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Petitioner: Ahmed Bilal VS Respondent: Khurram Javed and 3 others
Court Name: Islamabad High Court Judge(s): Babar Sattar Title: Ahmed Bilal vs Khurram Javed and 3 others Case No.: Writ Petition No. 2383 of 2021 Date of Judgment:2022-06-16 Reported As: 2023 PLD Islamabad 83 Result: Petition allowed
JUDGMENT
JUDGMENT BABAR SATTAR, J. One of the most daunting challenged of parenthood is to reach decisions regarding how best to raise your children so they. grow up to be sane, happy and conscientious individuals. Even harder is for anyone to decide wherein lies the best interest of the child of another. That is what Family Courts are obliged to do while deciding guardianship applications when parents who brought children into the world either split up or pass away. 2. The decision regarding the welfare of a child sometimes seems akin to crystal ball gazing. And this is exactly why it can neither be left to a pre-determined formula applied as a straightjacket nor the whims of a court. It requires the exercise of solemn judgment by the court in view of relevant considerations guided by hard facts, scientific research and expert option. 3. While deciding guardianship requests in the 21st century, we are still working with the roles assigned to genders in a patriarchal society, in disregard of studies carried out to determine what impacts the well-being of children during, their early years leading into their youth, and without relying on the advice of professionals such as child psychologists and psychiatrists. Judges are not professionals trained in determining the means for optimally promoting child welfare within broken or divided families. And yet they are required to do so without any expert advice being made available to them while making consequential decisions that have a major impact on shaping the sense of self and identity of a young person. 4. This case involves the future of a young girl (Meher Fatima) who lost her mother to epilepsy when she was barely two years old. At the time when her mother was unwell and subsequently in hospital, she was at the house of her maternal grandmother being looked after by her maternal
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family, including a maternal uncle and unmarried aunt along with the grandmother. When her mother passed away at the hospital, her father and her maternal family were beside her mother. 5. The dispute regarding the child's guardianship arose three months after the mother's demise when her maternal family ("Respondents") refused to hand over her physical custody to her father ("Petitioner"). The petitioner filed a section 491 application before the Sessions Court to regain custody. The court ruled that this was not a case of abduction and the correct course of action for the father would be to initiate proceedings under the Guardians and Wards Act, 1890 ("Guardians Act"). 6. The father brought an action under the Guardians Act seeking custody of his daughter. The Respondents contested the claim and argued that the maternal grandmother and maternal uncle were more educated and better placed to secure the welfare of the Petitioner's daughter. The demise of a loved one can either bring families (tied by the bond of marriage) together or draw them apart. In this unfortunate case the latter happened. 7. The Petitioner claimed that he loved his wife and was by her side till the very end. He claims that he loves his daughter and while the child has already lost her mother, she should not be made to lose her father and be made an orphan while her father is still alive and ready, willing and able to provide for her and raise her in a happy home where her paternal family lives. 8. The Respondents claimed that the Petitioner abandoned his wife when she was sick and that they have raised the Petitioner's daughter ever since she was born. They claim that the petitioner has only passed his intermediate and is engaged in private business and cannot cater for the educational needs of his daughter like they can. That the Petitioner married again almost nine months after his first wife's demise and lives in a 5-marla house with his parents and siblings which is not the best environment to raise his daughter. 9. The Petitioner on the other hand alleges that it was the Respondents who were attending a family wedding in Lahore, when his first wife was in hospital and close to her end. He asserts that the child's maternal grandmother has a second husband who works in the Middle East and provides for the home she lives in but does not own. In contrast, he lives in a family-owned home. The Petitioner asserts that the maternal uncle of his daughter has his own wife and kids and cannot love or look-after his daughter as her biological father can. 10. The learned Family Court found in favour of the Respondents on the basis that the Petitioner had re-married, that the Respondents were better educated and had looked after the Petitioner's daughter when her mother was sick and in the hospital, and that the maternal grandmother was to be given preference in a custody disagreement according to the treatise written by Dinshah Mulla. The Additional District Court endorsed the judgment of the learned Judge Family Court. 11. The learned counsel for the petitioner contended that the Petitioner had neither abandoned her daughter nor was otherwise unfit to be a guardian. And while he was alive and not unfit or unwilling to be the guardian of his own daughter, no other relative could be appointed the guardian or custodian of the child merely because her mother had passed away. He submitted that in the absence of any evidence of the Petitioner being unfit to be his daughter's guardian, the courts had handed over custody of his daughter to the maternal grandmother and maternal uncle in disregard of provisions of the Guardians Act. 12. The learned counsel for the Respondents supported the impugned judgments. He submitted that the learned Family Court and the appellate Court had exercised their discretion judiciously to grant custody of Meher Fatima to the Respondents as they were better placed to ensure the welfare of the child. 13. The questions that arise for the consideration of this Court are the following: (i) Can, a relative be declared the guardian of a child whose father is alive and not unfit or incapable of being the guardian of such child?
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(ii) Can custody of a minor be awarded to a relative, whose mother is not alive, without declaring such relative a guardian, when the father is alive and remains the guardian? (iii) Is there any evidence in the instant case on the basis of which it can be concluded that the Petitioner is unwilling, incapable or unfit of being the guardian of his daughter? 14. Let us take into account the jurisprudence produced in relation to consideration for award of guardianship before we turn to the scheme of the Guardians Act. I. In Zohra Begum v. Maimuna Khatun (PLD 1965 Dacca 290) reliance was placed on Mst. Siddiqunnisa Bibi v. Nizamuddin Khan (AIR 1932 All. 215) where it was held that while appointing a guardian under section 17 of the Guardian and Wards Act, "the personal law of the minor concerned is to be taken into consideration, but that law is not necessarily binding upon the Court, which must look to the welfare of the minor consistently with law". And that, "personal law can be ignored if the welfare of the minor requires that someone else, even inconsistently with that law, is the more proper perso to be appointed guardian of the minor." In Zohra Begun it was held that "the Court, having regard to the provision of the Mohammedan Law and also the welfare of the minor] should appoint a guardian and not blindly merely because a mother has a preferential right or merely because a mother has lost her preferential right after having taken a second husband..." II. Mst. Fahmida BeRum v. Habib Ahmed (PLD 1968 Lahore 1112). It was re-emphasized that welfare of the minor was the dominant consideration in appointing guardian under sections 17 and 25 of the Act sans availability of Quranic or Traditional Text or Ijma on a point of -law, if there is difference of opinion between Alin= and Faqihs, a Court may form its own opinion on the point of law. III. In Rahimullah Choudhury v. Helali Begum (1974 SCMR 305) it was clarified that "Welfare being a question of fact will, therefore, have to be resolved on the material placed before the Guardian Judge and not on the basis of any presumption" and that, "the question to be decided under section. 25 is, however, not the right of the guardian to obtain the custody of the ward as that right is given to him by the statute but the welfare of the ward. A natural or certificated guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the, guardian. It is, therefore, provided specifically that although the guardian is entitled to such custody no order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward." IV. In Imtiaz Begum v. Tariq Mahmood (1995 CLC 800) the learned Lahore High Court held that the "right of Hizanat is to be exercised by the females at one time and at another time this vests in the males". With all due respect, it appears to an outdated view neither rooted in law nor in any considered concept of the welfare of minor, but instead in a patriarchal conception of gender roles to be performed by the two sexes. In this case the custody of a minor boy was handed over to the father essentially on the ground that he was more than seven-years old. "Such ground alone was sufficient for giving minor boy in custody of father" it was held by the learned Lahore High Court. With respect, this Court is not inclined to heed such opinion. The welfare of a child cannot be determined in some mathematical fashion based on proxy factors such as the clock striking a certain hour and a child reaching a certain age. Welfare of a child cannot hinge on lazy use of proxy factors without taking into account the sum-total of the facts and circumstances that would impinge on the child's welfare, sanity and happiness. V. Mst. Nighat Firdous v. Khadim Hussain (1998 SCMR 1593) The august Supreme Court dealt with a case where the minor's mother died when he was 15 days old and he was brought up by his maternal aunt. The question of guardianship came up when the child reached the age of seven. It was reiterated that "welfare of the minor is the paramount consideration in determining the custody of a minor" and further held that, "the right of the father
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to claim custody of a minor is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct, depending upon the facts and circumstances of each case." In the circumstances of the case the august Supreme Court found that welfare of the minor, about 15 years old at the time, lay with the maternal aunt retaining his custody. VI. In Mst. Firdous Iqbal v. Shifaat Ali (2000 SCMR 838) it was held that "the custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct..." The Court found that the father had neglected the child since separation of spouses, and had remarried, and being in army would not be present in the house where he proposed to lodge his son. And the minor son would be at the mercy of the step-mother. It was found that welfare of his child was in staying with the mother, who had also remarried. VII. In Khan Muhammad v. Mst. Surrayya Bibi (2008 SCMR 480) it was held that the right of father to custody, being the natural guardian, would be subject to the child's welfare. VIII. In Nasir Roza v. Addl. District Judge (2018 SCMR 590) the mother of the children had died and they had been raised by their maternal grandmother. The guardian court awarded guardianship to the father. The High Court reversed the decision. And the apex Court, in view of the facts and circumstances of the case, held that the welfare of the children lay in being raised by the father. And that as the minors had developed an emotional bond with the grandmother, such bond ought to be preserved with regular visitation rights for grandmother. 15. Let us turn to the provisions of the Guardians Act, Section 4(2) defines the term guardian as "a person having the care of the person of a minor or his property, or of both his person and property". It must be pointed out that anyone having the care of the person of the minor is defined as a guardian and the word custody or custodian is not a term defined by the Guardians Act. The word custody is used in sections 12 and 24 of the Guardians Act while empowering the court to require a person having the custody of the person to produce the minor before the court and for purposes of making temporary custody arrangement in relation to the minor pending adjudication of a guardianship claim before the Court. There is no other provision in the Act which contemplates the award of custody of the minor on a permanent or semi-permanent basis to a person who is not otherwise appointed as a guardian of the minor. 16. Section 7 of the Guardians Act empowers the court to appoint, a person as a guardian of the person or property of a minor. And it provides for the removal of any other person, by implication, who has not been appointed guardian of the minor by the court. The paramount consideration for making such appointment of the guardian is the welfare of the minor. Pursuant to section 7, the court has the authority to appoint a person as the guardian of the person of the minor or the property of the minor or both. 17. Section 15 of the Guardians Act contemplates appointment of several guardians in relation to a minor at the same time. Section 15 states the following: 15. Appointment or declaration of several guardians. (1) If the law to which the minor is subject admits of this having two or more joint guardians of his person or property, or both, the Court may, if it thinks fit, appoint or declare them. (2) ft (3) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981. (4) Separate guardians may be, appointed or declared of the person and of the property of a minor. (5) If a minor has several properties, the Court may, if it thinks fit, appoint or declare a separate guardian for any or more of the properties.
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There is scant jurisprudence in relation to section 15. But the language clearly conceives of joint guardianship for the person of the minor as well as multiple guardians for the person and for the property of the minor, if the situation so requires. 18. Section 19 places limitations upon the powers of the court to appoint a guardian for the person or the property of the minor and states the following: 19. Guardian not to be appointed by the Court in certain cases. Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person- - (a) of a minor who Is a married female and whose husband is not in the opinion of the Court, unfit to be guardian of her person, or (b) of a minor whose father is living and is not in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor. Relevant for our present purposes is subsection (b) of section 19, which will be discussed later in this opinion. 19. Section 25 provides the mechanism to seek the recovery of the ward who has been removed from the custody of the guardian and states the following: 25. Title of guardian to custody of ward. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the 'order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the 'First Class by Section 100 of the Code of Criminal Procedure, 1898 (Act V of 1908). (3) The residence of a ward against the will of his guardian with a person who is nor his guardian does not of itself terminate the guardianship. Section 25(1) provides the mechanism through which a guardian can seek to re-acquire the custody of the ward and section 25(3) clarifies that a ward being removed from the custody of the guardian against the guardian's will does not result in automatic termination of guardianship. 20. Other than the Guardians Act also relevant for our present purposes is Islamabad Capital Territory Child Protection Act, 2018 ("ICT Child Protection Act"), pursuant to which the State has undertaken to discharge its obligation to uphold the life, liberty and dignity of the child guaranteed by Articles 9 and 14 of the Constitution. It vests in the State the power to take away a child even from the custody of his/her parent where the child is at the risk of significant harm, abuse or exploitation while in the care of his or her biological parents. Section 2(m) of the said Act defines guardian as a person "other than a biological parent who has parental responsibility for a. child, which may include a guardian appointed under the Guardians and Wards Act, 1890". The other relevant provisions of the ICT Child Protection Act which places restrictions on the exercise of parental custody and control over a child and vests powers in the State to assume the custody of the child who is at the risk of significant harm, abuse or exploitation, includes the following: 4. Restriction on parental custody.---The Court may restrict the exercise of parental custody and control of a child when, - (a) a child is at risk of significant harm and is in need of care; (b) a child is subject of a child care plan; or (c) a child is subject of emergency powers exercised by a Child Protection Officer under this Act, 5. Child in need of care. ---A child in need of protection and care shall include a child who-
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(a) has been subjected to or is under serious threat of being subjected to child abuse or child exploitation while in the care of parents, legal guardian or any other person who has custody of the child-in any manner; or (b) is unattended, victim of an offence, child, domestic and such other workers, found begging, imprisoned with the mother or lives in an immoral environment. 15. Consent of the parents or guardian.---Subject to section 16, the Child Protection Officer shall seek the consent of the parent, legal guardian or current career of the child, if any, on the action to be taken and the services to be offered to the child. Such consent, under child care plan, shall be recorded in writing in the form of an agreement, as may be prescribed. 16. Care and placement of a child.---Notwithstanding the provision of section 15, where the child care plan specifies that the child will be at risk of significant harm, abuse or exploitation if he remains in care of his parent, legal guardian or other current career, if any, an application shall be made immediately to the Court for the care and placement of the child in an appropriate form of alternative care. 21. The ICT Child Protection Act provides for an institutional framework to give effect to provisions of the Act, including Child Protection Advisory Board headed by a Federal Minister comprising high officials of the State as well as members of the civil society. It also provides for establishment of Child Protection Institutions. And included within the functions of Child Protection Institutions under section 11 of the ICT Child Protection Act is an obligation to "assess or based on reports whether a child requires care under the provisions of this Act". The Act requires a Child Protection Officer appointed under the Act to make an assessment regarding the need of the child to protection and care. The Act obliges the State to put together child care plans for children in need of care and protection and identification and establishment of care-giving institutions which can look after children whose parents or legal guardians are unable to provide for their welfare and care or for such unattended children who do not have parents or guardian. The ICT Child Protection Act recognizes biological parents as individuals in whose custody the child ordinarily remains and who are responsible for the child and consequently biological parents have been excluded from the definition of "guardian" under the ICT Child Protection Act. 22. The ICT Child Protection Act is a welcome step forward by the State in assuming the ultimate responsibility for the care and protection of minor citizens of the State. The provisions of the ICT Child Protection Act clarify that the State is under an obligation to protect children in all circumstances, including where they are suffering abuse at the hands of their own biological parents. In the ordinary scheme the individuals who elect to bring a child into this world are ultimately responsible for the care, nurturing and upbringing of such child. As a rule, the parents of a child have the best interest of such child at heart and are best placed to provide for his/her upbringing, welfare and happiness. In the natural course of things there is nothing to gainsay that no one can love a child or be concerned with his or her welfare and upbringing more than his or her parents. There are, however, exceptions to this rule, in which case the State can exercise its authority and place the child in the care of another caregiver declared as his or her guardian pursuant to provisions of the Guardians Act as contemplated and reinforced by the ICT Child Protection Act. 23. The parents of a child are his or her natural guardians and do not need to seek a declaration from a court for such purpose under the Guardians Act. The laws of Pakistan envisage that a child is in the custody of his or her parents. The question regarding the custody and guardianship of a child arises in situation where the nuclear family unit is under stress or breaks up due to the separation or divorce of the parents. In such circumstance a court is obliged to decide who retain primary custody of the person of the child when both parents are not living together any longer. The situation where the custody of the person of a minor is to be shared by his or her biological
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parents and the question of guardianship arises in such scenario is significantly different from a situation where a relative or another caregiver is seeking custody of a child when one or both the parents are still alive. It is in this latter scenario the aforementioned definition of guardian in the ICT Child Protection Act would have to be read together with provisions of the Guardians Act to determine circumstances where a person other than a biological parent of a minor can seek to be declared the guardian of the child and acquire custody of the person of the minor. 24. The definition of guardian in the ICT Child Protection Act as mentioned above excludes natural parents. The provisions of the ICT Child Protection Act assume that a child will be in the custody of his or her biological parents. And appointment of a third person as a guardian is the exceptional arrangement required to be made where the natural parents are either not present or unable to look after their child. The distinction drawn within our jurisprudence between custody and guardianship is in the context of sharing of custody between the parents of the child when they are both alive and not living together and not the sharing of custody of a child by his/her parent with a relative or third-party caregiver. 25. Section 24 of the Guardians Act identifies duties of the guardian and states the following: 24. Duties of guardian of the person. A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires. In situations where there is a dispute arises between parents as to who would retain primary custody of the child, the courts have clarified that even where the custody of a child is primarily awarded to the mother, the father remains…
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