P L D 1988 Karachi 252 (PLP)

This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The petitioner was married to respondent No. 3 on 17‑7‑1976. During the wedlock a male child was borne on 11‑11‑1977. As alleged, differences started developing between the petitioner and respondent No.3 soon after marriage. In January, 1986 two Family Suits Nos. 44 and 45 of 1986 were filed by the petitioner for (1) maintenance for~ herself and the male child, and (2) for dissolution of marriage on the grounds of cruelty, non‑maintenance and Khula . The suit for maintenance was decreed by consent on 29‑4‑1986 in favor of the minor, respondent No.3 agreeing to pay maintenance for the minor at the rate of Rs.200 per month from January, 1983. In the suit for dissolution of marriage the learned Family Judge framed following issues: ‑ (1) Whether the defendant treated the plaintiff with cruelty or maltreated her? (2) Whether the defendant failed to maintain the plaintiff and her minor son as alleged? (3) Whether the plaintiff is entitled to the relief sought for in suit? (4) What should the decree be? After recording the evidence and hearing the learned counsel for the parties the learned Family Judge gave his finding on issues Nos. 1 and 2 as not proved and on issue No.3 the finding was given by him in the negative. on issue No.4 the suit was decreed for Khula . The petitioner being aggrieved of the decree for return of Rs.2,000 as dower amount and ornaments and other benefits as compensation for Khula to respondent No.3, filed an appeal being Family Appeal No. 50 of 1986 in the Court of learned District Judge, South, Karachi. The learned Judge dismissed the appeal with the only modification that the petitioner herein was not bound to return the amount of dower of Rs.2,000.

3. Respondent No. 3 did, however, file G & W Petition No.63 of 1986 in the Court of land Senior Civil Judge, South, Karachi under section 25 of the Guardian and Wards Act claiming the custody of the minor son. The learned Judge granted the said petition of respondent No.3 and directed that the custody of the minor be handed over to the said respondent, by his judgment dated 21‑4‑1987. The petitioner being aggrieved of the said judgment, preferred an appeal in the District Court, which was, however, dismissed by the learned District Judge, South, Karachi by his judgment dated 8‑11‑1987. The petitioner has now filed the above Constitutional Petition, praying for the following relief s:‑ (i) "Declare that the impugned orders passed by the learned respondents 1 and 2 are without lawful authority and of no legal effect. Order dated 21‑4‑1987 and 8‑11‑1987. (ii) Restrain the respondent No. 3 from obtaining custody of minor (Sheraz Afzal) and declare that the petitioner is entitled to the custody of the minor. (iii) Grant such other relief as this Honourable Court deems just and proper in the circumstances of this case. (iv) Award costs of the petition." The matter came up for Katcha Peshi before a learned Single Judge of this Court on 23‑1.2‑1987, who was pleased to order pre‑admission notice to the respondent. I have, therefore, heard the learned counsel for the petitioner as well as the counsel for respondent No. 3. 4. . Learned counsel for the petitioner made the following submissions: ‑ (I) There is no ‑application of mind to the welfare of the minor in the impugned judgment. (ii) Respondent No. 3 is a man of bad character; (iii) He failed to provide maintenance to the child and did not take any interest in the welfare of the minor. (iv),There is misreading of evidence."

5. As regards the first submission, I went through both the judgments of the Courts below with the counsel and do not find myself in agreement with him that the learned Courts below failed to apply their minds to the question of the welfare of the minor. In fact, on the pleadings of the parties a specific issue was framed by the learned Family Judge as to "where the welfare of the minor lies?". The said issue has been discussed by the learned Family Judge in about 8 pages and discussing the entire evidence, came to the conclusion that the welfare of the minor lies with respondent No.3. The learned District Judge has also discussed this aspect of the matter and also came to the same conclusion.

6. As regards the second submission, the only allegation made against respondent No. 3 is about the commission of the offence of theft by respondent No. 3 in the bungalow of the master where respondent No. 3 was working, but this sole ground was not found sufficient by both the Courts below to disentitle respondent No. 3 from custody of the minor. Even otherwise, the said incident has not been proved properly. There seems to be no report to the Police or the case registered against him, resulting in conviction. The owner of the bungalow has also not been examined even to substantiate, puma facie, the allegation of committing theft.

7. As regards the third submission, admittedly respondent No. 3 had gone to Saudi Arabia in 1978. According to him he used to send money to the father of the petitioner for her maintenance as well as the maintenance of the minor. it is true that on his return a suit was filed for maintenance, but in the very early stage of the suit, it was compromised as respondent No. 3 seems to have volunteered to accept the demand for the maintenance of the minor. In fact a sum of Rs.7,000 was. paid by him towards three years past maintenance, and is paying Rs.200 per month towards maintenance of the minor. As regards taking no interest in the welfare of the minor, it has come in evidence that the petitioner and her relatives were not allowing respondent No. 3 to see his minor son which, in the circumstances of the case, is understandable, as the relations between the petitioner and respondent No. 3 were so much strained that it had resulted in the dissolution of marriage by Khula and another suit filed by the petitioner against respondent No. 3.

8. As regards last submission of the counsel that there is misreading of evidence, I must say that he could not refer to any piece of evidence vis- -vis its misreading by the learned Courts below. 9.The learned counsel for the petitioner, in support of his petition cited the following decisions: (i) Mist. Zohra Begum v.Sh. Latif Ahma( Munawar P L D 1965 (W.P) Lah. 695; Mist. Feroze Begum v. Lt.‑Col. Muhammad Hussain 1983 S C M R 606 and Rahimullah Choudhry v. Mrs. Sayeda Helali Begum and others 1974 S C M R 305. (i)The judgment in the first case 1965 Lah. 695, by Muhammad( Yaqoob Ali, J (as he then was) vas given in the first appeal from the order of a Guardian Judge. (ii) In the second judgment, 1983 S C M R 606 was also passed on appeal from the order of the Lahore High Court in first appeal in a guardianship matter. Moreover, on facts the case decided by the Honourable Supreme Court is quite distinguishable on the facts inasmuch as the mother appeared to have dedicated her life for the sake of her minor, whereas the father contracting second marriage after divorcing the mot her of minors and having two daughters and one son from the second marriage, the welfares of minors was held to lie with the mother. (iii)The third case, 1974 S C M R 305 is also of little help to the learned counsel. The minors in the said case were of tender age and it was held on appeal by the Honourable Supreme Court as well as the High Court of East Pakistan, Dacca that the mother could not be said to have lost right of Hizanat on leaving the place of residence of the appellant and taking away with her two boys in unavoidable circumstances.

10. On the other hand, Mr. Iftikhar Javid, learned counsel for respondent No. 3 has relied on the following cases, namely: 0) Mst. Jameela v. Settlement Commissioner, Hyderabad and 2 others PLD 1978 Karachi 224, (ii) Syed Muhammad Mashooq v. Mst. Nafis Fatima and others 1984 S C M R 1138, Ross Umrigar v. Mrs. ‑Jacintha D'Sa and others 1985 C L C 2979 and Saindad v. Chotey Khan and another 1986 C L C 669. (i) In the first case P L D 1978 Karachi 224, it was held by a Division Bench of this Court that concurrent finding on a question of fact by Courts or Tribunals below cannot be upset in Constitutional Jurisdiction. In the second case 1984 S C M R 1138, the Honourable Supreme Court also held that the finding of the two Courts below, granting relief on claim of respondent based on evidence and were on one of fact, such findings cannot be challenged in Constitutional Petition. (iii)In 1985 C L C 2979, it was held by me in a Constitutional Petition filed against the judgment of the family Court and on appeal by the learned Additional District Judge "that there is no ground for invoking the writ jurisdiction by this Court, as there has not been shown any jurisdictional error or absence of lawful authority or even an illegality in passing the impugned orders by the two Courts below," GO In 1986 C L C 669, a Division Bench of this Court observed that "This Court, in constitutional petition, does not set aside concurrent findings of fact arrived at by the competent authorities unless such finding is shown to be perverse or is based *on misreading of evidence. In the instant. case, we do not find such misreading of evidence."

11. The law of custody of children in the Shar iah as has bee‑I termed in Shari ah terminology, is called Hazelnut T he literal meaning of Hizanat (custody) is upbringing. In legal terminology, the upbringing of a minor child by the mother or by some one legally entitled to it is called 'Hidanat' (custody). There is a consensus among the Companions of the Prophet on the point that in the first instance the mother is entitled to the custody of her child; and the entitlement of other relatives comes thereafter. There is, however, difference on the point that upto what age of her son or daughter is the mother entitled to the custody.

12. According to Imam Abu Hanifah, the mother's right of custody of the child gets transferred to the father when the male child begins eating, drinking, wearing clothes and cleaning, bathing and washing all by himself. The age of reaching this state of the child has beer, stated by Imam al‑Khassaf, a reputed Hanafi Mujtahid of the fourthly Century Hijra, to be approximately seven or eight years. Indeed, the mother has the right of custody of the daughter till she attains the age of puberty. This is also the view of Imam Abu Yusuf. According to Imam Muhammad al‑Shaybani the mother has the right of custody till the daughter shows signs of awakening of sex. The later Hanafi Jurists approve the opinion of al‑Shaybani (Damad Affandi: Majmal al‑Anhur, Egypt, 1327 (A.H) Vol. 1).

13. According to Imam Malik b. Anas, the mother has the right of custody of her son till he attains his full power of speech and of her daughter till she is contracted into marriage. According to both the Imams, al‑Shafili and Ahmad bin Hanbal, the mother has the right cf custody of her son and daughter till they are seven years of age Thereafter the child shall be given the right of making a choice between the father and the mother. The child shall then be given in the custody of the one whom. he or she, as the case may be, chooses (Ibn‑Qudamah Al‑Maqdisi AI‑Mughni, Egypt, 1367 (A.H) Vol. VII. pp. 614‑16).

14. According to Shi ah jurists, the mother has the right of custody of her son till the completion of two years of his age and of her daughter till the completion of seven years of her age. When the children reach the aforesaid ages the father becomes entitled to their custody (AI‑Hilli, Najmud‑Din Jalfar : Shara il al‑Islam, Tehran, Part III, pp. 1‑2).

15. There is no specific verse in the Holy Qur an on the right Of the custody of the mother. However, Jurists by way of seeking Qur anic sanction deduce it from the verse relating to fosterage.1 Allah says, "the mothers shall give suck to their offspring for two whole years, if the father desires to complete the term." This directive is for those who want to benefit from the complete term of fosterage. (Tr.) Al‑Qur an: 11: 233). Hence from this verse the Qur anic sanction is more or less obvious that the right of custody of suckling children, in the first instance, belongs to the mother, i.e. of tender age. There is, however, a principle laid down in the Holy Qur an. In Surah Al‑Baqarah, Verse 233, it is stated that ‑‑ No mother shall be treated unfairly on account of her child. Nor father on account of his child. Ultimately, goodliness both on the part of mother as well as father must prevail, for all legal remedies in a guardianship matter are imperfect and may be useful to an extent only, for a child, in his bringing up in a normal way, needs the care and protection of both mother and father and that can be best achieved by mutual adjustment.

16. In Pakistan the matters relating to the custody of minors, their persons and properties are regulated by the Guardians and Wards Act, 1890. 1 may quote some of the relevant cases on the point at issue. In the case of Mist. Zebu v. Mijaz Gul reported in PLD 1952 Pesh. 77, it was held that it will be putting a ridiculous construction on section 25 of the act to hold that after a Muslim father becomes entitled to the custody of the children, who were until then lawfully in the custody of their mother, has no remedy open to him under the Guardians and Wards Act. After the attainment of the specified age, the custody of the minor by the mother immediately becomes unauthorized. The minors would then be presumed to be in the constructive custody of the father, and if the mother refuses to hand over the children to the father it would be tantamount to her removing the wards from the custody of their rightful guardian. It was thus held that "Section 25 of the Act, should receive a liberal construction and must be held to include the right of a father to get the custody of his minor children. A father is perfectly competent under section 25 of the Guardians and Wards Act to get the custody of his minor children from the mother, when she ceases to be their lawful guardian". The learned Judge further observed: Normally, when a certain person has been given the guardianship of a minor by the Personal Law, which governs him, it should be presumed that it would be for the welfare is of the minors at the person has their custody in preference to everybody else in the world, including the mother. It will be for the party contending against this normal presumption to prove affirmatively and positively that it would be against the interest of the minors to return them to the custody of their natural guardian."

17. In the case of Mist. Chiragh Bibi v. Khadim Hussain P L D 1967 Lah. 382, it was observed that if a woman who has the Hazelnut of a child denies t ‑ he father of the child, who is under Muslim Law his or her natural guardian, access to the child, she must be considered not only to have removed the child from the constructive custody of the father but also to have done something which is against the welfare of the minor. That the Hazina deprives the minor child of an opportunity to meet his or her father, means that she is doing something injurious to the mental and emotional well‑being of the ,child. And if to this unreasonable attitude of the Hazina is added the circumstance that she is an old woman with no independent means who can support herself and the minor children only on a paltry pension of her husband, the Hazinat must be deemed as not being quite fit to retain the custody of the child. In the circumstances, such as mentioned above, if the father, the natural guardian of the minor who has a better financial position and has no discreditable character, applies for the restoration of the actual custody of the children to him, he must succeed in his application.

18. In the case of Fazal Ahmad v. Mist. Kaniz Fatima P L D 1968 Kar. 211, it was observed that although under the Muslim Law, the father is the natural guardian of the minors, and as such entitled to the custody of a son who attains the age of seven years, or a daughter who attains puberty, marking termination of the mother's period of Hizanat, yet there may well be very good reasons for denying him that custody consistent with the demands of the welfare of the minor which is the overall determining factor to be kept in view. The paramount and determining consideration in all such cases is the welfare of the minor and not the rights of the parents, in whose favor an initial but rebut table presumption can be raised.

19. In the case of Mukhtar Ahmad Khan v. Mist. Aziza Begum PLD 1975 Lah. 86, it was observed that the fact that the minor had been living with the mother for a long time may present some difficulty but despite that the Courts have to pass proper and legal orders in matters of custody of minors, notwithstanding the fact that the results temporarily, might be unpalatable to the minor in so far as the emotional attachment at a certain age is concerned. The Muslim Law qua presumptions has to a very large extent taken care of this aspect of the matter. Ordinarily, the mother is entitled to the custody of a minor son up to the age of 7 years. This Rule of guidance also caters for the emotional needs of a male child at the tender age. Thereafter, the other needs of the child are also to be taken care of. One of the essential needs is the attachment to and love and regard for both the parents.

20. It may, however, be stated by me that if under Muslim Personal Law of a sect as recognized under Article 227‑Explanation of the Constitution, 1973, custody lies with a mother or a father, heavy burden is cast on the other party to prove that the welfare of the minor lies with the person other than the person who has been giver. right of the custody of the minor by the Muslim Personal Law of that sect. Thus, the law presumes that where is the legal custody, there is placed the welfare of the minor. If, by Muslim Personal Law, a particular relation is entitled to the custody of minor, the Courts, in the absence of proof to the contrary, may presume that the welfare of the minor lies in being delivered to that person. Under the law applicable to parties, who are, probably, Hanafis, the mother /petitions is entitled under her Muslim Personal Law to the custody of her male child up to 7 years of his age. The boy having reached that age, his custody under the Muslim Personal Law now lies with the father respondent No.3. The petitioner appears to have failed to discharge her burden so as to prove the circumstances in order to deprive the father/ respondent No.3 from his right of custody of the minor. The question of the welfare of the minor is a question of fact ‑ In the instant case, both the Courts below, on the basis of evidence have given their finding that the welfare of the minor boy, who is finding about 9‑10 years of age, lies with the father. This concurrent of fact of the two Courts below cannot be challenged in a petition under the Constitutional jurisdiction of this Court, unless it is shown to be based on no evidence, or based on inadmissible evidence, or on misreading of evidence, or the finding being otherwise perverse, which is not the case here. .

21. I, therefore, do not find any merits in the petitions, which is dismissed in limner.

22. However, before parting with the case, I may observe that the minor boy will not be removed by respondent No.3 from the custody of the petitioner until the examination of the boy of the class in which he is presently studying is over, which is expected to be held in March, 1988. Furthermore, after custody is obtained by respondent he will not remove the minor from Karachi, where the petitioner is also residing, without the leave of the Family Court, and the petitioner will have a right to collect the minor boy in the afternoon of every Thursday and return him to the respondent in the afternoon of the following day. During school vacations, the first half period' of vacations will be spent by the boy with the mother and the later half portion of vacations will be spent with the respondent, father. During vacations, too, the Thursday/Friday arrangement, as stated above, will however, continue to be observed by the parties. It may be observed that this arrangement is made with the consent of the parties counsel before me.

23. The above are the reasons for my short order passed on 13‑1‑1988, dismissing the petition on conclusion of the arguments of the counsel for the parties. M.B.A./S‑143/K Petition dismissed.