1. AMANULLAH KHAN YASINZAI, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, is directred against the judgment dated 3-6-2002, passed by learned District Judge, Quetta, whereby appeal filed against the judgment of Civil Judge/Guardian Judge, dated 30-12-2000, was accepted and the judgment was set aside, and as a consequence thereof, custody of minor was ordered to be given to respondents 1 and 2. Briefly the facts are that petitioner Mst. Farah Iqbal, was married to respondent No,1 Muhammad Anwar. After marriage, differences arose between the parties and the petitioner left the house of her husband and started residing with her parents and there on 15-8-1999, she was blessed with a child, who was named Marriam Anwar After birth of child, initially the petitioner filed an application for her appointment as Guardian of minor. Record reveals that, temporary custody of minor was given to petitioner. Thereafter the case could not proceed on merits and respondents 1 and 2 filed an application under sections 7 and 25 read with section 39 of the Guardians and Wards Act, for custody of minor. The application was strongly resisted by petitioner, wherein preliminary objections were also raised. Out of the pleadings of parties, following issues were framed for determination: "(1) Whether the application is not maintainable in view of P/O 'A' raised for the W/S filed by respondent?
(2) Whether the respondent has become disentitled to retain the custody of minor daughter Maryam?
(3) Whether the applicant is entitled for the custody of minor daughter Marryum?
(4) Relief?
2. Parties thereafter, led evidence in support of their respective contentions. Respondents 1 and 2 produced A.Ws. Abdul Zahir, Haji Abdul. Salam and Tamizuddin. Dr. Fiaz Ahmed, appeared as Attorney of respondent No,2 whereas respondent No,1 appeared himself. In rebuttal, petitioner examined R.Ws. Muhammad Ramzan, Muhammad Iqbal, Jehanzaib Khan Jadoon and lastly she appeared herself. After recording evidence of parties, learned Civil Judge/Guardian Judge, rejected the application of respondents vide judgement dated 30-5-2000. On appeal, case was remanded to learned trial Court for rewriting of judgment. After remand, learned Guardian Judge, vide judgment dated 30- 12-2000, rejected the application of respondents. Being aggrieved, respondents filed an appeal before the learned District Judge, who after hearing the parties, accepted the same and ordered, that custody of minor be given to respondents vide judgment dated 3-6-2001. Hence this petition. We have heard Chaudhry Mumtaz Yousaf, learned counsel for petitioner and Mr.Muhammad Aslam Chishti, learned counsel for respondents 1 and 2.
3. Before dilating upon the arguments of the learned counsel for the parties it is worth to point out that decisions relating to custody of minors, are regulated under Islamic Personal Law and there is consensus amongst the Muslim Jurists that, for her right of custody (Hizanat), the mother is entitled to keep the custody of male child up to the age of 7 years, when he becomes independent, himself capable of shifting, drinking, eating and performing other natural functions without assistance and thereafter the custody devolves upon the father or next paternal relation. Thus the right of the mother to custody in respect of male child ceases at the age of 7 years. The right of "Hizanat" qua a female child pertains to mother till the appearance of menstrual discharge i,e, age of puberty.
4. Thereafter, father becomes entitled to the custody of female child. Besides, the mother having the custody of child becomes disentitled or loses the right of custody of a minor, on the following grounds:--
(1) If she marries a person not related to the female child within the prohibited degree, or
(2) If she goes and resides during the subsistence of the marriage, at a distance from the minor's father's place of residence, or
(3) If she is leading a immoral life, as where she is a prostitute; or
(4) If she neglects to take care of the child. It may be noted that, while deciding the cases pertaining to the custody of minors, the paramount consideration in determining the same; notwithstanding the right of father or mother, is the welfare of minor itself. Mostly our own superior Courts hav decided the cases of custody keeping in view the welfare of minor (being the prime consideration) and in that cases have also deviated from the aforestated principles. In the instant case, both the par 'es have alleged serious allegations against each other. While going through the I pugned judgment, it appears at the learned District Judge, has given the custody of minor to the respondents on the ground that, petitioner, who was given the custody of minor by trial Court, has not taken care of the minor properly and had been disregarding the orders of the Court, by not allowing the minor to meet with her father and grandfather and further it prevailed with the learned District Judge, that the petitioner has no source of income of her own, therefore, she is not entitled for the custody of minor.
5. It is worth to note that, while determining the custody of minor, it has been time and again held that, mother cannot be refused the custody of minor solely on the ground that, she had no independent income of her own. It may be pointed out that, it is always, the father, who has to provide maintenance and mother's inability to provide maintenance would not disentitle her, from the custody of minor. Reference in this behalf can be made to 1983 SCM R 606. The said view has been consistently maintained by the Hon'ble Supreme Court and the custody of minor in such circumstances, has always been handed over to mother, if she is not otherwise disqualified.
6. Looking to the case in hand, at the touchstone of aforesaid principles, a bare perusal of record would show that, there is no such allegation for disqualifying the petitioner within parameters laid down under the Islamic Laws, from retaining the custody of the minor.
7. Record reveals that, she has been disallowing the minor to meet her father, despite clear directions of the Court and besides this there is no such other allegation against her. She is living in her parent's house and has not re-married. It has also come on record that, her brother is a Doctor by profession and she herself has done Graduation from Punjab University and further her father is a well-established businessm an, doing business of jewellery and has been paying for her expenses till today. The minor has been admitted in a renowned English Medium School, and it has been stated at Bar that, she is doing well in the school. Thus, keeping in view the provisions of Islamic Law and taking into consideration the welfare of minor, in our considered estimation, petitioner is entitled for the custody of minor, till she attained the age of puberty. The petitioner however, shall make arrangements for meeting of minor with her father and grandfather, on every Sunday from 10-00 a.m. To 4-00 p.m. Besides allowing the father and grandfather to meet with the minor on Eid days and birthday. In case, the petitioner fails to facilitate the meeting of minor with her father and grandfather, it would be a violation of the order of this Court, ensuing on disqualification of custody of minor. The minor shall be taken up on every Sunday at 10-00 a.m. From the house of the petitioner by the respondents and shall be dropped back at 4-00 p.m. However, the respondent No,1, being the father of minor shall also pay for the maintenance of minor including school fees, clothes etc. Both the parties are directed to comply with the above order. With the above observations, the petition is accepted and parties are left to bear their own costs.