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