DOST MUHAMMAD KHAN, J.----Through the instant petition, the petitioner, has called into question the judgment dated 6-3-2002 of learned Additional District Judge-III, Peshawar who while setting aside the judgment dated 25-4-2000 of Senior Civil Judge/Guardian Judge, Peshawar, allowed respondent No. 1 to have the custody of the minors/respondents Nos.2 to 4.
Brief but relevant facts are that the petitioner and respondent No. 1 entered into wedlock on 10-5- 1990. The parties-- enjoyed peaceful matrimonial union for 5 years at U.S.A. And during the said period out of the wedlock the 3 minors were born.
2. In the year 1995 the said relations jolted as the couple generated hate against each other and when it reached at a boiling point, respondent No.1 came to Pakistan alongwith the minors and settled at Peshawar. The petitioner divorced the respondent No.1 through written communication and feeling insecured, helpless and defence less respondent No.1 married one Alamzeb at Peshawar with whom she happily resides alongwith the 3 minors and from this wedlock she got 2 children.
3. The petitioner for getting custody of the minors filed Petition No.55/2 before the Guardian Judge on 19-6-2000 and at the conclusion of the trial this petition was allowed but the appeal Court set aside the same on the appeal of respondent No.1.
4. The petitioner has sought the custody of the minor sons on two grounds firstly that they are of the age of more than.7 years and secondly that respondent No.1, their mother, has contracted a second marriage with a stranger.
Under the law, in normal circum--stances father's right to custody of male child becomes ripe at such stage but it is a firm principle that the welfare of the minor shall hold supreme with the Court irrespective oil such right. In other words the right of father on the basis of age of minor to have its custody is neither absolute nor indefeasible one.
Each case is to be decided on its own merits and there is a long chain of authorities wherein departure has been made from the above rule for the welfare of the minor.
5. It is evident from record that the petitioner runs business in U.S.A. Albeit he claims to have quitted it there and intends to launch it at Rawalpindi.
Even if it is assumed that he is serious in starting business here in Pakistan to that case too much of his attention and time shall remain devoted to his business interest/affairs leaving a little of that to be Oven to the minors. Who is to take care of them in absence of the petitioner both for short and long period in connection of his business trips within and abroad, is a big begging question which is having no answer on the record. All the 3 minors are of such age which would require constant and regular attention on daily basis.
6. The second plea is also not sufficient to disentitle the respondent No.1 from having the custody of the minors. She was deserted alongwith the 3 minors and was thrown into a tide of hostile social conditions with uncertain future and that too within our male dominated society thus she legitimately felt insecured and defence less was therefore justified to contracting second marriage for securing her own future as well as of the minors.
As discussed above, the petitioner did not pay a single penny to respondent No. 1 for the maintenance of the 3 minors and the present husband took on himself such responsibility without any hesitation and exception. The minors have been brought up by this way by their mother with the help of the present husband, therefore, the second marriage could not be made a ground to disentitle the mother to the custody of the minors.
During the pendency of this petition through an order all the 3 minors were entrusted to the petitioner for more than 15 days. After staying with the petitioner for such time when we examined the minors today in Court we found no change in their mind or any tendency of entertaining inclination towards their father i.e. The petitioner. We found them fairly intelligent by giving rational answers and they proclaimed that the petitioner is alien for them thereby showing sentimental attachment with their mother. They are admitted in a standard school, getting education clothes, food and, are enjoying every facility of life in their mother house.
7. The financial status of the petitioner is also not much relevant moreso when he has failed without just cause to provide maintenance for the minors during the last 10 years or so. Moreover, both under the law and the decree of the Court he is bound to provide maintenance for the minors while residing with mother thus this fact has also no bearing on the other merits of the case.
From the above narration of facts it is established on record that neither in the past nor at present the petitioner has demonstrated in a manner to prove that he is a loving father and has serious concern about their welfare. The facts on record speak the other way.
8. All the above admitted and established facts on record were not fairly considered by the trial Court hence the appeal Court was having ample justification setting aside the trial Court judgment.
9. For the above reasons, we do not find any illegality or jurisdictional infirmity in the impugned judgment of the appeal Court to attract our writ jurisdiction, accordingly this petition being devoid of all legal merits is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.