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Petitioner: Mst. SUGHRA BEGUM VS Respondent: ASHFAQ AHMAD BUTT
Court Name: Lahore High Court Judge(s): Zakiuddin Pal Title: Mst. SUGHRA BEGUM vs ASHFAQ AHMAD BUTT Case No.: Civil Revision No. 1890 of 1980 Date of Judgment:1981-02-14 Reported As: P L D1981 Lahore 393 Result: Appeal accepted
JUDGMENT
JUDGMENT The petitioner filed an application on 26-5-1975 before the Learned Guardian Judge, Lahore for the grant of the minors, namely Mst. Ruhma Butt aged 3J years and Mufkhan A.I Butt aged about 9 months at that time. It was dismissed by the learned Guardian Judge by his judgment dated 23- 12-1979 and the order passed in that behalf was affirmed by the lower Appellate Court by his judgment dated 12-10---1980. The validity of both the judgments has been assailed through the present civil revision. 2. The petitioner was married to the respondent on 11-10-1970. During the wedlock she gave birth to the aforesaid two children. Since the relations between the parties became strained, therefore, the petitioner was divorced by the respondent on 24-1-1975. 3. The application for the grant of custody of the minors was moved by the petitioner under section 24 ,of the Guardians and Wards Act on- the plea that their custody was taken away by the respondent in a deceitful manner. Her signatures were allegedly obtained fraudulently on a paper agreeing that their custody should remain with the respondent. 4. The .Application was contested by the respondent mainly on the ground that since the conduct of the petitioner was not good being intemperate, therefore, she was divorced by him. According to him she surrendered the custody of the minors of her own free will by an agreement dated 26-1- 1975. The pleadings of the parties gave rise to two issues, as to where the welfare of the minors lies and whether the petitioner has changed the domicile of the minors and if so its effect. Both the issues were decided by the learned Guardian Judge against the petitioner. In consequence of that, her application was rejected. 5. The learned counsel for the respondent has raised the following contentions
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"(a) The interim custody of the minors was handed over to the petitioner by the Guardian Judge by his order dated 30-6-1975 with the directions that the respondent would be entitled to meet the minors at his sweet will during the convenient hours of the day at her residence. Later on at the appellate stage she was directed to produce the children in the Court but the orders passed in that behalf .Were not complied with. Such obstinacy on the part of the petitioners disentitles her to the grant of custody of the minors. (b) During the period of temporary custody of the minors with her, the petitioner removed them from Lahore, the place of residents of the respondent to Pasroor, District Sialkot, which is quite far of from Lahore and as such has deprived the respondent of his right of control and supervision of the minors. In view of that the petitioner is not, entitled to the custody of the minors. (c) The respondent is a well-educated person. He is working as Assistant Engineer in Sui-gas Company and is drawing at present salary of Rs. 3,000. His father is an old- graduate and his sisters are also educated. He can well afford to maintain the minors and bring them up properly. The petitioner is only a matriculate and being a school teacher in Tehsil Pasroor is getting hardly Rs. 350 and as such is not in a position to bring up and educate the minors properly. (d) During the time when the minors were in his custody be had gotNs daughter admitted to Muslim Foundation School and the boy to Cathedral School, Lahore. He wants the minors to be admitted to Pines School, Gobra Gali, Murree but has not been able to do so because the petitioner has not handed over the custody of the minors in spite of the Court orders. (e) Since the petitioner has -voluntarily surrendered t custody of the minors in favour of the respondent, therefore, she is estopped by her conduct to agitate the matter with regard to their custody. f ) The limited jurisdiction is to be exercised under section 115 of the C. P. C. Which is meant primarily for correcting the errors committed by the subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion unless the discretion is found to have been exercised fancifully or arbitrarily. In this case the discretion has been exercised judiciously after having considered the entire relevant material. As such, no interference with the orders of the subordinate Courts can be made." 6. The learned counsel for the respondent while raising the above contentions has relied upon Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lah. 73), A.I Akbar v. Mst. Kaniz Mariam (PLD 1956 Lah. 484), Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi (PLD 1958 Kar. 150), Marina Pushong (Mrs.) v. Derick No.1 Pushong (PLD 1974 Lah. 385), Bulan,v. Rahiman PLD 1963 Kar. 839Mst. Aria Waris v. Sultan. Ahmad Khan ;and others (PLD 1959 Lah. 205and Mst. Ghulam Sakina v. Nasim Haider (1979 CLC 4 7. It has been held in 1953 Lah. That all rules of Muslim Law relating to the guardianship and custody of the minors are merely the application of the principles of benefit of the minors to diverse circumstances. Welfare of the minor remains the' dominant consideration and the rules only try to give effect to what is minor's welfare from the Muslim point of view. It has been held that there is a presumption that the welfare of a minor girl lies in her being restored to her father unless facts leading to the contrary are proved. It has also been found that a mother has a right to hizanat, the father is a natural guardian and entitled to exercise control and supervision over the child and if the mother removes the child to a place where father is unable to exercise his control, the mother loses her right to custody. The facts of the case as reported in 1953 Lahore are that at the time when Mst. Ghulam Fatima, the respondent in that case, was divorced, her daughter Mst. Nasim Akhtar was about 6 years old. About two years before the application for the grant of custody of the minor was filed by the father, Mst. Ghulam Fatima had remarried.. The learned Guardian Judge after having heard the parties decided that the minor was to remain with the mother till 20-11-1953 after which date the custody of the minor was to be handed over to her father. The second
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husband of Mst. Gbulam Fatima had another wife front whom he had two sons; one aged about 6 years and the other about 16/17 years. Mst. Ghulam Fatima was a teacher in a School at Rawalpindi. The only ground taken in the applica--petition for grant of custody by the father was that since Mst. Ghulam Fatima had married with a person who was not within the prohibited degree, therefore, she was not entitled to her custody. Another ground taken was that the minor who was already of about 12 years of age should not to be allowed to remain in the house where there were boys not related to her in any way by blood. The learned Judge came to the conclusion that after Mst. Nasim Akhtar the minor, attains the age of 13 years she should not remain with the mother so as to live with a young boy as it would be against her interest. The High Court in appeal decided that since the father was the natural guardian under the law and mother was to retain custody of the minor daughter till she attains the age of puberty, therefore, in the circumstances of the case welfare of the minor lay in her custody being restored to the father unless the facts leading to the contrary were proved. It was further found that since the mother had removed the minor from the place of ordinary residence of the father to a .Place which was quite far away, therefore, she had forfeited her right to the custody of the minor. It was found by the learned Judge in that judgment that minor's welfare being paramount consideration must be understood in the sense that the principle on which the Legislature proceeds was that welfare of the minor shall be the paramount consideration and if the law lays down that a certain person is entitled to the custody of a child without any reservation, the Courts are bound to give effect to that provision in the manner in which the law requires it to be given effect to. 8. There is no doubt that according to certain Muslim ,jurists, custody of a minor son till the age of 7 years may remain with the mother while that of a minor daughter till she attains the age of puberty and thereafter normally their custody should be restored to the father. It is, however, established principle of law that paramount consideration in all such cases is the welfare of the minor. Even a mother may be deprived of the custody of a minor daughter if circumstances of the case so warrant and in the case of a son his custody may not be handed over to the father even after 7 years if it is found by the Court that his welfare does not warrant so. In the case reported in 1953 Lahore paramount consideration in handing over the custody of the minor daughter to her father appears to be that it was not considered proper for her to stay. With the mother who was living in the house of her second husband where his grown-up sons were residing with him. It is admitted on record in that case that Mst. Nasim Akhtar had attained the age of 13 years when her custody was handed over to the father who had also contracted a second marriage and had some issues therefrom as well but blood relation very much subsisted amongst all the children. In the judgment reported in 1956 Lahore by the same learned Judge who is the author of the judgment as reported in 1953 Lahore, the same principle of law has been enunciated, that the right of a Muslim mother to the custody of her minor is subject to the control of the father and if she takes away the minor against the wishes of the father to a place where he cannot exercise his supervision and control, she acts without authority and her taking away the minor amounts to his removal from the custody of the father. In that case a minor boy aged 7 years was taken to Karachi by the mother from Lahore where his father was residing. This factor mainly was responsible for holding that since the minor boy had been removed to a place where his father could not have control and supervision over him, therefore, his mother had lost right of hizanat. In that case father of the minor had remarried. While dealing with this aspect of the case the learned Single Judge observed that the view that the step-mother of the minor might not treat him properly and he would be separated from the mother and sister, hardly stood in the way of an order for his custody to be handed over to the father. 9. There is no doubt that father is natural guardian of a minor and his or her custody with the mother is subject to the control and supervision of the father. However, if a minor is taken away to a
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place far from the place of father's residence for his benefit or welfare then mother under the law-would not be deprived. Of minor's .Custody. This view gets support from Rahimullah Chaudhry v. Mrs. Sayeda Helali Begum and others (1974 SCMR 305 and Mst. Feroze Begum v. Lt.- Col. Muhammad Hussain (1978 SCMR 299In 1974 SCMR mother of the minors after having lost her father before her marriage had stayed with her elder sister, wife of respondent No. 2, in that case, for about 7 years and her marriage with the appellant in that case was arranged during that period by the aforesaid respondent, whose house was almost like the house of her parents to the minor's mother. It was found that as such her going away from the house of the appellant and staying with her sister in the house of respondent No. 2 would be governed by the condition of `unavoidable circumstances' if it was found that the appellant had maltreated her which compelled her to leave his house. As such, in that case it was found that removal of the minor children by their mother to the house of her elder sister would not deprive her from the custody of the minor children on the ground that their father had lost his control and supervision over them on account of their having been removed from the place of his residence. This principle is to be applied in the given circumstances of each and every case and not in a mechanical manner. If a minor has been removed from the place of residence of his father under the compelling circumstances or otherwise for his benefit or welfare then no adverse inference can be drawn there from, 10. Similarly in 1978 SCMR minors had been removed to Chakwal. District Jhelum from Rawalpindi. Their mother initially belonged to a village in Tehsil Cbak%lval and for their welfare and benefit had shifted to Chakwal so as to enable them to get better education. They were got admitted by her to English Medium School at Chakwal. It was held that their removal to Chakwal by their mother for their proper education would not deprive her of their custody. It was pleaded before the Supreme Court that since father of the minors was Lt.-Colonel in the Armed Forces and was in a much better position maintain and bring up the children, therefore, their custody should be handed over to him. This plea was repelled on the ground that mere. Inability on the part of the mother to maintain the minors would not be a disqualification as under the law the father is responsible for their maintenance even though in the custody of their mother. In that case the High Court had accepted the offer made by the father for putting the two minor boys in a good School at Rawalpindi or Murree as boarders and mainly on that account had decided in favour of the father for granting him custody of the minors. It was held that such offer was not in the interest and. Welfare of the minor girl who was about to attain the puberty. Her admission to a School or hostel far away from her parents would not be in her interest at that stage. As observed by the Supreme Court, the case of the father throughout had been that he was literate, well-to-do and a person of status and could give better education to the minor children and the mother being illiterate, poor and incapable of looking after the welfare of the minors was not entitled to their custody. This plea was repelled by the Supreme Court on the ground that father was primarily responsible for the maintenance of the minors even if their custody was with the mother and further that the mother had got them admitted to English medium school at Chakwal and according to the reports submitted by the Headmaster of the School both the boys were doing well, The view taken by Mr. Justice Kaikaus in 1956 Lahore, has not been approved by the Supreme Court in the aforesaid two cases.- It has been observed that question to be decided in such guardianship cases under section 25 of the Act is not the right of a guardian to obtain the custody of a ward on the ground that such right has been given to him by the Statute, but it is always the welfare of the ward which is of paramount consideration. A natural or a certificated guardian may turn out to be an undesirable person or the Court may find him unfit for the welfare of the minor to deliver his custody to him. It has been held that no order with regard to such custody can be made unless the Court is satisfied that it will be for the welfare of the minor. Even if there be a presumption under the
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law that welfare of a minor lies in his or her custody with the father no such order will be passed by the Court unless the relevant material brought on record by the parties has been weighed. The paramount consideration being welfare of the minor should be the sole consideration that should prevail in the final analysis and the fact that the father is the lawful guardian of his minor children cannot compel the Court to pass an order in his favour unless it is in their welfare to do so. It was argued in 1974 SCMR before the Supreme Court that in determining the welfare of the minor under section 25 of the Act the Court would act consistently in accordance with law to which the minor was subject as provided in section 17 of the Act. It was pleaded that the aforesaid two sections should be read as supplementary to each other and the question whether it was for the welfare of the minor to return them to the custody of their father should be resolved, according to Muslim Law which envisages that as a result of the forfeiture of the right of hizanat vested in the mother there was no alternative but to return their custody to their father. It may be mentioned that the judgments referred to above as reported in PLD 1956 Lah. And 1958 Karachi, were cited in support of this contention. The view taken in the aforesaid reports was not approved mainly on the ground that the said cases had been decided by the respective High Courts without determining whether it was in the welfare of the minors to be returned to the custody of their father as their welfare was the paramount consideration to be determined first before their custody was handed over. The view taken in the aforesaid judgments that since father is a natural guardian, therefore, he is entitled to the custody of a male ward when he attains the age of 7 years and in the case of a female when she attains the age of puberty and further that such right under the Statute raises presumption of welfare of the minor in his custody with the father has been repelled. By the Supreme Court in 1974 SCMR on the ground that the Islamic Law as well as the provisions as contained in section 25 of the Guardians and Wards Act, recognise it as a right of the Guardian that his ward who leaves or is removed from his custody be returned to his custody but subject to his welfare. It has been held that welfare being a question of fact would have to be resolved on the basis of the material placed before the Guardian Judge and not on the basis of any presumption under the law. 11. The main point as involved in the case reported in 1974 SCMR, was whether under the Muslim Law a mother loses the right, of hizanat of her children of tender age if she removes them from the ordinary place of residence of the father and that as such it would be deemed to be in their welfare to be returned to his custody. The parties in that case were married in 1960 and had lived together for only few months in Dacca when differences arose between them. The mother of the minors went away to Chittagong and took up the residence with her sister. The elder boy Tariq was born during the period of stay at Chittagong. The reconciliation there--after took place and mother of the minors came back from Chittagong and lived with her husband at Dacca for about 21 years. The second boy was born during that period in 1962. According to the mother of the minors she was beaten and as a result of that she again left the house of her husband and went over to the house of her elder sister. Therefrom she migrated to Dacca along with her children in 1964. During that period minor boys used to be sent to the house of their father every day where they used to stay for hours together. The elder boy was once detained by his father without the permission of his mother for a period of 4 days. He was, however, rescued by his mother having been informed on telephone. This incident was responsible for the creation of rupture between the parties, as a result of which father of the minors moved an application under section 25 of the Guardians and Wards Act for the return of custody of the minors. As discussed above it was held in this case by the Supreme Court that mere presumption under the law that since father was a natural guardian and being in that position welfare of a minor was in the return of his custody to him was not sufficient to decide the matter, paramount consideration under the law being his welfare. Irrespective of the
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fact that father was natural guardian, the custody in that case was allowed by the Supreme Court to remain with the mother as their welfare so warranted. 12. In the present case while relying upon 1953 Lahore, 1956 Lahore and 1958 Karachi it has been vehemently argued that since the respondent is natural guardian of the minors and right of custody of the minors has been given to him by the Statute under the presumption that their welfare lies to stay with him and since the petitioner has removed the minors from Lahore, the place of residence of the respondent to Pasroor, District Sialkot quite far away from Lahore and as such she has forfeited her right of hizanat, therefore, the impugned order in returning the custody of the minors to the respondent should be maintained. I am afraid this contention has no force in the light of the above discussion. There is no doubt that respondent being father of the minor is their natural guardian but their custody cannot be handed over to him under any presumption without deciding as to where their welfare lies. The minor daughter admitted by the parties is about 9 years old and the minor boy is about years old at this time. They both are in the custody of the petitioner sin June 1975. Their custody was handed over to the petitioner by the learned Guardian Judge when the daughter was aged about 3J years and the minor son was about one year old. The petitioner is a Schoolteacher and I getting amount of Rs. 350 per mensem as per salary. She has got both the children admitted to English Medium Schools at Pasroor. Her father I a timber merchant with good income out of his business. According to her he helps her in looking after the minors. She has made a categorical statement in the Court that she has not remarried, nor she would contract second marriage for the sake of the children. According to the provision as contained in section 17(2) of the Guardians and Wards Act and PLD 1975 Lahore as referred to above, a male infant should remain in the custody of his mother as long as he does not require education and prepare for Labour and business. This will naturally exclude the requirement of elementary education. It is only when he requires education which may prepare him for labour and business, then question of giving him to the custody of his father may arise which may be decided after taking hi. Welfare into due consideration. The boy in the present case is hardly 7 year. Old and is getting elementary education. From this point of view as well hi: custody cannot be handed over to his father. 13. The learned counsel for the respondent submits that since the respondent is a man of means, therefore, in view of that minor girl's prospects of marriage and value of dowry being in the custody of her father cannot be ignored while determining her welfare. He has relied upon Mst. Atia Waris v. Sultan Ahmad Khan and others in this respect. In that case appellant Mst. Atia Waris initially was a Christian and having fallen in love with Waris Sultan Khan son of the respondent in that case married him on 7-10-1953. After the marriage her husband took her to his parents' house and they began to live there happily. The minor daughter in that case namely Samar Waris was born in 1954. A son was also born out of this wedlock on 26-1-1956. Waris Sultan Khan unfortunately died on 2-1- 1957. Mrs. Atia Waris remained with her parents-in-law until 6-4-1957 .When she desired to leave them. At that time when she left the house of her parents---in-law she was allowed to take with her the son but the minor daughter Mst. Samar Waris was retained by her grandfather. Thereafter the litigation started between the parties after the appellant Mst. Asia Waris demanded the custody of her minor daughter. In that case the major consideration as evident from the judgment for delivering the custody of the minor daughter to her grandfather as well as her real aunt was that Mst. Atia Waris who claimed to be a Muslim had started living with her Christian parents and was not likely to bring up the child according to Islam in spite of her profession that she was still a Muslim. There is no doubt that while determining the welfare of the minor daughter it was also considered, that since her grandfather was a rich person, therefore, her custody with him would bring better prospects of her marriage and dowry but the major consideration as mentioned above was that if allowed to remain with the mother the minor girl would turn to be a Christian
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which was not warranted bylaw as according to that she was to profess - the religion of her father who was a Muslim. Even otherwise such consideration has no bearing under the law as held in 1974 SCMR and 1978 SCMR referred to above, welfare of the minor being the paramount consideration and the father under the law being obliged to maintain his minor children though in the custody of their mother. The principle of law as laid down in 1953 Lahore, 1956 Lahore and 1958 Karachi as…
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