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Civil Appeal No. 44 of 1987, decided on 25th October, 1987.

S. 17 Appointment of guardian Welfare of minor Courts while appointing a guardian of minor and taking decision with regard to his custody are expected to keep in view the welfare of the minor All other circumstances, including the relationship of the parties with minor, the faith and religion of the minor are subordinate to this consideration Other circumstances are no doubt, looked into to decide as to where lies his welfare.

S. 17 Appointment of guardian Minor had been in the custody of the mother since the time of his birth and was intimate with the family of his maternal parents None of the parties (father and mother) had any preference over one and other, as far as their capacity to bear the expenses of maintenance of minor was concerned Minor, a student of second primary educational facilities were somewhat at par at both the places of mother and father and the capacity of both parties to see that the minor received proper instructions in school was also at par Father of minor living all alone by himself and source of his subsistence being daily labour and that too subject to the availability of work, and in case, it was available, he had to go out of the house to attend to his work and in case, the minor was handed over to him, he would have to live all alone Held, there was no justification to upset the custody of minor with mother in circumstances.

Ghazi Abdul Latif for Appellant.

Raja Shabir Ahmed Tabassum for Respondents.

Date of institution: 26th July, 1987.

This appeal is directed against an order, dated the 28th of April, 1987, passed by the District Judge, Kotli, whereby an application moved by the appellant for the custody of Ansar Mahmood (a minor boy), has been rejected.

2. The facts which gave rise to this appeal, briefly stated are that the appellant filed an application in the Court of District Judge, Kotli on the 25th of March, 1986 and prayed that he might be appointed guardian of the aforesaid minor (his son) and the custody of the said minor might be given to him so that he could make arrangements for his proper look after.

3. The application was resisted by the respondent on the ground that she is making proper lookafter of the minor and it is in the interest of the minor to remain in her custody.

4. The learned District Judge, after hearing the parties, found that it was in the interest of the minor that he should remain in the custody of the respondent, consequently through an order passed on 28th of April, 1987, the application moved by the appellant was rejected and this order is a subject matter of the present appeal.

5. The appellant"s case is that the minor is about 8 years of age, and he (the appellant), in the capacity of his father, is entitled to have his custody. Furthermore, the minor can be well looked after by him and it is in the interest of the infant if his custody is given to him (the appellant).

6. The learned counsel for the appellant took me through the evidence produced by the parties and argued that the infant is made to work as a shephered and no arrangement has been made for his education. The appellant, in the capacity of the father of the minor, is duty bound to see that the minor is well brought up and he is properly educated. He pointed out that a fake school certificate, to show that Ansar Mahmood is a student of second primary, has been placed on the file of the lower Court and the appellant has not been provided with an opportunity to rebut it. The impugned order is not supported by evidence, hence it is liable to be set aside.

7. The learned counsel for the respondents, to controvert the stand taken up by the appellant"s counsel, urged that since from the date of the birth, the infant is putting up with the respondent who is his mother and by now, he is of about eight years of age. He is studying in second primary in a Government Middle School situate in Panjan Ghorohi and is properly looked after. The appellant is a vagabond type of person who has no interest in the welfare of the minor. He did not provide maintenance to the respondent who is his wife and to the minor and the respondent was constrained to proceed against the appellant who was directed by a Criminal Court to pay a sum of Rs.200 p.m. for the maintenance of the respondent and the minor and this infuriated him to strike back, hence he moved the application in the lower Court to pressurize the respondent to give up the claim of maintenance.

8. The contention of the appellant"s counsel that the minor is made to work as a shephered, is totally untrue. The P.Ws. made false statements in support of the false stand taken up by the appellant and this falsehood is proved if their statements are critically examined. The learned District Judge after taking into consideration the facts and circumstances of the case, has arrived at the decision that it is in the interest of the minor to remain in the custody of the respondent, therefore, this discretion cannot be interfered with by this Court, hence this appeal is liable to be rejected.

9. I have gone into the record of the case in the light of the arguments addressed at the bar and have also studied the relevant law.

10. At the time of appointment of a guardian of a minor and taking decision with regard to his custody, the Courts, are expected to keep in view the welfare of the minor. All other circumstances, including the relationship of the parties with the minor, the faith and religion of the minor are subordinate to this consideration. Those are, no doubt, looked into, to decide as to where lies his welfare.

11. In the present case, the contest is between the father and the mother. Both of them are uneducated and they have no reliable sources of income. The appellant is unskilled and works on, as a labourer on daily wages basis, subject to the availability of work. The respondent is living with her parents and knows only house hold job. Thus, none of the parties has any preference over one and other, as far as their capacity to bear the expenses of the maintenance of the minor is concerned.

12. The minor has been in the custody of the respondent since the time of his birth and is fairly intimate with the family of his maternal parents and if he is given in the custody of the appellant, he will be deprived of the affection of his mother which can hamper his intellectual and physical growth. The minor is a student of second primary and is studying in a Government Middle School where instructions are imparted without payment of any fee. As against this, the appellant lives all alone and the source of his subsistence is daily labour and that too subject to the availability of work and in case, it is available, he has to go out of his home to attend to his work and in case, the minor is handed over to him, the unfortunate soul will have to live all alone. In such a case, either he will roam about in the streets which can adversely affect his morality or he will remain confined within the four walls of his house and it will amount to solitary confinement. The educational facilities are somewhat at par, at Baralah and Akalgarh and the capacity of both of they parties to see that the minor receives proper instructions in school, is also at par.

13. The argument of the respondents" counsel that the minor is putting up with the respondent since from the time of his birth and the appellant did not make any arrangement or take care to maintain him and the appellant was motivated to move an application for the custody of the minor when an order, by a Criminal Court, for payment of maintenance to the respondent and to the minor, was passed against him, is also not without force and this shows that the motive to submit the application was not bona fide.

14. The stand of the appellant"s counsel that the certificate to the effect that Ansar Mahmood (minor) is a student of 2nd standard is false and the chance to rebut it, was not provided to the appellant, therefore, this certificate should not be read into evidence. The perusal of the file of the lower Court shows that the impugned certificate was placed on the record of the lower Court, when no objection was raised by the appellant. As against this, the appellant also placed on record a certificate on the same date. If in any case, the impugned certificate is left out of consideration, oral evidence produced by the respondent, to the effect that the minor is a student of 2nd class, is there to testify this fact. This objection, therefore, fails.

15. As the minor is putting up with his mother and he is fairly intimate with the family of his maternal grandfather and mother and reasonable arrangement for his education has also been made, therefore, I don"t find any justification to upset the order passed by the lower Court.

16. Under these circumstances, the appeal fails with no order as to costs.

M.B.A. /335/H.C.A. Appeal dismissed.

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