 1989. During the said wed-lock his son, namely, Naveed was born. The relation between the spouses became strained and as per petitioner, respondent No,6, at instigation of respondents Nos.1 to 5 turned the petitioner out of his house and forcibly snatched the suckling baby. The petitioner in order to get the custody of the son filed petition (13/2) on 12-3-1996 for custody in the Court of learned Guardian Judge, Abbottabad. The learned Guardian Judge after recording pro and contra evidence of the parties accepted the petition vide judgment/order dated 30-6-1998 and held that the welfare and interest of the minor would lie with the mother/ petitioner.
She was directed to admit the minor in a better educational institution and to maintain him properly. She was also directed to provide an opportunity to the respondent to meet the minor once in a month. Respondents 1 to 5 being not satisfied with the said order/judgment passed by the learned Guardian Judge filed an Appeal No,26/14 on 22-7-1998 in the Court of learned District Judge, Abbottabad. It is worth mentioning that the real father of the minor did not file any appeal against the judgment/order of the learned Guardian Judge. The said appeal was, however, accepted by the, learned District Judge, Abbottabad, the judgment/order of the learned Guardian Judge, dated 30-6-1998 was set aside and the application of petitioner for custody of her minor son Naveed was dismissed vide order/judgment dated 23-1-1999. The petitioner has now filed writ petition in hand against the order/judgment, dated 23-1-1999 passed by learned District Judge, Abbottabad.
2. We have heard the learned counsel for the parties and perused the record.
3. Petitioner is the real mother of minor Naveed whereas the respondents are paternal-uncle, aunt, grandfather and grandmother of the minor. The real father of the minor is alive but after deserting the petitioner has disappeared and his whereabouts are not known for the last many years. The learned Appellate Court granted the custody of the minor to paternal-uncle, aunts and grandmother solely on the ground that the minor has been admitted in school at Abbottabad where he is getting proper education and that the petitioner resides in a far-flung area of Mansehra where such facilities are not available. A few words about the character of the petitioner were also mentioned in the judgment, but the character of the petitioner was not made ground for refusing her the custody of her son. The petitioner in order to prove her case examined herself as P.W.1. She stated that after about 2/3 years of her marriage she was turned out of her house by her husband alongwith the minor son. She was constrained to take refuge in Darul Aman where she stayed for one year. Her husband did not care about her and his son. She had of her own came back to the house of her husband but she was turned out by him and the minor son was snatched from her, therefore, she was constrained to take refuge with her parents. She further stated that she had instituted a suit for recovery of dower and maintenance in the Court of Judge, Family Court, Mansehra and the said suit had been decreed in her favour and that she can bring up the child and provide her all the necessities of life. In rebuttal Sheikh Saeed respondent No,5 the paternal- uncle of minor appeared and stated that the father of the minor, Abdul Hameed is missing and his whereabouts were not known. The petitioner left, the minor to him and he has been caring for the minor and providing him education.
4. The main argument of the learned counsel for the respondent was that the real uncle of the minor has been providing him education and he has been admitted in Rehmania School. The petitioner who is the real mother, has been residing at-far flung area of Mansehra and having no source of income cannot provide her son the education and other necessities of life. The petitioner who was present in Court stated that she has been working in embroidery school and has been getting reasonable amount therefrom. Her two brothers are mechanics in local workshops, they would also help her in providing the necessities of life to the minor and being real mother she would also try her utmost to maintain the level and standard of education of the minor child.
Paramount consideration and basic criteria for the appointment of guardian and the restoration of the custody was welfare of minor. It is well-settled principle that love and affection which the mother can bestow upon her son is incomparable to the love and affection of respondents 1 to 5.
The petitioner has been earning her livelihood by working in embroidery school. Her brothers are mechanics in local workshops and they would also help her in providing good education to the minor. Even otherwise the petitioner cannot be refused the custody of her son on the ground that she is a poor woman. It is the duty of the father of the minor to provide him all the necessities of life and to maintain him wherever he resides. There is nothing on record to indicate that the petitioner is a woman of bad character. Only one report entered in daily diary No,14 on 12-5-1996 was placed on record as Exh.R.W.1/2. The record annexed with the writ petition shows that 12-5-1996 was a date of hearing in the case filed by petitioner for custody of her son before the learned Guardian Judge, on her way back she was arrested by the local police. It appears that her arrest was manoeuvred by respondents in order to harass her and fabricate evidence against her. The real father of the minor has no interest in his welfare. He has not only neglected him but has also failed to maintain his wife, the petitioner. His lack of interest in the custody of his son can be gauged from the fact that he had not filed any appeal against the order/judgment of the learned Guardian Judge, Abbottabad. It is only the paternal-uncle of the minor, namely Sheikh Saeed who has been contesting the petition filed by the petitioner.
5. We, therefore, accept the writ petition and hold that in absence of the real father of minor, the petitioner, who is real mother of the minor is entitled for his custody. We, therefore, set aside the impugned order/judgment, dated 23-1-1999 passed by learned District Judge, Abbottabad and restore the judgment/order, dated 30-6-1998 passed by learned Guardian Judge with no orders as to costs.