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Miscellaneous Appeal No. 12 of 1961, decided on 10^th September 1962.

Petition by Muslim father for custody of minor boy aged five--- Dismissal of petition on ground that hizanat was that of mother, minor having not attained age of seven‑Second petition by father on minor's attaining age of seven not barred.

Petition by Muslim father for custody of boy aged five dismissed on ground that minor could not be taken away from hizanat of mother‑Appeal to High Court‑Minor reaching age of sever, pending hearing of appeal‑Question of custody of minor under changed conditions not to be decided in appeal but by separate application to original Court.

Mst. Munawar Jan v. Master Muhammad Afsar Khan P L D 1962 Lah. 142 held not applicable.

Faizarul Hag for Appellant.

Respondent in person.

Date of hearing : 10th September 1962.

The appellant filed an application on the 23rd of September 1960, under section 25 of the Guardian and Wards Act, for the custody of his two minor children, Shamim Akhtar, aged about 8 years and Sarwar Khan, aged about five years. The application was dismissed by the Guardian Judge on the 11th of January 1961. This is an appeal against that order.

2. So far as Mst. Shamim Akhtar is concerned, there

is nothing on the record to warrant her being taken away from the Hizanat of her mother, the respondent, as she has not yet attained the age of puberty. The learned counsel for the appellant urged that Sarwar Khan has, in the meantime, attained the age of seven years and the appellant as his father, was entitled to his custody. The learned counsel has relied on Mst. Manawar Jan v. Master Muhammad Afsar Khan (P L D 1962 Lah. 142), and has urged that since Sarwar Khan has attained the age of seven years an order be passed for handing over his custody to the appellant The authority cited by the learned counsel does not apply to the facts of this case. In the present case, the petition was dismissed at a time when the boy had not attained the age of seven years and the mere fact that the boy had attained the age of seven years, cannot be a conclusive factor in deciding; about the custody of the boy in future. The paramount con sideration in these cases is the welfare of the minor and this fact should be independently tried and a finding given thereon. The appellant can now file a fresh application so far as the custody of Sarwar Khan is concerned. The Court will then try this matter on the contentions that might be raised by the parties. It will, of course, be for the respondent to bring out the reasons for not giving effect to the normal rule of law that a boy after attaining the age of seven years should be given to the Hizanat of his father. The present application of the appellant was dismissed merely on the ground that by that time Sarwar Khan had not attained the age of seven years and a 2nd application now would not be barred.

3. During the hearing of this appeal, at one time, the appellant agreed to get the two children admitted in the Jack and Jill Nursery Boarding‑house, and he was directed to deposit a sum of Rs. 2,500 towards the expenses of his children. The case came up on ‑the 25th of June 1962 and my learned brother Wahid Ahmad, J., passed an order which is as follows :‑

"Appellant has not deposited the amount as ordered on the last date of hearing. It is, therefore, clear that he is not willing to get his children educated in an institution selected by this Court.

Let the case be fixed for hearing on merits after vacation."

4: In view of what has been stated above, I would not like to interfere with the order passed by the lower Court. The appeal is dismissed but there will be no order as to costs.

K. B. A./A. H.

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