Guardian Judge has parental jurisdiction over minor

 PLJ 2004 Lahore 1048 [Rawalpindi Bench Rawalpindi]

Present: SARDAR MUHAMMAD ASLAM, J.   Mrs. KHURSHID BEGUM-Petitioner versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI .  and 2 others-Respondents

W.P. No. 3060 of 2003, heard on 15.1.2004. (i) Guardian and Wards Act, 1890 (VIII of 1890)--

—S. 12--Interim Custody of minor child-Jurisdiction of Guardian Judge-

 Extent of-Essentials-No bar is placed on Guardian Judge to exercise his

power,  even  in absence  of urgency-Guardian Judge  has parental

jurisdiction over minor-No hard, and fast rule of universal application

can be laid down, however, provision of S. 12 of Guardian and wards Act 1890, calls for liberal interpretation—Interim arrangement for custody of
minors cannot be fettered with pre-condition of urgency-Over riding and
paramount consideration of handing over interim custody of minor under
S. 12 of Guardian and Wards Act 1890 is welfare of minor-Guardian
Judge would take into consideration age, sex and welfare of minor while
4 deciding question of custody of minor.  [P. 1050] A

(ii) Guardian and Wards Act, 1890XVIII of 1890)--

—S. 12 Interim Custody of minor-Real mother and paternal grandmother
seeking custody of minors-Minors being of tender age require love and
affection of real mother who has not re-married-Preference cannot be
given to paternal grandmother qua real mother who is monument of
devotion, love and sacrifice—Guardian Judge having exercised
jurisdiction, in granting interim'custody, the same should be allowed to
stay unless there were compelling circumstances to change-No
interference was thus, warranted in terim orders of Courts below-
Guardian Judge was, however, directed, to decide main petition
expeditiously.                                  .                         [Pp.-1050 & 1051] B

PLD 1967 Karachi 645; PLD 1974 Lahore 125; 1988 CLC 1741; 1989 CLC 1419 & 1988 SCMR 1784, ref.

Ch. Muhammad Ashraf Gujjar, Advocate for Petitioner. Raja Imtiaz Ahmad Kiani, Advocate for Respondents. Date of hearing: 15.1.2004.

judgment

This writ petition has been filed against the judgment dated 16.11.2003 passed by a learned Additional District Judge, Rawalpindi, whereby, he has affirmed the order of the learned Guardian Judge, Rawalpindi allowing the application of Respondent No. 3 under Section 12 of the Guardians and Wards Act directing delivery of interim custody of the minor children to their real mother.

2.   Respondent No. 3 was married with Mazhar Javid on 8.9.2000.
They were blessed with two male babies Artaza Ahmad and Murtaza Ahmed
on 28.9.2001. The respondent left the house of her husband due to strained
relations in November, 2002. Mazhar Javaid is stated to have committed
suicide on 22.12.2002. Acquiring this information Respondent No. 3 joined
the funeral ceremony and started living in house of her late husband along-
with the family members. After some time she was made to leave'the house
without minors. She took shelter in her parents house at Nafowal.

3.     She filed an application for custody of the minors under
Section  25  of the   Guardians  and  Wards Act also  accompanying an
application under Section 12 of the Act for interim custody. The learned trial
Court allowed the interim custody on 21.10.2003 which order was" challenged
in appeal unsuccessfully. This writ petition assails the judgments of the
learned Courts below.

4.               Learned counsel for the petitioner contends that "firstly, .the
welfare of the minors lies with the petitioner, who has sound financial
position qua the respondent and, secondly that no urgency has been shown
for change of interim custody. He relies on Muhammad Sadiq Butt v. Mst. 
Khalida Parveen (PLD 1967 Karachi 645), Mirza Muhammad Yousaf v.
Razia Sultana (PLJ 1974 Lahore 125), Zulfiqar Ahmad v. Qaisar Sattar and
2 others (1988 GLC 1741) and Mst. Rani Begum v. The Additional District
Judge (East Karachi) 1989 CLC 1419).

5.               On the other hand, learned counsel for Respondent No.  3
submitted that the judgments of both the learned Courts below are based on
well settled principles of law, the minors are of tender age and need the'
company of their mother and interlocutory orders are immune from attack
in^- Constitutional jurisdiction. He relied on Khushi Muhammad v. Mst.
Arshad -Bibi and others (1988 SCMR 1234).

6.               The judgments cited by the learned counsel for -the petitioner
provide element of urgency as a pre-condition for exercising power under
Section 12. I intend to re-produce Section 12(1) of the Guardians and Wards
Act, 1890--                                                              

"12. Power to make interlocustory order for production of minor and interim protection of person and property:--

(1) The Court may direct that the person, if any, having the custody of minor shall produce him or cause him to be produced at Such place and time and before such person as it appoints and may make such order for the temporary custody and production of the person or property of the minor as it thinks proper."

Bare reading of the section .makes it abundantly clear that no ba'r is placed on the Guardian Judge to exercise his power, even in the absence of urgency. He has parental jurisdiction over the minor. No hard and fast rule of universal application can be laid down. The social set up is on a rapid change. The world has reduced to a global village Section 12, therefore calls for a liberal interpretation. Interim arrangement for the custody of minors cannot be fettered with a pre-condition of urgency. There may be cases where the minors are being kept away and grow in atmosphere which may bring complete estrangement to the parent or one of them.

7.         The over riding and paramount consideration of handing overthe
interim custody of a minor under Section 12 is the welfare of the minor. The
Guardian Judge dealing with the application under Section 12 of the Act
shall take into account the consideration of the age, sex and welfare of the
minor.

8.         The minors are of tender age requiring love and affection of their
real mother, who has not re-married Preference cannot be given to the
paternal grand mother qua the real mother.

9.               None else can look better the minor than their, own mother.
There is no substitute and parallel to mother's love and affection in this
world. She is a monument of a devotion love and sacrifice. The lap of mother
has been held to be a cradle of God.                          

10.         The custody of the minor cannot be allowed to shuttle between
the parties. Once the learned Guardian Judge has exercised its jurisdiction
in granting the interim custody, the same should be allowed to stay, unless
there are compelling circumstances to .change.

11.         In view of the above, I do not find any good reasqn to interfere in
the orders of both the learned Courts below which are interlocutory in
nature.

12.         I have been informed by the learned counsel for the parties that
the main guardian petition under Section 25 of the Act is at thie stage of
recording of evidence. The respondent mother is resident of Narowal and
undertakes long journey to prosecute her case at Islamabad. The main
petition, therefore, deserves decision expeditiously. The learned Guardian
Judge seized of the matter is, therefore, directed to decide the main petition
within a period of one month from the date of receipt of this order, if
necessary by holding day to day proceedings.

.13.  In view of the above discussion, this Constitutional petition is
meritless and is thus dismissed.                                                             

(A.A.)                                                                             Petition dismissed.

 

Medical evidence was prima facie in contradiction with the version of victim

 PLJ 2009 Cr.C. (Lahore) 1058

[Multan Bench Multan]

Present: Zafar Iqbal Chaudhry, J.

SHABBIR HUSSAIN--Petitioner

versus

STATE and another--Respondent

Crl. Misc. No. 3204-B of 2008, decided on 20.1.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(2)--Pakistan Penal Code, (XLV of 1860)--S. 376--Bail, grant of--Further inquiry--Medical evidence was prima facie in contradiction with the version of victim--Allegation--Accused/father committed zina-bil-jabar with her real daughter--It is highly improbable that accused would have committed such a heinous offence with his own daughter in the presence of other children--There was nothing on record that accused was a man of ill repute who could got to such event nor commission of zina with his own daughter--Held: Medical evidence was prima facie in contradiction with the version of the victim and so far result of chemical examiner has not been received--Victim had even refused to meet her real mother in Darul Aaman and she was preferring to live with grandmother and maternal aunt, who were allegedly instrumental to involve the accused in such case to save the skin of their son--Possibility of leveling such an allegation cannot be ruled out as in such a teenage a girl with little education can very easily be tutored by her relatives--Case against the accused was of further inquiry who was behind the bars for the last more than six months and his further detention would not serve any useful purpose to the prosecution--Bail was admitted. [P. 1060] A, B & C

Mr. Farrukh Ahmad Khan, Advocate for Petitioner.

Rana Muhammad Nazir Khan Saeed, Advocate for Complainant.

Mr. Nadir Manzoor Duggal, DPG for State.

Date of hearing: 20.1.2009.

Order

Through this petition under Section 497 Cr.P.C., Shabir Hussain petitioner seeks post arrest bail in case F.I.R. No. 263 dated 24.6.2008 registered under Section 376 PPC at Police Station Dera Rahim District Sahiwal on the application of Mst. Shabella Bibi with the allegation that about 15/20 days earlier, when she was alone in the house, the petitioner who is real father of Mst. Shabella Bibi committed zina-bil-jabar with her.

3.  Learned counsel for the petitioner submits that the petitioner has been involved in this case falsely on account of enmity with grand-mother and real aunt of the victim because one Naveed who is son of aunt of victim had developed illicit relations with her and the petitioner being father could not tolerate this who gave beating to the victim; that to save the skin of said Javed a false story has been concocted to eliminate the petitioner from the way; that the petitioner is a father of seven children including the victim and it is highly improbable story that he could have committed such a sinful act with his own daughter in the presence of other children; that the mother of the victim and wife of the petitioner is also present in the Court, who has vehemently denied commission of this occurrence and supported that actually on account of intimacy between the victim and Javed to save their skin this case has been got registered by one Haji Shaukat, who hails from Lahore and is an influential person.

4.  Learned DPG assisted by the learned counsel for the complainant submits that the victim is a minor, who has no motive to falsely involve the petitioner in this case and being real daughter of the petitioner she cannot think to depose against him falsely; that the offence falls within the prohibitory clause of Section 497 Cr.P.C. and the petitioner having committed a very heinous offence is not entitled to the concession of bail.

5.  After hearing the learned counsel for the parties and perusal of the record it is admitted that the petitioner has seven children including the alleged victim and they all were residing in the house with their mother and the petitioner. It is highly improbable that the petitioner would have committed such a heinous offence with his own daughter in the presence of other children. For the time being there is nothing on the record that the petitioner was a man of ill repute who could go to such even nor commission of zina with his own daughter. Keeping in view the nature of the allegation the learned DPG was asked to scrutinize the police file minutely and assist this Court properly who submits that for the time being there is solitary statement of the victim and her real mother has refuted the said allegation. It is found that the medical evidence is prima facie in contradiction with the version of the victim and so far result of the Chemical Examiner has not been received. Keeping in view the facts and circumstances explained by the mother of the petitioner coupled with the factum that the victim had even refused to meet her real mother in Daruf Aaman and she is preferring to live with the grandmother and the maternal aunt, who are allegedly instrumental to involve the petitioner in this case to save the skin of their son Javed, the possibility of leveling such an allegation cannot be ruled out as in such a a teen age a girl with little education can very easily be tutored by her relatives. As such the case against the petitioner is of further inquiry who is behind the bars for the last more than six months and his further detention will not serve any useful purpose to the prosecution. Hence this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of

Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.

6.  The alleged victim who was sent to Darul Aaman Multan has been produced in Court, who will be handed over to her real mother present in Court as she is the natural guardian. At this stage learned counsel for the complainant submits that there is apprehension that the victim will be murdered. The mother of the petitioner submits that no mal-treatment will be given to her. Asghar Ali S.I present in Court is directed to provide all protections to the alleged victim and ensure that she will not be mal-treated in future.

7.  The DPO Sahiwal is directed to hold an inquiry into the allegations through any officer not below the rank of DSP other than the SDPO of the area, who after joining all the concerned in the said enquiry will bring on record the true facts and report thereof will be submitted to this Court through the Deputy Registrar (Judicial) of this Bench.

(R.A.)      Bail admitted.

 

Conflicting Judgments on Section 4 MFLO

 PLJ 1990 SC 204 [Appellate Jurisdiction]

Present: abdul shakurul salam and rustam s. sidhwa, JJ FARID-Petilioner

versus

Mst. MANZOORAN and others-Respondents Civil-Petition for Leave to Appeal Nos. 772 and 773 of 1989, decided on 31.1.1990.

[On appeal from judgment and order dated 5.2.1989, passed by Lahore High Court, Multan Bench, in C.R. Nos. 461-D and 462-D of 1986].

Muslim Family Laws Ordinance, 1961 (WP Ord. VIII of 1961)--

—S.4~Daughter of predeceased daughter-Share in inheritance of-Determination of—Contention that if mother of respondent No. 1 be taken as alive at time of opening of inheritance of her grandmother, she would inherit estate to extent of 1/3 but from her mother she would get one half of 1/3 i.e. l/6th and not whole of share of her mother-Held: There being conflict of decision of Lahore High Court and Peshawar High Court on interpretation of Section 4, leave is granted for authoritative decision. [Pp.205&206]A&B

PLD 1983 Lahore 546 and PLD 1975 Peshawar 252 ref.

Raja Muhammad Younis, Advocate, Supreme Court and S. Inayat Hussain, AOR for Petitioner (in both petitions).

Ch. M. Ashraf, Advocate, Supreme Court and Mr. MA. Qureshi, AOR for respondents (in both petitions). Date of hearing : 31.1.1990.

order

Abdul Shakurul Salam, J.--This order will dispose of Civil Petitions for Leave to Appeal Nos.772 of 1989 and 773 of 1989.

2.          Office has pointed out that the petitions are barred by four days.

3.          Learned counsel for the petitioner states that from the date of delivery of the copy, the petition is very much in time. Otherwise also delay of four days, in the circumstances of the case, is condonable being unintentional. 

4.          On merits, the learned counsel submits that the suit of respondent No.l was rightly decreed to the extent of l/6th share in estate of her grand-mother, the
mother having pre-deceased. This was in accordance with the judgment of the Lahore High Court reported in PLD 1983 Lahore 546. However, on her appeal, the judgment on the point was reversed by the appellate Court and she was granted a decree to the extent of l/3rd share. Same has been upheld by the High Court. Learned counsel submitted that the judgments of the two Courts below are in line with the judgment of the learned Peshawar High Court reported as PLD 1975 Peshawar 252. The Courts should have followed the Lahore High Court judgment.

5.          For facility of understanding a small pedigree table may be stated as under:

Mst. Daulan

 

Lalan                                              Farid

                                               Petitioner

Manzooran (Respdt. No.l)

It is common ground that Mst. Lalan mother of Mst. Manzooran, respondent No.l, died in the life time of her grand-mother Mst. Dauian. Inheritance opened on the demise of Mst. Daulan.

Case of the petitioner is that even if by fiction of law as enacted in section 4 of the Muslim Family Laws Ordinance, 1961 at the lime of opening of the inheritance of Mst. Daulan her pre-deceased daughter Mst. Lalan be taken as living, Mst. Lalan would inherit the estate of Mst. Daulan to the extent of 1/3; 2/3rd would go to Farid. But from Mst. Lalan, her daughter Mst. Manzooran, respondent No.l, will get one half of l/3rd i.e. l/6th. Not the whole of the share of Mst.Lalan. Rest of the 1/2 of the estate of Mst. Lalan would go to the reversionaries amongst whom is the petitioner. This is in accordance with the judgment of the Lahore High Court. However, according to the judgment of the Peshawar High Court, Mst. Manzooran gets whole of the estate of Msl. Lalan and since the latter was to inherit l/3rd, the whole of it has to go to Mst. Manzooran7. Since there is a conflict of decision of the two High Courts on the interpretation of the relevant section, i.e., 4 of Muslim Family Laws Ordinance, 1961, leave is granted for an authoritative decision, subject to the determination of question of limitation at the final hearing. Security Rs. 2000/-. The appeals shall g be processed on present record subject to the parties filing additional documents if so advised. The appeals shall be fixed before the year is out. Stay is declined to the extent of l/6th share of the respondent not disputed by the petitioners, but for the next l/6th, interim relief is granted to the petitioner subject to his furnishing .full and sufficient security for mesne profits to the satisfaction of the trial Court.

(MBC)                                                                                   Leave granted.

 

Statement of Minor matters in Custody Cases at times

 PLJ 2010 Karachi 154

Present: Shahid Anwar Bajwa, J.

Mst. SHAHNAZ GHULAM RASOOL--Petitioner

versus

MUHAMMAD SHAKEEL AHMAD SIDDIQUI
and 2 others--Respondents

C.P. No.461 of 2009, decided on 12.112009.

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

----Ss. 12 & 25--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Custody of child--Word "religion" used in S.17 of Guardians and Wards Act, 1890--Scope--Nature of profession of parents of minor--Desirability--Minor son was more than seven years of age and trial Court removed him from the custody of mother and handed over to father--Upheld by First Appellate Court--Validity--Word "religion" used in S.17 of Guardians and Wards Act, 1890, was to be given its wider interpretation and not narrowing it down to sects and sub-sects in deciding custody of a minor, it would be of no relevance as to which sect did the father belong and as to which sect did the mother belong--Trial Court had extensively dealt with all questions--High Court disagreed with the observation of Guardian Judge that mother was running a tuition centre and domestic beauty parlour and, therefore, it was not conducive to minor--High Court directed trial Court to stay away from judgmental observations about professions which were permitted by law--While accepting application for custody of minor, two courts below had given cogent reasons after having appreciated the evidence--Minor appeared before Trial Court and clearly stated that his father loved him and he also stated that his grandmother also loved him--High Court in exercise of constitutional jurisdiction declined to interfere in concurrent findings of fact by two courts below--Petition was dismissed.            [P. 164] A

1988 SCMR 1359; PLD 2008 Kar. 499; 1994 MLD 1098; 2000 YLR 3046; 2003 YLR 1105; 2008 SCMR 480; 2008 SCMR 488; PLD 1988 Kar. 252; 1980 CLC 785; PLD 2008 Kar. 198; 1974 SCMR 279; PLD 1964 SC 260; PLD 1974 SC 139; 2007 YLR 2982; PLD 1978 Kar. 328 and PLD 1996 SC 801 ref.

Khawaja Naveed Ahmad, Advocate for Petitioner.

Mr. Muhammad Nouman Jamali, Advocate for Respondent No.1.

Date of hearing: 23.10.2009.

Judgment

Brief facts giving rise to this constitutional petition are that petitioner (since it is a matter relating to custody of a child I will refer to her as "the mother") married Respondent No. 1 (hereinafter referred to as "the father") on 25-9-1998. Out of this wedlock on 18-8-1999 son Munib A. Siddiqui was born. Application No. 1180/2004 under the Guardians and Wards Act was filed by the father. It was stated in the application that marriage was dissolved in 2004 by way of Khula'. It was stated by father in the application that on 18-6-2003 mother left her husband's house along with minor child. It is alleged by wife that on 18-6-2003 she was turned out of the house. In any case she has been living with her parents since 18-6-2003. Since father was not paying maintenance charges of child, on application the Family Court directed the father to pay maintenance charges of Rs.2,000 per month. Advocate for mother said in this case actual expenses are Rs.7,000 per month but he frankly conceded that maintenance charges allowed by the Court have not been challenged by the mother. He stated that balance expenses are being borne by the mother. Trial Court vide its order April, 26, 2008 granted to mother right of interim custody of minor from 7-00 p.m. on each Saturday to 7-00 p.m. of the following day. Mother was also allowed custody of minor on first day of occasion of each Eid. Permanent custody of minor was given to father. Regarding welfare of minor it was observed as under :--

"The case of the petitioner is based on two main points that the respondent who is real mother of the minor is a woman of harsh nature, ill temperament and uncompromising evidence and further she has got no adequate financial means and proper time to meet the upbringing and welfare of minor. In this connection he has proved his case to a larger extent. According to the petitioner, the respondent left his house along with minor without his permission in his absence and came to reside with her brother. In this connection he tried his level best to bring about compromise with her but all went in vain. While respondent deposed that she was turned out by the petitioner in three wearing clothes along with minor. The petitioner has produced applications to S.H.O. Super Market regarding the removal of custody of the minor by the respondent which are self-explanatory and surprisingly such application has not been denied by the respondent side in evidence and resultantly they are admitted as true. The petitioner further submitted that he approached to the respondent and her brother for compromise and again such contention of the petitioner has not been specifically denied by the respondent and the same are admitted as true. The decision of concerned U.C. Nazim which has been relied upon by the petitioner has also not denied by the respondent. The respondent made allegations of maltreatment against the petitioner but no Oral/Medical proof has been furnished by her. Even her advocate failed to argue in relation of maltreatment meanwhile his arguments. There is no mentioning of specific date and time and witnesses of such maltreatment. The respondent has herself admitted that petitioner properly maintained minor before separation therefore, the reason of maltreatment is out of understanding. The Respondent Nowhere in her pleadings and evidence has taken plea that the petitioner is either jobless for having minor financial means. The respondent has herself admitted that she becomes angry soon. It is also admitted fact that this was second marriage of the respondent and same remained unsuccessful. She has got another child/son from her previous husband to support/afford. She runs a beauty parlour and a tuition center at home and that is the only means for maintenance of her both sons. The evidence of the petitioner in relation to his compromising efforts, his proper maintenance of his wife and son, his financial earning has remained confidence-inspiring since he has got an attractive job in Agha Khan Hospital and thereafter runs a Dawakhana in evening. His witnesses have supported him on martial points while the whole case of the respondent is outcome of improvements omissions and contradictions.

It has been admitted by the respondent that she has got a house of two rooms where she runs beauty parlour as well as tuition center, hence such atmosphere is not conducive for the welfare of the minor and further the respondent saves short time to meet the welfare of her two sons. On the other hand she has admitted herself that house of the petitioner is very much spacious consisting of four rooms.

It has been contended by the respondent that mother of the petitioner is above 80 years of age hence she is not in position to grow up minor betterly in comparison to her. Contrary to this respondent herself admitted in her cross-examination that mother of the petitioner does cooking even to this age. This appears that re-course be made to the health of a person and not age. Moreover, the minor is above 8 years of age and at this juncture he needs not primary type of care as in age of 2, 3 years.

More importantly, the petitioner has contracted no marriage after Khula' taken by the respondent which shows love of the petitioner towards the minor which is very much necessary for his physical, social, mental and psychological welfare.

Last but not the least, the minor is above 7 years of age and in this connection it is settled principle of Islamic Sharia that custody of male child be given to the father except exceptional circumstances arise which may otherwise disentitle him from custody of minor. In this case no such exceptional circumstances arise and further leaving Hazanat right the welfare of the minor lies with the father. There is valuable rich and sacred concept, behind right of Hazanat provided by Islam which cannot be repugnant to the principle of welfare of minor. The minor has attained 8 years of age and here he needs iron but kind hand of his father who can protect him in street, in school, in game shops, in markets etc. from his possible involvement and company in criminal minded people and un-civilized society and the same cannot be done by a household lady which remained failed in her both the marriages and these days runs a beauty parlour and a tuition center at her two rooms house. The law ruling submitted by the petitioner side are very much consistent with the case in hand while law citations relied upon by the respondent side are irrelevant."

2.  Being aggrieved by the order of the trial Court mother filed appeal. Appellate Court vide order dated 27-7-2009 dismissed the appeal. Being aggrieved by the order this constitution petition has been filed in this Court.

3.  Learned counsel for petitioner/mother made following submissions:--

(i)         Child has been living with the mother all along.

(ii)        Every child's first and inseparable attachment is with his mother. Father comes thereafter.

(iii)       Father has not shown sensitivity and concern for child as he has been paying meagre amount of Rs.2,000 per month for maintenance of child which amount is totally inadequate.

(iv)       Even if trial Court ordered for Rs.2,000 per month and even after this order was accepted as it was not be challenged by mother. It was duty of father to show required degree of sense and sensitivity.

4.  Learned counsel for petitioner relied upon Ch. Nazir Ahmed v. Additional District Judge III, Sahiwal and others 1988 SCMR 1359; Saad Amanullah Khan V. IVth Senior Civil Judge, (South) Karachi and 3 others PLD 2008 Kar. 499; Mst. Zainab Bibi v. Rehmat Ali and 2 others 1994 MLD 1098; Mst. Farah Waqar v. Dr. Waqar Ahmed Khan 2000 YLR 3046; Barkat Bibi v. Zahid Perveen and 2 others 2003 YLR 1105;

5.  Learned counsel for Respondent No. 1 made the following submissions:--

(i)         There are concurrent findings of fact by the learned Courts below and High Court should be most reluctant to interfere with concurrent findings of fact.

(ii)        Although child has been living with mother all along but when child appeared before the trial Court he consented to live with his father and stated that his best friend is a Cat.

(iii)       In written statement no ground whatsoever was taken regarding adequacy maintenance expenses paid by father.

(iv)       This was the petitioner's second marriage. She has another child from the earlier/(first) marriage by the name "Zeeshan" and petitioner has been taking care of that child during subsistence of his marriage.

(v)        Under Muslim Personal Law since the son is for more than 7 years of age father has right to custody of the child.

(vi)       No doubt mother is entitled to give reasonable visitation right which rights have been given by Courts below.

4.  Learned counsel for Reasonable No.1 has relied upon: Khan Muhammad v. Mst. Surayya Bibi 2008 SCMR 480; Malik Muhammad Hussain v. District Returning Officer and others 2008 SCMR 488; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Surraya Bibi v. Abdur Rashid 1980 CLC 785; Imran Ali v. Mst. Iffat Siddiqui and 2 others PLD 2008 Kar. 198; Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279; Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC 260; Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139; Pakistan Tobacco Company Limited, Karachi v. Director of Octroi, Karachi and 2 others 2007 YLR 2982; Messrs Karachi Industrial and Textile Mills, Karachi and another v. Settlement Commissioner (Industries), Lahore and another PLD 1978 Kar. 228 and Sabur Rehman and another v. Government of Sindh and 3 others PLD 1996 SC 801.

7.  I have considered submissions made by the learned counsel. I have also gone through record of petition as well as case-law cited by learned counsel for the parties.

8.  On 21-10-2009 when both the learned counsel concluded their arguments it was ordered that petitioner along with her son be present in Court on 23-10-2009. On that date petitioner and her son came to the Court. I spoke to child. He appeared to be well behaved child, receiving good education and having opportunity for developing of a well rounded balanced personality. I cannot say that he was being neglected in any manner.

9.  Before I refer to the case law I must express my personal anguish. In Holy Qur'an ALLAH ALMIGHTY says that everybody is born from a father and a mother. Both have equal responsibility for bringing up of child. Whereas child is a gift of Allah to the parents, it is an onerous responsibility of every father and every mother, they are responsible in respect of their children not only in this world but also in hereafter. Marriage may be contracted and marriage may be dissolved but the eternal indissoluble bond that child has with seed of his father and milk of his mother remains unbroken as long as blood courses through veins of body of that child. Therefore, parents while entitled to pleasures of their marriage must also and always remember their responsibilities towards the child. This responsibility does not come to an end when marriage is dissolved: they remain responsible for it. Obviously, distinct or separately responsibilities are determined by Islamic law but, such responsibility does not come to an end with dissolution of marriage. Therefore, a couple which decides to their separate ways though they are perfectly entitled to their such decision in accordance with law, must keep in mind that even after separation they have grave common responsibility and grave common interest. They should remember this interest: Remain separate but conscious of duties for sake of welfare of your child. This should be underlining them in all such situations. Responsibility also includes not to carry the child in the filth of their bitterness and dug heap of their acrimonies.

10.  Proposition of law that in respect of custody of children prime consideration should be welfare of child does not need any authority anymore. The following case law may be referred as illustrative example:--

(i)         In Ch. Nazir Ahmed's case the girl child was 14 years old, had been living with her maternal grandmother: both her father and her mother had remarried after their separation. 14 years old girl stated that she is well looked after by her grandmother.

(ii)        In Saad Amanullah Khan's case two children were born out of marriage. It was decided on basis of agreement executed and before Supreme Court. Father was given visitation rights.

(iii)       In Mst. Zainab Bibi's case there were three minor children one boy and two girls, boy's custody was given to father. It was held that age of boy is not conclusive for judgment as to whom custody should be handed over. If minor has attained age of discretion his consent should be obtained. Matter was consequently remanded.

(iv)       In Mst. Farah Waqar's case there were two children boy ten years old and girl of 8 years. Boy was asked by High Court and stated that he would be happy with his mother and maternal grand parents and would not like to go to a boarding school as his father wanted him to.

(v)        In Barkat Bibi's case three children were born out of wedlock and after death of father mother stated living with her parents. Thereafter she remarried and the children continued to stay with their maternal grandmother. Mother filed application under sections 17 and 25 of the Guardians and Wards Act for custody of minors against the grandmother. Trial Court ordered that custody of two boys be handed to mother and custody of girl child was given to the grandmother. Appeal was dismissed. In High Court it was contended that mother had practically severed her connection with the minors after her remarriage and minors had reached age discretion had clearly expressed their choice as they wanted to live with their grandmother. High Court held that children had attained age of discretion, remanded the matter.

(vi)       In Khan Muhammad's, case two sons and a daughter were born out of their wedlock. After dissolution of marriage father applied for custody of children who were with mother and mother filed application for custody of child who was with father. Applicant's application was accepted and mother's application was dismissed. Mother filed appeal and the same was accepted to the extent of custody of two children already with her but her application for custody of third child was rejected. Writ petition was rejected. It was observed by the Honourable Supreme Court that right of father being natural guardian of the minors is subject to welfare of the minor because overriding fundamental and paramount important consideration is always welfare of the minors.

(vii)      In Imran Ali's case mother had filed application that she may be appointed guardian of ward, two children and be given custody. Application was decided in favour of mother and appeal was dismissed., In High Court writ petition was filed by father, High Court made the following observations:

            "I have given full consideration to the arguments of learned advocates for the parties and have gone through the entire evidence. Admittedly Ali Muhammad is aged about 8 years old and Hyder Ali is about 5 and a half years old and the petitioner is the real father and is a Ismaili Aga Khan Shia and he has sufficient means to look after the welfare of the minors so also to grow up the minors in better atmosphere as per his own sect. From the record it appears that the minors used to go to school prior to handing over the temporary custody to the Respondent No. l. Thereafter, there is no evidence available on record whether minors are going to school. It has also come on record that minors are not going to Jamat Khana for their spiritual and religious education. The record reveals that Respondent No. l is residing with her three brothers namely Iqbal Ahmed Siddiqui, Kaleem Ahmed Siddiqui and Azeem Ahmed Siddique, who are her real brothers. It is an admitted fact that Iqbal Ahmed Siddiqui is a convicted person and was in Dubai Jail. The record also shows that the family atmosphere of the petitioner is too better for future growth of the minors as the mother of the petitioner is retired principal of Ibrahim Ali Bhai School, his elder brother is running his own school namely Ameen academy and his second brother is getting education in Australia. From the record it also appears that the petitioner has sufficient source of income to maintain the minors in better way. As far as love and affection is concerned the father and mother have equal love with the children moreso even minors need love, affection, better education, mental and physical health and civil and social atmosphere. It is well-settled principle of law that the children be grown up according to the sect/religion of father. From the record it appears that the minors are not going to Jamat Khana which is a great injustice with the minors as minors are ultimately legal heirs of the petitioner. The minors have to adopt the sect of father, if they are not attending the spiritual classes at the Jamat Khana in future they will not be in a position to mix up with the Aga Khani community that would adversely affect the future career of the minors."

(viii)      Regarding scope of interference in writ jurisdiction, although learned counsel referred to a number of authorities but I think reference to only one would be sufficient in Sabur Rehman's case in PLD 1996 Supreme Court 801 at page 809 it is observed as under:--

            "From the preceding discussion it follows that the High Court while examining a case in exercise of its power of judicial review under Article 199 of the Constitution will normally not interfere with a finding of fact recorded by a Tribunal of exclusive jurisdiction where such finding of fact is based on evidence. The sufficiency or otherwise of the evidence in such cases are not open to be gone into by the High Court. However, where finding of facts recorded by the tribunal of exclusive jurisdiction is based on no evidence, such findings loses its binding effect as the tribunals of exclusive jurisdiction are equally bound by the rule that all findings on questions of fact must be based on legal evidence. Therefore, a finding of fact recorded by Tribunal of exclusive jurisdiction without evidence, is a finding without jurisdiction which binds on one. Similarly a finding of fact recorded by a Tribunal of exclusive jurisdiction by misreading the evidence or by ignoring the material evidence on record, will be open to interference by the High Court in exercise of its jurisdiction under Article 199 of the Constitution. The learned judges of the Division Bench though did not reach any different conclusion on the scope of interference by the High Court in exercise of its power of judicial review, with a finding of fact recorded by a Tribunal of exclusive jurisdiction it declined to interference with the convictions and sentences awarded by the Special Military Court for the following reasons:--

            We have examined the evidence in the light of the above authorities and principles and are of the view that even after the exclusion of the confession it cannot be said that there is no evidence to justify the impugned order. Nor the learned counsel for the petitioners have pointed out to the blatant misreading of evidence manifesting denial of justice."

11.  Learned counsel for Respondent No. 1 referred to Section 17(2) of the Guardians and Wards Act, 1890. Said section is in the following words:--

"17.  Matters to be considered by the Court in appointing guardian:

(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."

12.  Learned counsel for Respondent No. 1 emphasized that one of the fact to be considered by the Court is "Religion of the minor". Learned counsel submitted that in present case petitioner/mother belongs to Ismaili Shia sect and Respondent No. 1/father belongs to Sunni sect. Contention of the learned counsel was that minor should be brought up in Sunni environment and not in Ismaili Shia environment and expressly placed reliance in this regard in Imran Ali's case, quoted above. In my opinion, a Muslim is a Muslim and that should be it. Quaid-e-Azam Muhammad Ali Jinnah was once asked as to which sect did he belong and he very bravely stated that he belonged to the same sects as that Prophet Hazrat Muhammad (Sallala-ho-Alahe Wasallam). I do not think, while deciding question of custody to minor, it should be of any relevance as to which sect the parent in question belonged I do not agree with observations in respect of the relevance of sect made by Mr. Justice Muhammad Afzal Soomro in Imran Ali's case. In my opinion word Religion used in section 17 of the Guardians and Wards Act is to be given its wider interpretation and not narrowing it down to sects and sub-sects. Therefore, in my qpinion it would be of no relevance of whatsoever in deciding custody of a minor, as to which sect did the father belong and as to which sect did the mother belong.

13.  However in this case learned trial Court has extensively dealt with all the questions. Although, I do not agree with observations of the learned trial Court that mother is running a tuition center and domestic beauty parlour and therefore it would not be conducive to minor. Court should stay away from judgmental observations about professions which are not permitted by law.

14.  While accepting this application two Courts below have given cogent reasons and after having appreciated the evidence. I do not think, in exercise of constitutional jurisdiction any ground is made out for disturbing concurrent findings recorded by the two Courts below. The child, as I stated above, appeared in this case clearly stated that his father loves him (he also stated that his mother loves him more, but that is obvious in almost all cases) and he also stated that his grandmother also loves him. For the above reasons this writ petition is dismissed. The parties shall bear their own costs.

(R.A.)  Petition dismissed.

 

Opinion of minor has to be considered if minor was old enough to form an intelligent preference

 PLJ 2012 SC (AJ&K) 26

[Appellate Jurisdiction]

Present: Muhammad Azam Khan, C.J., and Chaudhry Muhammad Ibrahim Zia, J.

ZAINAB BIBI--Appellant

versus

ZAFFAR IQBAL--Respondent

C.A. No. 59 of 2010, decided on 1.12.2011.

(On appeal from the Order of the Shariat Court dated 30.3.2010
in Shariat Appeal No. 58 of 2009)

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

----S. 17(3)--Custody of minor children was welfare of minors--While determining welfare of minor, Court has to consider all circumstances including nearness, kinship of proposed guardian, character and capacity of person proposed to be guardian, prevailing in home, age, religion and sex of minor--Appellant was maternal grandmother of minors while respondent was real father--Question of--Whether in presence of real father, appellant who was maternal grandmother and was of advanced age can be appointed guardian of minor's or custody can be handed over to her--Minor’s were well versed with father and step mother--Handing over to minors to maternal grandmother would not be in interest of minors--Minors appeared to be intelligent enough to form the opinion--Validity--Minors were intelligent enough to form opinion and their opinion could not be lightly ignored when father was financially better and well-to-do a man of status and can afford to give better education as father to his minor son and daughter while appellant maternal grandmother who was lady of advance age, was herself dependent on her sons and daughter-in-law--It would be difficult for her to bring-up the minors--Held: Opinion of minor has to be considered if minor was old enough to form an intelligent preference--Appeal was dismissed.        [Pp. 31 & 32] A & B

2006 SCR 301 and 2000 SCMR 707, ref.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Raja Niaz Ahmad Khan, Advocate for Respondent.

Date of hearing: 28.11.2011.

Judgment

Muhammad Azam Khan, C.J.--The captioned appeal with leave of the Court arises out of the judgment of the Shariat Court dated 30th March, 2010, whereby the appeal filed by the appellant, herein, was dismissed.

2.  The necessary facts for the disposal of the appeal are that appellant filed an application for the custody of minor children, Imran Zafar, aged 6« years and Kainat, aged 3 years and 9 months, in the Court of Guardian Judge, Bhimber, on 1st November, 2008 alleging therein that her daughter, Mst. Shamaila Kausar, was married to Zaffar Iqbal. From the wedlock two minor children, Imran Zafar and Kainat were born. Her daughter died on 29th November, 2007. The minors remained in her custody but the defendant-respondent has taken them with him. He has contracted second marriage, therefore, the welfare of the minors lies in her favour. She requested for the custody of the minors. After being summoned, the defendant-respondent filed written statement and claimed that he, in the capacity of father of the minors, is entitled to their custody as against the plaintiff. He is natural guardian. The minors are studying in a better school. The plaintiff has no source to maintain the minors. He further claimed that the plaintiff demanded return of ornaments and bridal gifts of her daughter which were returned to her. She has no right of the custody of the children. After necessary proceedings, the trial Court dismissed the suit. Feeling aggrieved, the appellant filed an appeal in the Shariat Court. A learned single Judge in the Shariat Court dismissed the appeal vide impugned judgment on 30th March, 2010.

3.  Sardar Muhammad Azam Khan, the learned counsel for the appellant, argued that the judgments of the lower Courts are not maintainable. The respondent has contracted second marriage and in presence of step-mother, bringing up of the minors will not be in a better way. The appellant is real maternal grand-mother of the minors. She has more love and affection with the minors. The father-respondent lives in Lahore in connection with his business while the minors are living with their step-mother in District Bhimber. He further argued that the maternal grand-mother is entitled to the custody of minors as compared to father and the welfare of the minors lies in her. He referred, to the case titled Irshad Begum v. Mirza Muhammad Haleem and another [2003 SCR 318].

4.  Raja Niaz Ahmed Khan, counsel for the respondent, argued that the mother of the minors died on 29th November, 2007. The minor children are in the custody of their father. The son is of 10 years' age while the minor girl is of 7 years age. It is not correct that the father of the minors lives in Lahore. He lives in his native village and has admitted the minors in a reputed English medium school. The appellant is a lady of advanced age of 80 years. She is an illiterate lady and cannot understand the importance of education. Moreover, she has no source to bring up the minors. The learned counsel contended that the father is natural guardian and is entitled to the custody of the minors. Lastly the learned counsel argued that the minors are living with their father after the death of their mother for more than 4 years and they have become so familiar with him that they cannot be handed over to the maternal grand-mother.

5.  We have heard the learned counsel for the parties and perused the record. It may be observed that the prime consideration for the custody of the minors is the welfare of the minors. We have to determine the welfare of the minors in the light of the record prepared by the trial Court. In the trial Court the appellant only filed an application for custody of minors. No supporting document was appended with the application while the respondent filed certification, Ex. PA issued by the Principal' Al-Noor Science Academy, Chapran, District Bhimber, that the minors are studying in the School. This certification was issued on 27th November, 2008. He has also filed a receipt dated 24th June, 2009, whereby Rehmat Khan, father of the deceased, Shamaila Kausar, and Basharat Hussain, her brother, stated that they have received the bridal gifts and ornaments consisting of ear rings, tops and a ring. The appellant produced Liaqat Ali and Raja Ali Shan in support of her case while she herself got recorded her statement. Her two witnesses stated that they live at the distance of 6/7 kilometres away from the house of respondent while they admitted that the respondent has got admitted the children in Al-Noor Academy. The appellant herself appeared as a witness and stated that minors lived with her for 4/5 days after the death of her daughter. The respondent took the children to his house. The respondent has returned the bridal gifts and ornaments of the deceased to her. She further stated that she did not know whether the minors go to school or not. The respondent, apart from two witnesses, himself appeared as a witness and stated that previously he was living in Lahore. Now he is living in the village. The minor children are in his custody and they have been admitted in Al-Noor Academy. The welfare of minors lies with him.

6.  While determining the welfare of a minor, the Court has to consider all the circumstances including the nearness, kinship of proposed guardian, character and capacity of person proposed to be a guardian, circumstances prevailing in his/her home, age, religion and sex of the minor. Although the question of welfare of a minor varies from case to case in the given circumstances. Generally speaking the welfare of a minor includes his moral, spiritual and material well being. While deciding the question of welfare of a minor, the Court shall have the regard to age, sex and religion of the minor. This Court in a case titled Irshad Begum v. Mirza Muhammad Haleem and another [2003 SCR 318] observed as under:--

"10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material well-being. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor if he or she is intelligent enough to make it."

In another case titled Sughran Bibi v. Akhtar Hussain [2006 SCR 301] it was held as under:--

"..... Consequently the proposition above narrated, keeping in view the facts of this case and the authorities discussed above, can safely be answered by holding that the guidelines provided by the Mahomedan Law are not absolute in nature and while appointing a guardian of the person of a minor her choice cannot be overlooked and that the paramount consideration which has to weight with the Court is welfare of the minor which also includes not only her wel-being but has to be determined keeping in view the surrounding in and outside the house where her father or mother lives.

15. The Courts below have recorded their findings by relying upon a case reported as Shafique-ur-Rehman v. Mst. Fazeelat Begum [1995 SCR 136] wherein it has been held by a division bench of this Court that welfare of the minor would be presumed with the person who is entitled to the custody under the Muslim law and that the Court may refuse to grant custody to the person other than the natural guardian except where strong circumstances justifying to refuse the custody to him are available. Similarly refusal to the natural guardian to maintain the minor would not disentitle him from custody of the minor. In our view this judgment of the Supreme Court runs counter to the law and the case law on the subject as in our view the prime consideration for appointment of guardian is the welfare of the minor which must weight with the Court."

7.  The appellant is the maternal grand-mother of the minors while the respondent is their real father. Whether in presence of real father, the appellant, who is maternal grand-mother and is of advanced age, can be appointed guardian of the minors or the custody can be handed over to her, is an important question particularly when after the death of the daughter of their mother in November, 2007, they are in the custody of the father, and whether it will be safe to remove the minors from present set up and will be in the interest of the minors and in the welfare of the minors or not has to be considered. From the record it appears that the minors are well versed with father and their step-mother. They are studying in the school and it would not be safe to remove them from the present family set up where they are well adjusted and being educated. Handing over of minors to maternal grand-mother will not be in the interest of minors. Similar proposition came under consideration before the Supreme Court of Pakistan in a case titled Mst. Zahoor Ahmed v. Mst. Rukhsana Kausar & 4 others [2000 SCMR 707] wherein it has been observed as under:--

"4. .......In this regard, reference was made to the second marriage of the petitioner and having got two children out of the wedlock. After great deal of the discussion, the learned single Judge in the High Court reached a categorical conclusion that `it would not be safe to remove the minor from his present family set up where he is well adjusted and make him live under the shadow of a step-mother'. The minor was summoned in Court and was examined by the learned Judge himself. The minor informed the learned Judge that he was happily residing with the respondents and did not desire to go over to his father.

8. The whole burden of the case of the petitioner in the two Courts below and in the learned High Court was and is that he is financially better off and well-to-do man of status and can afford to give better education as a father of his minor son and that Respondent No. 1 having contracted second marriage and having got five children from her new marriage was ill-equipped to properly bring up and educate her minor son. This stance of the petitioner is regrettably ill-founded. The learned two Courts below have reached a definite conclusion that so far as financial status of two families is concerned, they are almost equal. The petitioner being abroad earning his livelihood as Labourer cannot possibly be held to be a fit person to hold the custody of the minor indirectly through his own parents. If the minor has to live with the grand-parents the learned Appellate Court and the learned Judge of the High Court found the maternal grand-parents to be more entitled thereto because the minor has developed grand-sons ties with them rather than to the paternal grand-parents. The learned Judge in the High Court has also noted that the petitioner was not interested in the custody and he was pursuing the matter only-as a counterblast to the application for maintenance of the minor filed by the respondents against the petitioner. He also noticed that the minor was being looked after fully and educated by the maternal grand-parents of the minor under the general supervision of his mother."

8.  The respondent-father of the minors, after the conclusion of arguments, informed the Court that he has brought the minors and their step-mother with him. We asked him to produce the minors in the Court. The minors came in the Court with their step-mother. They were well dressed. The Court questioned them. Their attitude was confidence inspiring. On Court question they replied that they are studying in Al-Noor Academy in village Chapran. They have come in the Court with the aunt. Their father lives with them. Previously he was living in Lahore. Now he has the business in the village. Both the minors appeared to be intelligent enough to form the opinion. On Court question they replied that they do not want to go with their maternal grand-mother. They want to live with their father and aunt. In our opinions, the minors are intelligent enough to form the opinion and their opinion cannot be lightly ignored particularly in the circumstances when the father is financially better and well-to-do, a man of status and can afford to give better education as father to his minor son and daughter while the appellant, the maternal grand-mother, who is a lady of advance age, is herself dependent on her sons and daughters-in-law. It will be difficult for her to bring up the minors.

9.  Under Section 17 sub-section (3) of the Guardians and Wards Act, the opinion of a minor has to be considered if the minor is old enough to form an intelligent preference. In case titled Sughran Bibi v. Akhtar Hussain [2006 SCR 301] it was held as under:

"14.  By what has been stated above, we find that in spite of the fact that her mother has contracted second marriage with a stranger, Mst. Yasrah Bibi, on inquiry of the Court has categorically submitted that she desires to live with her mother and doesn't want to stay or go to her father or grand-father. The father has failed to maintain her which culminated into filing of an application for maintenance. The present proceedings are in fact a counter blast to defuse that situation. The economic condition of her mother and father are almost equal. Thus, keeping in view the circumstances of the present case, we cannot brush aside the desire of the minor to stay with her mother."

10.  We have reached to the conclusion that in the light of the record and attending circumstances, the welfare of the minors lies with their father.

The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with no order as to costs.

(R.A.)  Appeal dismissed