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Petitioner: RAHIMULLAH CHOUDHURY VS Respondent: MRS. Sayeda HELALI BEGUM AND Other
Court Name: Supreme Court of Pakistan Judge(s): Hamoodur Rahman, Dr. Sheikh Abdul Rahman, Muhammad Yaqub Ali Khan Title: RAHIMULLAH CHOUDHURY vs MRS. Sayeda HELALI BEGUM AND Other Case No.: Civil Appeal No. 24 of 1966F. M. T. No. 122 of 1965 Date of Judgment:1967-11-23 Reported As: 1974 SCMR 305 Result: Appeal dismissed
JUDGMENT
JUDGMENT MUHAMMAD YAQOOB ALI, J.-This appeal raises the question whether under Muslim Law a mother loses the hizanit of her children of tender age if she, removes them from the ordinary place of residence of the father and that it shall be deemed to be in their welfare, to return them into his custody. 2. That facts relevant to this order which we have been able to gather from the record are these. The appellant and respondent No. 1 were married on 7-2-1960 and had lived together for only few months in Dacca when differences arose between them and the latter went away to Chittagong and took up residence with her sister, wife of respondent No. 3, who was posted there as District and Sessions Judge. The elder boy Tarik Mahtab Rahim alias Misha was born during this period of estrangement in Chittagong on the 30th December 1960. A reconciliation thereafter took place and respondent No. 1 along with the child came back from Chittagong and resided with the appellant in Dacca for about 2 years. The second boy Jabed Salam Rahim alias Mohi was born to respondent No. 1 during this period on the 15th September 1962. On the night of 31st August 1963, the appellant allegedly beat respondent No. 1 as a result of which she ceased taking food from his house and sent for meals from the house of her sister Mrs. Sanaul Haq. On the 10th October 1963, the respondent No. 1 along with the two boys as a result of this fresh estrangement left the house of the appellant and went over to the house of respondent No. 2 and after staying there for a few days joined her elder sister Mrs. Abdul Hakim Khan at Mymensingh. She stayed there with the boys until 21st April 1964, when the respondent No. 3 was transferred to Dacca and they all came back to reside here. During her stay at Mymensingh the appellant corresponded with respondent No. 1 and paid her more than one visit. The two boys were allowed to remain in the company of the appellant1/2
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on these occasions for several hours daily. On her return to Dacca the respondent No. 1 stayed with respondent No. 3 in "Sagarika" Elephent Road, in the same locality where the appellant resides. The two boys were `dressed' and `groomed' and sent to the appellant during this period every day and they remained with him for 7/8 hours. On 1-Q-1964 the appellant detained the elder boy and did not allow him to go back to respondent No. 1. The boy stayed at 222, New Eskaton Road for four days until on the 4th August he rang up respondent No. 1 and asked her to take him away. In response to the call respondent No. 1 went to the house of the appellant who himself was away and brought back the elder boy at 11 a.m. At 11-30 a.m. The appellant who was informed about the visit of respondent No. 1 by his servant came to the house of respondent No. 3 and picked up a row which resulted in a more ugly incident bringing about final rupture between the spouses. 3. After the 4th August 1964, the two boys were not sent to the house of the appellant whereupon he filed the present application for their custody under section 25 of the Guardians & Wards Act, on the 18th August 1964, in the Court of District Judge, Dacca, being Miscellaneous Case No. 119 of 1964. Besides Mrs. Sayeda Helali Begum, respondent No. 1 Mr. Sanaul Haq and Mr. Abdul Hakim Khan the husbands of her two sisters were also impleaded as pro forma opposite-party which in view of the relief claimed in the case was quite unnecessary. 4. The claim in the petition proceeded on the grounds (i) that as a result of removing the minor boy from the lawful custody of the appellant the respondent No. 1 had forfeited the right of hizanat and (ii) that it was for the welfare of the minors to restore their custody to the appellant. The application was opposed and the three respondents filed separate written statements controverting the appellant's claim to the custody of the minor boys. A lengthy account was also given of the cruel treatment which the appellant had all along meted out to the respondent No. 1 as a result of which she had felt compelled to take shelter with her elder sister. 5. Mr. M. A. Jabir, the Additional District Judge, Dacca, to 'whom the application was entrusted for disposal framed the following issues in the case : "(1) Is the application maintainable and is it a bona fide one? (2) Have the minors been removed from the custody of their legal guardian? If so, will it be for the welfare of the minors to return them to the custody of their legal guardian? (3)To what relief, if, any is the petitioner entitled? 6. Main evidence in the case was provided by the appellant and respondent No. 1 each side giving its own version of the causes which had led to the estrangement between them more particularly in regard to the incidents of the 31st August 1963 and 4th August 1964. The appellant in additions examined five witnesses, namely, Ziaul Ahsan, P. W. 3, the husband of another sister of the respondent No. 1 Wahidur Rahman, P. W. 4, driver of the appellant, Abdul Bashar Khan, P. W. 5, proprietor, Green Pharmacy, Mug Bazar Road, Ramna, Mr. Nurul Amin, P. W. 6, a member of the local bar and Sujana Rozario, P. W. 7, Aya of the minor boys. Four of them deposed in relation to the incident on the night of the 31st August 1963, and the fifth regarding the occurrence outside "Sagarika" on the 4th August 1964. 7. The appellant deposed that his marriage with respondent No. 1 was arranged by Mr. Sanaul Haq, respondent No. 2, and that after the marriage they pulled on well. Before the elder son was born respondent No. 1 however, without his knowledge or consent went to Chittagong and stayed there with Mr. Abdul Hakim Khan respondent No. 3. On the inducement of his mother-in-law he went to Chittagong to meet respondent No. 1 but he was not welcomed by Mr. Abdul Hakim Khan who behaved "unusually" towards him. Nevertheless he continued to visit Chittagong to see the respondent No. 1 and used to stay there in the Chittagong Club. After the birth of the first child he brought back respondent No. 1 to Dacca in the first week of January 1961. And thereafter they lived "peacefully". On 31st August 1963, the respondent left No. 222-New Easkaton Road at 2 p.m. And returned at about 10-30 p.m. While he was lying ill. He there--upon reprimanded for her leaving the
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children alone on which she lost temper and sent for her sister and respondent No. 2. At about mid- night they both came to his house and the latter began to abuse him. He eventually succeeded in sending them back, but while leaving they held out threats to teach him a lesson. On account of this incident the respondent -No. 1 ceased taking food from his house and on the 10th October 1963, she left his house along with the two boys and went over to the house of respondent No. 2. From there she went away to Mymensingh on 31st October 1963, and stayed there with respondent No. 3 until 21st July 1964, when the latter was transferred back to Dacca. During this period he sent the sums of Rs. 200 and Rs. 400 to the respondent No. 1 at Mymensingh, but she did not receive the money orders. In larch 1964, he went to Mymensingh to meet respondent No. 1 and his sons and if possible to bring them back, but he did not succeed in this attempt, because her relations were not agreeable to it. On the 1st of August 1964, the elder boy stayed back with him and did not go to respondent No. 1. However on the 4th August during his absence respondent No. 1 took him away on which he went to the house of respondent No. 3 to protest. The younger boy who was asleep woke up and came to his lap. Apprehending trouble at the hands of the sons of the respondent No. 3 who had by then arrived he hastened out to the house, but was pursued by them calling out "thief", "thief". He ran towards the gate when the respondent No. 1 came chasing him and he handed over the boy to her. Many people had collected there who mistook the appellant for a child-lifter and were about to molest him. He addressed the respondent No. 3 who had come in the meantime to affirm that he was the father of the boy. The latter, however, said that he did not know the appellant. The appellant had thereupon to convince the crowd of his being the father of the boy and thus escaped being "lynched". After the incident of the 4th of August 1964, the respondents Nos. 2 and 3 did not permit him to see his sons and he had no other recourse open, but to apply for restoratition of the custody of the boys under section 25 of the Guardians and Wards Act. 8. The examination-in-chief concluded with the assertion that the appellant loved his two sons very much and wanted to have their custody 01 because it was not in their welfare to stay in the house of the respondents Nos. 2 and 3. He also wanted to make arrangements for the schooling of the elder boy in accordance with his family traditions and lastly he apprehended that the minds of his sons will be poisoned against him if they were allowed to remain in the care of Mrs. Abdul Hakim and Mrs. Sanaul Haq. 9. In cross-examination the appellant denied that he had ever meted out cruel treatment to the respondent No. 1 or subjected her to physical torture. He admitted having written letters Exhs. 'B', 'B'-1 and 'B'-2 to the respondent No. 1 which showed that the relation between the spouses had become strained from the very early days of their marriages and that the appellant was in a large measure responsible for it. 10. The first letter Exh. B-1 was written by the appellant to the respondent No. 1 after she had gone to her elder sister Mrs. Abdul Hakim Khan in Chittangong. It is a lengthy document, but it will be sufficient to refer to the following portion only:- "To day a great calamity has fallen on the entire family because of my fault alone. It seems today I cannot forgive myself. I have no face to beg pardon of you." The second letter Exh. B-2 was written by the appellant on 18th September 1960, in the train while on his way to Chittagong. Its relevant portion reads thus .- ''I am ashamed and sorry for what had happened in the past. I can only tell you that whatever was done in the past was not willingly done. I can swear that within a few days of the marriage whatever I had, I have given you everything. But you had received so much in your life that the humble that I could offer did not at all attract you." The reasons which contributed to the early discard between the spouses appear in the following passage:-
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"Being the youngest you were very dear and fond to each and every member of the family. Perhaps you never received the word "No" from any one on any occasion. When I used to come running to you to enjoy your companionship exclusively you wanted to mix with all others together with me and to enjoy some days after the marriage and to let our relationship grow slowly. What you wanted was realistic, but due to my impatience, ignorance or busy engagements I could not appreciate the same. And without appreciating this and without getting you fully and exclusively I became almost mad. I opposed you and showed disrespect to those who wanted to show affection for me because of their love for you. Brought up with so much love and affection as you were how could you tolerate this affront. So you lost confidence in me. By self-renunciation and sacrifice you provided for a punishment for me. Now that you are far away I realise this day what a great injustice I did to you. You can only forgive me if you are convinced that all that I did was meant simply for getting you and for no other purpose." The third letter Exh. `B' is rather brief and may be reproduced In extenso: "Helan, Should you ever think that it is no longer possible for you and for me to live jointly when you shall be entitled to release yourself by giving me one month's written notice: Provided that you shall live jointly with me at our house for that one month till you so release yourself. Yours, Rahimullah" Carbon copies of five other letters, Exhs. 6 series, written by the appellant to respondent No. 1 between 14-1-1964 anal 14-7-1964 during her stay at Mymensingh were also placed on the record by the appellant. These letters recount the ardent treaties made by the appellant during this period to the respondent No. 1 to win back her affection and to induce her to come back and stay with him in Dacca both in the interest of their personal happiness and welfare of their minor sons. In the letter of 14-1-1964 the appellant wrote to the respondent No. 1 a "Helu, for God's sake and in the interest of Misha and Mohi and for their welfare let us forget our past mistakes and errors, if you so desire say before the elders of both the sides what our faults are. Let us take a vow not to repeat the past mistakes. It would be our great sacrifice for the sake of Misha and Mohi." Again in the letter dated the 3rd March 1964, he said: "So however, agonising it may be I am patently waiting for the day when by the mercy of Allah you regain your good sense; the day when you will be in a position to realize where we committed errors. Your real welfare and perfect peace is my only objective in life. I should be ashamed if there is any obstruction to your welfare and peace because of my mistake or error, and if so, I should certainly rectify the same. My personal grievance, sentiments or sensibility shall not be allowed to interrupt or hinder your welfare and peace." On the first death anniversary of the mother of the respondent No. 1 the appellant wrote to her on the 28th March 1964: "So I say let us be repentant and sorry on this occasion for your past misdeeds and errors, committed knowingly or through ignorance and let us take a solemn vow to make definite and purposeful attempts not to repeat the same mistake in future. A nice and happy family could only grow on our joint efforts." "We are naturally prone occasionally to make mistakes or commit errors but we ourselves shall have to correct the same by mutual forgiveness I shall not remember the past, be kind and forget the past, trust me." Finally in the letter dated the 13th July 1964, the appellant said:
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"It is our misfortune that being possessed of everything, we are getting nothing, there is no peace for us. On that account the infants are also being deprived of the most valuable sheets of their life. In these abnormal circumstances, you will give them the best you can afford to give. I shall also try to contribute some--thing. This is so natural and normal. Kindly appreciate I got them because I got you first. They are your offspring. But it is you who is the first and foremost in my life." The tenor of these letters unmistakably shows that besides being interested in the welfare of his minor sons the appellant was keenly desirous of bringing respondent No. 1 to come back to his house. 11. The testimony of the five witnesses examined by the appellant was to the following effect. Syed Ziaul Ahsan, P. W. 3, husband of another sister of respondent No. 1 deposed that after their marriage the appellant and respondent No. 1 lived peacefully for sometime, but six or seven months later she went away to Chittagong against the wishes of her own mother. On 31st August 1963, he went to the house of the appellant and found respondent No. 1 absent. Later on he met her and she did not make any specific complaint to him regarding "Zulm". He found the appellant suffering from fever who narrated to him the occurrence of the previous night and desired that its unpleasant effects should not prolong further. 12. Wahidur Rahman, P. W. 4, driver of the appellant, deposed that his master was unwell for 2/3 days when respondent No. 1 on 31st August 1963, went to the house of her sister at about 2-30 p.m. And returned at 10-30 p.m. There was some goalmal (trouble in Bengali parlance) between Saheb and Begum Saheb and Begum Safeb sent for Mr. And Mrs. Sanaul Haq. They came at about midnight and respondent No. 2 abused the appellant. In cross-examination the witness acknowledged that there had been many other goalmals between Saheb and respondent No. 1 before the night of 31st August 1963. 13. The statement of Sujana Rozario, P. W. 7, Aya of the two boys is to the same effect. 14. Abdul Bashar Khan P. W. 5 Proprietor of Green Pharmacy, stated that on 1-9-1963, he had supplied some medicines to the appellant prescribed by Dr. Rub Professor of Medicines. 15. Nurul Amin, P. W. 6 referring to the incident of the 4th of August 1963, stated that at about noon he was going along the Elephant Road and as he reached in front of "Sagarika" he saw the appellant driving in. He then heard noise from that building and saw the appellant reached the lawn in front of the house, a lady came running behind him to whom the appellant made over the boy. Many persons had collected in the meantime. Mr. Abdul Hakim Khan also came there and inquired about the incident. Those who had collected outside the house asked him whether he knew the appellant to which Abdul Hakim Khan replied in the negative. On this appellant caught hold of Mr. Khan and shouted: You do no know me I am father of the boy I will see to it. There was no scuffle between the appellant and the lady to whom he handed over the boy and there was no talk between them. 16. In her statement recorded on commission respondent No. 1 referred to the first marriage of the appellant with his maternal cousin who divorced him after some time and her own marriage with him on 7-2-1960 before which she had on the death of her father lived for 7 years with her elder sister Mrs. Abdul Hakim Khan, respondent No. 3. Within two or three days of the marriage strained feeling `broke out' between her and the appellant. For about four months she lived with the appellant who ill-treated her and talked in an unnatural manner to her. He caused his mother of spoiling his life by this marriage". Often he used to twist her hands and passed her wrists just to inflict physical tortures on her. Because of this misconduct she went to the house of her sister Meherunnessa in Chittagong where the elder son was born. During this period the appellant visited her frequently'; and swore by the Holy Qur'an that he will not ill-treat her any more. After the birth of the son she in his interest returned to the house of the appellant believing that having become a father he would change his behaviour.
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17. On 31st August 1963, she had left her house at about 4 p.m. And went to her sister's home wherefrom she returned at 9 p.m. And found her bed room locked. As she knocked at the door the appellant told her that she had no place in that bed room. She accordingly went to the adjoining room for sleeping there when the appellant came there and assaulted her after closing the door. She then sent her nephew to bring her sister and, brother-in-law Mr. Sanaul Haq. They came at about 10 o'clock and waited to have information about there in the flat of Abdur Rab on the ground floor 222-New Eskaton Road but did not succeed in contacting her and left at midnight. Thereafter she did not take food from her own house and when hungry would sent for meals from the house of her sister Mrs. Sanaul Haq. The appellant threw away that food on certain occasions and she starved herself on those days.' On 9-10-1963, respondent No. 3 and his wife came to Dacca to spend their summer vacation and were staying with respondent No. 2 and one or two days earlier the appellant had assaulted her a d considering that "my stay at this house would endanger my life" she went to the house of respondent No. 2 taking with her the two boys and after staying there for a few days went to Mymensingh along with her sister and respondent No.13 on 13-10-1963. Respondent No. 3 was then transferred to Dacca as Chairman, Industrial Disputes Court, and along with two boys she returned to Dacca, on 21-7-1964. After his arrival she daily sent the two boys to the appellant and they stayed with him for several hours. On 1-8-1964 he, however, did not allow the elder boy to come back to her and detained him for four days. On the 4th August 1964, the elder boy rang her up and said that he wanted to come but "father does not send him" and "Munshi, driver, falsely states that the car is out of order you come and take me with you". Accordingly she went to the house of the appellant at about 11 a.m. And brought the boy. The appellant came to "Sagarika" and picked up a row with her and Mrs. Abdul Hakim Khan and attempted to run away with the younger boy. She there upon chased him and succeeded in getting back the boy in the lawn outside the house. A number of passersby collected outside the house on hearing the noise. In conclusion respondent No.1 added that there was no person capable of looking after the minor boys at the house of the appellant, his mother who was more than 70 years old and suffered from blood pressure being unable to even raise her head. 18. In the lengthy cross-examination of respondent No. 1 which spreads over 24 pages it was attempted to make out that she did not appreciate the welfare of her minor children and that the allegations which she had made against the appellant were at the instance of respondents Nos. 2 and 3. Her reply was "I am not a boy. I gave birth to two sons. Being unable to bear cruelty and assault I have given out every thing". It was suggested to her that the boys will be better kept and looked after in the company of the appellant to which she replied. "The sons will die if they live in separation from the mother". She further repudiated the suggestion that she had left the house of the appellant at the behest of her two sisters and respondents Nos. 2 and 3 and added that having been tortured to the extreme I left his house. 19. The trial Judge failed to record any definite finding as to the reasons which had prompted respondent No. 1 to leave the house of the appellant on the 10th October 1964, which was essential to determine whether she had taken away the boys under unavoidable circumstances from the residence of the appellant. About the incident of 31st August 1963, he contented himself by observing that the sole testimony of respondent No. 1 that the appellant was not suffering from fever on that date was disproved by overwhelming evidence. But this did not touch the core of the incident as to whether the appellant had in the presence of the servants and the elder boy physically be laboured respondent No. 1. Similarly after recounting the two contradictory versions of the incident of 4th August 1964, the trial Judge without applying his mind as to which of them was true evaded the issue by remarking It is needless for the purpose of this case to enter into the question as to which of the two versions is correct,
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20. In dealing with the second part of issue No. 2 the trial Judge found that on account of removing the boys from the ordinary residence of their father the respondent No. 1 had forfeited her right of hizanit, but by reason of their tender age he considered it for their welfare to remain with their mother subject to the conditions (i) that the minor boys shall not be removed from the jurisdiction of the Court without its permission, and (ii) that the respondent No. 1 shall allow the appellant to have free access to the boys and to let them be with him by allowing him either to visit the boys in the house of respondents Nos. 2 and 3 wherever the boys remain of to call the boys daily for short periods to his own residence or elsewhere within the jurisdiction of this Court so as to enable the appellants to exercise effective supervision and control over them. 21. Dissatisfied with the judgment and order of the trial Judge the appellant filed an appeal in the High Court which was dismissed by a Division Bench in limine on the view: "If it is not found that either the father or the mother is a bad person, the interest of the children of tender age demands that they should be with the mother." And "On the other hand the father has also a right to see the children and to exercise an overall supervision over their upbringing." But "this again is to be considered from the point of view of the interest of the children". Finally the learned Judges found that the Additional District Judge had considered all the points to which his attention was attracted and had not misdirected himself in allowing the mother to have the custody of the minor children and declined to admit the appeal to full bearing. 22. Leave to appeal was granted from the order of the High Court to consider…
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