Mst. RAZIA BIBI vs RIAZ AHMAD and another

ORDER

1. ' TANVIR AHMED KHAN, J.-Leave to appeal is sought against the judgment dated 21-3-2000, whereby a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, accepted Writ Petition No,1965 of 1999 filed by respondent No,1 and allowed him the custody of the child.

2. ' The facts briefly narrated for the disposal of this petition are that the parties entered into a marriage contract on 7-4-1989 in accordance with the Islamic rites. A son named Ijaz Ahmad was born on 10-4-1990-out of the said wedlock. Immediately thereafter relations between the parties became strained, whereupon the petitioner lady was forced by the circumstances to leave her matrimonial house alongwith her minor son. Thereafter the respondent divorced her on 15-4-1997.

3. The petitioner filed an application under section 25 of the Guardians and Wards Act, 1890, before the learned Guardian Judge, Bahawalnagar, seeking custody of her minor son. The plea taken by the respondent was that he was living in an urban area while the petitioner lady, being an illiterate, was putting up in a village having poor atmosphere. The learned Guardian Judge through his judgment dated 24-6-1998 accepted the petition simply on the ground that the respondent father had got better facilities and had not contracted second marriage.

4. ' The petitioner filed an appeal assailing the aforesaid judgment of the trial Court, which was accepted by the learned Additional District'Judge, Bahawalnagar, vide his judgment dated 18-1- 1999 by reversing the determination of the learned Guardian Judge who handed over the custody of the minor to his mother. The respondent preferred aforesaid writ petition before the Lahore High Court at Bahawalpur Bench, which has been accepted by a learned Single Judge through his judgment dated 21-3-2000, impugned herein. Hence, this petition for leave to appeal.

5. 'We have considered the contentions advanced by the learned counsel for the petitioner and have gone through the entire document annexed with petition. None has come forward from the respondent's side in spite of service of notice, as such he is proceeded ex parte. It is reflected from the perusal thereof that minor Ijaz Ahmad was born on 10-4-1990 and by now he is 13 years of age.

6. The learned Single Judge of the Lahore- High Court has been mainly swayed by the so-called better facilities enjoyed by the respondent disentitling the petitioner lady from the custody of the minor. It is to be noted for all concerned that poverty on the part of a lady is no ground to disentitle her from the custody of the minor. The petitioner lady has been looking after her minor son since his birth and maintaining him in a good environment. The father, who is under the law to maintain his child, has not provided any maintenance till date. The minor is living since his birth with his mother and welfare of the child, in the circumstances, also lies in favour of the petitioner. It is true that non-maintenance on the part of the father would not automatically disentitle him from the custody of his child but this would be one of the circumstances for determining the welfare of the minor. This certainly shows the conduct of the respondent and in the case in hand, as already stated, right from the birth of the child the respondent has not maintained his son. The respondent, as stated by the learned counsel, has contracted second marriage and the mother, on the contrary, has not contracted second marriage. She is devoting her complete attention towards the upbringing of her minor son. Furthermore, it would be harsh at this juncture to hand over the custody of the minor to the respondent leaving him at the mercy of the step-mother in presence of his real mother who is properly maintaining him.

7. ' Resultantly, for what has been stated above, the instant petition is converted into appeal and is allowed. The impugned judgment dated 21-3-2000 of the learned Single Judge of the Lahore High Court, Lahore is set aside. However, there will be no order as to costs.