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First Appeal from Original Order No. 41 of 1978, decided on 6th June 1979.

-- S. 25-Respondent husband re-marrying after securing divorce from his wife, minor's mother, who also settled down attracting a second marriage-Minor a girl about 10 years old dad living with appellant throughout-Evidence not indicating respondents concern about minor being so overwhelming as to brush used all circumstances give child in his custody-Respondent not caring to see child, nor providing her with reasonable maintenance-Appellant's relative poverty, held, would not prevent her from retaining child's custody in circumstances.

Sultan Mirza v. Mst. Shahnaz Akhtar P L D 1975 Lah. 194 ; Ghulam Sakina v. Ghulam Ab5as P L D 1978 Lah. 1339 and .khtar Ahm2d v. Manzoor Begum P L D 1965 Kar. 65 ref.

Raja Muhammad Sabir for Appellant.

Haji Fazalur Rehrnan Khan for Respondent.

Dates of hearing : 30th April; 12th an3 29th May 1979.

This is an appeal from an order of Mr. Abdul Hameed Khan Niazi, Guardian Judge, Lahore, dated 19-1-78, whereby he accepted the respondent's application for the recovery custody of his rhino: daughter from her mother. The appellant is the mother of the minor, who was married to the respondent on 4-4-65. Baby Rana Jameel minor was born on 23-3-68. The appellant obtained a divorce through Khula on 17-7-71.

2. It was asserted by the respondent before the Guardian Judge that, it was in the welfare of the minor that her custody be given to him, for he reason that he had better means to look after her; that he had a spacious house, close to which was situate a girls school ; that he was keen to impart her good education ; and that he has sisters who loved the minor and would look after her properly. He also asserted that the appellant had a bad character, and had also remarried one Hafeez who was a stranger to the minor and was also man of loose habits.

3. The appellant contested the application and asserted that she and her second husband were of good moral character. She also stated that her husband was her cousin, being her maternal uncle's son, and as such he :vas not a stranger to the child. She also stated that the welfare of the minor lay in remaining in her custody. The following issues were framed

(1) Whether the welfare of the minor lies in the custody of the petitioner O. P. P.

(2) Relief.

4. Learned Guardian Judge found that the financial status of the respondent was better than that of the appellant ; that the education of the minor was being neglected by the appellant ; that the appellant's second husband had 4 grown-up sons whose ages ranged between 10 years and 18 years ; that the step sons of the appellant were not related to the minor within the prohibited degree ; that the appellant was not a woman of good character ; and that the respondent also having remarried, had be gotten a child who would provide good company to the minor, and as such he held that the welfare of the minor lay in being given in the custody of the respon dent, who is he: father.

5. It is contended on behalf of the appellant that the findings of the learned Guardian Judge are erroneous. Learned counsel for the appellant submits that the respondent having remarried, the minor would remain under the shadow of her step mother, who in any case was bound to give preference to her own child in all their daily requirements, and the minor would be neglected ; and that on the other hand the appellant's step-children were all living in Sargodha; so that the minor was the only child living . in their house at Lahore, and receiving the exclusive attention of the appellant and that of her husband. The appellant has not denied that the respondent's income is higher than that of her husband, but it has been asserted on her behalf, that higher income was not the only criterion by which the father's suitability to retain custody could be Judged. It is also asserted that for all these years that the minor has remained with her the father has never given any maintenance to the minor, nor has he ever come to see her.

6. Learned counsel for the appellant has relied on Sultan Mirza v. Mst. Shahnaz Akhtar (P L D 1975 Lah. 194) to contend that where each one of the parents of the minor, after divorce, gets remarried, the minor can be given in the custody of .his mother. He has also relied on Ghulam Sakina v. GhulamAbbas (P L D 1978 Lah. 1389) to submit that better social status of the father by itself is not sufficient criterion for delivering custody to, the father.

7. Learned counsel for the respondent on the other hand has asserted that the grown up children of the appellant's husband were living with their father at Lahore and that the appellant's character was not good. He has also relied on paragraph 249 of Tyabji's Principles of Mohammadan Law (Second Edition) wherein it is observed that a mother loses the right to custody of her child if she becomes immoral or if she marries a man who is not related to the child within the prohibited degrees.

8. I have examined the various aspects of this case with assistance of the learned counsel on both sides. The following are the factors which go in favour of the appellant.

9. The child has already been living with her mother and it is not desirable to dislocate her unless there be compelling reasons to do so. The minor girl is about 10 years of age and normally she should remain in her mother's custody because of the presumption that arises in her favour. It has been held in Akhtar Ahmad v. Manzoor Begum (P L D 1965 Kar. 65) to the effect that mother's marrying a man not within the prohibited degree of the minor girl, by itself was not sufficient reason for giving the minor in the custody of her father, and that the other factors had also to be considered. It was also held in that case, that as the father had also remarried, it was not desirable that the minor should live with her step mother. In this case too, as the respondent has married again, it is not desirable that the minor should live with her father and her step mother. The allegation that the appellant is of bad character is bare and flimsy. No concrete instances of aberrant behaviour have been given in evidence. On the contrary the fact that she has married another person, and has properly settled down with him, indicates good character. The above aspects of the case show that the welfare of the minor lies in

living with her mother. The evidence on record also shows that the step sons of Hafeez were not living with him. R. W. 2 Abdur Rehman as well as the appellant appearing as R. W. 4 had stated that the children of Hafeez lived at Sargodha, and not at Lahore. The respondent has not produced any evidence to show that the sons of Hafeez were living with him at Lahore. It stands proved therefore that they were living at Sargodha. Since the appellant's husband has grown-up sons, he must be getting on in years, so as to soften the effect of the opposing consideration that he is not related to the minor within the prohibited degree.

10. The appellant's allegation that the respondent has never paid his child any maintenance, nor has he ever come to visit her is also required to be examined in the light of evidence on record.

11. The respondent has produced 11 money order receipts Exh. P-1 to P-11 which that very roughly speaking, the respondent has been sending Rs. 20 per month to his daughter. He has also sent Rs. 40 and Rs. 30 once or twice. Each one of these money orders was returned with the remarks that the appellant or the minor was not, present at her address. He also sent 3 registered letters to his daughter expressing his desire to meet her, but these too were returned with the remarks that she was not residing at the address at which the letters had been sent. Although these money orders and letters never reached the addressee, the respondent never seems to have made any genuine effort to actually find out where his daughter was residing. He was merely content with writing letters which were returned, and sending small amounts of money which were also always returned. The first money order was sent on 3-3-73 f. e. after more than years of divorce witty his wife and separation front the child. It is in evidence that at the trine of the divorce the respondent was drawing a salary of Rs. 800 per month, and that he was a man of means, but the amount of money that no sent through money orders was always small compared to his means,

Although it cannot be said that the respondent has no affection for his child or that he is not concerned about her welfare, but the evidence does indicate that his concern about her is not so overwhelming, that brushing aside all other circumstances, he should be given the custody. The appellant's relative poverty will not prevent her from retaining the child's custody, because father can provide her the maintenance.

12. In view of the above I find that the appellant should retain the custody of the child. 'the order of the Guardian Judge is therefore set aside, and the application of the respondent for being granted the custody of the minor is dismissed. There shall be no order as to costs.

Order set aside.

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