P L D 1967 Karachi 569 (PLP)

4. The appellant denied the' allegation of intimacy with Muhammad Hasbim and stated that her only connection with him was that her son Nenumal was employed in his shop. She then proceeded to adopt a line of defence which has struck me as rather curious and strange. She denied her marriage with Khushaldas or that Khushaldas was the father of her children. She alleged that the deceased Khushaldas "lived on the earnings of private prostitution and used to bring strangers (to her) for immoral purposes". She stated that her children were born to her from her connection with those strangers.

5. The learned District Judge treated the appellant's statement as admission by her that she was leading an immoral life and for this reason; and for the further reason she had left the religion of her late husband, made the order dated the 24th May 1965, by which the children were placed in the custody and guardianship of their uncle Chanoomal.

6. The main point raised in this appeal is whether the appellant's conversion to the Islamic faith disqualifies her from being the guardian of her minor children. Before dealing with this question, I world like to dispose of the allegation of unchastity made against the appellant. I am not inclined to attach much importance to the appellant's statement before the learned District Judge that Khushaldas was neither her husband, nor the father of her children. I think this statement may be attributed to a mother's anxiety to retain the custody of her children and to the appellant's misguided belief that she would be held entitled to the custody of the children if she claimed them to be her illegitimate children.

7. The only point which, in my opinion, requires consideration is the effect of the appellant's change of religion. Under Hindu Law the appellant, as mother, is the natural guardian of the persons of her minor children in the absence of the father. Under the Caste Disabilities Removal Act, t859 (Act XXI of 1850), she does not loose this right by her conversion to the Islamic faith, section 1 of this Act is as follows :‑ "So much of any law or usage now in force within India as inflicts on any person "forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance:, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any court." The word "rights" in this section has been held to include no only rights to property but also rights of guardianship of infants. Reference may be made to the decision in Gul Mohammad v. Mst. Wazir Begum ((1901) 37 P R 60) and to the decision in Kanahiram v. Biddyaram ((1878) I L R I All. 549).

8. It was on the basis of the provisions of the Caste Disabilities Removal Act that Mr. Muhammad Ramzan Qureshi, the learned counsel for the appellant insisted that tie appellant's change of religion should not be treated as a ground for removing her minor children from her custody and guardianship. I agree that appellant s change of religion is by itself not sufficient to disentitle her to be the guardian of her children. But in these proceedings the primary consideration has to be, not the preservation of the appellant's legal right, but the welfare of the minors. Section 17 of the Guardians and Wards Act requires me, in considering the welfare of the minors to have regard to their religion.

9. Now what is the religion of these children before me? The boy Nenumal has not yet attained the age of discretion. The other children are still of tender age. It cannot be said that the children at this stage can form an intelligent preference for one religion or the other. This being the position, the rule laid down by the Privy Council in Helen Skinner v. Sophia Evelina Orde (14 M I A 309) should be applied. According to this decision, a child is presumed to have his father's religion and it is the duty of a guardian to train his ward in the religion of the ward's father. It is not disputed that the children whose custody the appellant claims were brought up as Hindus. Their late father was a Hindu Lohano. The children's religion is, therefore, Hindu religion and under section. 17 of the Guardians and Wards Act, their welfare requires that they should be brought up in the religion and the community of their late father. This the appellant is not in a position to do.

10. Mr. Naimuddin, the learned counsel for the respondent Chanoomal, referred me to several cases in which the mother was held disqualified to be the guardian of her children by reason of her conversion to a religion other than that of her deceased husband. In Helen Skinner v. Sophia Erelina Orde, which I have noted above, Victoria Skinner, aged 14 years, was removed from the custody and guardianship of her mother Helen Skinner for the reason that her mother adopted the Muslim religion In Ram" Parshad Ram Jana v. The District Judge, Gorakpur (A I R 1920 All. 89) a Hindu girl of 12 years ace was removed from the guardianship of the head of a Christian Mission. Nadir Mirza v. Munni Begum (A I R 1930 Oudh 471) concerned the case of the minor son of a deceased Shia Muslim. It was held that the child should not be handed over to his mother who bad been converted to Christianity and had stepped outside the family of her husband In J. Ganeshlala v. Raton Bai (A I R 1937 Mad. 976) it was held that a Hindu woman who bad married a Christian was not a proper guardian of her minor children. The Chief Court of Punjab held to Canon S. S. Alluntr v. Mst. Badamo (32 I C 897) that the widow of an Indian Christian, having renounced the Christian religion, was not a fit person to have charge of her daughter who was brought up as a Christian. It was observed by the High Court of Lahore in Bibi v. Bibi ((1934) 149 I C 973) that the interests of the minors require that they should be brought up in the religion of their father and that the, widow of a Muslim, after marrying a Hindu Jai, was not a proper guardian of the minor children of her deceased husband.

11. I am, therefore, of the view that it is in the interest of the minors that they should be placed in the guardianship of their uncle, Chanoomal, so that they may be brought up in the family and the community to which their father belonged. There ate two further reasons for preferring this course. The appellant is a poor woman. She earns her livelihood through domestic work and apparently she is not in a position to bring up the children without undue hardships to them. I had the advantage of string the children in chambers. I talked with each child separately. Each child preferred to live with their uncle.

12. Mr. Mohammad Ramzan Qureshi next attacked the judgment on the ground that the learned District Judge has not complied with the provisions of Rules 412 to 425 of Chapter XX of the Sind Civil Court Rules. It is urged that under these rule the District Judge should have given directions that the girl Ishan Bai should not be married without the permission of the Court that the appellant should have access to the children and that the children should not be removed to India. I think these conten tions have substance. But it is not necessary to set aside the order under appeal for these reasons. I would, instead, follow the suggestion of Mr. Naimuddin, the learned counsel for respondent Chanoomal, that the necessary directions may now be given by me. Accordingly, while arming the order dated 24th May 1965, of the learned District Judge, I would give the following directions :‑ (i) that the girl Ishan Bai shall not be given in marriage to any person without the previous permission of the District Judge, which permission should be given after notice to the appellant and after hearing the parties ; (ii) that the respondent Chanoomal shall not remove the children or cause them to be removed to India or to any place outside West Pakistan and for this purpose will furnish security in the sum of Rs. 30,000 (Rupees thirty thousand) to the satisfaction of the District Judge, Tharparkar within one month; (iii) that the appellant shall be allowed to meet all the children once every month and the youngest child, Mohan, trice a month in the Court of the District Judge Tharparkar, to the presence of an officer of the District Court designated by the District Judge; (iv) that respondent Chanoomal will make suitable arrangements for the education of the two boys Tara Chand and Mohan and the girl Ishan Bai by the next School session the boy Nenumal has already been set up in business and therefore orders with respect to his education are not necessary; (v) it will be open to the appellant to move the District Judge. Tharparkar at any time for necessary orders including orders for removal of Chanoomal from Guardianship, in the case children are ill‑treated or there is any contravention on the part of Chanoomal of any of the directions given by me. The above directions are given by me with the concurrence of respondent Chanoomal through his counsel, Mr. Naimuddin.

13. For the reasons discussed above, the appeal is dismissed. Hut the order of the District Judge will be read as containing the above direction. In the circumstances of this case, I leave the parties to bear their own costs. K. B. A. Appeal dismissed.