PLJ 2020 Lahore (Note) 27
[Multan Bench Multan]
Present: Mehmood Maqbool Bajwa, J.
ABDUL GHAFFAR--Petitioner
versus
Mst. ALLAH RAKHI and 4 others--Respondents
W.P. No. 13636 of 2011, decided on 9.5.2012.
Constitution of
----Art. 199--Guardian and Wards Act, 1890, S. 25--Application for custody of minor--Accepted--Appeal--Allowed--Challenge to--Solemnization of second marriage--Right of hizanit--Question of--Whether right of hizanat or its cessation is an absolute rule or is qualified one--Determination--Custody of minor on cessation of right of hizanat--Welfare of minor--Suit for grant of maintenance allowance--Decreed--Excution petition--Petitioner failed to liquidate his liability--Issuance of non-bailable warrat of arrest--Petition made partial payment & released on bail--There is little cavil with well expounded proposition of law that subsistence or cessation of right of hizanat by itself would not be sufficient to grant custody of minor to either of parent--Paramount consideration which is to be kept in view by Courts while deciding question of custody of minor is always welfare of minor--It is an admitted fact that Respondent No. 3, mother of minor has contracted second marriage but in year 2008, petitioner also entered into contract of second marriage in year 2003 having three children--In view of matter, if custody of minor is given to petitioner, he has to live in company of step mother, step brothers and sisters which admittedly will adversely effect upon his interest--Omission to pay maintenance allowance despite grant of decree is sufficient to demonstrate conduct of petitioner, which disentitles him to have custody of minor--It is not disputed that custody of minor was handed over to Respondent No. 1 being maternal grandmother by this Court vide order dated 30.1.2008, who admittedly is putting up with Respondent No. 1 and as such has been raised in a congenial atmosphere and as such removal of minor at this stage from well accustomed atmosphere will adversely effect his welfare--Petitioner failed to point out any demrit on part of Respondent No. 1, maternal grand mother, in order to prompt this Court to decide it that welfare of minor lies in granting his custody to present petitioner--As minor is putting up with maternal grand mother for a period of about four years, therefore, it is in welfare of minor that his custody should remain with respondent. [Para 5, 6 & 7] A, B, C, D & E
1981 SCMR 744; NLR 1993 Civil 125; 1983 SCMR 793;
2006 YLR 316 and PLD 2002 SC 267 ref.
Mian Mahmood Ahmad Ansar, Advocate for Petitioner.
Mirza Dilawar Hussain, Advocate for Respondent No. 1.
Mirza Muhammad Irfan Baig, Advocate for Respondent No. 3.
Date of hearing: 9.5.2012.
Order
Feeling aggrieved by the judgment dated 3.5.2011 recorded by learned first appellate Court whereby while accepting the appeal preferred by Respondent No. 3, set aside the order dated 3.9.2009 recorded by learned Family Court accepting the application of the petitioner for custody of minor.
2. Necessary facts resulting in filing of present writ petition are that the petitioner was married with Respondent No. 3 on 1.3.2002 and out of this wedlock Muhammad Hussain, son was born. Unfortunately due to matrimonial dispute, the relations between spouses became strained and ultimately marriage was dissolved. The son i.e. Muhammad Hussain; who was five years old at the time of filing of application under Section 25 of The Guardian and Wards Act in February 2008 was in the custody of Respondent No. 3 and the petitioner made an application under section 491 of The Code of Criminal Procedure, 1898, which application was allowed by the learned Sessions Judge, Multan vide order dated 22.1.2008. Respondent No. 3 approached this Court by making an application under the same provision of law which was disposed of by this Court vide order dated 31.1.2008, handing over the custody of the minor to Mst. Allah Rakhi Respondent No. 1, maternal grand-mother of the minor with the direction to the parties to approach Family Court for redressal of their grievance, which prompted the petitioner to make an application under section 25 of The Guardian and Wards Act and after conclusion of proceedings, learned Family Court, Multan vide order dated 3.9.2009 allowed the application, which order when assailed by Respondent No. 3 by preferring an appeal was set aside.
3. Heard.
Learned counsel for the petitioner maintained that the minor at present is more than seven years old and as such right of hizanat of Respondent No. 3 has ceased to exist, sufficient to grant custody of minor to the petitioner being real father. Submitted that even otherwise, Respondent No. 3 has looses her right to have the custody of minor due to solemnization of second marriage. Further maintained that the custody of minor at present is with Respondent No. 1, maternal grand-mother of the minor, handed over to her by this Court vide order dated 31.1.2008 recorded in Criminal Misc. No. 19-H of 2008. Further submitted that present petitioner being father can look after the minor in a better way and welfare of the minor requires to handover his custody to the petitioner. Help was sought from the dictum laid down in “Surraya Bibi v. Abdul Rashid” (1980 CLC 785) and “Mst. Rashida Bibi v. Muhammad Ismail”(1981 SCMR 744).
On the other hand, learned counsel for Respondents No. 1 to 3 though did not dispute that Respondent No. 3 has contracted second marriage but also maintained that Respondent No. 3 contracted second marriage in the year 2008 but the present petitioner just after divorcing the said respondent solemnized second marriage in the year 2003. Maintained that petitioner being father though was obliged and required to pay maintenance to the minor but due to negligence and omission on his part, Respondent No. 3 was constrained to institute the suit for grant of maintenance allowance in which despite grant of decree for maintenance allowance, respondent did not provide maintenance compelling Respondent No. 3 to file execution petition but again the petitioner failed to liquidate his liability and as such in execution petition in pursuance of non bailable warrant of arrest, respondent was produced in the Court who made partial payment and subject to furnishing surety bond was released. Submitted that still a huge decretal amount is outstanding against the petitioner. Continuing his arguments, learned counsel for Respondents No. 1 to 3 maintained that custody of minor was granted by this Court to Respondent No. 1 being maternal grand-mother but Respondent No. 3 even after solemnization of second marriage is putting up with her parents, which fact has not been disputed at the instance of petitioner. Submitted that in the attending circumstances learned first appellate Court rightly reached to the conclusion keeping in view the welfare of the minor, non-suiting the petitioner.
4. The petitioner as well as Respondent No. 3 were married in the year 2002 and a son namely Muhammad Hussain was born in the year 2003 who at present is about nine years old. During the arguments, attention was focused at the instance of petitioner regarding the cessation of right of hizanat of Respondent No. 3 and agitated her disability to contract second marriage.
5. Prior to dealing with the respective contentions of the adversaries it is desirable to know about the right of hizanat and the length of its term.
It would be beneficial to make reference to The HEDAYA Vol. I, Chapter XIV (Translation by CHARLES HAMILTON) and in the said chapter of “Hizanat” it has been commented upon as follow at pages 385-386”.
If a separation take place between a husband and wife, who are possessed of an infant child, the right of nursing and keeping it rests with the mother, because it is recorded that a woman once applied to the prophet, saying “O, prophet of God; this is my son, the fruit of “my womb, cherished in my bosom and suckled at my breast and “his father is desirous of taking him away from me into his own “care;”--to which the prophet replied, “thou hasi a right in the “child prior to that of thy husband, so long as thou dosi not marry with a stranger:” --moreover, a mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child; and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying “the spittle of the mother is better for the child than honey, O OMAR !” which was said at a time when separation has taken place between Omar and his wife, the mother of Assim, the latter being then an infant at the breast, and Omar desires of taking him from the mother; these words were spoken in the presence of many of the companions, none of whom contradicted him:”
At page 388 under the title “Length of the term of Hizanat” it is said:--
The right of Hizanit, with respect to a male child, appertains to the mother, grandmother, or so forth, until he become independent of it himself, that is to say, become capable of shifting, eating, drinking, and performing the other natural functions without assistance alter which the charge devolves upon the father, or next paternal relation entitled to the office of guardian, because, when thus far advanced, it then becomes necessary to attend to his education in all branches of useful and ornamental science, and to initiate him into a knowledge of men and manners, to effect which the father or paternal relations are best qualified:--(Kalaf says that the Hizanit, with respect to a boy, ceases at the end of seven years, as in general a child at that age is capable to performing all the necessary offices for himself, without assistance.)--But the right of Hizanit with respect to a girl appertains to the mother, grandmother, and so forth, until the first appearance of the menstrual discharge, (that is to say, until she attain the age of puberty,) because a girl has occasion to learn such manners and accomplishment as are proper to women, to the teaching of which the female relations are most competent;-- but after that period the charge of her properly belongs to the father, because a girl after maturity, requires some person to superintend her conduct, and to this the father is most completely qualified”.
It is not disputed that right of hizanat of Respondent No. 3 has ceased to exist. The next question for consideration is whether right of “Hizanat” or its “cessation” is an absolute rule or is qualified one. There is little cavil with the well expounded proposition of law that subsistence or cessation of right of hizanat by itself would not be sufficient to grant custody of minor to either of the parent. The paramount consideration which is to be kept in view by the Courts while deciding the question of custody of minor is always welfare of the minor as held in “Mst. Rashida Bibi v. Muhammad Ismail” (1981 SCMR 744), “Mst. Zahran v. Umar Draz, etc.” (NLR 1993 Civil 125), “Mst. Firdous Iqbal v. Shifaat Ali and others” (2000 SCMR 838), “Muhammad Iqbal v. Addl. District Judge, etc.” (1999 Unclassified cases 105) and “Mst. Najma Yasmin and other v. Javed Akhtar and 2 others” (2003 CLC 729).
In view of the matter, argument canvassed at the instance of petitioner claiming the custody of minor on the ground of cessation of right of hizanat of Respondent No. 3 cannot advance plea of petitioner. Question for handing over custody of minor is required to be dealt with keeping in view paramount consideration i.e. welfare of minor. Though it is an admitted fact that Respondent No. 3, mother of the minor has contracted second marriage but in the year 2008, the petitioner also entered into contract of second marriage in the year 2003 having three children. In view of the matter, if the custody of the minor is given to the petitioner, he has to live in the company of step mother, step brothers and sisters which admittedly will adversely effect upon his interest. If any authority is needed on the point, reference may be made to “Ghulam Ullah Memon v. Mst. Rashid Begum” (1983 SCMR 793) and “Salma v. Additional District and Sessions Judge,
6. It is an admitted fact that the present petitioner did not maintain the minor and as such Respondent No. 3 being mother was constrained to institute suit for maintenance allowance in which decree was granted against petitioner awarding maintenance allowance to the minor @ Rs. 2000/- per month. It is not disputed that the petitioner despite grant of decree did not pay maintenance allowance and as such Respondent No. 3 was compelled to file execution petition on 13.11.2010 which fact was not questioned by the learned counsel for the petitioner. Omission to pay maintenance allowance despite grant of decree is sufficient to demonstrate the conduct of petitioner, which disentitles him to have the custody of minor as held in “Mst. Zahran v. Umar Draz, etc.”(NLR 1993 Civil 125) and “Zulfiqar v. Mst. Khanam Mai and 3 others” 2006 YLR 1728). It is not disputed that the custody of the minor was handed over to Respondent No. 1 being maternal grandmother by this Court vide order dated 30.1.2008, who admittedly is putting up with Respondent No. 1 and as such has been raised in a congenial atmosphere and as such removal of minor at this stage from well accustomed atmosphere will adversely effect his welfare.
7. The petitioner failed to point out any demrit on the part of Respondent No. 1, maternal grand mother, in order to prompt this Court to decide it that welfare of the minor lies in granting his custody to the present petitioner. As the minor is putting up with maternal grand mother for a period of about four years, therefore, it is in the welfare of the minor that his custody should remain with Respondent No. 1 as held in “Mst. Hameed Mai v. Irshad Hussain” (PLD 2002 Supreme Court 1267) and “Muhammad Iqbal v. Addl. District Judge, etc” (1999 Unclassified cases 105).
8. Pursuant to above discussion, present petitioner failed to place on record the material in order to suggest that welfare of minor lies in handing over his custody to him.
9. Pursuant to above discussion no exception can be taken to the impugned judgment and as such while endorsing the same writ petition being devoid of force is hereby dismissed.
(M.M.R.) Petition Dismissed
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