Right of Custody of Minor is not an absolute right

PLJ 2018 Sh.C. (AJ&K) 8

Present: Muhammad Sheraz Kiani, J.

MUHAMMAD AFZAL--Appellant

versus

PARVEEN BIBI--Respondent

C.A. No. 75 of 2015, decided on 8.2.2017.

Custody of Minor--

----Right of--Held: Right of custody of minor is not an absolute right, rather it is always subject to welfare of minor--Court in light of law on subject, facts and circumstances of each case considers question of custody on basis of welfare of minor and there can be no deviation from settled principle of law that in matter of custody of minor paramount consideration is always welfare of minor--No doubt, general principle of Mohammedan Law is that a Muslim father being natural guardian of minor has right of custody of minor, if a male child exceeds age of 7 years and a female child attains puberty, but this rule is always subject to welfare of minor which is prime consideration in determination of question of custody or guardianship.                    [Pp. 11 & 12] A

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

----S. 17--Custody of minor--Civil Appeal--Appointment of guardian--Minors are living with their mother since long time and they have now developed more love and affection for her as compare to their father--Section 351 of Muhammadan Law and sub-section (3), of Section 17 of Guardian & Wards Act 1890 also provides that if minors are old enough to form an intelligent preference, Court may consider that preference--Minors herein are enough mature and old of that age, particularly minor girl--Applicant/appellant has not been able to show anything which may adversely affect well being of minors while they are in custody of respondent, mere allegation of general nature that respondent is acquainted with some other persons who do not come within prohibited degree of relation with her does not incur disqualification to her unless it is shown that such acquaintance has turned into closeness, intimacy and finally in immoral relation, such evidence has been brought by appellant/applicant--Respondent, mother could loose right of custody:--

(i)       If she marries a person not related to her minor daughter within prohibited degree relation.

(ii)      If she is leading art immoral life.

(iii)     If she neglects to take proper care of children.

Through impugned judgment of trial Court and found same to be quite in accordance with law--No misreading or non-reading of evidence has been committed by trial Court while recording impugned judgment--It appears that this application appeal has been filed just to avoid a decree for maintenance of children; therefore same is allowed to stand--Appeal was dismissed.                                             [P. 12] B

M/s. Manzoor Hussain Raja & Riffat Aziz, Advocates for Appellant.

Muhammad Yaqoob Khan Mughal, Advocate for Respondent.

Date of hearing: 8.2.2017.

Judgment

The captioned appeal has been directed against the judgment and decree of Civil Judge Court No. I empowered as Guardian Judge Muzaffarabad dated 07.08.2015, whereby, the application filed by the appellant for appointment of the guardian of the minors was disallowed.

2.  Precise facts forming background of the instant appeal are that the appellant herein filed an application for appointment of Guardian of the minors before Civil Judge empowered as Guardian Judge Muzaffarabad on 11.06.2014. It is contended in the application that marriage between the spouses was held in the year 1997 and thereafter they lived a harmonious and happy life. It is further averred that out of this wedlock three children born, who are alive. In the year, 2013, he went to Karachi to earn his livelihood. He regularly fulfilled all the expenses of his wife and children and at the end of that year, he came to know that his wife alongwith children left his house and went to her parents house and also filed a suit for dissolution of marriage. He tried his best for reconciliation, but she was not ready to live with him. It is alleged that she cannot take care of the children. The ages of the minor boys are now more than 6 years, while the daughter child has now attained the age of puberty, as such they may be given in the guardianship of father, who is natural guardian, he requested. On filing of the application, the non-applicant was summoned, who appeared before the Court and filed objections, wherein she refuted the claim of the applicant/appellant. She also refuted the allegation leveled in the application. In the light of pleadings of the parties, the trial Court framed relevant issues and directed the parties to produce evidence in support of their respective claim.

3.  The learned Guardian Judge after hearing the learned counsel for the parties rejected the application filed by the appellant for appointment of the guardian of the minors vide its judgment dated 7.8.2015, hence this appeal.

4.  The learned counsel for the appellant submitted that the trial Court wrongly rejected the application of the appellant for appointment of guardian of the minors. He further submitted that appellant/father of the minors can take care of them in a better manner, as compared to respondent/mother, so the welfare of the minors lies with the father and not with the mother. The learned counsel further argued that judgment of the trial Court is totally against the provision of law regarding the appointment of the guardian. The learned counsel further contended that sons have now attained the age more than seven years and daughter is now 18 years, as such the appellant is entitled for guardianship of the minors. The judgment of the trial Court suffers from non-reading and misreading of evidence. Finally, the learned counsel prayed that by accepting the appeal, the impugned judgment may be set aside and appellant may be appointed as guardian of the minor and their custody may be handed over to him.

5.  On the other hand, the learned counsel for the respondent submitted that the minors are living with her mother right from their birth, as such they have more love and affection towards their mother vis-à-vis their father. The learned counsel vehemently argued that the trial Court has rightly appreciated the evidence brought on record by the respondent and recorded the impugned judgment in a legal fashion. He argued that welfare of the minors lies with the respondent, the previous conduct of the appellant towards the minors disentitle him for such position. Appellant failed to prove his case through cogent and convincing evidence. The learned counsel defended the impugned judgment on all counts.

6.  I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

7.  For having true perception, I would like to reproduce Section 17 of Guardian & Wards Act, 1890, it is usefully reproduced as under:

“S.17; Matter to be considered by the Court in appointing the 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 relation 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 of his property.

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

(4)  ………………………………………………..

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

8.  A thorough perusal of above provision of law reveals that the right of custody of minor is not an absolute right, rather it is always subject to the welfare of the minor. The Court in the light of law on the subject, facts and circumstances of each case considers the question of custody on the basis of welfare of minor and there can be no deviation from the settled principle of law that in the matter of custody of the minor the paramount consideration is always the welfare of the minor. No doubt, general principle of Mohammedan Law is that a Muslim father being natural guardian of the minor has the right of custody of minor, if a male child exceeds the age of 7 years and a female child attains puberty, but this rule is always subject to the welfare of minor which is the prime consideration in determination of question of custody or guardianship.

9.  In the present case, I have carefully examined the record. It also reveals from the record that minors are living with their mother since long time and they have now developed more love and affection for her as compare to their father. Section 351 of the Muhammadan Law and sub-section (3), of Section 17 of Guardian & Wards Act, 1890 also provides that if the minors are old enough to form an intelligent preference, the Court may consider that preference. The minors herein are enough mature and old of that age, particularly the minor girl.

10.  Learned trial Court has given sound reasons for dismissing the application for appointment of guardian of the minor children and I have also summoned the minor children namely Kianat Afzal aged 18 years, Abdul Manan aged 14 years and Adnan aged 12 years. The elder daughter is mature enough to make a pronouncement and she categorically stated in the open Court that she will not live with the appellant. She further stated that she is being looked after well by her mother and other maternal relatives. She is getting education in school. The other minors, although, are not mature as their sister, but they understand the nature of the controversy between the parties and they also stated that they are being looked after properly by their mother, respondent and they are getting education and live in comfortable position in the company of their mother and other maternal relatives etc and they would not like to live in the company of their father appellant herein. It is pertinent to note here that an intelligent preference in selection of a guardian made by the minor who is mature and old enough can be rejected only when it is found;--

(i)       that the minor has been tutored,

(ii)      where it appears to the Court that the preference expressed is not intelligent,

(iii)     when the Court finds that the expressed wish is against the interest of the minor on consideration of the other circumstance.

No such element has been found in the present case. In my view, the welfare of the minors in present circumstances lies with the mother. From the appearance of minors, they seem well maintained. Furthermore, the appellant is a working person and it would not be possible for him to give full time to his children, particularly, his daughter and the minor might remain alone in the house of the appellant in his absence as no other person particularly who may fall in the prohibited degree of relation with the minors lives with him and he himself lives in a rented room. The respondent, Perveen remains in house, she has not contracted 2nd marriage and she always remains in the company of her children and after so many years, they all are living together and have become well associated and attached to each other. So, to get them separated, would not be in the interest of justice or in the welfare of the minors particularly when they are getting education in an excellent way as it is shown in their school certificate Ex.DA, DA/1, DA/2 and DA/3. The minors are happy and comfortable in association of their mother. The applicant/appellant has not been able to show anything which may adversely affect the well being of minors while they are in custody of the respondent, mere allegation of general nature that the respondent is acquainted with some other persons who do not come within the prohibited degree of relation with her does not incur disqualification to her unless it is shown that such acquaintance has turned into closeness, intimacy and finally in immoral relation, no such evidence has been brought by the appellant/applicant. The respondent, mother could loose the right of custody:--

(i)       If she marries a person not related to her minor daughter within the prohibited degree of relation.

(ii)      If she is leading an immoral life.

(iii)     If she neglects to take proper care of the children.

Nothing is on the record which may be suggestive of the above factors.

I have also gone through the impugned judgment of the trial Court and found the same to be quite in accordance with law. No misreading or non-reading of evidence has been committed by the trial Court while recording the impugned judgment. It appears that this application /appeal has been filed just to avoid a decree for maintenance of the children; therefore the same is allowed to stand.

In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed.

(A.A.K.)          Appeal dismissed

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