2012 PLP 761 (CLC)

SALMAN HAMID, J.

In a nutshell the case of Mst. Gulnaz, widow of Aqeel Ahmed, (petitioner) was that after her marriage with deceased Aqeel Ahmed on 5-7-2002 they were blessed with Hunan Aqeel in April, 2004 and with Husnain Aqeel in December, 2006 (the minors). Petitioner's husband died at Hyderabad on or about 29-7-2011 and after his death, petitioner's in-laws after confining the minors threw her out from the house and that she had to seek refuge in her parents' house. It was contended that from such time the petitioner has been trying to retain the custody of minors but to no avail. Hence, present petition.

2. After notice, respondents Nos.l and 2, the mother-in-law and brother-in-law of the petitioner filed joint counter-affidavit, wherein the allegations as levelled against them were denied. It was mentioned that the minors are not in unlawful custody of respondent No.l. It was stated that in fact the petitioner herself abandoned the minors and that the minors are being looked after and taken care of by the respondents well. It was further mentioned that the welfare of the minors lie with the respondent No.1 inasmuch as the respondent No.1 is supported by her two sons one being respondent No.2 and another son who have good business and financial position and are therefore able to meet all the requirements of the minors. It was also mentioned that the two paternal uncles are not yet married. However, it was not denied that the minors are petitioner's real sons or that she did not contract second marriage. Petitioner's chastity was also not doubted.

3. I have heard the learned counsel for the petitioner and the respondents. In a case of custody of minors the only thing which is of prime consideration is their welfare and to see where such welfare tilts. It is an admitted position that the minors are the real sons of the petitioner. It is also not alleged in the objections/counter-affidavit to the petition that the petitioner has married again or that she is of a loose character. Section 352 of the Mohammadan Law provides that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty and that such right continues though she is divorced by the father of the child, however, unless she marries a second husband in which case the custody goes to the father. Section 353 of the same Law speaks about rights of female relation in default of mother where custody of a boy under the age of seven years and of a girl who has not attained puberty belongs to female relative in order that first preference goes to mother's mother (howhighsoever); second goes to father's mother (howhighsoever); then to full sister; then uterine sister; then consanguine sister then full sister's daughter; then uterine sister's daughter; then consanguine sister's daughter then maternal-aunt in like order as sisters and lastly paternal aunt also in like order as sisters.

4. Above exposition of the law would show that the petitioner is hit by none (despite one of the minor attaining seven years of age inasmuch as at such attainment right of father becomes alive who in the present case is not alive) and that under section 353 the right to paternal grandmother/father's mother comes second in degree to mother's mother. Gauging the case in hand on the touchstone of above provisions of the law, it becomes abundantly clear that it gives a right to the petitioner of the custody of the minors of which she even otherwise is entitled to and in no circumstances as long as the welfare of the minors is not jeopardized, paternal grandmother could retain the custody of the minors.

5. Apart from the above, it may be appreciated that the petitioner was thrown out after the death of her husband and at such time the minors were retained by the respondents against the wishes of the petitioner and that since then the petitioner has been running from pillar to post to regain custody of her minors. Even if such is not the case as denied by the respondents, petitioner being the real mother has a right of custody of the minors. In defence of retaining custody of the minors all that had been stated was that since the respondents are in better financial position and they are well-off the minors' welfare lie with them and that the two paternal uncles being unmarried are in a better position to look after interest of the minors along with paternal grandmother. Such argument, to say the least, is preposterous. The two paternal uncles may not be married now but soon enough they will be married and at such time it cannot be ruled out that the minors would be left at the sole mercy of old paternal grandmother while the two newly weds would be involved heavily in their own married affairs. Even otherwise, since real mother/petitioner is alive and able to take care of her minors and that there can be no better cradle for the minors then their mother's lap, denying such natural right would be utter cruelty and grave injustice. Since the petitioner has not re-married and the minors are of tender age and they can very well again be adjusted with the mother though at the moment they may be under influence of paternal grandmother and uncles and raise hue and cry in joining their real mother, ultimately it would be best and in the interest and welfare of the minors that they are rejoined with their mother/petitioner as there can be no better substitute of the minors than the mother herself.

6. Under the circumstances this petition is allowed and the respondents Nos.1 and 2 are directed to forthwith hand over the custody of the minors to the petitioner. Needless to mention that the respondents shall be at liberty to meet the minors and it is expected that all parties to the lis shall remain civil and co-operate with each other which would only-be best and in the interest and welfare of the minors, for which appropriate meeting schedule may be settled at petitioner's house. This petition is disposed of in terms of the above. M.H./G-2/K Petition allowed.