P L D 1961 (W (PLP)

4. The learned Additional District Judge having considered all the evidence and heard the parties' counsel passed an elaborate and carefully written order, whereby he appointed the father and the paternal grandmother Mst. Zainab as the joint guardians of the minor on condition that they deposit Rs. 10,000 for the benefit of the minor and they should also arrange for a separate residence for the minor where they might live with her. Evidently, the learned A. D. J. has used the expression `guardian' meant under section 4 (2) of the Guardians & Wards Act, as a person having the care and custody of the minor, because it was really the question of the custody and the care of the minor which was in dispute before him, and neither the mother nor the maternal grandparents had made any application to be appointed as the guardian of the minor. Even before me it was stated by the learned counsel for the appellants in the two appeals that in the presence of the father nobody could be appointed the guardian of the minor anal that the only question was regarding the custody of the minor.

5. Before me Mr. Khoja, the learned counsel for Mrs. Haqqani, advanced the main arguments which were adopted by Mr. Zia Shaikh appearing for the maternal grand‑parents in so far as these arguments were directed against the appointment of the father and the paternal grandmother. Mr. Khoja con tended that Mrs. Haqqani was and has remained a Christian and the father had agreed to the baptizement of the minor by the declaration dated 10th March 1956, and by that act and his sub sequent conduct he should be held to have abandoned the custody and care of the minor and was not entitled to ask for it again. He argued that under the Mohammadan Law it is the mother who is entitled to the custody of the minor female child until she attains puberty and this right she does not lose even if she changes her religion; that the child has remained for long with the mother and the grand‑parents, and considering that the father had abandoned his right and also in view of the fact that be was convicted of a criminal offence, the minor should not be delivered to his care. He also pointed out that in the letters, which Haqqani wrote from jail, it appeared that he himself wanted to become a Christian and had wanted that the child should be brought up as a Christian. It was not therefore open to him to turn back now and say that the child must be brought up in the religion of her father, that is, Islam. He cited several cases before me, in which upon the particular facts it was held that once a father relinquished his right and abandoned the child he was not entitled to claim it back.

6. Mr. Zia Shaikh argued that as the mother has not been found to be a. fit person to have the care and custody of the minor the same should be given to the maternal grandmother Mrs. Rodrigues who, in the absence of the mother, is entitled to the custody of the minor even under the Mohammadan Law. He also pointed out that the father (Haqqani) is now employed on a trawler and from the nature of his duties he would not be able to take proper care of the minor; and that in any case the father should be deemed to have abandoned his right to the custody of the minor, because in his letter from jail he had told the maternal grand‑parents that the child was theirs and shall always be theirs. I shall now proceed to examine these contentions.

7. In all such matters the paramount consideration, to which all other factors must be subordinated, is the welfare of the minor both present and future. In the case before me, the minor is a female child who was born on the 25th August 1955, and on the day on which the learned Additional District Judge passed his order was about 5 years of age. Ordinarily the custody of the child should have belonged to the mother, but in the present case of the mother must be held to be clearly an unfit person for that purpose. On her own admission in her letters and upon the statement of her own mother she is leading an immoral life. She even left her parents' home and went to live in the P. E. C. H. S. with another named Bartles. In one of her letters to her husband in jail she says: "I know I am at fault from the day I met Mr. Bartles and how I adapted myself to him . . . . . Whatever I did I did openly. Yes, it has been my fault and I confess the truth." At the hearing it was stated by Haqqani and was not contradicted by the other side that Mrs. Haqqani has even left this Bartles and was now living with another man. It is plain that the minor could not be left in the care of the mother whose influence upon her is bound to be immoral particularly as she grows in age. I have had therefore no difficulty in rejecting Mrs. Haqqani's claim to the custody of the minor. The claim of Mrs. Rodrigues, however, stands upon a different footing, and I have given it my careful and anxious consideration. The declaration dated 10th August 1956, which was jointly signed by Mr. and Mrs. Haqqani, was strongly relied upon by the appellant. With regard to the statement in that declaration that in case of separation between the husband and wife the custody of the minor shall remain with the mother, the question is not of any real importance because as the mother had been found to be an unfit person for the purposes of the custody of the minor the agreement cannot improve her claim. There is then the question of the baptizement of the minor. There is no doubt that she was so baptized and it also appears to me clear as was found by the learned Additional District Judge that this declaration and baptizement took place under the stress of the prosecution of Haqqani and the apprehen sion that he might soon be convicted and sent to jail as he indeed was. It is reasonable to believe that the parties thought at that time that the only way, in which the child could be looked after in the absence of the father, would be if the mother returned to her parents and the child came to be looked after by the mother with the help of the grandmother. It must also have been felt that the chances of Mrs. Rodrigues accepting the child would become strong if the child was baptized as a Roman Catholic. The child herself was only a year old and had no say in the matter. It is not a case where the parents had abandoned the child and handed it over to a mission for good; there is no doubt that Haqqani had never any intention of abandoning the child. His letters from jail which he has written to his wife and to the Rodrigues show that whatever else may be his fault he has a deep affection for his daughter and was anxiously concerned about her well being. This is abundantly borne out by the fact that when be came out of jail and was able to find his feet and regain some of his bearings he claimed the child back. The minor was born a Muslim and the fact of her baptizement, particularly in the circumstances in which it took place, does not change her religion unless after coming of age she chooses to do so. In fact in the course of the hearing Mrs. Rodrigues expressed her willingness to send her to a Muslim School though Mr. Rodrigues had stated in his evidence that their aim is to bring up the child as a Christian and that she was being brought up as such. Mrs. Haqqani in her statement also made a similar statement which may be quoted. "Besides being a mother my child is a Christian and I want her to be brought up as such. The religious part is more important." I have already said that notwithstanding the baptizement the) minor's religion must be held to be Islam. But whatever the case may be the father does not lose his right of custody even if the minor is converted to another religion. It was held by Davis, J. C.1 in the case of Muhammad Alam. v. Md. Ibrahim (A I R 1939 Sind 311), that a father does not lose the right of the custody of his minor) child if he becomes converted to another religion or if his child becomes so converted. Haqqani in his letters from jail has expressed his feelings in favour of his becoming a Christian. These letters show a tormented mind and Haqqani under the stress of his misfortune has freely condemned himself in those letters, yet the fact remains that he was not converted to Christia nity and remains a Muslim though it is difficult to say that either he or Mrs. Haqqani have any strong religious convictions: But apart from the question that the minor has to be brought up in the religion of her father, there are other considerations which are far more weighty in relation to the welfare of the minor and which have largely weighed with me in the view that I have taken of this case. Both Mr. and Mrs. Rodrigues are pretty old people. Mr. Rodrigues has given his age in the Court below as 66 years. He has retired from service of Messrs Meckinnon & Meckenzie. He is getting a pension of Rs. 330 and is getting another Rs. 170 from another service which he has joined. His family consists of himself, his wife, his mother‑in‑law and two other daughters besides Mrs. Haqqani, who does not live with them. It was admitted at the hearing that Mrs. Haqqani was paying them for the support of the minor and has throughout done so. It is also plain that if the custody of the minor is given to the maternal grandmother, the mother would continue to have a fairly intimate connection with her and the minor would frequently come under her influence. This influence is positively undesirable considering the life which the mother is now living and though her parents do not approve of it this has not come in the way of the mother keeping contact with the minor. It may also be stated that Mr. and Mrs. Rodrigues are not Pakistani nationals. Mr. Rodrigues admitted that they possess Portuguese passports and even his daughter Mrs. Haqqani is registered with the Pakistan Government as a Portuguese national. He stated that his third daughter was in South Africa and she had come to visit them in August 1956, and her husband became the Godfather of the minor, evidently at the time of her baptizement. When questioned whether he intended to leave Pakistan he frankly stated that he did not intend doing so in the near future. The possibility of his doing so is therefore not excluded even by him. These considerations must weigh against the claim of Mrs. Rodrigues to the custody of the minor. On the other hand, Haqqani's people are better placed in life and he himself has now got a job. It is true that he has a conviction in a criminal case against him but, as I have said there is no doubt that his affection and interest in the minor is genuine and he cannot be disentitled to his right to the minor on account of his conviction. His mother Mst. Zainab, though old, is a person with independent means and she offered to deposit as much as a sum of Rs. 10,000 in Court exclusively for the benefit of the minor. She even offered to take a separate house where she would live with Haqqani and the minor. These are considerations which cannot be brushed aside and which would show that if the child comes back to the father's family she would be looked after. Having taken everything into consideration I have reached the conclusion that the welfare of the minor both material and moral and her future prospects lie in her being with her father and his family. The idea of the minor remaining in the custody of the grand mother and of being sent to a Muslim school would create difficulties and lead to a conflict which would not be conducive to the growth of an integrate personality of the minor. The case law cited before me by the learned counsel for Mrs. Haqqani is the same which had been cited before the learned Additional District Judge. Cases are not of much help in a matter like this, because the question as to what is the welfare of the minor in a given case must depend upon the particular facts of that case. I should further like to say that in an appeal from an order such as the one with which I am dealing, the Court is slow to interfere with the discretion exercised by the Court of first instance unless it can be said that the guardian Court has not exercised its discretion properly and judicially. In a case of Court of Appeal re: Collins (A E R 1950 Vol. I p. 1057), H. R. Sir Raymond Evershed observed as follows: "The case relates to the custody of a boy aged six‑and‑a‑half years, and it is to be expected that those who have brought this dispute before the Court of appeal feel (without a motive which deserves any kind of criticism) the matter to be one of the utmost importance. Since, however, it is in relation to an infant, I think that on general principles and in the public interest the Court should be a little slow to entertain an appeal, since the decision in such cases is so very much a matter for the judge's discretion, and one of great responsibility. No Judge can claim to exercise ideal wisdom in these matters but the jurisdiction he has is that which devolves on him from the sovereign as parens pairiae. Parents would not assert that they were never wrong in any decision they made with regard to their own children, but few parents would desire their decision to be reviewed by other persons." In the present case it cannot be said that the learned Additional District Judge has not exercised his discretion properly and judicially. For the reasons given above I uphold the order of the Court below giving the custody of the minor jointly to the father Haqqani and the grandmother Mst. Zainab. They should within 15 days of this order deposit Rs. 10,000 in this Court in the name of the minor and for her benefit. On such deposit being made the custody of the minor shall be delivered to the father and the grandmother named above. I would also maintain the direction of the Court below that the maternal grandparents and the mother would be entitled to see the minor every Sunday or any other day in the week as may be agreed between the parties and the grandmother would be allowed to take the minor for four, hours once a week. This would soften the effect of the change which the minor might feel in consequence of her custody being] given to the father and the paternal grandmother. I would, however, remove the condition for the taking of a separate house by the father and the paternal grandmother for the purposes of living with the minor. It would be in the interest of the minor that the other members of the family may not feel that the family has been broken up because of the minor. With the modification stated above the order of the Court below is upheld. In the circumstances of the case, however, I make no order as to costs. A. H. Order accordingly.