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)
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 18th 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
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