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First Appeal from Original Order No. 35 of 1979, decided on- 6th June 1979.

-- S. 25-Muhammadan Law (Shin School)-Guardianship of minors-Boy being more than two years old presumption according to Shia law governing parties : that welfare of minor boy lies in his custody being given to father-Father though having no independent house in Pakistan but allegedly employed at a handsome salary in Great Britain and wishing to take his son to Great Britain for his education-Mother not yet employed and resources of grandmother too meagre for meeting needs of her large number of dependents Boy's wish not to go with father-Not worthy of credit in circum stances-Father though not regularly providing maintenance for child yet such failure in part not rebutting presumption of child's welfare lying in being given in custody of father at his present age-Even otherwise minor, in circumstances of case, likely to fare better in custody of his father.-[Custody of minor].

Mukhtar Ahmad Khan v. Mst. Aziz Begum P L D 1975 Lah. 86 ref.

S. M. Rashid for Appellant.

Hakam Qureshi for Respondent.

Dates of hearing : 8th, 15th and 16th April, 1979.

This is an appeal from an order of Mr. Rauf Ahmad Sheikh, Guar dian Judge, Talagang, dated 4-1-79, whereby he partly accepted the appli cation filed by the respondent for the custody of his two children. His prayer in respect of the custody of his minor son Waqar Haider was allowed, whereas his prayer in respect of the custody of his minor daughter Afat Zohra was refused.

Mst. Ghulani Sakina appellant was at one time married to Nasim Haider respondent. Waqar Haider was born on 2-7-68 and Afat Zohra was born on 4-7-73. The respondent had applied for the custody of both the minors on the grounds that he being the natural guardian of the minors was entitled to their custody, and that the welfare of the minors lay in their custody being delivered to the respondent. The application was resisted by the appellant and the following issues were framed

(1) Whether applicant is entitled to the custody of the minors O.P.P.

(2) Whether applicant has ignores the maintenance of the minors, if so its effect O.P.P.

(3) Whether the welfare of the minors demand the appointment of the applicant as guardian O.P.P.

(4) Relief.

3. Both The sides produced evidence. The trial Court found that the parties were governed by Shia Law. He also found that Waqar Haider was 10 years of age whereas Afat Zohra was 5 years old. He held that the respondent was entitled to the custody of the minor boy for the reason that he being 10 years of age, there was a presumption according to his personal law, that the welfare of the minor lay in his custody being given to the respondent ; that there was nothing on record to show that the respondent had wilfully neglected or refused to maintain the minors ; that as the appellant did not have any source of income of her own, there was no reason why she should be allowed the custody in preference to the child's natural guardian.

4. The mother has filed this appeal praying that she should be allow ed to retain the custody of her son as well. It is contended on her behalf that the respondent does not normally live in Pakistan ; that he had come to Pakistan after 8j years ; that he has never given any maintenance for the children ; that he has no independent house in Pakistan ; and that the appellant having passed her P. T. C. Examination already, was going to seek employment and will then be able to maintain her son from her own resources. _

5. The respondent's counsel on the other hand has submitted that as the boy was of 10 years of age, the presumption was that the welfare of the child lay in his custody being given to the father ; that the mother was earning nothing and the minor was being maintained by his maternal grandmother, who as a School Teacher was earning about Rs. 500 per month, and had a very large number of other dependents as well ; and that the respondent has been in the past providing maintenance for his children.

6. There is no doubt about the age of the minor boy, because his birth register entry Exh. A-2 shows that he was born on 2-7-68. It is also not controverted that the boy being more than 2 years old, the presump tion according to Shia law, which governs the parties, is that the welfare of the minor boy lies in his custody being given to his father. The allega tion that the father has no independent house in Pakistan is admitted by the respondent, whose case is that he is employed at a handsome salary .in Great Britain, and that he wishes to take his son with him to Great Britain for his education.-

7. The appellant had produced evidence to show that the respondent had never paid any maintenance for the child. Appearing as RW-I. She deposed to that effect. She also stated to the effect that the boy was being looked after well, and was studying in Class V. He was also receiving religious education. Her statement does convey the impression that her mother who was earning Rs. 500 per month-as salary as a School Teacher, had a large number of dependents, including the appellant and her children. She also stated that one of her brothers was also employed. However there is no evidence on record indicating that the two minors were being neglected in any way, although the paucity of the resources of the minors' maternal relations is indicated by the fact that the boy had to be taken out of a school where higher fee was charged, and a proper uniform had to be maintained, and admitted to a school where the burden of expenses was lighter. R W. 2 Haji Mohammad Anwar also deposed that the children were being looked after in a proper manner. Appearing as R. W. 3 Waqar Haider minor stated that he did not want to go with his father, because he had never given them any maintenance, and that he used to punish him when they used to live together. The statement of the minor is not worthy of credit because he had also stated that. he was 9 when his father used to punish him. The appellant having obtained divorce on 31-12-73, the boy could not have been more than 5 years of age when they lived together.

8. The respondent appearing as A. W. 1 stated that he had sent Rs. 1,000 for the children in the year 1974, and that in the year 1977-78 he had sent a bank draft, but the appellant had refused to receive the same. He also deposed to the effect that the minors were not being properly looked after by their mother, and that the resources of their maternal grandmother were too meagre for meeting the needs of her large number of dependents A. W. 2'also supported the version of the respondent about the resources of the appellant's mother and her liabilities.

9. The evidence on record does not show that the respondent has been regularly sending maintenance for his children, which it was his duty c to do. On the other hand, although the children are being properly main tained by the appellant, the strain on then grandmother's resources is obvious.

10. Learned counsel for the respondent has referred to Mukhtar Ahmad Khan v. Mst. Aziz Begum (P L D 1975 Lah. 86) to submit that failure to maintain a son, and being a stranger to him since his infancy upto an age of 13/14 years did not deprive a father from getting his child's custody.

11. Keeping in view all the circumstances of the case I am of the view that failure to regularly provide maintenance for the child in the past does not rebut the presumption that at the present age of the minor. it is in his welfare that his custody should be given to his father. Even otherwise, under the circumstances of this case the minor is likely to fare better in the custody of his father.

12. I therefore find no merit in this appeal, which accordingly is dismissed. There shall be no order as to costs.

Appeal dismissed.

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