P L D 1963 (W (PLP)

This is an appeal against an order of Mr. A. H. Qureshi, Additional District Judge, Karachi, dismissing the appellant's application under section 25 of the Guardians and Wards Act for the custody of her two minor children, namely, one son Yusuf, who is now aged about 8 years, and a daughter named Sara, who is now about five years of age. The appellant had alleged that her husband Usman had taken a second wife some years ago, and that on the 20th of January 1960, she had been turned out of the house by the husband at the instance of his second wife. At that time, she had been allowed to take the minors with her but subsequently, the respondent removed them. The applica tion was resisted by the respondent Usman by alleging that the appellant Mst. Hurbai had left his protection and his house without any justifiable reason, at the instance of her paternal aunt Mst. Halima, that Halima's daughter‑in‑law was suffering from T. B. and, therefore, it was bound to have an adverse effect on the health of the minors. In evidence, a further ground appears to have been brought out to the effect that the appellant Mst. Hurbai was destitute and was working on menial jobs as a maid‑servant and, therefore, her custody of the children was likely to affect them adversely, mentally and psychologically.

2. This last contention seems to have prevailed with the learned Additional District Judge who hell that in the case of the boy Yusuf the custody, in any case, lay with the father, as the boy was over seven years of age ; whereas in the case of the daughter Sara, although the minor was below the age of puberty and the mother had the right of Hizanat, yet the circumstances of the mother were such as to render her unfit for the custody of the female minor. The learned Judge expressed the view that it would not be for the welfare of the minor girl to see her mother working at menial jobs, when the minor's father was a well‑to‑do hotel‑keeper and could easily afford to maintain the girl. He also observed that the wife Mst. Hurbai could go to the husband's house any time she liked.

3. It was stated by the learned counsel for both the parties that the appellant Mst. Hurbai had now been divorced by the respondent Usman, and, therefore, there was no question of her going back to her husband's house. Although in the present appeal the prayer is made for the reversal of the order of the learned Additional District Judge with regard to the custody of both the minors, Mr. A. H. Qureshi, the learned counsel for the appellant, conceded that in the case of the boy Yusuf, he had no strong grounds to urge, as under the personal law applicable to the minor and his parents the custody lay with the father. He also conceded that nothing could be urged to show that the father was unfit for the custody. The appeal is therefore, dismissed in so far as question of the custody of the son Yusuf is concerned.

4. As regards the custody of the daughter Mst. Sara, it is an admitted position that under the personal law applicable to her the right of Hizanat is with the mother, i.e., the appellant. It is also clear that there is a presumption that the welfare of the minor lies in following the rules laid down by the Muslim Law (see P L D 1953 Lah. 73, P L D 1956 Lah. 488 and P L D 1962 Lah. 142). The question, therefore, is whether in the circum stances of the present case that presumption stands rebutted ; or in other words, has the mother rendered herself unfit for the custody of the female minor, to which she is otherwise entitled under the Muslim Law.

5. Mr. Inayat Ali, the learned counsel for the respondent Usman has pointed out that the circumstances which go against the mother are (a) her poverty, (b) the fact that she is working at menial jobs, (c) that she has no house of her own, as she is living either in the house of her Phuphi Mst. Halima or her cousin Abdullah, and (d) that the father is a well‑to‑do person having better means of educating and looking after the child.

6. There is no doubt that compared to the father, the appellant is poor, and because of that very poverty she has to work. It is, however, clear to me that the mere fact that a, mother is poor and has to work for her living can never be allowed to operate to deprive her of her right of cutstody of her minor children, to which she is entitled under the personal law applicable in the case. The rule of Muslim Law that the custody of a boy under seven years of age and of a girl under the age of puberty should remain with the mother is based on certain fundamental human considerations, namely that it is only a woman and a mother who can look after the needs of the child under the ages specified, and who can give that love, affection and guidance which are necessary for the proper development of the child. A mother can do all this even though she be poor. As regards the question of providing proper educa tion for the girl, the responsibility clearly lies on the father who has to provide maintenance for his minor children, irrespective of the fact whether they reside with him or with the mother. The next circumstance that the appellant has no house of her own has really not much relevance, as long as she has somewhere to live. If the appellant lives in the house of her aunt Mst. Halima or in the house of her cousin Abdullah it should make no difference to the welfare of the minor girl.

7. In the result, I find that the learned Additional District Judge was not justified in refusing the appellant the custody of her minor daughter simply on the ground that the appellant is a poor person and has to work for her living. The fact that the appellant is prepared to work even at menial jobs in order to make a living, goes to her credit and should not be held against her. I would, therefore, reverse the order of the learned Additional District Judge in so far as the question of the custody of the daughter Mst. Sara is concerned, and would direct that the female child be handed over to the appellant. Her appeal is, therefore, allowed to this extent. In view of the relationship of the parties, there shall be no order as to costs.

8. The respondent shall hand over the custody of the child Mst. Sara to the appellant within a week from the date of this order. Both the parents shall be entitled to see the minors in each other's custody.

9. Before I close, I would like to observe that the applica tion, with which the learned Additional District Judge was dealing, was not for the appointment of a guardian. It was merely an I application under section 25 of the Guardians and Wards Act for the restoration of the custody of the two minors, and, therefore, while disposing of that application, the question of appointing a guardian for the custody of the two minors could not arise.1 Further, according to clause (b) of section 19 of the Guardians and Wards Act, no Court is authorised to appoint or declare a guardian of the person of a minor whose father is alive and is not unfit to be guardian of the person of that minor. This provision of law is based on the assumption prevailing in all civilized systems of law that the father is the natural guardian of his children, and, therefore, during his lifetime no person can be appointed a guardian, unless the father is deemed to be unfit for guardianship. That being the case, the father himself also cannot be appointed a guardian, because the very fact that he is the father constitutes him the guardian. For these reasons I consider that the order embodied in the last sentence of paragraph 8 of the judgment of the learned Additional District Judge is erroneous in law and is set aside. R. B. A. Order accordingly.