Father's right to custody after mother's death

 PLJ 2018 SC 201

[Appellate Jurisdiction]

Present: Mian Saqib Nisar, HCJ, Faisal Arab & Ijaz-ul-Ahsan, JJ.

NASIR RAZA--Petitioner

versus

ADJ, JHELUM & another--Respondents

C.P. No. 2393 of 2017, decided on 3.1.2018.

(Against judgment dated 19.5.2017 of Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Writ Petition No. 1746 of 2014).

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

----S. 25--Custody of minors--Right of hizanat--Death of mother--Old age of maternal grandmother--Father & maternal grandmother filing application for custody--Guardian Judge allowed application filed by maternal grandmother and dismissed application filed by father--Appellate Court accepted appeal of father and allowed him custody of minors--High Court set aside judgment of appellate Court--Challenge to--Petitioner submitted that respondent is 67 years of age and in bad health, children are being looked after by their step maternal aunt, who is not in position to look after an educate children properly--Welfare of minors--Validity--Father is natural guardian of children--On account of children’s ages, right of Hizanat, no longer vests in their maternal grandmother--Petitioner is real father of children, is ready and willing to look after children and has financial resources to fulfil their material needs and educational requirements--Petitioner has neither returned to his job abroad nor remarried keeping in view welfare and best interest of his children--Best interest and welfare of minors lies in handing over their custody to petitioner, real father--There is nothing on record to suggest and it has not even been alleged that petitioner is unfit, unable or unwilling to perform his duties as a guardian of his children--Petition converted into appeal and allowed.  [P. 203] A

Mr. Basharat Ullah Khan, ASC and Syed Rafaqat H. Shah, AOR for Petitioner.

Mr. Saeed Yusuf Khan, ASC a/w Respondent No. 2 & minors.

Date of hearing: 3.1.2018.

Order

Ijaz-ul-Ahsan, J.--The petitioner seeks leave to appeal against, a judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 19.05.2017. Through the impugned judgment, a constitutional petition (W.P.No. 1746 of 2014), filed by Respondent No. 2 was allowed judgment and decree of the learned Additional District Judge, Jhelum, dated 29.04.2014 was set aside and the orders dated 16.12.2013 passed by the learned Guardian Judge, Sohawa, District Jhelum were restored.

2.  Brief facts necessary for decision of this lis are that the petitioner was married to Mst. Shamim Akhtar, daughter of Respondent No. 2 on 07.11.2001 in accordance with Muslim Rites. From the wedlock, four children namely Areej Nasir, Aiman Nasir (daughters), Ahsan Raza and Ahmed Raza (sons) were born. Mst. Shamim Akhtar died on 26.9.2011 and disputes arose regarding custody of the minors. At that time, Areej Nasir, Aiman Nasir and Ahsan Raza were in the custody of their maternal grandmother/ Respondent No. 2 Walayet Begum. She filed a petition under Section 25 of the Guardians and Wards Act, 1890 (“The Act”) for custody of minor Ahmed Raza and also filed an application under Section 7 of the Act for her appointment as guardian of the minors who were already in her custody. The petitioner, who is the real father of the children, also moved an application seeking custody of the three minors. The learned Guardian Judge allowed the applications of Respondent No. 2 (Walayet Begum) and dismissed that of the petitioner through separate orders on 16.12.2013.

3.  Being aggrieved, the petitioner preferred appeals before the learned Additional District Judge, Jhelum. Through Judgment & decree dated 29.04.2014, the said appeals were allowed and Respondent No. 2 was directed to handover custody of the minors to the petitioner. Against this order, Respondent No. 2 approached the High Court in its constitutional jurisdiction. Through the impugned judgment, the constitutional petition was allowed; the orders of the learned Guardian Judge were restored and while granting custody to Walayet Begum, the High Court fixed a schedule of visitation to enable the petitioner, who is real father of the children, to visit and meet the minors off and on.

4.  The petitioner is dissatisfied with the impugned judgment of the High Court and has approached this Court.

5.  The learned counsel for the petitioner submits that Respondent No. 2 has lost the right of Hizanat with the passage of time. She is 67 years of age and in bad health; and the children are being looked after by their step maternal aunt who is not in a position to look after and educate the children properly. He submits that being the real father, the petitioner has natural love and affection for his children, has not returned to his job abroad and has not remarried. He further submit that, petitioner’s mother who is a sister of Walayet Begum and is younger in age is available in the house to look after the children. Further, the petitioner is financially sound, resides in the city and can better look after and educate his children.

6.  The learned counsel for Respondent No. 2 on the other hand submits that the children have lived with their grandmother since they lost their mother. They have developed emotional attachment with their maternal grandmother and their welfare lies in remaining in her custody.

7.  We have heard the learned counsel for the parties and gone through the record. There is no denial of the fact that the father is the natural guardian of the children. On account of their respective ages, the right of Hizanat of the minors no longer vests in their maternal grandmother. The petitioner, who is real father of the children, is ready and willing to look after the children and has the financial resources to fulfil their material needs and educational requirements. He has neither returned to his job abroad nor remarried keeping in view the welfare and best interest of his children. His mother, a younger sister of Respondent No. 2, is also available in the house to help him look after and raise the children. Therefore, prima facie, the best interest and welfare of the minors lies in handing over their custody to the petitioner, the real father. There is nothing on record to suggest and it has not even been alleged that he is unfit, unable or unwilling to perform his duties as a guardian of his children. In our opinion, it would be unjust and unfair to deprive the children of the company, love and affection of their real father. Specially so, where the father does not suffer from any legal disability that may deprive him from his legal right to have custody of his children.

8.  In these circumstances, we are unable to agree with and subscribe to the reasoning and conclusions recorded by the learned High Court.

9.  In view of the foregoing, we convert this petition into an appeal and allow the same. The impugned judgment of the High Court is set aside and judgment and decree dated 29.04.2015, passed by the learned Additional District Judge, Jhelum is affirmed. We direct that custody of the minors shall be handed over to the petitioner within one week From today.

10.  We are also mindful of the fact that the children have spent sufficient amount of time with their maternal grandmother Walayet Begum and have developed emotional attachment to her. It would therefore neither be appropriate nor advisable to sever such bond. We, therefore, direct that the petitioner shall ensure that the minors spend sufficient time with Respondent No. 2 Walayet Begum, the grandmother. They shall be allowed to spend weekends with their maternal grandmother. They shall be dropped at her house on every Saturday at 2:00 p.m. and picked up the next day i.e. Sunday at 4:00 p.m. The parties may, however, seek modification of this arrangement to cater for their mutual convenience by moving joint applications before the concerned Guardian Court.

(Z.I.S.)            Appeal allowed