' Notice was issued to the respondent in this writ petition pursuant to the contention of Sh. Ahsan ud Din, Advocate, noted on 4-6-2003. Learned counsel for the respondent No,1 has put in appearance.
2. On 28-10-2002; respondent No,1 filed a petition against the petitioner under section 25 of Guardian and Wards Act, 1890. According to this petition, the parties were married on 2-.8-1991 and were blessed with a daughter, namely, Shaista who is in custody of the petitioner. The marriage was dissolved by means of a Court decree dated 18-12-1995. At the time of said decree a compromise was entered into between the parties. This agreement has been reproduced in para.3 of the said petition. The gist is that in consideration for the divorce, the petitioner forgoes her dower, a house, maintenance and other rights. Regarding child, it was stated that she will remain with the petitioner and the respondent No,1 will pay maintenance at the rate of Rs,600 per month. In case she contracts second marriage, she will be liable to return the child to the respondent No,1. However, in case maintenance is not paid regularly she will not be so liable.
According to the said petition, the petitioner had remarried on 28-2-2002. Accordingly he claimed the custody of the said minor. The petitioner in her written reply stated that the child is with her since she was three months old and it will dot be in her welfare to separate her from her mother and maternal grandmother. With reference to said agreement it was stated that respondent No,1 is in breach inasmuch as he failed to pay the maintenance. And the minor had to file a suit and even the amount of decree for maintenance was not paid and execution proceedings had to be resorted to. Issues were framed. Evidence of the parties was recorded. Learned trial Court vide order dated 12-4-2003 dismissed the petition. Respondent No,1 filed first appeal which was heard by learned District Judge, Attock. Vide judgment dated 7-5-2003, learned District Judge, Attock after observing that since the decretal amount has been paid, in terms of the said agreement, respondent No,1 is entitled to custody and allowed the appeal.
3. Learned counsel present for the petitioner reiterates the contentions noted in the admission order that the order is violative of principles settled by the Honourable superior judiciary, that primary consideration in the matter of custody of minor is welfare of the minor. Learned counsel for the respondent, on the other hand, states that since the decree has been satisfied, his client is entitled to the custody of the minor under Islamic Law. Further refers to the statement made by the present husband of the petitioner to the effect that he is of the opinion that it will be in the welfare of the minor in case she lives with her real father.
4. I have gone through the records. I have already reproduced above the respective pleadings of the parties as also the material contents of the said agreement Exh.P.5 relied upon by the respondent No,1. Now so far as the said agreement is concerned, it stands established on record that the minor had to file a suit for recovery of maintenance allowance which was contested tooth and nail by respondent No,1 but was ultimately decreed by the learned Judge Family Court, Jand, District Attock on 29-3-2000 (Exh.P.3). The decree states that respondent No,1 is liable to pay the maintenance allowance to the child w.e.f, August, 1996 at the rate of Rs,600 per month. Admittedly, the decree was not challenged any further. Exh. P.5 is dated 1-5-1996. This means that in terms of the said agreement (Exh.P.5) since maintenance was not paid as stipulated, the petitioner was not liable to return the child to respondent No,1 Be that as it may, nothing has been brought on record that the minor is not being properly brought up by the petitioner particularly when respondent No,1 had not even been paying any maintenance for the child. It has been brought on record that she is studying in a school. There is no allegation and no evidence on record that she is not keeping good health. Now mere fact of remarriage of the petitioner would not ipso facto result in the handing over of, custody of the child to the father when it is not otherwise in her welfare. Needless to state that respondent No,1 has also got remarried after the said dissolution of marriage between the parties. It is also on record that the maternal grandmother is also there to look after the child. Thus from whatever angle seen the impugned judgment of the learned District Judge cannot be sustained, particularly in view of the law laid down by the Honourable Supreme Court of Pakistan in the case titled "Firdaus Iqbal v. Shafaat, Ali and others 2000 SCM R 838, that the rules of personal law would be subservient to the welfare of the minor. The impugned judgment dated 7-3-2003 of the learned District Judge, Attock therefore, cannot be sustained. This writ petition is allowed. The impugned judgment of the learned District Judge, Attock is declared without lawful authority and as such void; and is accordingly set aside.
No orders as to costs.