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First Appeal from Original Order No. 192 of 1978, decided December, 1979.

S. 25-Custody-Appellant, father of minor son divorce respondent wife contracting second marriage and having children from second wife-Respondent, not remarrying and ever since her divorce minor residing with her--Minor 151 years, studying in 9th Class, expressing his preference for mother-Plea regarding mother being not possessed of means of income, held, n ground to award custody of minor to appellant father--Appellant further held, duty bound to maintain minor-Appellant not paying maintenance to minor and warrant for his arrest issued-Application for custody filed by appellant out of retaliation-Mother under Muhammadan Law, although normally entitled to retail custody of her male child only till age of 7 years yet for determination of question of custody of a minor his welfare, primaril to be kept in view by Court-'Finding of Guardian Judge allowing custody of minor with appellant mother upheld.-[Custody o minor].

Mukhtar Ahmad Khan v. Aziza Begum I' L D 1975 Lah. 86: Juma i. Mst. Gul Ferosha P L D 1972 Pesh. I ; Mst. Zohra Begum v. Sh. 4hmad Munawar P L D 1965 Lab. 695 and fist, Fahmida Begum v.

Ahmad P L D 1968 Lah. 1112 ref,

-- S. 25-Custdoy of male minor over 7 years .allowed to remain with mother in view of welfare of minor-Appellant father, held, may move Gurdian Judge to provide opportunity to meet minor periodically to remove estrangement between father and son: [Custody of minor].

Sh. Hamid Mukhtar for Appellant.

Malik Muhammad Rashid for Respondent.

Date of hearing : 22nd October, 1979,

The appellant filed an application under section 25 of the Guardian Wards Act, for the custody of his minor son and a daughter, name Mubashar Ahmad and Shahida Nasreen, who were residing with it other even since the respondent was divorced. His case was that respondent was divorced by him and she removed away the minors from custody but was hot in a position to properly maintain them.

2. The respondent resisted the application and raised the plea that for payment of maintenance to the minors was passed against the ]ant by the Family Court : he even then did not pay any main. and dishonestly filed an application under section 25 of the Act, did the payment. She also asserted that the appellant contracted end marriage and that it was against the interest of the minors to over their custody to him.

During the proceedings before the learned Guardian Judge, the withdrew his application so far as it related to Shahida Nasreen. arties, thus, contested the case only in respect of the custody of

3. The appellant produced one witness, namely, Maqbool Ahmad, and appeared as his own witness. A. W. 1, deposed that the indent was not possessed of any source of income to maintain the minor. In cross-examination he admitted that on account of the appellant's failure to pay maintenance to the minor, warrants for his were issued by the Court concerned. He further stated that the r was then studying in 7th class. While appearing in the witness he appellant claimed that he could bring up and educate the minor than the respondent. He denied the allegation that he did not be maintenance to the minor but admitted the factum of the second age and birth of a daughter out of this matrimonial relationship.

4. The respondent, on the other hand, besides her own testimony, examined two witnesses, namely, Miran Bakhsh R. W. 1 and Bashir td, R. W. 2. 1t is in their testimony that the minor was a student of ass and that it was in his interest that he should remain in the custody of his mother. The respondent, while appearing as her own witness stated that the appellant paid maintenance to the minor through execution of warrants and that his mother and grandmother had died. She controverted the' appellant's claim that the welfare of the minor n handing over his custody to him.

The learned Guardian Judge, held that the appellant moved the appli cation for the custody of the minor after the order regarding payment of maintenance was passed against him. The minor was produced before learned trial Court who recorded his statement and found that from the very beginning he was residing with his mother and wanted to continue side with her. In the opinion of the learned Guardian Judge, both the minors had all along been residing together and as the appellant already withdrawn his application regarding Shahida Nasreen, it not proper to separate the brother from his sister. In view of his findings he held that it was not in the interest of the minor to over his custody to the appellant. Accordingly by his order dated 2^nd May, 1978 he dismissed the application. This order has been called question through this appeal.

5. The learned counsel for the appellant argued that the minor had crossed the age of seven years and, therefore, the appellant who was his father had the superior right of custody unless he was found to be suffering from some disqualification. He urged that no such disqualificatio n was proved against him. It was contended that the respondent did not have any means of income, and therefore, could not bring up the minor properly. He also asserted that the appellant had been regularly the appellant to maintain the minor. It will not be without significance to observe that the appellant did not pay maintenance to the minor and warrants for his arrest had to be issued. The submission, that the application for custody of the minor was filed by the appellant out of retaliation, cannot lightly be brushed aside. No doubt, under Muhammadan Law, normally, mother is entitled to retain the custody of her male child only uptil the age of 7 years. But it is now well settled that for determination of the question of custody of a minor, his welfare has primarily to be kept in view by the Court. In this respect I am inclined to uphold the findings of the learned Guardian Judge, and I have not been persuaded to hold otherwise.

8. For all these reasons I do not find any merit in this appeal which is hereby dismissed leaving the parties to bear their own costs.

9. To remove the estrangement between the father and his son, the appellant may move the Guardian Judge, to provide him the opportunity to meet the minor, periodically. If such an application is moved before the Guardian Judge, he shall formulate a scheme in this respect after hearing both the parties.

M. Y. M. Appeal dismissed.

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