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Civil Petition for Special Leave to Appeal No. 484 of 1979, decided on 27th June, 1979.

(On appeal from the judgment and order of the Lahore High Court dated 6-3-1979 in F. A. O. No. 107/74).

Guardians and wards Act (VIII of 1890)----

----S. 25-Custody of minor-Custody of male child having attained age of 7 years-Lies with father according to Muhammadan Law governing parties--Law presumes welfare of minor to lie in being with father after he attained specified age-Mother concurrently found by both lower Courts to be rot possessed of ability and means to properly took after boy and such boy not only ailing but also remain ing completely illiterate even though attained age of 11 or 12 years---Both lower Courts also finding father to have sufficient income so as to look after boy properly-Courts below, held, justified in holding welfare of minor to lie in his custody being entrusted to father.

Ch. Rafiq Ahmad Sabir with Muhammad Aslam Chaudhry, Advocate-on -Record for Petitioner.

Nemo for Respondent.

This petition is barred by 38 days, but we condone the delay, subject to all just exceptions, for the reasons mentioned in the application filed by the petitioner in this behalf.

This dispute concerns the custody of the minor son of the parties aged about 11 or 12 years. The learned Guardian Judge, after examining the evidence led by the parties, has expressed the view, that the boy was not being properly looked after by the mother, who was not possessed of sufficient means was suffering from epilepsy and was mentally retarded. He has given a finding that the mother had no male member of the family to support her and was living with her widowed mother and divorced sister, whereas the father of the child was possessed of sufficient means to look after the boy. The boy being above 7 years of age the learned Guardian Judge has taken the view that, in the circumstances, his welfare lies in living with his father.

This view of the Guardian Judge has been endorsed by a learned Judge of the High Court by his judgment dated the 6th of March, 1979. He has agreed with learned counsel for the petitioner that there was no evidence to show that she was of immoral character, although she was proceeded against under the Goondas Ordinance, but he has expressed the view that in her present circumstances she has not been able to look after the boy properly, so much so that he has not been sent to any school so far although he is 11 or 12 years of age. For these reasons he has refused to interfere with the order made by the learned Guardian Judge, but has given certain directions so as to enable the petitioner to meet her son at specified intervals.

Leave to appeal is sought on the ground that as the boy is ailing and is mentally retarded, his welfare lies in remaining with the mother, as the father was unable to look after him. The learned counsel contends that both the Courts below were in error in thinking that the mother had failed to look after the boy properly, as, in fact, the responsibility for neglect lies on the respondent, who bad not been providing proper maintenance for the boy, and now he was paying only a small sum of Rs. 600 per month, which was not adequate for the education and treatment of the boy. He contends that in the peculiar circumstances of this case the welfare of the minor lies in continuing to remain with the mother.

After hearing the learned counsel for the petitioner and perusing the available record, he has formed the view that there is no compelling reason made out for our interference in the matter.

According to the personal law of the parties the custody of the male child would lie with the father after he has attained the age of 7 years. The law presumes that the welfare of the minor lies in being with the father after he has attained the specified age. In the present case, it has also been found by both the Courts below that the mother is not possessed of the ability and the means to properly look after the boy who is not only ailing, but has also remained completely illiterate even though he has attained the age of 11 or 1 years. There is a finding of fact recorded by the learned Guardian Judge, and endorsed by the High Court, that the father has sufficient income so as to look after the boy properly. On these findings the Courts below were justified in holding that the welfare of the minor lay in his custody being entrusted to the father.

On this view of the matter, the petition fails and is hereby dismissed.

Petition dismissed.

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