Nikahnama cannot be cancelled

Once Nikah is contracted between parties and it is legally registered, Nikahnama cannot be cancelled. However, parties have rights after that. The husband has the right to divorce and the wife has the right to take khula in cases where the spouses are not willing to continue their relationship.

For taking khula the wife has to file Suit for Dissolution of Marriage on the grounds of Khula while if the husband is left with no option to keep the relationship intact, he can divorce the wife under the provisions of section 7 of the Muslim Family Laws Ordinance 1961.

For more you can consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
International Family Lawyer
+92-333-5339880

There is nothing as Khula Application

A common word used by some litigants is Khula Application. There is no such thing existing in Law. According to Section 2 of the Dissolution of Muslim Marriages Act 1939 a suit for dissolution of marriage is filed on the grounds of Khula.

In simpler words a case of family nature is filed for obtaining Khula. There is a stage of pre-trial reconciliation in this case. If this pre-trial reconciliation fails, then suit for dissolution of marriage on the grounds of Khula is decreed under the provisions of Section 10(4) of the West Pakistan Family Courts Act 1964.

A Suit for Dissolution of Marriage on the grounds of Khula is filed when the husband refuses to divorce his wife and when the wife does not have right of Talaq-e-Tafweez in Column 18 of the Nikahnama.

For more you can consult lawyergolra@gmail.com

Regards,
Salman Yousaf Khan (Golra)
International Family Lawyer
+92-333-5339880

Custody Case of a British Child

PLJ 2013 Peshawar 135 (DB)

Present: Mian Fasih-ul-Mulk and Assadullah Khan Chamkani, JJ.

Mst. NAFEESA--Petitioner

versus

MIR BAHADUR and 2 others--Respondents

W.P. No. 411-P of 2012, decided on 13.2.2013.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Petition--Custody of male child--Entitlement of custody of minor after attaining age of seven years--Minor was having British Nationality--Custody of minor was ordered to be handed over to his father--Handing over custody of child to an attorney of child was neither recognizable act either in English Law or in Islamic Law--Validity--A firm opinion can be formed that minor had professed to live with his mother and mother could not be disentitled and disqualified to retain custody of minor on sole ground that he while studying in Prep class had absented himself from attending school for some period, who otherwise was studying in good school--His custody of course cannot be given to a stranger through attorney till attaining the age of majority.          [P. 138] A

Custody of Minor--

----Essential for determining actual welfare of minor--Father had preferential right under personal law to get custody of male child after period of Hizanat is over welfare of minor was always of paramount consideration while determining question of custody--Personal Law is not to be allowed blindly or in automatic fashion but has to be decided objectively.      [P. 138] B

PLJ 1998 Quetta 137, 1998 MLD 1797 & 1992 SCMR 809, ref.

Mr. S.M. Attique Shid, Advocate for Petitioner.

Mr. Abdul Qayum Samar, Advocate for Respondents.

Date of hearing: 13.2.2013.

Judgment

Mian Fasih-ul-Mulk, J.--By means of this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, Mst. Nafeesa (petitioner) has called in question the judgments/orders and decrees of the two Courts below, whereby custody of her minor son Ibrahim Khan was given to his father Mir Bahadur.

2.  The bone of contention between the parties i.e. petitioner/wife and Respondent No. 1/husband (separated through divorce) is over the custody of their male child namely Ibrahim Khan. Initially, the parties had filed applications for custody of their child, out of which, one application was decided by the learned Family Court in favour of petitioner/mother and the other was decided by the learned Senior Civil Judge, Peshawar in favour of respondent/father. The matter was then agitated in appeals by both the parties, which was decided on 14.06.2006 by the appellate Court which maintained the decision of the learned Judge, Family Court in favour of respondent/mother and the respondent/father was only held entitled to visit the minor once in a month at the time and place suitable and agreed by the parties till the minor attains the age of seven years, whereafter the father/respondent could get custody of the minor. When the minor attained the age of seven years, the father/respondent accordingly filed another application before the Family Court for the purpose but again the same was dismissed vide order dated 14.06.2007. The respondent preferred an appeal before the appellate Court against the said order, which was accepted and the case was remanded back to the trial Court with direction to record pro and contra evidence of the parties. After remand, evidence of the parties was recorded and vide impugned judgment, custody of the minor was ordered to be handed over to his father/respondent. The appeal of petitioner/wife before the appellate Court also failed and she has now questioned the legality of the impugned judgments of the two Courts below through instant writ petition.

3.  Counsel for the parties offered considerably detailed submissions. The failure of mother/petitioner to get custody of the minor before the Courts below was on the sole ground that she did not keep proper care of the education of her son. The undisputed facts in this case are that the minor is having a British nationality having been born to parents in the United Kingdom, where father of the minor is a Bus driver. Neither the petitioner/wife nor the respondent/husband has contracted a second marriage. Similarly, the financial position of petitioner/wife coupled with her morality is also not in issue. The only reason for extending favour to father/respondent towards grant of custody of the minor was that previously the learned appellate Court had held the respondent/father entitled to the custody of minor after attaining the age of seven years and that at some stage during such litigation the parties had also approached this Court through writ petitions wherein too directions were issued to the mother to keep care of the minor with regard to his proper education.

4.  From the evidence on file, it is evident that the minor was initially admitted in Kiran Model School in the year 2005 where he received education till 31.3.2007. The Principal of said School while disclosing such facts in his statement before the Court also stated that as per attendance register for the month of April, the name of child is missing and that for the month of May there is entered "L" against his name followed by similar entry in the register for the month of September, October and November. He clarified that "L" means "leave". It is further evident from the record that the child was then admitted in Fazle Haq College, Mardan where he studied upto Class-IV whereafter he was admitted in Saint Farncis School, Peshawar, where he is still studying. Although, from the above facts, it is evident that the educational institutions of the child were changed twice but it never discloses the fact that he is not receiving his education properly because except his absence in Class Prep for some months, there is nothing on record that thereafter the child has committed any negligence in attending his classes in the FazleHaq College, Mardan or Saint Francis High School, Peshawar. The most interesting aspect of the case is that the respondent/father alongwith his parents resides in the United Kingdom and the application for custody of the minor has been filed through an Attorney, who too is not shown to be related either to the minor or his father/mother. The Courts below have conveniently ignored the welfare of the minor which is always kept supreme overall consideration like financial status and other allied matters. In these circumstances, handing over the custody of child to an attorney of the child is neither a recognizable act either in the English Law or in the Islamic Law both, particularly when both the Courts below have put a clog on the father that the minor will not be removed from the territorial limits of Pakistan till attaining the age of his majority. In these circumstances, the minor cannot be deprived from the love and affection of his real mother.

5.  Learned counsel for Respondent No. 1 laid great stress on the point that this Court in its constitutional jurisdiction cannot disturb the concurrent findings of facts arrived at by the two Courts below after appraisal of the evidence on record as according to him in a number of decided cases this principle is stated and re-stated. In other words, this Court cannot set aside the concurrent findings/decisions of the Courts below. However, in our view, finality of the judgment of the lower Courts in such like cases would be subject to certain exceptions as the object of exercising constitutional jurisdiction is to foster justice, right a wrong and to cure a manifest illegality so that justice could be done to the parties.

6.  Minor's capability of making intelligent preference about which of the parents he chooses to live with is important in the case and it is a matter of record that the minor while present in the lower Court had misbehaved with his grandfather and even with the Presiding Officer of the Court over the grant of his custody to father. From this, a firm opinion can be formed that the minor has preferred to live with his mother and the mother/ petitioner therefore could not be disentitled and disqualified to retain custody of the minor on the sole ground that he while studying in Prep Class had absented himself from attending the School for some period, who otherwise is studying in good Schools. His custody, of course, cannot be given to a stranger till attaining the age of majority. The powers of Court with regard to custody of minor are in the nature of parental jurisdiction, and it must act in a way, a wise parent would do. The expression `welfare' would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor. Hence, findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record. It is true that father has preferential right under personal law to get custody of male child after period of Hizanat is over. But, it is also accepted and being persistently followed on basis of numerous findings of superior Courts that welfare of minor is always of paramount consideration while determining question of custody. Personal Law is not to be allowed blindly or in automatic fashion, but has to be decided objectively. The principle of law as discussed by the Hon'ble Supreme Court in the case of Mst. Mehmooda Begum vs. Taj Din (1992 SCMR 809) followed by the High Courts of Quetta in PLJ 1998 Quetta 137 and 1998 MLD 1697 can be invoked, wherein it has been laid down that findings of facts recorded by Tribunal of special jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious mis-reading or mis-appreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. We thus find that in this case too the learned Courts  below  have  not  only  mis-appreciated  the  evidence  on record but has also not taken into consideration the relevant law in its true perspective and the findings arrived at are not correct in the peculiar circumstances of the case.

7.  Consequently, this writ petition is accepted, the impugned judgments/orders of the Courts below are set aside and custody of the minor is ordered to remain with his mother/petitioner till the age of his majority. The father can meet the minor as and when he comes to Pakistan but with permission of the trial Court about the place, time and days of such meetings.

(R.A.)  Petition accepted

Preference cannot be given British Citizen Father ordinarily

PLJ 2016 SC (AJ&K) 239[Appellate Jurisdiction]

Present: Muhammad Azam Khan, C.J., Masood A. Sheikh, J.

TAHIRA ZAIB--Appellant

versus

GHAFFAR AHMED & others--Respondents

C.A. No. 189 of 2015, decided on 25.5.2016.

(On appeal from the judgment of the Shariat Court dated 26.6.2015
in Family Appeal No. 58/2015)

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

----S. 17--Custody of minor--Question of--After contracting second marriage of spouse who is entitled for custody of minor and where welfare of minor lies--Determination--Parameters--Question of custody of minor has to be determined on consideration of welfare and interest of minor--Matter of custody of minor has to be determined by Court while considering following facts--Paramount consideration is welfare of minor--Welfare must be judged consistently with law to which minor is subject--While determining welfare of minor regard shall be had inter alia, to (i) age, sex, religion of minor; and (ii) character and capacity of proposed guardian--If minor is old enough to form an intelligent preference, Court may consider that preference--As between parents who are European British subjects adversely claiming custody of minor, mother is to be preferred in case of a male of tender years or female--Preference would be given to father if male is of an age to require education and preparation for labour and business.

                                                                                              [P. 244] A

Muslim Law--

----Custody of minor--Welfare of minor--Presumption--Entitlement--Welfare of a minor would be presumed with person who is entitled to custody under Muslim Law--Presumption is rebuttable and if circumstances are brought on record which tend to show that in fact welfare of minor lies with a person other than one who is entitled to have custody of minor under Personal Law, Court may refuse custody to person who is entitled to it under Muslim law--Where minor is intelligent enough to form an opinion, while determining question of custody and welfare of minor, opinion of minor shall be considered.                                                   [P. 245] B & C

Welfare of Minor--

----Opinion of minor--Both spouses had contracted second marriage--Minor was in custody of mother--Brought before rostrum in Court--On Court question minor replied that he does not want to live with his father--Validity--Supreme Court while considering question of opinion of minor and second marriage reached conclusion that where both spouses have entered into second marriage, welfare of minor lies in mother.          [P. 246] D

Guardians and Wards Act, 1890--

----S. 17--Custody of minor--Appointment of guardian of minor in family Court--Minor was custody of mother--Father had never paid maintenance charges to minor--Entitlement of--Appointment of guardian and ordering for handing over custody of minor by Family Court and Shariat Court to father on ground that he is living in England, despite fact that he has contracted second marriage and from second marriage he has children, is against welfare of minor--Welfare of minor lies with mother--Order of Family Court, whereby father has been appointed as guardian of minor and dismissal of appeal of appellant by Shariat Court, is bad in law and not maintainable--Mother was entitled for custody of minor.

                                                                                       [P. 247] E & F

PLJ 2005 SC (AJ&K) 167, rel.

Mr. Khalid Rasheed Chaudhary, Advocate for Appellant.

Mr. Abdul Majeed Mallick, Advocate for Respondent No. 1.

Date of hearing: 29.4.2016.

Judgment

Muhammad Azam Khan, C.J.--The appellant and the respondent, herein, entered into wedlock in April, 2006. Out of the wedlock, a child namely, Rehan Ahmed was born on 8th February, 2007. The parties were living in England. According to the appellant, the respondent sent her back to Azad Jammu & Kashmir to her parents’ house along with the minor and thereafter, divorced her. She is living along with the minor in the house of her parents. The minor is in her custody since her arrival in Pakistan. Both; the appellant and the respondent have contracted second marriages and have children from the second marriages. The respondent filed an application for appointment of guardian of the minor in the Family Court, Kotli. The respondent was appointed as guardian of the minor in ex-parte proceedings. The appellant filed an application for cancellation of ex-parte guardian certificate and also filed an application for her appointment as guardian of the minor before the Judge, Family Court, Kotli. The application was dismissed. Dissatisfied, she filed an appeal in the Shariat Court. A learned single Judge in the Shariat Court; dismissed the appeal through the impugned judgment dated 26th June, 2015, hence this appeal by leave of the Court.

2.  Mr. Khalid Rasheed Chaudhary, Advocate, counsel for the appellant submitted that the judgment of the Shariat Court is against law and the record. The respondent lives in England. He ousted his wife from the house, left her with her parents’ house in Azad Kashmir and thereafter, divorced her. Neither he ever tried to meet the minor who is now around 9 years of age, nor he paid the expenses/maintenance charges to the minor. The respondent has contracted second marriage. He has children also from the second marriage. In presence of the children from the second marriage, it is difficult for the minor to live in the house of the father. The welfare of the minor lies with the mother. The learned counsel submitted that both the Courts below have held that since the father lives in England, therefore, the welfare lies with the father. He submitted that the minor is intelligent enough to form an opinion and this Court in a number of cases has held that when the minor is intelligent enough to form an opinion the preference shall be given to the opinion of the minor. He referred to the cases reported as Marina Pussong vs. Derick Noel Pushong [PLD 1975 Lahore 793], Muhammad Younus vs. Sajida Parveen [1994 SCR 7], Bashir Bibi vs. Ghulam Rasool and 2 others [2004 SCR 561] and BashirBibi vs. Ghulam Rasool and 2 others [PLJ 2005 SC (AJ&K) 167]. The learned counsel further submitted that when the father and the mother both have contracted second marriages, then it is the mother who is entitled for custody of the minor. He referred to the recent judgments of this Court delivered in the cases titled Muhammad Yaqoob vs. Yasmin Tahira and others (Civil Appeal No. 140 of 2013, decided on 31st March, 2015) and Mst. Hukam Jan & others vs. Muhammad Yaseen (Civil Appeal No. 174 of 2014, decided on 5th August, 2015). He requested for acceptance of the appeal and for ordering the custody of the minor in favour of the appellant.

In the case reported as Marina Pussong vs. Derick Noel Pushong [PLD 1975 Lahore 793], the Lahore High Court observed that in Pakistan the Court has to decide the case of Christian not on the basis of common law of England but on the principles of the Guardians and Wards Act, 1890 and failing any assistance from them on the basis of equity and good conscience for which the principles of Chancery may provide guidance.

In the case reported as Muhammad Younus vs. Sajida Parveen [1994 SCR 7], it was observed by this Court that mere fact that the mother of the minor is not financially sound would not deprive her of the right to seek the custody of minors. The father is responsible to maintain his children even if they are in the custody of their mother.

In the case reported as Bashir Bibi vs. Ghulam Rasool and 2 others [2004 SCR 561], it was observed by this Court that while appointing or declaring the Guardian of a minor or handing over the custody of the minor, the paramount consideration would be the welfare of the minor.

In the case reported as Bashir Bibi vs. Ghulam Rasool and 2 others [PLJ 2005 SC (AJ&K) 167], it was observed by this Court that while appointing or declaring the Guardian of a minor or handing over his custody, the paramount consideration would be the welfare of the minor.

3.  While controverting the arguments, Mr. Abdul Majeed Mallick, Advocate, counsel for the respondent, submitted that the minor and the father of the minor are British nationals. The appellant and the respondent have contracted second marriages. The minor is a British national, therefore, it is only the father who is entitled for custody of the minor. The learned counsel argued that there are two claimants. The appellant and her parents have filed separate applications. The appellant claims that the minor is in her custody while her parents claim that the minor is in their custody. The minor is of around 8 years of age. No school certificate of the minor has been produced by the appellant. The paramount consideration is welfare of the minor. The father of the minor is living in England and according to law, the State of United Kingdom, apart from the parents, is also guardian of the minor. Britain is a welfare State and there are better chances of education of the minor. The education is one of the most important factors for welfare of the minor. The learned counsel referred to Halsbury’s Laws of England, Volume No. V, Pages 585 and 586. The learned counsel submitted that the two Courts below drew the correct conclusion that it is the father who is entitled for custody of the minor and welfare lies with the father. He referred to the cases reported as Mst. Sajida Parveen vs. The Additional District Judge Rawalpindi & 2 others [1991 MLD 745], Shafique-ur-Rehman vs. Mst. Fazeelat Begum [1995 SCR 136], Maqsood Alimed vs. Mahmood Khalid, Additional District Judge, Rawalpindi and another [1995 SCMR 1225] and Muhammad Ramzan vs. Mst. RukhsanaBi [1996 SCR 265]. The learned counsel requested for dismissal of appeal.

In the case reported as Mst. Sajida Parveen vs. The Additional District Judge Rawalpindi & 2 others [1991 MLD 745], it was observed by the Lahore High Court that the father is entitled to the custody of a boy over seven years of age. The welfare of minor is presumed to lie in the custody of the person entitled to it under the personal law of the minor unless facts leading to a contrary conclusion are established as against a mother who is married to a stranger to the minor and has her own children from the other husband.

In the case reported as Shafique-ur-Rehman vs. Mst. Fazeelat Begum [1995 SCR 136], it was observed by this Court that the welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable if the circumstances are brought on record which tend to show that in fact the welfare of the minor lies with a person other than one who is entitled to have the custody of the minors under Personal Law, the Court may refuse the custody to the person who is entitled to it under Muslim law.

In the case reported as Maqsood Ahmed vs. Mahmood Khalid, Additional District Judge, Rawalpindi and another [1995 SCMR 1225], the Supreme Court of Pakistan observed that the Courts below on the basis of evidence on record coming to conclusion that welfare of minors was best served while living with the mother who had put them in good School. The judgment of the High Court did not call for interference. Leave was refused by the Supreme Court.

In the case reported as Muhammad Ramzan vs. Mst. Rukhsana Bi [1996 SCR 265], it was observed by this Court that after attainment of the age of 7 years of the minor boy the presumption of welfare of the minor lies in favour of father, unless some strong circumstances are brought on record which disentitle the father from the custody of the minor son.

4.  After hearing the arguments, we inquired the counsel for the appellant that whether the minor is present in the Court. The minor was present in the Court. He was brought before the rostrum. He was wearing neat and clean clothes. He replied the Court question confidently. He told that he studies in OPF School Kotli and goes to school on wagon along with other children. He is living with the mother and grand-parents. He has never seen his father. On Court question, he replied that he does not want to live with his father. He wants to live with his mother.

5.  We have heard the learned counsel for the parties and perused the record with utmost care.

6.  The appellant and the respondent as is evident from the record, are close relatives. They were entered into wedlock. Unfortunately, after the marriage separation took place between them. Out of the wedlock a minor namely, Rehan Ahmed was born on 18^th February, 2007, who is now around 9 years of age. It is also evident from the record that soon after the marriage, the appellant was taken to England. She was sent back to Kotli after ousting her by the respondent in year 2008 and thereafter, she was divorced. From that time, she is living in Kotli with the minor in the house of her parents. Both; the appellant and the respondent, have contracted second marriages. The minor is in custody of the mother, appellant, herein, since his arrival in Pakistan along with the appellant. The respondent applied to the Family Court, Kotli for appointment of guardian of the minor. In an ex-parte proceeding, he was appointed guardian of the minor. Later on, after attaining the knowledge, the appellant filed an application for cancellation of the same and also filed an application for her appointment as guardian of the minor. Another application was filed by the proforma-respondents, herein, for appointment of guardian of the minor. The Family Court Kotli as well as the Shariat Court dismissed the application as well as the appeal of the appellant. The only question which needs resolution is that, after contracting second marriage by the appellant as well as the respondent, who is entitled for custody of the minor and where the welfare of the minor lies.

7.  The question of custody of the minor has to be determined on the consideration of welfare and interest of the minor. Section 17 of the Guardian and Wards Act, 1980, provides that the matter of custody of the minor has to be determined by the Court while considering the following facts:--

(i)       The paramount consideration is the welfare of the minor.

(ii)      This welfare must be judged consistently with the law to which the minor is subject.

(iii)     While determining the welfare of the minor regard shall be had inter alia, to the (i) age, sex, religion of the minor; and (ii) character and capacity of the proposed guardian.

(iv)     If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(v)      As between parents who are European British subjects adversely claiming the custody of the minor, the mother is to be preferred in case of a male of tender years or female. Preference should be given to father if the male is of an age to require education and preparation for labour and business.

8.  There is no dispute on the fact that both; the appellant and the respondent have contracted second marriages. There is also no dispute that the minor who is of 9 years of age and remained all along in custody of the mother, appellant, herein. It is also admitted fact that the father, respondent has never paid the maintenance charges/expenses to the minor. In such circumstances, what can be the legal position, this Court in the case reported as Shafique-ur-Rehman vs. Mst. Fazeelat Begum [1995 SCR 136], observed as under:--

“...However, from the perusal of the case law cited by the parties, it appears that weight of the judicial view is that welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable and if the circumstances are brought on record which tend to show that in fact the welfare of a minor lies with a person other than one who is not entitled to have the custody of the minors under Personal Law, the Court may refuse the custody to the person who is entitled to it under Muslim Law. However, in such a case there must be strong circumstances justifying to refuse the custody to one who is entitled to the same under Muslim Law. In the instant case the mere fact that minors have been previously living with the mother and they have been also attending schools or that their preference is in favour of their mother do not deprive the appellant from seeking the custody of the minors....”

Similarly, in the case reported as Muhammad Ramzan vs. Mst. Rukhsana Bi [1996 SCR 265], it was observed as under:

“The fact that minor had all along been living with the mother and that the father had contracted the second marriage would not raise the presumption that minor will not be brought up or educated properly by the father. When the father is not given the chance to rear up his child and to give him the education, it cannot be said that child would not be brought up or educated in an atmosphere conducive to the welfare of the minor.”

In Shafique-ur-Rehman case the conclusion was drawn that the welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable and if the circumstances are brought on record which tend to show that in fact the welfare of the minor lies with a person other than one who is entitled to have the custody of the minor under Personal Law, the Court may refuse the custody to the person who is entitled to it under Muslim law.

9.  In the case where the minor is intelligent enough to form an opinion, while determining the question of custody and welfare of the minor, the opinion of the minor shall be considered. In the case reported as Mst. Talat Nasira vs. Munawar Sultana and 2 others [1985 SCMR 1367], the five members of the bench of Supreme Court of Pakistan observed as under:

“6. From the perusal of the order of the guardian Judge, it seems that the main consideration that prevailed with him was the factum of second marriage contracted by the petitioner with a stranger. Prima facie, however, the learned Judge did not give due regard to the wishes of the minor himself and seems to have disregarded the same on consideration, which, in our opinion, require re-examination. It is axiomatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a Court of law for the decision of such cases. It was stated before us that the minor is now thirteen years of age and he appeared to us to be capable of making an intelligent preference on the question in dispute.”

This Court while considering the question of opinion of the minor and second marriage reached the conclusion that where both the spouses have entered into second marriage, the welfare of the minor lies in the mother. In the case titled Muhammad Yaqoob vs. Yasmin Tahira and others (Civil Appeal No. 140 of 2013, decided on 31st March, 2015), observed as under:

“6. The appellant has contracted second marriage and he also has the children from the second wife, whereas, Respondent No. 1 has not contracted second marriage and scarified her whole life for the welfare of the minors. The minors are living with their mother since separation of their parents. It is also born out from the record that in spite of the decree for maintenance allowance passed by the trial Court, the appellant remained reluctant to pay the same and after issuance of the warrant, he paid the same. In this way, the conduct of the appellant shows that he was not willing to perform his legal obligations. Moreover, there is no cavil with the proposition that in case of female, after attaining 13 years of age, the father can claim her custody. However, as we have observed in the preceding paragraph that while deciding the question of custody, the Court has to look into all the other factors involved in the case. The learned Shariat Court while hearing the appeal, sought the consent of the minors whereupon they categorically refused to go with their father. Similar view prevailed in an unreported judgment of this Court titled Muhammad Kaleem ul Fateh vs. Mst. Samina Kousar (Civil Appeal No. 79 of 2010, decided on 30.10.2013), in which it has been observed as under:

          “4.  In view of the argument of the learned counsel for the appellant that the minors are matured enough, can express their independent opinion, therefore, this Court directed to produce the minors before the Court. To seek the consent of the minors, namely, Muhammad Jibreal Fateh and Muhammad Zulkafal Fateh appeared in the Court. Some questions regarding their education and care by their father’s side were asked. A specific question was put them to know their consent whether they are willing to live with the mother or not? Both the minors categorically stated before the Court that they are fully satisfied to stay with their father, who is properly looking after them. They also apprised the Court that both of them are studying in a Private Model School and their grandfather and grandmother are also looking after them. They refused to go with their mother.”

Thus, as the minors are not willing to live with their father, therefore., the consent of the minors cannot be ignored keeping in view their welfare and proper look after by the mother.”

Similarly in the case titled Mst. Hukam Jan & others vs. Muhammad Yaseen (Civil Appeal No. 174 of 2014, decided on 5th August, 2015), it was observed as under:

“After going through the evidence produced by the respondent before the Court, it appears that the respondent-father is living alone and for looking after the minor no other person is available at the home of the respondent; moreover, he is jobless. In such like situation it will not be appropriate to disturb the present custody of the minor. It may be observed here that the custody of the minor cannot be handed over to the respondent merely on the round that he is father of the minor, as prime consideration is the welfare of the minor.”

It was further observed in Para 6 of the referred judgment as under:

“..It is pertinent to mention here that prime consideration for determining the question of custody is always the welfare of the minor and there could not be an absolute rule and fixed criteria for determining the same as each case has its own peculiar facts and circumstances. It may be observed here that being real father of the minor, the respondent cannot be deprived of the custody of his minor son on any other ground except the welfare of minor …..”

Thus, it is concluded that the appointment of guardian and ordering for handing over the custody of the minor by the Family Court and the Shariat Court to the respondent on the ground that he is living in England, despite the fact that he has contracted second marriage and from second marriage he has children, is against the welfare of the minor. We conclude that in the instant case the welfare of the minor lies with the mother. The order of the Family Court, whereby the father has been appointed as guardian of the minor and dismissal of the appeal of the appellant by the Shariat Court, is bad in law and not maintainable. The appellant is entitled for custody of the minor.

The result of the above discussion is that the appeal is accepted. The judgment of the Shariat Court is set aside. The appellant is appointed as guardian of the minor, Rehan Ahmed. However, the respondent, father is at liberty to meet the minor through the Family Court at a mutually agreed place whenever he comes to Azad Kashmir There will be no order as to costs.

(R.A.)  Appeal accepted

Remarriage can never be sole fact for deciding custody

PLJ 2017 Lahore 7[Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

Mst. HIFSA NASEER--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, GUJAR KHAN and others--Respondents

W.P. No. 3149 of 2014, decided on 30.6.2016.

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

----S. 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minor--Welfare of minor--Remarriage can never be sole fact for deciding fate of custody of minor--Law is well settled by now that in matter relating to custody of minor, paramount consideration always remains welfare of minor--Custody of minor was infact directed to be handed over to her paternal grand- mother and not father--Father was never willing to obtain custody of minor and petition was only filed to counter suit for recovery of maintenance decreed in favourof petitioner--In presence of real mother custody can never be handed over to paternal grand-mother--Second marriage of mother or father is not sole fact to decide fate of custody petition rather it is welfare of minor which will prevail upon all other consideration--Minor has now attained age of 08 years and petitioner is studying in school where petitioner is also serving as a teacher--Second marriage of petitioner disentitling her from custody of minor but Courts below disturbed custody of minor on extraneous reasons--Question of welfare of minor and proceeded to bank upon only question of second marriage of petitioner with a person who is not related to minor within prohibited degree, which approach can never be termed as judicious and lawful--It is primary duty of High  Court to curb any illegality or perversity in proceedings of Courts below floating on surface of record, while embarking upon constitutional jurisdiction in terms of Art. 199 of Constitution in order to achieve ends of justice. [Pp. 10, 12 & 13] A, D, E, F, G & H

Custody of Minor--

----Affection of mother--No substitute--Question of custody--Mother of a child always has natural love and affection for his children male or female having no substitute--Apart from care, love and affection of a real mother of which there was no substitute, daughter requires her company and association for preparing her to shoulder responsibilities in future.                                                                                          [P. 10] B

Muhammadan Law--

----Custody of minor--Preferential right of mother to custody of infant children--Absolute rule--Muhammadan Law recognized preferential right of mother to custody of infant children which was ordained of Muhammadan Law by D.F. Mulla’s--Mother loses her preferential right in case she marries a person not related to child within prohibited degree but such is not an absolute rule.                              [P. 11] C

2014 SCMR 343, ref.

Raja Farrukh Arif Bhatti, Advocate for Petitioner.

Raja Muhammad Jawwad Arsalan, Advocate for Respondent No. 3.

Ms. Mehnaz Begum, Advocate for Respondent No. 4.

Date of hearing: 23.6.2016.

Judgment

Mst. Hifsa Naseer petitioner, through instant petition, assails the vires of judgment dated 09th of October, 2014, whereby the learned Additional District Judge, Gujar Khan, while dismissing her appeal affirmed the order dated 26th of May, 2014 passed by the learned Civil Judge 1st Class/Guardian Judge, Gujar Khan.

2.  Precisely, the facts necessary for adjudication of instant petition are that the Respondent No. 3 filed a petition under Section 25 of The Guardians and Wards Act, 1890, seeking custody of minor daughter namely Hadia Umer. As per averments contained in the petition, the Respondent No. 3 was married to the petitioner on 06th of February, 2007 and from the wedlock, minor daughter was born on 07th of February, 2008. Due to strained relations, matrimonial tie ended in divorce. It is averred in the petition that the petitioner thereafter contracted second marriage with another person who is not related to minor within prohibited degree. The petitioner contested the petition and filed her reply wherein she not only raised preliminary objections, but also controverted the assertions contained in the petition. The divergent stance of the parties resulted into framing of multiple issues whereafter both the sides produced their respective evidence. Upon completion of evidence and hearing both the sides, petition was allowed vide order dated 26th of May, 2014. The petitioner, feeling dissatisfied from the said order, filed an appeal before the learned Additional District Judge, Gujar Khan, however, the appeal was dismissed vide judgment dated 09th of October, 2014, hence this petition.

3.  Learned counsel for the petitioner submitted that the custody petition was nothing but a counter-blast of the suit filed by the petitioner for recovery of maintenance. He added that the petition was filed through attorney and Respondent No. 3 never appeared before the Court. Learned counsel contended that while disturbing the custody of the minor, both the Courts below were mainly persuaded with the fact of second marriage of the petitioner. Learned counsel maintained that re-marriage can never be the sole fact for deciding the fate of custody of the minor. Learned counsel argued that it is the welfare of the minor which is to be seen, while deciding the matter of custody but both the Courts below did not advert to this material aspect.

4.  Conversely, learned counsel representing the Respondent No. 3 contended that on contracting second marriage, the petitioner lost the right of custody of minor in view of principles laid down in Para No. 354 of The Muhammadan Law. Learned counsel submitted that Respondent No. 3 has not contracted second marriage and he was rightly held entitled for the custody of the minor. It is argued that there are concurrent findings of facts recorded by both the Courts below which are based on proper appraisal of evidence and constitutional petition is not maintainable.

5.  I have heard learned counsel for both the sides at some length and perused the record in order to appreciate their respective contentions.

6.  Before dilating upon the propriety of the judgments under challenge, it would be advantageous to observe that there are certain admitted facts which crept up from the record. At the time of filing of petition, the minor was about five years of age and she is in the custody of the petitioner right from her birth. The petition was instituted through general attorney namely Abdullah Haris who is real brother of the Respondent No. 3. It is also an admitted fact that the Respondent No. 3 is residing abroad. Perusal of impugned judgments reveals that findings of both the Courts below are solely influenced with the factum of second marriage of the petitioner.

7.  Law is well settled by now that in the matter relating to the custody of minor, paramount consideration always remains the welfare of the minor. Section 17 of The Guardians and Wards Act, 1890 lays down the necessary considerations for deciding the matter of custody which reads as under:

17. Matters to be considered by the Court in appointing guardian.--(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2)  In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

(4) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981.

(5) The Court shall not appoint or declare any person to be a guardian against this will

It is manifest from the above that the Courts, while deciding the question of custody shall be guided by the principles enumerated hereinabove and prime consideration before the Court would always be the betterment of the minor but not claims or wishes of rival contesting parties.

8.  Mother of a child always has natural love and affection for his children male or female having no substitute. Apart from care, love and affection of a real mother of which there is no substitute, daughter requires her company and association for preparing her to shoulder responsibilities in future. This is the reason that Muhammadan Law recognized preferential right of mother to custody of infant children which is ordained in Para No. 352 of The Muhammadan Law by D.F. Mulla’s. No cavil that mother loses her preferential right in case she marries a person not related to the child within prohibited degree but this is not an absolute rule. In the case of “Shabana Naz versus Muhammad Saleem” (2014 SCMR 343), the Hon’ble Supreme Court of Pakistan while taking this issue very elaborately outlined the factors disqualifying the mother and father from the custody of minor in the following words:

“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.

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.

While going through the principles laid down by the Hon’ble Apex Court in the case of Shabana Naz’s (supra), it can safely be held that welfare of minor plays pivotal role in deciding the question of custody of minor albeit mother has contracted second marriage. Reference in this respect, if needed, can also be made to “Mehmood Akhtar versus District Judge, Attock and 2 others” (2004 SCMR 1839).

9.  There is yet another important aspect that Respondent No. 3, while seeking custody of minor daughter despite being available in the country did not opt to file the petition directly rather same was filed by Abdullah Haris who is his general attorney. It is also an admitted position on the record that previously when the petitioner instituted a suit for recovery of maintenance, which was decreed in her favour it was the Respondent No. 3 who contested the proceedings himself. While going through the impugned judgment dated 09th of October, 2014, it is observed that custody of the minor was infact directed to be handed over to her paternal grand- mother and not the father. The relevant extract from the impugned judgment is reproduced below:

“The mother of the respondent is a school teacher and retired from service and today on direction of Court order she appeared before the Court and got recorded her statement that she is ready to look after the minor in absence of her son. Admittedly the mother of the respondent is available at house who can take care of the minor and the respondent is in a better position to bear the expenses of the minor as well.”

The conduct of the Respondent No. 3 clearly indicates that he was never willing to obtain the custody of the minor and petition was only filed to counter the suit for recovery of maintenance decreed in favour of the petitioner. Even otherwise, in presence of real mother custody can never be handed over to the paternal grand-mother.

10.  Needless to observe that second marriage of mother or father is not the sole fact to decide the fate of the custody petition rather it is the welfare of the minor which will prevail upon all other consideration. Record reveals that minor has now attained the age of 08 years and she is studying in Class-3 in the school where the petitioner is also serving as a teacher. Though no other material evidence is available on record other than the second marriage of the petitioner disentitling her from the custody of minor but both the Courts below disturbed the custody of minor on extraneous reasons. The accumulative effect of the available evidence leads to an irresistible conclusion that welfare of the minor lies with the petitioner. Both the Courts below have grossly mis-read the material pieces of evidence convenient for adjudication of question of welfare of the minor and proceeded to bank upon only question of second marriage of the petitioner with a person who is not related to the minor within prohibited degree, which approach can never be termed as judicious and lawful. Reference in this respect can also be made to “Mst. Gulnaz Bibi versus Faraqat Ali Shah and another” (PLD 2000 Peshawar 23).

11.  Though there are concurrent findings of facts recorded by both the Courts below and this Court always exercises restraint, while interfering with such findings especially in constitutional jurisdiction but this by itself is not an inflexible rule. It is the primary duty of this Court to curb any illegality or perversity in the proceedings of the Courts below floating on the surface of the record, while embarking upon the constitutional jurisdiction in terms of Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 in order to achieve the ends of justice. This Court cannot sit as a silent spectator, especially in the matter relating to the custody of minors and shut its eyes only on the ground that the Courts below have concurrently arrived at some conclusion, despite being an erroneous and illegal.

12.  For the foregoing reasons, instant petition is allowed and the impugned judgment dated 09.10.2014 as well as order dated 20.05.2014 are set-aside being illegal and unlawful. As a result thereof, the guardian petition filed by the Respondent No. 3 stands dismissed with no order as to costs.

(R.A.)  Petition allowed

Jurisdiction is important in guardian cases

PLJ 2014 Islamabad 1

Present: Muhammad Anwar Khan Kasi, C.J.

Syed SHABI HASSAN--Petitioner

versus

GUARDIAN JUDGE-WEST, ISLAMABAD and another--Respondents

W.P. No. 2498 of 2013, decided 20.11.2013.

Punjab Family Courts Act, 1964 (XXXV of 1964)--

----S. 7(2)--Punjab Family Courts Rules, 1965, R. 6--Guardians and Wards Act, 1890, Ss. 12 & 25--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Custody of minor--Territorial jurisdiction--Custody and guardianship matter and jurisdiction of Family Court is to be determined under Rule 6 of Family Courts Rules, 1965 where there is no composite claim in terms of S. 7(2) of Act, 1964--Question of--Controversy regarding jurisdiction--Validity--Contents--After marriage, spouses were lived at Peshawar and thereafter at Lahore and then settled in Abu Dhabi--Held: It is no where case of mother of minor that she ever lived in Islamabad--Her case does not fulfill any of pre-requisites contained in Rule 6 and therefore, it can safely be held that Guardian Judge Islambad had no jurisdiction to entertain petition under Section 25 of Guardians and Wards Act filed by mother of minor--Petition was allowed.     [P. 4] A

PLD 2012 SC 66, rel.

Mr. Aleem Baig Chughtai, learned ASC for Petitioner.

Syed Ishfaq Hussain Naqvi, Advocate for Respondent.

Date of hearing: 20.11.2013.

Order

The petitioner [respondent in main petition under Guardian & Wards Act], assails the order dated 04.6.2013, passed by learned Guardian Judge Islamabad, whereby his application seeking dismissal of the guardian petition filed by the Respondent No. 2 on the ground of jurisdiction was rejected by observing that where the plaintiff wife resides, that Court has jurisdiction for all the matters including the custody of minor.

2.  Briefly the facts are that the Respondent No. 2 [Mst. Sitwat Fatima] filed an application under Section 25 & 12 of the Guardian & Wards Act, 1890, for the custody of her minor son Amaan Hassan aged about 11 years. The petitioner through an application raised objection qua territorial jurisdiction, which was accepted and resultantly main application under Section 25 of the Act was dismissed vide order dated 30.5.2012.

3.  On Appeal filed by the Respondent No. 2, order impugned was set aside and the case was remanded with the direction to decide the question of territorial jurisdiction first and then to proceed with the merits of the case.

4.  The learned Guardian Judge vide ex-parte order dated 7.3.2013 accepted the petition under Section 25 of the Act and directed the present petitioner to handover the immediate custody of the minor to Respondent No. 2.

5.  The petitioner then filed an appeal against the said ex-parte order, which was allowed vide judgment dated 27.5.2012 and the case was remanded for second time with the same direction to decide the question of jurisdiction first and then to proceed with the merits of the case.

6.  The learned Guardian Judge, after hearing both the sides, rejected the objection of the petitioner regarding territorial jurisdiction, vide order dated 4.6.2013 which is being assailed through this constitutional petition mainly relying on case of Anne Zehra Vs. Tahir Ali Khilji [2001 SCMR 2000].

7.  It is the contention of learned counsel that the case of the Respondent No. 2 does not qualify the pre-requisites contained in Rule 6 of the West Pakistan Family Courts Rules, 1965, therefore, the impugned order is liable to be set-aside: on the other hand learned counsel for Respondent No. 2 is of the view that the amendment in the family laws has overriding effect on Section 9 of Guardian & Wards Act, 1890, therefore, petition can be filed at a place where wife ordinarily resides and the present petition is nothing but to delay the process as such it is liable to be dismissed.

8.  Heard & record perused.

9.  It is purely a question of law and for resolving the same, guidance may be solicited from the case of Major Muhammad Khalid Karim Vs. Mst. Sadia Yaqoob PLD 2012 Supreme Court 66 wherein after discussing various case laws including case of Anne Zahra [Supra], it was held that under Section 5 of the Act, 1964, the Family Court has the exclusive jurisdiction to entertain, hear & adjudicate all the matters, which fall within the first schedule to the Act. This admittedly includes the custody and guardianship matter and the jurisdiction of a Family Court is to be determined under Rule 6 of Family Court Rules, 1965, where there is no composite claim in terms of Section 7(2) of Family Court Act, 1964 and proviso to said Section is not attracted.

10.  For ready reference Rule 6 is reproduced hereunder:--

"The Court which shall have jurisdiction to try a suit will be that within the local limits of which;

(a)        the cause of action wholly or in part has arisen, or

(b)        where the parties reside or last resided together:

            Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."

11.  It is thus clear that the controversy contained in the case regarding jurisdiction will be decided pursuant to Rule 6 and in order to ascertain whether the learned Guardian Judge Islamabad, is competent to  adjudicate  upon  the  petition  under  Section  25,  the contents of the petition have been perused which reflect that after the marriage, the spouses lived at Pesewa and thereafter at Lahore and then settled in Abu Dhabi. It is no where the case of the Respondent No. 2 that she ever lived in Islamabad. Her case does not fulfill any of the pre-requisites contained in Rule 6 [ibid] and, therefore, it can safely be held that the learned Guardian Judge Islamabad has no jurisdiction to entertain petition under Section 25 of the Guardian & Wards Act, filed by the Respondent No. 2.

12.  In view of above, the instant petition is allowed. Impugned order dated 04.6.2013, is set aside and consequently, main petition under Section 25 of the Guardian & Wards Act filed by the Respondent No. 2 is ordered to be returned for its presentation before the Court of competent jurisdiction. No orders as to costs.

(R.A.)  Petition allowed