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Civil Appeal No. 50 of 1976, decided on-4th April, 1977.

--- S. 25--Custody--Minor's welfare paramount consideration while determining custody of child in favour of a party--Child showing unwillingness to go with his father divorcing his mother and very much attached to mother-Compelling child to be out of custody of mother amounts to depriving him of affection of mother--Father although natural guardian after 7 years of age of minor yet Court concerned with welfare of minor irrespective of age of minor.

S. 25--Custody of minor---Father marrying second wife Nothing on record against mother-Minor her only son and for him great love and regard held by her--Mother well placed by her profession and also supported by her brothers and as such in a position to look after her child-Circumstances, held, warrant custody of child being allowed to remain with mother but father not debarred to maintain child in custody of mother.-[Custody and minor].

A. M. Malik for Appellant.

Ch. Mohammad Taj for Respondent.

This appeal is against the judgment of the learned District Judge, Mirpur dated 15th June 1976 by which the custody of a minor son of the parties was given to the respondent.

Khalid Hussain, .a minor son of the -parties was- about three years old when an application under section 25 of the Guardians and Wards Act was made by the father of the child. The child is in the custody of the mother. Mst. Surraya Bibi is the mother who was divorced by the respondent and lives with her brothers and mother, in Ban Khurman'. It seems that when Mst. Surraya was divorced, the child was allowed to remain with her as it was then a sucking baby. Now the child is about seven years of age and still lives with her mother.

The custody of the child was claimed by the applicant-respondent on the ground that as Msr. Surraya Bibi is going out of Mirpur to live with her brothers at Lala Musts alongwith the child, the custody of the child should be delivered to him and as she has no means of livelihood to bring up the child properly and there is every apprehension of the child to fall a prey to ill-health and defective nourishment.

The application was resisted by Mst. Surraya Begum it was strenuously contented that s she is in a position to maintain 'the child and it simply for bringing up the child that she has not even entered into a second marriage uptil now. She lives wilt tier brothers and all her brothers are there to hell her in matter of maintenance and schooling of the child. The brothers supported tier in the matter It was further deposed to by her that the child was not maintained by the father uptil now.

The trial Court struck an issue regarding the entitlement of the custody' of the child The applicant examined himself as a witness and also examined his father and two acute per-Nuns, namely, Mohammad Ishaq and Manzoor Ellahi as his witness.

The trial Judge determined the matter in issue in favour of the applicant-respondent. He was mainly influenced by the fact that as the child has attained the age of seven years, therefore the father was legally entitled to the custody of the boy, and at the same time lie was also of the view that the welfare of the minor lies in the hands of his father as compared to the mother.

The respondent made an attempt to show that he used to take clothes and sweetmeats fur the child at the house of Msr. Surraya Begum which articles she refused to accept and thus ice was not in a position to give anything to the child for his maintenance and for proof of that he cited the names of Mohammad Ishaq and Manzoor Ellahi and his father but from the flimsy statements of his witnesses this contention of the respon dent does not find any support. Mohammad Ishaq and Manzoor Ellahi were not the persons ever able to visit the house where Mst. Surrava Begum lives in 'Ban Khurman'. Mohammad Ishaq and Manzoor Ellahi, the witnesses led by the respondent have little knowledge in respect of the child and his mother who are living in Ban Khurman'. They were not in a position to acquaint the Court with the circumstances leading to a way in connection with the welfare of the minor. In this case the minor's wel fare is of paramount importance while determining the custody of the child in favour of a patty.

The father of the applicant-respondent says that Mst. Surraya Begum has no means to educate the child and so it would be in the welfare of the minor that he should be handed over to his father. The applicant -respondent hardly gets Rs. 400 per mensem and he has to support his wife who is a step-mother to the child.

The contention of the appellant is that the child would not be pro perly looked after as the step-motherly treatment is proverbially known to all and it was thence urged by her to repel the stand of the man that the child would be living with its gland-mother who is supposed to have a motherly treatment to the child but unfortunately, the grandmother of the child is no longer alive. Mst. Surraya Begum deals with the tailor ing and also teaches the children in the vicinity thereby earning something as well and it is so stated by her to have an earning by that means. The help for maintenance by her brothers is also there. The applicant has not been able to contribute; anything toward;; the maintenance of the child so far.

The child was summoned before the Court by me who has expressed his unwillingness to go with his father. The fact of the matter was that be did not every like to see his father try the open Count who was responsible to divorce his mother. The child is very much attached to her mother and never wants to part from her in any case. Under these circumstances, compelling the child to be out of the custody of the mother would mean to deprive him of the affection of the mother. No doubt, the father is a natural guardian of the minor and when such a child is in the custody of the mother, the legal control of the child may vest in the father but we are concerned here with the welfare of the minor. There is a divergence of opinion between the different learned fudges dealing wish the subject, Some say that the custody of the child is to go to the father in any way if the son is above seven years of age but some of them are to the view that under section 25 of the Gardans and Wards Act, the custom should go to that side where lies the welfare of the child, it matters laid what the age of the boy is also in respectful agreement with the view expressed by the Judges in favour of the mother. As a matter of fact, the father had married a second wife and there is nothing against the mother of the child on record and for the minor being her only child, she has great love and regard for the child and she is very well placed by her profession of tailoring and teaching (most probably the teaching of the Holy Qur'an to the children of the people in the neighbourhood). She is also supported by her brothers very well and as such she is in a position to look after her child and so the circumstances warrant that the custody of the child be allowed to remain with the mother. There is nothing to debar the father to maintain the child even in the custody of the mother of the child.

In the result the appeal is accepted and the order of the learned District Judge is accordingly set aside.

M. Y. M. Appeal accepted.

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