' Brief facts in the instant writ petition are that the respondent No,2 filed custody application under section 25 of the Guardians and Wards Act, 1890. Both the minors are in the custody of petitioner.
The petitioner and minors filed a suit for maintenance allowance. Issues were formulated. Both the parties led their evidence and learned Guardian Judge dismissed the petition filed by the petitioner vide judgment and decree, dated 12-6-2002. Being aggrieved respondent No,2 filed an appeal before the learned District Judge, Faisalabad who vide his judgment and decree, dated 10-4-2003 accepted the same by setting aside judgment passed in favour of the petitioner.
2. Arguments advanced by learned counsel for the petitioner are that the learned Appellate- Court has failed to appreciate the law on the point that welfare of the minors lies with their mother and the learned Appellate Court has failed to appreciate the evidence on record produced by the petitioner, The school certificates of the minors showing them regularly studying in prestigious institutions were not considered by the learned Appellate Court and this fact was also ignored by the learned Appellate Court that since the minors have been with their mother and they have never been away from her even for a day and the separation from mother can jeopardize their life and future career. She has also proved that she is lady of means and is being supported by her father who is man of means and also she entered into a wedlock with a second husband but he has died. He further argued that there is no one to look after the minors--and the house of the respondent and the respondent's parents are not interested for the custody of the minors and that Muhammad Uzair minor has been now joining PAF School Lower Topa.
' He has qualified the written test for admission for 8th Class 2004 and he has now called upon to report at PAF Inter College, Lahore for written test on Sunday 19th October, 2003.
3. Learned counsel for respondent No,2 submits that the judgment passed by learned Appellate Court is well-reasoned and father being a natural guardian is entitled to retain the custody of the minors and petitioner by entering into second marriage has lost the right of custody.
4. I have heard the learned counsel for the parties and perused the record.
5. The observation of learned Appellate Court for upsetting the judgment of learned Judge, Family Court was that it is the duty of the father after the age of Rizaat to educate and groom the minors and it is difficult for a female member to watch the activities of her children and chanelize her energies in the right direction and strict supervision is required fora young boy day and night both inside and outside the home, therefore, it will be better that the minors will be given to the father.
6. From the perusal of evidence of D.W.1 it is admitted fact that he has remarried. It is also admitted that the mother also remarried and in fact the children were brought up by their maternal- grandfather. It is also established from the evidence that the respondent/father upto this time has not maintained his children. Only he is paying the decretal amount passed in suit for maintenance in instalments. The respondent appeared as A.W.2 and stated that he has divorced the petitioner in the year 1995 and the maternal-grandmother is retired clerk having three unmarried daughters, therefore, she cannot look after the minors. In cross-examination he has admitted that suit for recovery of dowry articles is pending against him and he also admitted that respondent father is the owner of property in Faisalabad, and also owns nine shops. R.W.1 a Principal of Grammer School Madina Town, Faisalabad appeared and she stated that both the minors Muhammad Uzair and Manhal Javaid are studying in her school and the certificate Exh.R.1 has been issued by her.
Muhammad Uzair has secured 1st position in the class and Manhal Javaid has secured third position in the class and all the expenses for fee and books etc. Are borne by their mother. R.W.2 is Sh. Muhammad Idrees, he has stated that the petitioner mother is keeping the children very well and is educating them. The petitioner herself appeared as R.W.3. She has stated that she has filed a suit for maintenance for herself and for the minors. Although she is remarried but she is living in her parents house in Faisalabad and she is looking after her children as her parents are well-off and they have 12 shops in Madina Town and her brothers are doing business and there is no one to look after the minors in the respondent's house.
7. In fact the settled proposition of law in custody matters is that paramount consideration must be given by Courts below to the welfare of the minors. I have summoned the minors, perused the documents on record and interrogated them and found them well-groomed, intelligent and good in studies, enjoying good health. Even Muhammad Uzair is brilliant child and the documents placed on record show that he is called upon by PAF Public School Lower Topa for written test for admission in 8th Class 2004. This shows that minors are well-kept and better looked after about their studies. The judgment passed by learned Appellate Court while considering that the mother cannot look after the minors being woman is not correct. Learned Appellate Court while setting aside the judgment passed by learned lower Court/Guardian Judge has not appreciated the evidence produced by the parties and has not kept in consideration the paramount welfare of the minors and that uprooting the custody of minors at this stage will result in disaster towards their studies. Personal observation of the Court does not carry any weight. Each case is to be decided according to its attending circumstances and facts, therefore, keeping in view the welfare of the minors, the judgment and decree passed by learned Appellate Court is set aside. However, in the interest of justice the visitation rights of father in respect of minors are secured and a direction in this respect is given to the petitioner to allow the father to meet the minors twice a month on Sunday at the house of maternal-grandfather.