' Petitioner has assailed the judgment dated 3-4-2000, passed by respondent No,2, learned Additional District Judge, Sargodha, whereby, he had dismissed the appeal of the petitioner Ata Muhammad against the judgment dated 20-1-2000, passed by respondent No,3. Learned Guardian Judge, Sargodha. Both the Courts below had awarded the custody of the minors Saima Batool and Tanvir Ahmad, now aged 13 and 12 years respectively to respondent No,1, Mst. Rabia Bibi, real mother of the minors.
2. Learned counsel for the petitioner has argued that bath the minors are of the ages of more than 10 years and according to Muslim Law, a father is entitled to the custody of a male boy, who is aged 7 years and also Saima Batool has attained the age of puberty, therefore, the petitioner is entitled to custody of both the minors. Learned counsel has further argued that respondent No,1 has contracted second marriage and she has a child from second marriage and she is not in a position to maintain the minor properly while the petitioner is an employee of WAPDA and he has means to provide proper education to 'the minors and a divorced sister of petitioner is living with him at Sargodha and she can give proper attention to minors, therefore, welfare of the minors lies in remaining with the petitioner. Learned counsel has relied on the judgment cited as Ameer Mai v.
Ahmed All (1986 CLC 846) to argue that where mother of the minors married a person not related to them within the prohibited degree, she loses her entitlement for custody of the minors, therefore, the minors should be given to petitioner, who had not been allowed to meet the minors since the past seven years and no order was passed by any Court regarding the meeting of the minors.
3. Learned counsel for the respondent No,1 has supported the impugned judgment and has pointed out that the parties were divorced in the year 1995 and thereafter, the petitioner filed an application wider section 25 of the Guardians and Wards Act, which was dismiSsed on 9-1-1996, his appeal was dismissed on 2-12-1996, and he did not file any writ petition against that order, which attained finality. Notwithstanding that the second application was not maintainable, he filed another application under section 25 of the Guardians and Wards Act on 2-9-1998, which was dismissed on 15-5-1999. The appeal of the petitioner was accepted by the District Court and the matter was remanded to the Guardian Judge on 15-9-1999, who again dismissed the application of the petitioner on 20-1-2000 and his appeal was also dismissed on 3-4-2000, and throughout this litigation the consistent findings of fact have been that the respondent No,1 is in a better position to safeguard the welfare of the minors and since there are concurrent findings of fact by both the Courts below, therefore, this writ petition is not maintainable.
4. On merits, it is argued that paramount consideration before the Court is welfare of the minors, who both have appeared before the Court; they are being properly brought up and they both have expressed that they wish to go with respondent No, 1 . The petitioner has never paid any maintenance to the minors over the past seven years except some nominal amount paid on the direction of Guardian Judge and petitioner himself does not live in Sargodha and has been posted at different places and only comes home at week end, therefore, interest of the minors lies in remaining with respondent No,1, who has been looking after them since their birth.
5. I have heard learned counsel for the parties and I have also gone through the impugned judgment of respondents Nos.2 and 3.
6. Admittedly, the petitioner works as Watch Keeper in WAPDA and has been posted in different places in course of his denies. His mother had died and his one sister is living in Sargodha with his father but he himself does not live there. On the other hand, although, respondent No,1 has re- married, she is living close to her mother i,e, maternal grandmother of the minors with whom both the minors are currently residing. In case, mother loses her entitlement to their custody the person next entitled to their custody would be the maternal grandmother and failing her, the paternal grandmother would be entitled for custody in case of female children. The paternal grandmother is not alive, therefore, the custody of Saima Batool is with the respondent who is entitled to the same i,e, maternal grandmother. Regarding the custody of Tanvir, who is aged 12 years. He has stated in the Court that he is studying in Class-VII in Central Model School, Sargodha. He appears to be well- adjusted, in good health, and he has expressed his preference to remain with his mother, who has been caring for him, since his birth. Both the minors have stated that their father had not paid any maintenance to them, which is not seriously controverted by the petitioner, who has merely stated that he had paid maintenance for period of one year to both the minors. He has further stated that he has also to support his father and sister, therefore, he has not been able to save any significant amount for maintenance of minors. From his attitude and statement, it appears that he is not ready to give much thought to upbringing and welfare of his own children, who had been cared for by respondent No,1, who was doing domestic job in order to educate them. The petitioner , has asserted that respondent No,1 had arranged the marriage of Saima Batool, which has been contradicted by respondent No,1 as well as by Saima Batool, who has stated that she is attending embroidery school and is learning vocational skill.
7. The minors having remained with their mother since their birth and their father had not taken any serious interest for their upbringing. The finding of both the Courts below is based on proper appraisal of evidence and there is no infirmity in the impugned judgment, which merits interference in the exercise of Constitutional jurisdiction, therefore, this petition is dismissed.
However, the petitioner who is father of the minors, should be provided opportunities to meet his children. If the petitioner applies to the Guardian Judge for meeting schedule alongwith some undertaking that he will pay something for maintenance of the minors, learned Guardian Judge shall consider the same and pass appropriate orders thereon . Furthermore marriage of Saima Batool shall not be arranged until she reaches the age of consent. Her marriage shall not be arranged without the consultation of the petitioner, provided that he defrays the expenses of marriage.