-Such right of mother would continue even if she was divorced by the father of child unless she remarried-

 2019 Y L R 938

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 7 & 25---Welfare of minor---Mother's right of hizanat---Scope---Mother would be entitled to custody of minor male child until he completed the age of seven years and that of female child until she attained the age of puberty---Such right of mother would continue even if she was divorced by the father of child unless she remarried---Father could claim custody of minors if the disqualification of mother was proved.

(b) Guardians and Wards Act (VIII of 1890)---

----Ss. 7, 25 & 47---Welfare of minor---Right of hizanat---Father getting second wife---Appeal---Scope---Petitioner, father sought custody of two minor daughters who had been living with their mother since birth---Guardian Judge dismissed the petition of father for custody of minors---Validity---Mother of minors was a doctor by profession and was earning sufficient income; she had been looking after minors since their birth and maintaining a good environment---Petitioner, father had contracted second marriage and mother had not---Father was settled in USA, with his newly wedded wife who was a foreigner---Guardian Judge having rightly dismissed the petition, appeal was dismissed.

Basharat Ali for Appellant.

Iqbal Parvi for Respondent.

Date of hearing: 28th November, 2018.

 2019 Y L R 938

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

TAIMOOR ALI TIWANA---Appellant

Versus

MEHR-U-NISA MALIK---Respondent

C.F.A. No.10 of 2017, decided on 29th November, 2018.

JUDGMENT

ALI BAIG, J.---This civil first appeal is directed under section 47 of Guardian and Ward Act against the impugned judgment/order dated 18.10.2017 passed by the learned District/Guardian Judge Skardu, whereby the learned trial court has dismissed the petition of the present appellant filed under Section 25 of Guardians and Wards Act for custody of his minor daughters namely Aisha and Alisha.

2. Brief facts pleading to the filing of the instant civil first appeal are that the present appellant had contracted marriage with the respondent on 26/02/2010 at Lahore and out of wedlock two daughters namely Aisha and Alisha were born. Thereafter, relations of couple became strained and resultantly the present appellant divorced the present respondent vide written divorced deed/Talaq Nama on 26-08-2016 as evident from divorced registration certificate. Daughter namely Aisha is six years old and Alisha is four years old. Both the daughters are the presently residing with their mother/ respondent since their birth.

3. The learned counsel appearing on behalf of the appellant contended that the appellant is real father of his minor daughters and is natural guardian, therefore, he is entitled for custody of his minor daughters. The learned counsel for the appellant further contended that the impugned judgment/order passed by the learned trial court/Guardian Judge is contrary to law and facts on the record of the case, as such the impugned judgment/ order passed by the learned trial court is not sustainable and liable to be set aside.

4. On the other hand the learned counsel for the respondent controverted the arguments advanced by the learned counsel for the appellant and defended the impugned judgment/order passed by the learned trial Judge/Guardian Judge, Skardu by contending that the respondent is real mother of her minor daughters and, as such she is natural guardian and the minor daughters have been residing from very beginning with her mother and the respondent has been looking after her minor daughters since their birth and maintaining them in good environment. The learned counsel for the respondent further contended that the respondent is a Doctor by profession and serving in a government department at Gilgit. The learned counsel for the respondent further argued that the appellant has contracted second marriage and on the other hand the respondent/mother of minors has not married again, hence the appellant is not entitled to claim custody of the minor girls.

5. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.

6. From perusal of record it appears that the appellant has failed to produce his evidence in the court of the learned District/Guardian Judge, Skardu despite affording several opportunities to him to adduce his evidence by the learned trial court as evident from order sheets maintained by the learned Guardian Judge, Skardu and the appellant has also failed to appear before the trial court to get record his statement.

7. Admittedly, both the parties are followers of Hanfi School of thought and under the provisions of Mohammadan Law mother would be entitled to the custody of minor of her male child until he has completed the age of seven years and of the female child until she has attained puberty. Mother's such right would continue even if she is divorced by the father of children unless she is re-married a second husband in which case custody could be claimed by the father subject to disqualification of mother if legally proved.

8. Moreover, the appellant/mother of minor children is Doctor by profession and is earning sufficient income per month. The respondent is looking after her minor daughters since their birth and maintaining them in a good environment as she is highly qualified woman and serving in a Government Department/ project, at Gilgit.

9. Furthermore, the appellant has admittedly contracted second marriage and respondent on the contrary has not contracted second marriage. She is devoting her complete attention towards upbringing of her minor daughters and respondent/mother will provide better education to the minors, even if the income of the mother is less than that of the father of the minors. Moreover, as stated by the learned counsel for the appellant himself that appellant is presently settled in USA, with his newly wedded wife, who is of foreign origin. Hence, the learned trial court/guardian Judge Skardu has rightly dismissed the application of the present appellant filed under section 25 of Guardians and Wards Act.

10. In view of above discussion, this appeal being devoid of merit is hereby dismissed and the impugned judgment/ order dated 19-10-2017 passed by the learned Guardian/District Judge Skardu is maintained. File.

SA/233/GB Appeal dismissed.