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Petitioner: Captain S.M. ASLAM VS Respondent: Mst. RUBI AKHTAR
Court Name: Sindh High Court Judge(s): Shafi Muhammadi Title: Captain S.M. ASLAM vs Mst. RUBI AKHTAR Case No.: Constitutional Petitions Nos. S-17 of 1995, and S-41 of 1994 Date of Judgment:1995-09-13 Reported As: 1996 CLC 1 Result: Order accordingly
JUDGMENT
JUDGMENT ' By this common judgment I intend to dispose of two Constitutional Petitions bearing Nos. 17/1995 and 41 of 1994. ' Controversy between the petitioner and respondent No,1 has chequered history involving serious allegations of molested character against each other. The respondent in this case was third wife of the petitioner. He has one daughter namely Sarwat Ambreen from his first wife, another daughter namely Arshia from the second wife and two children from the respondent who are subject-matter of these petitions. The petitioner, after partnering with three wives in the past is stated by the respondent to have contracted fourth marriage but Syed Ansar Hussain, the learned counsel for the petitioner denied the said assertion with an interesting averment that he was not barred to do so as the same is permitted by Islam. Perhaps the learned counsel did not go through the petitioner's cross-examination wherein he stated, "I have contracted my fourth marriage." ' On the other hand respondent has also contracted her second marriage with one Adam Jokhio, after she was divorced by the petitioner, who has already one wife and eight children from that wife. The respondent added two more offspring in the family of Jokhio after her marriage with him. 2. A number of criminal and civil litigations started between them and present two Constitutional petitions are the outcome of only one case arising out of proceedings under section 25 of the Guardians and Wards Act (hereinafter referred to as the Act) concerning the custody of two children. These proceedings were initiated by the petitioner (father of the children) by moving an application in the Court of Guardian Judge (Central), Karachi in 1988 but the said application was disposed of on December 15, 1993 i,e, after about 5 years and, that too after the learned Guardian Judge was called and directed by the Hon'ble Chief Justice for its expeditious disposal. The learned
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Guardian Judge (III Senior Civil Judge, Karachi) allowed the application and the respondent was directed to hand over the custody of minor children namely Mehwish Aslam and Moazzam Aslam to the applicant/petitioner. It is important to note that at the time of filing application under section 25 of the Act, the two children, Mehwish and Moazzam, were 10 and 8 years old respectively. Order of the learned Guardian Judge (Mian Mohsin Raza) was challenged in Family Appeal No,35/93 by the respondent which was set aside by the learned Iltrd Additional District Judge (Central), Karachi (Mrs. Yasmin Abbasi) and the matter was remanded back vide order dated 25-1-1994. The petitioner challenged the Order of learned IIIrd Additional District Judge by presenting Constitutional Petition No,41 of 1994 on 18-4-1994 which is one of the two petitions being disposed of by this common judgment. 3. It appears that this Constitutional petition was kept dormant for the reason best known to the learned advocates. However, proceedings after the. Remand of case continued, this time, in the Court of learned 2nd Senior Civil Judge (Mrs. Naseem Mansoor), Karachi who, in capacity of Guardian Judge, finally disposed of the matter on 22.12-1994 by allowing the said application. On appeal under section 14 of the Family Court Act, 1964 by the respondent, the judgment of the learned Senior Civil Judge was reversed within 38 days by 1st Additional District Judge, Karachi (Central) (Muhammad Saghir Rana) vide order dated 29-1-1995. This order of the learned Additional District Judge has been challenged in the second Constitutional Petition bearing No,17 of 1995. From the above summary it is evident that C.P. No,41 of 1994 had become infructuous on 22nd day of December 1994, when the II Sr, Civil Judge, Karachi (Mrs. Naseem Mansoor) pronounced the judgment finally but the same was kept pending without any reasonable ground. With all my respects for the learned advocates, I would be failing in my duty if I do not express my concern over this trend of keeping infructuous petitions pending in spite of this knowledge that it not only increases the burden of Courts for nothing but also wastes the most valuable time of the Courts without any useful purpose. 4. Before touching the meritorious aspects of the petitions it seems necessary to bring into light the summary of facts related to the controversy which radiates by the rays of evidence adduced by the parties as under:- The petitioner, S.M. Aslam, was previously a captain in Merchant Navy while respondent (Mat. Ruby Akhtar) appears to be well-educated lady and belongs to a respectable family with one member of her family who served as Deputy Commissioner. She was married with the petitioner on 14th August 1976 and out of that\ wedlock Baby Mehwish and Master Moazzam were born on 28-6.1977 and 4-11-1980 respectively. After their dispute and litigations in different Courts it was alleged by the respondent that petitioner, on account of being jobless or without permanent income, forced her to earn her livelihood by adopting immoral vivacity. One of the consequences of their disputes first appeared in the shape of divorce in 1987. ' The respondent then married with one Haji Adam Jokhio in 1988 who already lapped 8 children with their mother. The respondent, after her marriage with Adam Jokhio, added two more offspring in his herd. The petitioner, therefore, filed application under section 25 of the Act for custody of his children on the plea that from Islamic point of view, Haji Adam Jokhio was stranger of the prohibited degree and, therefore, the respondent has lost her right of Hizanat. ' The ultimate fate of the application under section 25 of the Act has been detailed in the foregoing paragraphs, The children whose custody is in dispute are now about 18 years and 15 years old respectively. ' At the time of the final hearing of these petitions on 28.6-1995 the learned advocates of the parties were asked to satisfy the Court whether the petitions at this stage were maintainable or not, as the
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children for whose custody the parties has been fighting for the last so many years, had attained puberty. ' However the learned advocates were found least concerned with this question but they extemporized the contents of conflicting decisions of the Guardian Judge and the Appellate Court with their full force. 5. Before touching the averments of the learned advocates it may be advantageous to reproduce relevant parts of sections 17 and 25 of the Act because they appear to be supplementary to each other:-- "S.17. Matters to be considered by the Court in appointing guardian.---- (1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor the Court shall have regard to the age sex and religion of the minor the Character and capacity of the proposed guardian and his nearness of kin to the minor , the wishes ,if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor, or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4) (5) .. S.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, if 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) .. (3) . These provisions of law encircle the rights regarding custody of minors by their parents which rights are usually termed as "Hizanat"{{URDU TEXT}}()and "Willayat" {{URDU TEXT}}. The word "Hizanat" or "Hidanat" (as pronounced by the Asians and the Arabs respectively) is used for custody of minors by mother and the term "Willayat" is used for custody of minors by father. It is, however, necessary to point out that the word "Hizanat" in its literal sense means "upbringing". Therefore it covers the concept of "Wallayat" too. It is also important to point out that in legal terminology the word "Hizanat" or "Willayat" cannot be limited to the extent of mother or father of minors because the duty of upbringing can be performed by any person who has legal right to do so such as maternal or paternal aunts or grandmothers. On account of this reason most of the text-books particularly written in Arabic titled the relevant chapter with the word "al-Hizanat"{{URDU TEXT}}. 6. While dealing with the issue of custody it was observed in a good number of judgments of the superior Courts that mother loses the right of Hizanat after expiry of seven years in case of male minors and on attainment of puberty in case of female minors. This view could not persuade several Judges of the superior Courts. Similarly, there are conflicting judgments of the superior Courts about the right of Hizanat in case the divorced or widowed mother of minors contracted her second marriage. Perusal of conflicting decisions of the subordinate Courts leaves no doubt that the learned Guardian Judge embraced one set of judgments while the Appellate Court relied upon the set which contained contrary views. None of the learned Judges took any pain to harmonize or differentiate between the judgments containing contrary views with reference to different facts of each case. By relying upon one set of the judgments, the learned Guardian Judge in the present case reached the following conclusion: "The mother therefore is not entitled to retain the custody of the minors for more than one reason firstly, that she has married a stranger and secondly that the minor daughter has attained the, age
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of puberty and son attained the age of seven years." ' On the basis of this conclusion, the learned Guardian Judge opined that welfare of minors was lying in favour of the petitioner. It was, therefore, ordered by the Court that mother (means the respondent) should hand over their custody to the petitioner within 30 days. ' In support of the issue related to age factor, the learned Guardian Judge referred cases reported in 1981 SCMR 635, 1980 CLC 785, 1980 CLC 785, PLD 1963 Lahore 534, PLD 1956 Lahore 484 and PLD 1965 Lahore 695. The judgments reported in 1980 CLC 785 and 1980 CLC 785 were authored by the same Judge. Regarding issue of remarrying with a stranger reliance was placed on 1980 CLC 1989, PLD 1985 Pesh. 156, PLD 1953 Lah. 73, 1980 CLC 1989 1984 CLC 1895, PLD 1965 (W.P.) Karachi 416 and PLD 1972 Pesh. 1. The judgment reported in 1980 CLC 1989 is titled as Faiz Bakhsh v. Mst. Sakina and it was authored by Khalil-ur-Rahman, J. (as he then was) but this judgment appears to have been relied upon the cases written by B.Z. Kaikaus (as he then was) which would be discussed in the forthcoming paragraphs. It was, however, not astonishing for this Court when the learned counsel for the respondent placed reliance on the cases reported in 1988 SCMR 608, 1987 MLD 3311, PLD 1981 Lah. 393, PLD 1968 Lah. 1112 and 1981 CLC 78 containing contrary views on the issue of ages of minors and on the case reported in PLD 1965 (W.P.) Karachi 695, 1985 SCMR 1367 and 1980 CLC 1802 (A J and K) having contrary views regarding the issue of remarrying by a divorced wife. 7. It may or may not be appreciable to disclose that at the time of final hearing of these petitions by this Bench the learned advocates for the controversies added nothing new and even took the least pain to differentiate between the conflicting views expressed in the judgments of the superior Courts. For instance, Syed Ansar Hussain, the learned counsel for the petitioner contended that respondent has lost her right of custody of the children after her marriage with a stranger and moreover the female child has attained puberty while the male child is now more than 7 years old, therefore, custody of the children has to be restored to the petitioner who is natural guardian of those children. Regarding question raised by this Bench, the learned counsel drew my attention to section 4(1) of the Act which defines the word "minor" to be "a person who under the provision of Majority Act, 1875 is to be deemed not to have attained majority and under section 3 of the Majority Act" a minor is deemed to have attained majority at the age of eighteen years. It was contended by the learned counsel that both children have to be treated minors no matter they might have attained puberty. He, therefore, stressed that respective provisions of law must be construed in the light of these aspects. Reliance, in support of these contentions, was placed on the cases of Muhammad Sadiq v. Mrs. Sadiq Safoora PLD 1963 (W.P.) Lahore 534 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies reported in PLD 1964 SC 97. ' Reference to Muhammad Swaleh's case (supra) by the learned advocate was astonishing for me because it had nothing to do with the Act or the issues involved in the Constitutional petition. The said case is mostly remembered due to the observations of the Hon'ble Supreme Court that "a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. It may also be interesting to point out that case of Muhammad Sadiq (supra) referred by the learned advocate as well as by the Guardian Judge was authored by Anwarul Haq J. (as he then was) who decided the same on civil original side as is clear from the judgment which starts with the words: "This is an application under section 25 of the Guardians and Wards Act, 1890........ " ' It is thus evident that the Hon'able Judge had exercised his powers at that time in capacity of a Guardian Judge and those powers are now exercised by Senior Civil Judges. That judgment may be binding upon the Senior Civil Judges but not upon the Judges of High Court at the time of exercising their powers in Constitutional Jurisdiction, as in the present cases with expectations that
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the same be treated binding upon this Court too. At least, such arguments could not be expected from Syed Ansar Hussain, Advocate who is one of the senior advocates of our Judiciary. Notwithstanding to the above, it may not be out of place to mention that the said judgment was authored by a Single Bench, therefore, it can never be authoritative for any other Judge of any High Court even sitting on original side muchless to consider it applicable to an Appellate Court or a Court exercising Constitutional jurisdictions. ' The views expressed in Muhammad Sadiq case (supra) clearly show that the learned Judge was fully influenced by a specific School of Jurisprudence. This fact can be easily realized from the following words of the referred Judgment: "It seems to me that in the present context this stipulation mean that the Sunni or the Hanfi Law, by which the minor is governed, has to be applied subject to the provisions of two enactments, namely, the Majority Act of 1875 and the Guardians and Wards Act, 1890." 8. The learned advocate for the petitioner, however, avoided to say anything about the question whether the Shariat Laws would prevail over the Majority Act or vice versa particularly after the promulgation of "Enforcement of Shariat Act, 1991" (PLD 1991 Central Statutes 373) and he limited himself D to certain textbooks which certainly cannot override the main sources of Islamic Laws i,e,, the Holy Qur'an, the Ahadith of the Holy Prophet (peace be (upon him) and Ijma. ' It may be interesting to point out that most of the textbooks such as Muhammadan Law by F.B. Tyabji, Muhammadan Jurisprudence by Abdul Rahim and Muhammadan Law by Mulla, Hedaya by Charles Hamilton, Muhammadan Law by Amir Ali, Digest of Muhammadan Law by Baillie, Fatawa-i- Alamgiri, Radd-ul-Muhtar etc. Also contain such views which are not supported by any specific School of Jurisprudence. ' I am fully aware of this reality that a good number of textbooks on Muslim Laws contain expressly conflicting views about the ages of minors at which mothers were treated to have lost their right of custody. The views expressed by jurists of famous schools of the Sunnis and the Shias can be summarised as under--{{TABLE}} School For male child For female child The Hanfi 7/8 years till attainment of puberty The Maliki till he attains till she contracts marriage powers of speaking The Shafi's seven years seven years The Hambli The Shias two years seven years {{TABLE}} ' It is notable that above views regarding ages of minor for the purpose of custody were expressed by the majorities of each school. Hence the abovementioned ages may not be treated the only or the final or uncontroverted views. For example, in certain books, views of the Malikis and the Shias were mentioned to be similar. The question arises whether these conflicting views are sacrosanct to be followed by Courts? Although answer to this question appears to be simple yet the same may be touchy for certain corners. Majority of believers in Islam considers that sacrosanctity of views expressed by any Imam or Faqeeh can be binding only if those views are supported by the Holy Qur'an, the Ahadith of the Holy Prophet Muhammad (peace be upon him) or ijma which are the main sources of Islamic Laws. According to this class of believers all such views which are not supported by rain sources of Islam are liable to be ignored and if there be, a difference of opinion among the Imams, Faqeehs or jurists then Courts would be free to form their own opinion on the basis of Qiyas or Ijtehad. But there is another class of people who is alleged to be blind followers of some specific Imam. These people are generally named as Muqalid ( A ) and their conduct is termed as "Taqleed"{{URDU TEXT}} () . They treat the views of their respective Imams to be "sacrosanct". According to this class of people, doors of Ijtehad have been closed and "Taqleed" is the only path left to be followed because, in the present age, religious scholars do not possess those qualifications which are necessary to do Ijtehad. Another class of jurists tried their best to reduce the extremities of the two classes by expressing their opinion that views expressed by
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Imams, Faqeehs or great religious scholars are the best sources of further research, thinking and/or for future legislation but any struggle or impression to, give them shape of permanencies or finality for promoting specific schools of jurisprudence by their establishmentarians may create complications for legislature to meet newly-created problems. Instead of following any conflicting view, we can follow the Qur'an and the Sunnah because so far as the Holy Qur'an is concerned, no believer and/or any member of any sect claiming to be a Muslim has any difference of opinion about its supremacy over all other laws and its being the main source of Islamic Laws and so far as the position of the Holy Prophet (peace be upon him) is concerned, the Holy Qur'an itself explains the position of the Holy Prophet (peace be upon him) by speaking that:-- {{URDU TEXT}} But no, by the Lord, they can have no (real) Faith until they make thee Judge in all disputes between them and find in their souls no resistance against the decision but accept them with the fullest conviction (4:65) 9. Regarding the issue of Hizanat, there is undoubtedly difference of opinion among the jurists. Therefore, in accordance to the principle laid down in the above verse of the Holy Qur'an, the Holy Prophet (peace be upon him) can be the only undisputed Judge for all those who are true believers. If the sayings or the decisions of the Holy Prophet (peace be upon him) are evident and in spite of that if the followers of any Imam, Faqeeh, Pir or Faqeer prefer to follow the views expressed by specific schools of Jurisprudence named after those jurists such as Hanafi, Maliki, Shafi `i', Hambli (collectively known as the Sunnis) or Agha Khani, Asna-Ashri, Jafri, Zaidi etc. (collectively known as the Shias) then such an attitude is sufficient to hold that their Faith in Holy Prophet (peace be upon him) is merely lip profession for Islam. The above verse of the Holy Qur'an, which contains the words "By thy Lord" (as an Oath of Allah) leaves no doubt for the believers that decisions of Holy Prophet Muhammad (peace be upon him) have to be accepted by them in all kinds of disputes as a part of their Faith with the fullest conviction. On the strength of this Faith, it can be said with certainty that if bundles of textbooks written by well known scholar have unanimous view about any issue, the same can be struck down if it is found against any saying of Holy Prophet Muhammad (peace be upon him) or controverted by any verse of the Holy Qur'an: ' The reason is obvious from the following verse of the Holy Qur'an which speaks: {{URDU TEXT}} "O, ye who believe! Obey Allah and obey the Apostle and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Apostle, If ye do believe in Allah and the Last Day. That is the best and the most suitable of determination." ' This verse of the Holy Qur'an possesses the following most important points for consideration of every one: (i) The verse uses the word "believers" in its address instead of "Muslims." (ii) The word{{URDU TEXT}} (means obey) has been used with "Allah" and the Apostle (the (Messenger of Allah) and not with those who are "charged with Authority". (iii) In case of disputes in anything, the disputes has to be referred to Allah and His Apostle which shows that "to obey Allah and His Apostle" is unconditional while to obey the persons charged with authority (means {{URDU TEXT}}) is not unconditional. (iv) These principles are the basis to judge whether any person is a believer in its true sense to believe in Allah and the Last Day. (v) The word "Ahsan" (used in the verse is the superlative form of "Husn" (URDU TEXT) and it means the most beautiful or the most suitable or most attractive the word Hasanah ( wt.Ya ) is used as "noun" which is used for every such gift which can provide happiness to body or soul. Thus importance of the principles laid down in the verse regarding Obedience of Allah and His Prophet
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(p.b.u.h) in this world as well as on the "Last Day" can be easily ascertained by every believer and it needs no further commentary. The term "Olil-Amr {{URDU TEXT}} is a very wide term, which includes, according to certain commentators, not only the rulers but religious scholars, Imams and jurists too. But they are undoubtedly; non-prophets and it can be said with certainty that the verse of the Holy Qur'an does not stress to follow the non-prophets unconditionally. 10. History is witness to this reality that Caliphs of the Holy Prophet (peace be upon him) never proclaimed to be "monarchs". In the light of the above verse it can be said that Islam has excluded the superiority of one human being over the other because the term "Olil-Amr" is in plural form which includes all those who are charged with authority. On account of this reason, the jurists are unanimous in their views that Islamic system supports collectivism in thinking, actions and decisions instead of following any individual ruler, priest, Pir Imam, Faqeeh, jurist or religious scholar. This reality can be explained with the help of several historical incidents but for the sake of brevity only one incident is referred hereinbelow: After victory of Iraq and Syria difference of opinion arose among the followers of Holy Prophet (peace be upon him) about distribution of captured land among the soldiers of Islam. Hazrat Umer (who was serving as 2nd Caliph) was of the view that the land captured as a result of victories be not divided among the soldiers because such an act would create complications. According to his views such an act was damaging with reference to the defence of country and moreover the widows and orphans who were getting benefits from those pieces of land prior to those victories would be deprived from their benefits with the result that they might face economical crisis. Hazrat Ali, Hazrat Maaz, Hazrat Talha and Hazrat Usman supported the views expressed by Hazrat Umer on the ground that if the land is divided among the soldiers then it would be cut in to smaller…
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