PLJ 2014 SC 157
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.,
Ijaz Ahmed Chaudhry & Gulzar Ahmed, JJ.
SHABANA
NAZ--Appellant
versus
MUHAMMAD SALEEM
and others--Respondents
C.A. No. 738 of
2009, decided on 10.6.2013.
(On appeal from
the judgment dated 26.2.2009, passed by the High Court of Balochistan,
Quetta
Constitution of Pakistan
----Art.
185(3)--Guardians and Wards Act, 1890, Ss. 7 & 25--Leave to appeal--Custody
of minor--Leave to appeal was granted to consider that father was not entitled
to custody of minor for not providing her maintenance and that rule of Hizanat is not an absolute right. [P. 159] A
Guardians and
Wards, Act, 1890 (VIII of 1890)--
----S.
7--Appointment of guardian of minor--Although it is an established law that
father is a natural guardian of his minor child but indeed the Court has to be
satisfied while appointing the father as a guardian that welfare of minor lies
in fact that he be appointed as a guardian and custody of minor be delivered
accordingly. [P. 160] B
Custody of
Minor--
----Father was
not entitled to custody of minor--Where father is habitually involved in crimes
or is a drug or alcohol addict, maltreats his child, does not have a capacity
or means to maintain and provide for healthy bringing up of his child or where
the father deliberately omits and fails in meeting his obligation to maintain
his child--Each case has to be decided on its own merit in keeping with only
and only paramount consideration of welfare of minor. [P. 160] C
Guardians and
Wards, Act, 1890 (VIII of 1890)--
----S.
7--Appointment of guardian of minor--Second marriage
with another woman by father--Custody of minor daughter--Such fact alone will
not disentitle from obtaining custody of his minor daughter--When it is
admitted that mother too has remarried another person with whom the minor has
no relationship. [P. 160] D
Muhammadan Law--
----Custody of
minor--Disqualification of female--Prohibited degree--Right revives on
dissolution of marriage by death or divorce--Though mother is entitled to
custody of her minor child but such right discontinues when mother takes second
husband, who is not related to child within prohibited degree and is a stranger
in which case custody of minor child belongs to father--Where welfare of minor
lies and there may be situation where despite second marriage of the mother,
welfare of minor may still lies in her custody--Mother has contracted is a
total stranger to minor and is not within a prohibited degree and no
exceptional circumstances whatsoever, which may entitled appellant to have
custody of the minor. [P. 161] E, F
& G
1981
SCMR 200, ref.
Mr. Tariq Mehmood, ASC for Appellant.
Ex-parte,
for Respondents.
Date of hearing:
10.06.2013
Judgment
Gulzar Ahmed, J.--By
this appeal, the appellant has challenged the judgment dated 26.02.2009 of the
learned Division Bench of the High Court of Balochistan,
Quetta, by which constitutional petition filed by the appellant was dismissed
and the judgment/decree dated 28.06.2003 of the learned Senior Civil Judge-I,
Family Court, Quetta allowing Respondent No. 1's application under Sections
7/25 of the Guardian & Wards Act, upheld in Family Appeal No. 35/2003 vide
judgment dated 1.10.2003, by the learned Additional District Judge-I, Quetta,
was maintained.
2. Leave to appeal was granted vide order dated
10.6.2009 to consider the contention of the learned counsel for the appellant
that the father was not entitled to the custody of the minor for not providing
her maintenance and that the rule of Hizanat is not
an absolute right.
3. The matter relates to the custody of minor Najla Bugti. The appellant and
Respondent were married and they were graced with the birth of baby girl Najla Bugti on 25.07.1998. The
appellant and Respondent No. 1 started having differences and ultimately
divorce took place between them in the month of August, 2000. At the time of
divorce, the appellant took the minor Najla Bugti with her. Respondent No. 1 filed an application under
Sections 7/25 of the Guardian and Wards Act against the appellant for
appointing him as guardian of the minor Najla Bugti. The appellant contested such application and
ultimately after full trial of the matter, the application was dismissed.
Respondent No. 1 filed an appeal, which was allowed and the matter was remanded
to the Family Court for deciding the case afresh. On remand, the Family Court
allowed the application and directed the appellant to give custody of the minor
Najla Bugti to Respondent
No. 1. The appellant filed an appeal, which was dismissed and the same was also
maintained by the learned High Court in the Constitutional Petition vide
impugned judgment.
4. It may be noted as admitted fact that after
divorce with Respondent No. 1, the appellant contracted another marriage with Haji Syed Wali
and changed her residence from Quetta to Rawalpindi
5. Mr. Tariq Mehmood,
learned counsel for the appellant has contended that Respondent No. 1 has never
bothered to provide maintenance of the minor and that he too having contracted
a second marriage, therefore, the appellant has the right of custody and that
the custody of the minor is presently with her maternal-grand-mother and that
the appellant has not lost the right of the custody of minor and the welfare of
the minor also lies being in custody of the appellant. He has referred to paras 352, 355 and 357 of the Muhammadan
Law to support his contention.
6. No one has appeared from the side of
Respondent No. 1.
7. We have considered the submissions of the
learned counsel and have gone through the record.
8. It may be noted that in terms of Section 7 of
the Guardians and Wards Act, 1890 (the Act), the paramount consideration for
the Court in making the order of appointment of guardian of minor is that it
should be satisfied that it is for the welfare of minor. Although it is an
established law that father is a natural guardian of his minor child/children
but indeed the Court has to be satisfied while appointing the father as a
guardian that the welfare of minor lies in the fact that he be appointed as a guardian
and the custody of minor be delivered accordingly. There are many factors,
which may not entitle the father to the custody of minor and some of the
factors could be, where the father is habitually involved in crimes or is a
drug or alcohol addict, maltreats his child/children, does not have a capacity
or means to maintain and provide for the healthy bringing up of his
child/children or where the father deliberately omits and fails in meeting his
obligation to maintain his child/children. The factors noted above are not
exhaustive and they may also not be considered as conclusive for that each case
has to be decided on its own merit in keeping with the only and only paramount
consideration of welfare of minor.
9. We have examined the evidence of Respondent
No. 1 and find that he has specifically stated that after divorce, he has been
continuously providing to the appellant maintenance of the minor and there was
a bare suggestion to him in his cross-examination of his not providing
maintenance, which was denied by him. He has even stated in his
cross-examination that he has paid Rs.500/- as maintenance of the minor about
four months back, which aspect was not specifically challenged in his
cross-examination. The evidence of Respondent No. 1 does show that he has been
providing maintenance to the minor, which was not specifically disputed by the
appellant. Thus the argument of the learned counsel for the appellant on this
aspect of the matter does not seem to be supported by evidence.
10. As regard the second marriage with another
woman by Respondent No. 1, it may be noted that this fact alone will not
disentitle Respondent No. 1 from obtaining custody of his minor daughter. More so, when it is an admitted fact that the appellant too has
remarried another person, namely, Haji Syed Wali with whom the minor has
no relationship.
11. Para 352 of the Muhammadan
Law provides the mother is entitled to the custody (Hizanat)
of her male child until he has completed the age of 7 years and of her female
child until she has attained puberty and the right continues though she is
divorced by the father of his child unless she marries a second husband in
which case the custody belongs to the father.
12. Para 354 provides for disqualification of
female from custody of the minor, which includes the mother and one of the
instance laid down is that if she marries a person not related to the child
within the prohibited degree e.g. a stranger but the right revives on the
dissolution of marriage by death or divorce.
13. Thus, it is apparent from reading of the two paras of the Muhammadan Law that
though the mother is entitled to the custody (Hizanat)
of her minor child but such right discontinues when she takes second husband,
who is not related to the child within the prohibited degree and is a stranger
in which case the custody of minor child belongs to the father. It has been
construed by the Courts in Pakistan that this may not be an absolute rule but
it may be departed from, if there are exceptional circumstances to justify such
departure and in making of such departure the only fact, which the Court has to
see where the welfare of minor lies and there may be a situation where despite
second marriage of the mother, the welfare of minor may still lie in her
custody.
14. In the present case nothing has been shown to
us nor any fact cited, which may disentitle Respondent No. 1 from custody of
his minor daughter Najla Bugti
in the wake of the fact that the mother has contracted second marriage with a
person, who admittedly is a total stranger to the minor and is not within a
prohibited degree and no exceptional circumstances whatsoever have been argued
before us, which may entitle the appellant to have custody of the minor Najla Bugti. In this regard
reference is made to the case of Mst. Nazir vs. Hafiz Ghulam Mustafa
etc. (1981 SCMR 200).
15. For all what has been discussed above, we
find no illegality or perversity or impropriety in the impugned judgment, which
seems to be based upon the evidence available on record and the applicable law
and we have no reason to interfere with the same. Thus, the present appeal
fails and the same is, therefore, dismissed with no order as to costs.
(R.A.) Appeal
dismissed
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