1. MUHAMMAD NAWAZ ABBASI, J.---Mst. Hira Chaudhry, petitioner in this Petition (C.P. No,1515 of 2002) under Article 185(3) of the Islamic Republic of Pakistan, 1973 sought leave to appeal against the judgment dated 20-8-2002 passed by a learned Single Judge of the Lahore High Court, Lahore in a Constitution petition arising out of an application under section 25 of the Guardians and Wards Act, 1890. Mst. Seema Chaudhry has also sought leave to appeal in C.P. No,1464 of 2002 against the same judgment and these two connected petitions in the same matter are proposed to be disposed of through this single judgment. The essential facts giving rise to these petitions in the background are that Mst. Hira Chaudhry was married with Ahsan Ashraf Sheikh respondent herein in 1992 and out of the wedlock one child namely Shahzeb was born on 25-8-1994. The relations between the parties became strain and after temporary separation in June, 1997, they dissolved marriage by way of Mubaarat on 17-9- 1998. The custody of the minor was with Mst. Hira Chaudhary at the time of dissolution of marriage, therefore, the respondent moved an application under section 25 of the Guardians and Wards Act, 1890 for custody of minor and pending disposal of the said application Mst. Seema Chaudhry maternal grandmother of the child moved an application to become party in the proceeding, which was allowed and she was arrayed as respondent in the application under section 25 of the Guardians and Wards Act, 1890. Learned Guardian Judge haying dilated upon the pivotal issue relating to the question of the welfare of the minor dismissed the application under section 25 of the Guardians and Wards Act, 1890 vide judgment dated 2-2-2002. The order of dismissal of application in question was set aside by the Appellate Court in appeal preferred by the respondent vide judgment dated 21-4-2000 with the direction that the petitioner would be entitled to have meeting with her minor son once a week and that she could also take the minor to her house on his birthday and Eid-ul-Fitr. The petitioner assailed the judgment of the Appellate Court through a Constitution petition in the Lahore High Court, Lahore and Mst. Seema Chaudhary who was not impleaded as party in the appeal also moved an application to be impleaded as party in the writ petition. The learned Single Judge in the High Court after a detailed discussion of the contentious issue relating to the custody of minor dismissed the writ petition alongwith the application of Mst. Seema Chaudhry vide impugned judgment with the following observations:-- "The minor having attained the age of 8 years and the only consideration at this stage is the welfare of the minor respondent No,2 has not re-married, he is paying regularly maintenance allowance of the minor and he is having meeting with his minor son at different settled intervals as ordered by the Court there is nothing on record that the minor has no affiliation or attachment with respondent No,2. Even certain meetings were arranged in between respondent No,2 and minor by this Court and it is on record that the minor behaved in a proper expected manner showing great affection for respondent No,2. This is an admitted fact that Mst. Hira Chaudhry has contracted second marriage and was also blessed with a child. This is also admitted that the respondent has not taken the second wife and presently the age of the minor is more than 8 years. The Muslim Law is that in the normal circumstances mother loses the right of custody of minor on contracting second marriage or on attaining the age of 7 years by the minor but the paramount consideration in the matter of custody of child is always the welfare of minor. Thus subject to the welfare of minor child, in case of separation of husband and wife, the father being the natural guardian of the minor can claim the custody of male minor on his attaining the age of 7 years as of right. The respondent pleading the welfare of minor before the Guardian Judge in the application under section 25 of the Guardians and Wards Act, 1890 sought his custody mainly on the ground that petitioner having contracted second marriage was no more entitled to retain the custody of minor. The application was resisted by the petitioner taking the plea that welfare of the minor would not allow to disturb his custody with the mother merely on the ground that she contracted second marriage. However, the findings of the Guardian Judge on the question of welfare of the minor was reversed by the Appellate Court in the light of the principle of Mohammadan Law that the mother on contracting the second marriage would be disqualified to retain custody of child and consequently set aside the judgment of the trial Court. The verdict given by the Appellate Court was further maintained by the High Court in the writ petition. The learned counsel representing Mst. Hira Chaudhry on the otherhand contended that principle of Mohammadan Law relating to the custody of minor is not absolute and each case must be decided in the light of its own merits and that in the facts of the present case the mother is the best person to hold the custody of minor. The learned counsel submitted that the welfare of the minor would demand that his custody should remain with the petitioner, notwithstanding the fact that she contracted the second marriage and stepfather of the minor is not his natural guardian.
2. Learned counsel argued that since separation of parties the respondent completely neglected the minor and never bothered for his maintenance whereas he was properly being maintained and educated by the petitioner before or after opting for the second marriage and that minor was quite comfortable in her company in the house of her second husband, therefore, he should not have been given preference in the matter 'of custody of minor over the petitioner for mere reason that petitioner has contracted second marriage or that respondent has not yet opted for the second wife. The learned counsel while concluding submitted that the discontinuation of the deep association of the minor with the petitioner at this stage for any consideration other than his welfare would not be in his interest and welfare and that the Court must give preference to the consideration of welfare of minor while deciding the question of custody which demanded that ordinarily the custody of minor with mother should not be disturbed. In support of the above contentions the learned counsel has placed reliance on Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Mst.Feroze Begum v. Ltd.-Col. Muhammad Hussain 1978 SCMR 299; Mst. Naheed Abbas v. Syed Zubair Hussain Shah and others 1989 ALD 446; Abdur Rashid v. Tasneem Qausir NLR 1980 Civil Lah. 64; Mst. Zohra Begum v. Sh. Latif Ahmad Munawar PLD 1965 (W.P.) Lah. 695; Malik Khizer Hayat Khan Tiwana and another v. Mst.Zainab Begum PLD 1967 SC 402; Mst. Talat Nasira v.
3. Mst. Munawar Sultana and 2 others 1985 SCMR 1367; Mst. Ruqayya Yasmin v. Muhammad Riaz 1991 MLD 166; Muhammad Yunus Qamar v. Rubina and others 1994 MLD 1950; Miss Hina Gilani v. Sohail Butt PLD 1995 Lah. 151; Mst. Sughra Begum v. Ashfaq Ahmad Butt PLD 1981 Lah.393; Ghulam Qadeer and others v. Mst. Rahat Yasmin and others PLJ 1996 Lah. 407; Mst. Rafiqan and 2 others v. Jalal Din 1983 SCMR 481; Muhammad Nawaz v. Additional District Judge 1992 CLC 1487; Shagufta Banc v.
4. Musarrat Hanif and others 1982 CLC 1821 Mst. Ruqayya Yasmin v. Muhammad Riaz NLR 1989 SD 567 = 1991 MLD 166; Capt. S.M. Aslam v. Mst. Rubi Akhtar 1996 CLC 1; Mst. Rani v. Bilal Ahmad 2000 MLD 1967; Mst. Gulnaz Bibi v. Rafaqat Ali Shah and another PLD 2000 Pesh.
23. Learned counsel representing Seema Chaudhry maternal grandmother of the minor has contended that she was a necessary party in the proceeding in appeal but she was not impleaded in the appeal and consequently the appeal would not be properly constituted with the result that the judgment given in appeal would be nullity in law. The learned counselhowever submitted that in the light of rule that in absence of mother the maternal grandmother has the first right of custody of minor, in case Hira Chaudhry is not found entitled to hold the custody of minor, Seema Chaudhry being the maternal grandmother having the preferential right should have been given the custody of minor but unfortunately the Appellate Court and also the High Court omitted to consider this aspect of the matter. The learned counsel appearing on behalf of the respondent has vehemently argued that the mother on remarriage would lose the right of retaining the custody of minor and the preference in the matter of custody of child would be given to the father if he has not opted for the second marriage. Learned counsel submitted that be that as it may, in the present case, the welfare of the minor would demand that he should remain in the custody of father and in support of the above contention has placed reliance on Mst. Parveen Akhtar v. Muhammad Ashraf 1986 SCMR 1944; Mst.
5. Aisha v. Manzoor Hussain and others PLD 1985 SC 436; Muhammad Ayub v. Mst. Nasim Begum and another 1996 PSC 806; Mst. Zahida and another v. Captain (Retd.) Shahid Ali Khan 1993 CLC 2116; Mst. Salima Bibi v. Muhammad Khan and others PLD 1987 Lah. 383. There is no cavil to the proposition that notwithstanding the right of the mother or father for the custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor. The learned Single Judge in the High Court has given cogent reasons for not giving the custody of minor to the mother who having contracted second marriage has also given birth to a child from her second husband.
6. The mere consideration of love and affection of the mother with the child would be conducive to the welfare of the minor to give him in the custody of step-father in the presence of real father who admittedly has not gone for second marriage. The respondent having sufficient sources of income is well off. He is living in a defence area and is capable of maintaining the minor in better manner and providing him proper education and thus the respondent being real father of the minor and the natural guardian cannot be deprived of the custody of his minor son of the age of more than 8 years on any other ground except the welfare of minor. The scanning of the facts pleaded by the parties would bring us to the irresistible conclusion that it would not be in the interest and welfare of the minor to allow to the petitioner to keep the child in her custody in the house of his step- father.
7. The careful examination of the matter in the light of special feature of the case and the law on the subject would not suggest that welfare of minor would be in giving his custody to the mother and not to the father. Certainly the general rule that mother on contracting second marriage forfeits her rights of custody of child is not absolute and if the interest of child requires that custody should be retained by the mother, the Court may, in the interest of the welfare of minor, allow the mother to retain the custody of minor but to determine the question of interest of minor, weight must be given to the circumstances to be considered for holding whether the welfare of minor would be in living with the mother or with the father. There is nothing on record to suggest that the minor in the present case was attached with the step-father or that it was in the welfare of minor to live with stepfather in preference to the real father. It is always the duty of the Court to search out the welfare of the minor by considering the essential factors relating to his welfare and should not confine only to the consideration that the mother or father has more love and affection for the minor or that the minor was more associated with the mother or father. The primary consideration for determining the question of custody is always the welfare of the minor and there could not be an absolute rule and fixed criteria to determine the question of welfare in the same manner in each case rather it being a mixed question of law and fact is decided in the facts of each case and consequently the factors having only social importance or the desirability of the father or mother to retain the custody of minor, would not overwrite the consideration of welfare in determining the question of custody. The economic and social status of the respondent would suggest that it is in the welfare of the child that he should be brought up in the house of his father and we have no hesitation in our mind in holding that welfare of the minor would demand to give him in the custody of father and consequently we take no exception to the view of the High Court that the welfare of the minor would not permit to allow the petitioner to retain his custody. The High Court has not committed any illegality in determining the question of welfare of minor and the impugned judgment being not suffering from any legal infirmity would not call for interference of this Court.
8. However, we while keeping in view the fact that minor constantly remained in the custody of mother since the separation of his parents and is studying in a school in Gulberg, direct that during summer and winter vacations in the school, the minor shall spend half summer and half winter vacations with his mother and shall also spend the Sunday holiday once a fortnight, his birthday and Eid-ul- Fitr with his mother. In addition to the above arrangement the minor may visit to the home of his mother and also spend the casual holidays with .Her with the consent of father. The petitioner and respondent may with mutual understanding and consent make a proper arrangement of the meeting of the child with the mother at her residence. The respondent shall not disturb the studies of the minor or shift him from the school without taking the petitioner into confidence. These petitions with the above directions stand dismissed leave is refused.