P L D 2004 Lahore 801 (PLP)

"The welfare of the minors, has been pointed out as the guiding factor is section 7 of the Guardians & Wards Act in the matter of appointment of a guardian. Section 17 of the Act has expressly subordinated the personal law of the minors and certain directions in which the welfare of the minors should be considered are also laid down therein. Again in section 25 of the Act is enacted that the Court may order the return of the ward to the lawful custody of the guardian only if it thinks, it necessary for the welfare of the ward. What this "welfare" is has been considered in the decisions given under section‑7 of the Act. "The principle considerations which have been laid down under section 17 of the Guardians & Wards Act in order to secure this welfare are at least nine in number, namely (a) age, (b) sex, (c) religion of the minor, (d) character and capacity of the proposed guardian, (e) nearness of kin to the minor, (f) wishes of the deceased parent, (g) any existing or previous relations of the proposed guardian with the minor or his property, (h) if the minor is old enough to form an intelligent preference, that preference has to be considered. These tests are no doubt laid down under section 17 of the, Act but are equally relevant in considering the welfare of the minor under section 25 of the Act. Therefore, an arduous duty falls upon the Court to arrive at a just conclusion in such matters and the Court should place himself in the position of a wise father in selecting a person best fitted to assure the welfare of the minor".

21. It was so held in Mst. Khatija Khatoon v. Additional District Judge, Karachi and another (PLD 1976 Karach‑506); Khizar Hayat Khan v. Mst. Zainab Begum (PLD 1967 S.C. 402) and Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore and others (PLD 1967 Lahore‑977) and Syed Ali Mehdi v. Baqar Ali Rana Additional District Judge, Islamabad and 2 others (1998 MLD 1003).

22. The Courts have not to act consistently with minor's personal law, while determining his welfare. The paramount consideration is the welfare which has overriding effect. Reliance can be had to Rehimullah Choudhury v. Mrs. Sayeda Helali Begum and others (1974 SCMR 305).

23. After holding that the welfare of the minors lie with the mother and that the paramount consideration is the welfare of the minors which overrides the provisions of the personal law, the next question is whether the mother on her re‑marriage with a stranger to the minors, can retain the custody. In Mst. Parveen Akhtar v. Muhammad Ashraf (1986 SCMR 1944), the custody of minor children was given to the father by the learned Guardian Judge, on mother's re‑marriage with the stranger and petition for leave was refused by the Honourable Supreme Court of Pakistan. In Mst. Rashida Begum v. Shahab Din and others (PLD 1960 (W.P) Lahore‑1142), it was held that merely because the mother had married a person who was not related to the minors within the prohibitory degree, would not entitle the Court to deprive the mother of her right to custody. A learned Single Judge of this Court as he then was in a well‑reasoned judgment considered this aspect of the matter and I cannot resist in quoting the same extensively. 24. "The entire Muslim Law with regard to the minors which is based on somewhat doubtful tradition reported by Ahmad and Abu Daud which is as follows:‑‑ "Amr‑b‑Shuaib reported from his father from his grandfather that a woman asked: O Messenger of Allah, my belly was a resting place of his son of mine, my breast a drinking place for him, and my lap a soothing place for him, but his father divorced me and wishes to snatch him away from me. The Messenger of Allah Said: "You have got better right to take him till you are not remarried." We do not know what were the circumstances under which the Prophet told the woman to keep her son till she remarries. By analogy this provision would also apply in the case of a daughter as well but then according to this Hadith, the mother loses the right of the custody of her child irrespective of the fact whether she marries a person related to the minor within the prohibited degree or without it. That is putting a premium on the remarriage of widows which is both against the Holy Qur'an as well as some of the traditions. This Hadith also does not show as to who would be entitled to the custody of the minor in. case the mother re‑marries. The inference which can be drawn from this Hadith is that the child shall in that eventuality be handed over to the father; Imam Shafi has gone to the other extreme. According to him the mother is not entitled to retain the custody of her minor children even if she marries their Mehram if he does not consent to it. This Hadith however runs counter to other traditions reported from Prophet Muhammad by comparatively better authority. Tirmzi reports as having been stated by the Prophet and heard by Abu Ayyub that whose creates separation between a mother and her child. Allah will create separation between him and those dearest to him on the Resurrection Day. (Al‑Hadis Mishkat‑ul‑Masabih‑1938 Edition, Volume. 1. "Abu Ayyub reported: I heard the Messenger of Allah say; Whose creates separation between a mother and her child, Allah will create separation between him and those dearest to him on the Resurrection Day". In another case Prophet Muhammad cancelled the sale of the slave girl because she was being separated from her son. "Same reported that he made separation between a slave girl and her son. The Holy Prophet prevented him from that. Then he cancelled the sale." So far as the son is concerned, Ibn Majah reports from Abu Musa that the Holy Prophet cursed him who separates a father from his son and a brother from his brother. "Abu Musa reported that the Messenger of Allah cursed him who makes separation between a father and his son, and between a brother and his brother." Where our Holy Prophet prohibited the separation of the child from his mother he did not say that such a separation was permissible if the mother re‑marries. It is difficult to say as to which tradition was the first in time. In the very nature of the things, what was said subsequently by Prophet Muhammad would abrogate his earlier opinion. Again, in the case of boy, Abu Huraira reported that Prophet Muhammad gave option to the minor to choose between his father and his mother. Al‑Hadis Mishkat‑ul‑Masabih‑1939 Edition Volume II Page 728‑Tradition

12. Abdu Hurairah reported that the Messenger of Allah gave option to a boy (to choose) between his father and mother." Another incident is reproduced by Abu Daud, Nisai and Darimi:‑ "Same reported that a woman came to the Prophet and said: Verily my husband intends to go away with my son while he gave me water to drink and gave me benefit. The Prophet said: This is your father and this is your mother. Take the hand of any of them which you like. He took the hand of his mother and so she went away with him. The same incident perhaps is differently given in the following Hadith also collected by Abu Daud, Nisai and Darimi:‑ "Hilal‑b‑Osamah reported: while I was sitting with Abu Hurairah a Persian lady came to him, with a son while her husband divorced her and both claimed him. She then spoke in Persian to him saying: O Abu Hurairah, my husband intends to go away with my son. Abu Hurairah said: Cast lottery about him. He spoke with her about it. Her husband then came and said: Who disputes with me about my son? Abu Hurairah said: O Allah, verily I do not say this, except that I was sitting with the Prophet. Then a woman came to him and said: O Messenger of Allah, verily my husband wishes to go away with my son, while he did me some service, and gave me drink from the well Abu Enabah. (And according to Nisai from sweet water). Then the Prophet said: Cast lots about him. Her husband said: who is here to dispute with me about my son? Then the Messenger of Allah said: This is your father, and this is your mother. Take the hand of either of them whom you like. Afterwards he caught the hand of his mother." These traditions clearly show that the boy was given an option to choose between the father and the mother and there is no indication that this choice was not intended to be given to the child if the mother has re married. There is yet another tradition in which Prophet Muhammad handed over the hand of a girl to her mother's sister because according to him the mother's sister was like a mother. (Page 726‑Tradition 120). "Bars ' a‑b‑ajab reported that the Prophet entered into a' treat on the Day of Hudaibiyyah on three conditions‑‑on condition that if anyone of the polytheists came to him, he would return him to them, and anyone of the Muslims went to them, they would not return him; on condition that he would enter it in the following year and stay there for three days. When he came to it (Macca) and the fixed time elapsed, he came out. The daughters of Hamjah followed him proclaiming: O Uncle, O uncle. All overtook her and caught her by her hand. Ali, Zaid and Ja'far began to quarrel about her, Ali said: I have taken her as she is the daughter of my uncle Jafar said: She is daughter of my uncle and her mother's sister is my wife. Zahid said: She is daughter of my brother. The Prophet handed her over to her mother's sister and said Mother's sister is in the place of a mother. He then told Ali: You are of me and I am of you. He said to Ja'far: My appearance and character resemble with those of yours. And he said to Zaid: You are our brother and our master." There are numerous traditions which enjoin the children to serve their parents and in particular the mother, which shows that Prophet Muhammad considered the mother better person to have the custody of the child than the father. All these traditions only show that Prophet Muhammad decided the questions as the facts of each case required and his decisions therefore could not be accepted as of general application. Lastly, did Prophet Muhammad (peace he upon him) himself not marry Umma Salmah who had children from her previous husband who were not related to the prophet within the prohibited degree. Were the children taken away from Umma Salmah after she married the prophet for this reason? History shows that they were not. Then why the children should be taken away from other mothers." 25. "Dr. Tanzeel‑ur‑Rehman" in his book" Majmooa Quawaneen‑e. Islam Voluem-3 Chapter-22 after considering various traditions of the Holy Prophet (P.B.U.H) concluded as under :

26. In the case of Amar Elahi v. Mst. Rashida Akhtar (PLD 1955 Lahore‑412), it was held that the mother cannot be deprived of minor's custody on the ground of her re‑marriage with a stranger. Similar view was expressed in the case of Mst. Nazir Begum and others v. Abdul Sattar (PLD 1963 Karachi‑465) and Akthar Ahmad v. Mst. Hazoor Begum (PLD 1965 Karachi‑65).

27. In Imtiaz Begum v. Tariq Mehmood and another supra, on the strength of Hadith of the Prophet Muhammad (Peace be upon film) narrated by Muro Bin Shoaib on the authority of his forefathers that a woman, carrying a child came to Holy Prophet (p.b.u.h.) and complained that child's father wanted to snatch the miner from her whereas she had given birth to him and suckled him. The Holy Prophet (p.b.u.h) said:‑ "(Your right to keep the child is superior than the father until you re‑marry).

28. Reference was also made to another tradition by Hazrat Saeed Bin Mysswayib. It was stated that Hazrat Omar had divorced mother of his son, Aasim. She was seen in the bazaar carrying the child when Hazrat Omar tried to take away Aasim from his mother. The matter went to Hazrat Abu Bakar who decided the matter in favour of the mother by saying (Her company and bed are better for him until he grows up or she remarries).

29. In the case of Muhammad Bashir v. Ghulam Fatima (PLD 1953 Lahore‑73), the dispute was with regard to custody of a female child aged 12 years. It was held that mother on re‑marriage, has forfeited her right. However, it was laid down that welfare of the minor is the dominant consideration. The father retains over‑all control and supervision of the minor.

30. Re‑marriage by itself of a mother of male children is no disqualification for retention of their custody. Delivery of custody of female minors to the father, on re‑marriage of the mother with a stranger to the minor's has some reasons, behind. To my mind, it is not applicable to the male child. A step‑father not related to the minor may not pose any danger to him. Islam has always guarded jealously, chastity of a woman. The minor daughters either on attaining or near to attain the age of puberty may not be allowed to live in the custody of the mother, while a step‑father is in the house. Women are prohibited to stay with "Ghair Mehram". The philosophy in Islam is to keep stranger away from the females. On this analogy re‑marriage of a woman with stranger may be considered ground for the delivery of custody of female minors to the father. However, it is not universal applicability. For instance, if the father of minor is proved to be a person of ill character, still the custody be granted to him. In that case will mother be not the right person to guard the minor. Woman is no longer a weaker person in the society. Each case, therefore, requires determination on its own peculiar facts.

31. In this case the minors are male. The father has not expressed any ill‑feeling except the family feud of the step father. Her‑remarriage does not come in her way to lose the custody.

32. As discussed in earlier part of this judgment, the minors were agreeable in spending of long summer and winter vacations with the father and mother on equal terms. The elder son is aged about 16 years and 3 months. They have mutual arrangement of talking each other telephonically. Limitations cannot be placed on him.

33. As far Khuldoon Aziz is concerned, the following arrangement is made which will be in the interest of everybody:‑‑ (1) In long summer and winter vacations, the minor Khuldoon Aziz will spend first half with the father, thereafter he will re‑deliver the custody of the minor to the mother. (2) His custody will be delivered to the father on every Saturday of the last week of every month at 4.00 p.m. He will spend the night with father who shall re‑deliver the custody to the mother on Sunday at 5.00 p.m. (3) The father will execute a surety bond to the tune of Rs.5,00,000 to the satisfaction of the learned Guardian Judge, Islamabad that he will not remove the custody of the minor from the territorial jurisdiction of this Court or remove him out of Pakistan. (4) The above arrangement is subjected to the father's acquiring a house in Islamabad and rendering a proof to this effect to the satisfaction of learned Guardian Judge, Islamabad.

34. In view of what has been stated above, this writ petition is allowed in the terms noted above and the orders passed by the learned Courts below are set aside. Consequently, the petition for custody of minors is dismissed. S.A.K./R‑86/L Petition accepted.