P L D 1967 Lahore 382 (PLP)

(1) Does the application of Khadim Hussain for appoint ment of guardian of the persons of the minors lie? (2) If issue No. 1 is found in favour of the applicant, is it in the (sic) welfare of the minors to appoint Khadim Hussain as the guardian of the persons of the minors? (3) Does the application of Chiragh Bibi for the appointment of guardian of the persons of the minors lie? (4) Is Khadim Hussain unfit to'be the guardian of the persons of the minors? (5) If Issues Nos. 3 and 4 are held in favour of the appli cant Chiragh Bibi, is it in the (sic) welfare of the minors to appoint Chiragh Bibi as the guardian of the persons of the minors? (6) Does the application of Khadim Hussain under section 25, Guardians and Wards Act, not lie? (7) If issue No. 6 is found in the negative, is it in the welfare of the minors to restore their custody to the applicant Khadim Hussain? (8) Is there any necessity for appointment of the guardian of the persons of the minors ? (9) Whether Halima Gulfam alias Samina minor is suffering from T. B.? If so, what is its effect? Learned Guardian Judge decided issue No. 1 against Khadim Hussain, held that issue No. 2 did not arise in view of the Ma finding on issue No. 1, decided issues Nos. 3 and 4, the main issues in the case, against Mst. Chiragh Bibi, held that issue No. 5 did not arise in view of the findings on issues Nos. 3 and 4, found issue No: 6 also against Mst. Chiragh Bibi, decided issue No. 7 also in favour of Khadim Hussain, held under issue No. 8 that there was no occasion for the appointment of any body as the guardian of the persons of the minors in the presence of Khadim Hussain, the natural guardian of the minors, who suffered from no disability or incapacity, and, after , recording the finding on issue No. 9 as regards Samina Gulfam suffering from tuberculosis against Khadim Hussain, dismissed the application of Mst. Chiragh Bibi and, accepting that of Khadim Hussain under section 25 of the Guardians and Wards Act, directed that the three minors be restored to him. Mst. Chiragh Bibi consequently has come up in appeal to this Court against the aforesaid order of the learned Guardian Judge.

5. The controversy before me was confined to the question of guardianship of the persons of Mst. Tamina Gulfam and Mst. Samina Gulfam, the two girls ; Nothing was addressed to me regarding the guardianship of the person of Vaqar, presumably because he being more than twelve years of age, the right of hizanat was not at all available to his maternal grandmother under the Muhammadan Law. Learned counsel for the appellant has contended before me that after the death of. the mother of the minor girls, who have not attained the age of puberty, the right of hizanat vests in the maternal grandmother and, therefore, she is entitled to be appointed a guardian of the persons of the minor girls, inasmuch as the Muslim Law, which gives the right of hizanat to the maternal grandmother, has to be presumed to have considered it to be in the interest of the welfare of such minor girls to remain in the custody of their maternal grandmother.

6. It is true that the Muslim Law gives the right of hizanat of female minors who have not attained the age of puberty to certain female relatives of theirs, including the mother and the maternal grandmother in a certain order, but this also is true that according to Muslim Law the father is the natural guardian of his minor children, and that if he makes out a case that it is not in the interest of the welfare of the minors to remain in the custody of such female relatives, he can neccessfully apply for the children being restored to his actual custody. Learned Guardian Judge, after examining the evidence led by the parties and taking into account the respective situations of the two claimants and their strained relations with each other, has come to the conclusion that the welfare of the minor children lies in their being restored to the custody of their natural guardian, their father, because the prime consideration regarding the custody of the children under the Guardians and Wards Act is the welfare of the minor. Learned counsel for the petitioner has cited Mst. Nur Begum v. Mst. Begum and others (A I R 1934 Lah. 274 (1)), Mst. Ghuran v. Syed Riaz Ahmad (A I R 1935 Oudh 492), Saraswatibai Shripad Ved v. Shripad Vasanji Yed (A I R .1941 Bom. 103), Jiban Krishna Dulta and another v. Sailendra Nath Shee and another (A I R 1946 Cal. 272), Mrs. Shushila Ganju v. Mr. Kunwar Krishna (A I R 1948.Oudh 266), Mst. Niaz Bi v. Fazal Ilahi and another (P L D 1953 Lah. 442) Amar Ilahi v. Mst. Rashida Akhtar (P L D 1955 Lah. 412), Muhammad Sadiq v. Mrs. Sadiq Safoora (P L D 1963 Lah. 534), Zohura Begum v. Maimuna Khatoon (P L D 1965 Dacca 290) and Mst. Sultana Begum v. Muhammad Shafi (P L D 1965 Kar. 416), in support of his contention that a mother or a maternal grand mother, in preference to the father, is entitled to the custody of the minor girls who have not attained the age of majority., But most of these judgments relate to the claim of a mother as against that of the father or are otherwise distinguishable on facts from the present case. At all events, in none of these judgment has it been held that the father is not entitled to the actual custody of his minor children even when it is in the interest of the welfare of the minors that the father should have the actual custody. On the other hand, in almost all these judgments the principle that the welfare of the minors is the paramount consideration in deciding between the respective claims of the father and the female relations has been reiterated and emphasised. The essential thing to be determined, therefore, in this case is whether in the circumstances and the situation of the two rival claimants the welfare of the minor girls lies in their being put in charge of the maternal grandmother or that of the father. .

7. While three witnesses, besides himself, were produced by Khadim Hussain respondent in support of his case that he is fit in every respect to take charge of the actual custody of his minor children, Mst. Chiragh Bibi appellant produced as many as eight witnesses, including herself, in support of her case. Sardar Muhammad Mumtaz Khan (A. W. 2) swore by the Holy Qur'an before making his statement. He is the President of the District Muslim Conference, Gujranwala, and an elected member of the Basic Democracies. The other witness of Khadim Hussain is Syed Hassan Shah (A. W. 3), the General Secretary of the District Muslim Conference, Gujranwala, and a Basic Democracies Member. Hafiz Abdul Qadir (A. W. 4) is a busi nessman of Gujranwala and a neighbor of Khadim Hussain. Sardar Muhammad Mumtaz Khan A. W. supported the claim of Khadim Hussain P. W. to the effect that he owned twelve or thirteen killas of land in village Hardo Mughal Chak and had also a house of his own in Gujranwala in Mohallah Ram Basti. He further, on the basis of his knowledge of the two parties, expressed hi, opinion that the welfare of the minors to him appeared to lie in their being restored to Khadim Hussain, Syed Hassan Shah A. W. also offered his opinion that the minors' welfare lay in their being restored to the custody of their father. Both Sardar Muhammad Mumtaz Khan and Syed Hassan Shah A. Ws. emphasize the better financial and educational means of Khadim Hussain. They also mentioned the circumstance that there was tuberculosis infection in the house of .Mst. Chiragh Bibi. Hafiz Abdul Qadir A. W. also expressed the opinion that it would be more conductive to the welfare of the minors, if their custody was restored to their father. He further stated that the family of Mst. Chiragh Bibi was affected by tuberculosis and the wife of Khadim Hussain as also Abdul Majid, a son of. Mst. Chiragh Bibi, had died of tuberculosis. A certification Exh. P. A. regard ing the salary of Khadim Hussain and the allotment chit A. 2 were also produced by Khadim Hussain in support of his case.

8. Although the number of witnesses produced by Mst. Chiragh Bibi is more impressive, the quality of their evidence is far from satisfactory. Abdul Aziz (R. W. 1), who described himself as Chairman, Union Committee‑I, Gujranwala, stated that Khadim Hussain used to come and stay with Mst. Chiragh Bibi and that hers was an educated family‑and that it was in the interest of the minors that they should live with Mst. Chiragh Bibi, but he, admit ted that he had no knowledge about Khadim Hussain and what his pay was. He denied knowledge of the disease of which Abdul Majid, son of Mst. Chiragh Bibi, had died. He admitted that Master‑Abdur Rahman, the husband of Mst. Chiragh Bibi, was his supporter in his election. It appears from the questions put to him in cross‑examination that he did not know much about the members of the household of Mst. Chiragh Bibi and did not even know whether the daughters of ,Mst. Chiragh Bibi were school mistresses and as to what the name of the eldest son of Mst. Chiragh Bibi was. It appears to me that this witness had merely come forward to requite the kindness that Abdur Rahman, the husband of Mst. Chiragh Bibi, had shown to him by supporting him in his election, Abdur Rauf (R. W. 2) described himself as Assistant Superintendent, Malaria Eradication, with a basic pay of Rs. 120 p.m. He deposed to the effect that he was living in the same Mohallah where Mst. Chiragh Bibi had lived and that after his marriage Khadim Hussain had been living , with his wife in the house of Mst. Chiragh Bibi. He declared that the house of Mst. Chiragh Bibi was a good one and that Abdul Majid, her son, had not died of tuberculosis but of heart failure and that the living daughters of Mst. Chiragh Bibi were educated and teachers at places other than Gujranwala. He further offered the information that the mother of Khadim Hussain was working as a maid‑servant, but was unable to name the person in whose house she was working. Although, in the first instance, he stated that he had merely seen her working in that capacity in some house, he admitted‑ that he had never gone inside the house where she was working. He gave as the reason of his opinion that the welfare of the minor children lay in their remaining with Mst. Chiragh Bibi the fact that if the High Court had not made the order that the father should be allowed to see the children, the children would not have recognised their father. This incidentally gives the lie direct to his statement that Khadim Hussain respondent had been living in the house of Mst. Chiragh Bibi and rather lends support to the contention of Khadim Hussain that he was being, denied access to his children. He further admitted that the deceased wife of Khadim Hussain had married Khadim Hussain of her own accord against the wishes of her parents. This shows that there is no love lost between Khadim Hussain and the family of Mst. Chiragh Bibi For, with that background, Khadim Hussain would be an un-welcomed visitor to the house of Mst. Chiragh Bibi. Chaudhry Mehr Din (R. W. 3) a Kumhar working in a factory of power‑ looms, claimed acquaintance with both the parties and knowledge that Khadim Hussain had no house in Gujranwala. He denied that there was any tuberculosis in the house of Mst. Chiragh Bibi and declared that her son had died of heart failure. He further offered the information that the combined income of the family of Mst. Chiragh Bibi was more than that of Khadim Hussain. He further stated that the deceased daughter of Mst. Chiragh Bibi at her death bed had expressed the desire that her children should live with Mst. Chiragh. Bibi and that she should look after them lest they should remain wandering in the Muhajir Camp. He admitted that the deceased wife of Khadim Hussain observed purdah. It is not known how, therefore, he could be present near her when she expressed any such desire. He further stated that he had; gone only once to the house of Mst. Chiragh Bibi. This witness showed himself up as an interested person, inasmuch as he admitted that he had been going with Mst. Chiragh Bibi to the High, Court in the previous proceedings pending between the, parties. 'He also admitted that the deceased mother of the children had married Khadim Hussain against the wishes of her parents. Abdul Latif (R. W. 4), a shopkeeper and a Mohallah fellow of Khadim Hussain, ' stated that Khadim Hussain had no house of his own and that the house of Mst. Chiragh Bibi was commodious. He: also claimed to be present when the mother of the minors died and further stated that she has asked this witness that he should see to it that the children remained with Mst. Chiragh Bibi. The witness is not related to the family, and it is really not intelligible why the deceased mother of the children had confided this trust to this person in particular:' It is noteworthy that neither Mehr Din R. W. nor Mst. Chiragh Bibi herself has mentioned that this witness was present where the deceased wife of Khadim Hussain had expressed the aforesaid wish. They, on the other hand, mentioned that this wish Ha been addressed by the deceased to her mother. Muhammad Ishaq (R. W. 5), a clerk in the office of the Deputy Settlement Commissioner, merely produced a survey register showing that B. XXVI given in the register of survey was a block an not a house and that R. H. 9 was a Jammu and Kashmir Refugees boarding house. Learned Guardian Judge has rightly remarked that a whole block cannot contain one house only and that the evidence of this witness on this point is valueless. Rahmat Ali (R. W. 6) merely expressed his opinion that the welfare of the minors lay in their living with Mst. Chiragh. Bibi. Muhammad Yusaf Hashmi (R. W. 7) also stated that Khadim Hussain had been living in the house of 41st. Chiragh Bibi and that the welfare of the minors lay in their living with her. He also admitted that he had gone with Mst. Chiragh Bibi to the High Court once or twice. This witness also is, apparently, of a partisan character. Mst. Chiragh Bibi herself as R. W. 8 started her evidence in an angry and self‑contradictory strain. She stated that she had no knowledge about the marriage of Khadim Hussain with her daughter and that she had married, him against "our consent". The contradictory character of the two pieces of her statement, viz., her ignorance of knowledge that her daughter was married to khadim Hussain and that she had married him against her consent, is all too obvious, but she further stated that there was a compromise after the marriage and that during the lifetime of his deceased wife Khadim Hussain, who was in Military Service, whenever he came to Gujranwala, would live at her house. This apparently, she stated in order to emphasise that Khadim Hussain had no house of his own in Gujranwala. She further emphasised that her two daughters were school mistresses and her husband was a retired school master and that her deceased daughter had entrusted the children to her before her death and further asserted that the welfare of the minors lay in their living with her. In her cross‑exami nation she admitted that the respondent had been sending money orders once or twice in a year‑to his wife and that the latter had opened an account in the Post Office. She did not know when the eldest child of Khadim Hussain was admitted in School. Although she stated that he was getting his education in a District Board School at Gujranwala, the learned Guardian Judge had taken judicial notice of the fact that there was no District Board School in Gujranwala Town. It is significant that Mst. Chiragh Bibi said not a word against the financial status of Khadim Hussain or his private life and character. She did not negative the claim of Khadim Hussain that he had half a square of land in village Hardo Mughal and that he was in the Army, drawing a salary of Rs.

190. Nor has she refuted the allegation of Khadim Hussin that Mst. Chiragh Bibi and her husband, Abdur Rahman, did not allow him to see his children and that they had no other source of livelihood except the pension of Abdur Rahman of Rs. 60 per month.

9. From the evidence led by the parties it is clear that Khadim Hussain respondent had married the mother of the minor children against the wishes of Mst. Chiragh Bibi and her husband, Abdur Rahman. This means that they were not fav ourably disposed towards Khadim Hussain. Their claim that the deceased wife of Khadim Hussain had been living at the house of her parents even after her marriage with Khadim Hussain, does not appear to me to be tenable against the back ground of the marriage having taken place against their wishes. I am inclined to think that the assertion of Khadim Hussain that his deceased wife lived with him at Karachi for two years is correct and that test. Chiragh Bibi and her witnesses have been including in falsehood in deposing to the contrary.

10. It transpires from the record of the proceedings that the learned Guardian Judge, by an interim order, made over the custody of the children to the respondent and .that Mst. Chiragh Bibi preferred an appeal against that order to the High Court and that the High ‑Court, treating it as a revision petition stayed that the interim order with the direction that Khadim Hussain should be allowed to see his children but that Mst. Chiragh Bibi did not allow Khaditil Hussai n to see his children as directed by the High Court, and that he had to bring this matter to the notice of the High Court by an application for proceedings for contempt of Court being taken against Mst. Chiragh Bibi. It is all too obvious to me that Al's Chiragh Bibi has not been permitting Khadim Hussain access to his children. If a women who has the hizanat of a child denies the 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, as in the present case, the circumstances that she is an old women with no independent moans who can support herself and the minor children only on a paltry pension of her husband, the hazina 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 minors, who has a better financial position and has no discredit able character, applies for the restoration of the actual custody of the children to him, he must succeed in his application. Khadim Hussain respondent is not only better financially situated, his private life appears to be above reproach as even ‑Mst. Chiragh my as herd certainly against it in her statement. Being in the Army, he certainly also commands certain educational and medical facilities for his children which cannot be available in the household of the appellant. I am therefore in agreement with the learned Guardian Judge in his view that he interest of the welfare of the minor girls would be better served if the respondent gets the actual custody of his minor daughters also, , with whom their brother is also to live.

11. It may also be mentioned that at the request of the learned counsel for the appellant the respondent was directed to produce the minor girls in Court so that their preference might also be ascertained. The younger girl, presumably because she was too young to say anything, kept silent when asked whether she wanted to live with her father or her maternal grandmother and contended herself with shedding some tears. The elder girl distinctly stated that she preferred to live with her father.

12. The result is that I see no force in this appeal and upholding the order of the learned guardian Judge, I dismiss it. In the circumstances of the case, however, I make no order as to costs. K. M. A. Appeal dismissed.