1998 PLP 1996 (MLD)

4. The learned counsel for petitioner contends that under Muhammadan Law maternal mother, in the absence of mother, is entitled to the custody of minor children upto the age of seven years in case of son and upto the age of puberty in case of daughter. In support of his argument, learned counsel has referred to section 353 of Muhammadan Law by D.F. Mulla. The learned counsel further contended that the father does not figure in the list provided in the said section thus the custody of minor during his minority is preferably given to female relations of minor.

5. The learned counsel for respondents has submitted that the father being natural guardian of the children is very much entitled to their custody and in absence of mother, father is alone source of help and care for the minors. He has further contended that custody of minors with their father is not illegal, therefore, this cannot interfere in the matter.

6. I have given anxious consideration to 'the arguments of the learned counsel for parties and have also gone through the relevant law referred to by the learned counsel. It is an admitted fact that in the matter of custody of minors welfare of minors is paramount consideration. So far as welfare of minors is concerned; it is a matter of factual inquiry which can be determined only after recording of evidence. This exercise cannot be undertaken in Constitutional jurisdiction or under section 491, Cr.P.C. In this petition the only question, which can be looked into is the interim custody of the minors till the matter of their custody is thoroughly considered and determined by the Court of competent jurisdiction keeping in view the relevant law. Section 353 of Muhammadan Law by D.F. Mulla is reproduced hereunder:- "353.-Right of female relations in default of mother.

Failing the mother, the custody of a boy under the age of seven years and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:- (1) Mother's mother, how highsoever; (2) Father's mother how highsoever; (3) Full sister; (4) Uterine sister; (5) Consanguine sister; (6) Full sister's daughter; (7) Uterine sister's daughter; (8) Consanguine sister's daughter; (9) Maternal aunt, in like order as sister and (10) Father aunt also in like order as sister." Under section 352 of Muhammadan Law mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty. In absence of mother or otherwise if she loses her right of custody on account of certain disqualification mentioned in section 354 of Muhammadan Law maternal grand mother stepped into her shows as provided in section 353 of Muhammadan Law. The said provisions are based on Islamic principle of jurisprudence viz. Fiqha under Articles 277 & 203-A to 203-J of the Constitution. Injunctions of Islam .,are to be followed by the Muslims and it is duty of the Government that all existing laws shall be brought in conformity with the Injunctions of Islam and no law shall be enacted which is repugnant to such injunction. See the case Major Zafar Iqbal v. Mst. Rehmat Jan and another (1994 SCMR 339). Relevant portion of this judgment is reproduced hereunder:- "In the facts and circumstances of the case the father and the mother could not be considered fit for the custody of minor, particularly as the mother has married and is residing in London while the father with second wife and four children is at present stationed at Somalia. In these circumstances, amongst the contending parties or those who had claimed or could claim the custody of the minor, the maternal grandmother, respondent No.l was rightly adjudged to be the best person to have the custody of minor for his welfare. We, therefore, find no force in the petition and dismiss the same." In the case of Mst. Saddan v. Muhammad Nawaz and another (1991 CLC 1238 (Lahore), Ch, Nazir Ahmad v. Additional 1 District Judge III, Sahiwal and other (1988 SCMR 1359) and Ghulam Ullah Memon v. Mst. Rashid Begum (1983 SCMR 93) it has been held that grand maternal mother is entitled to the custody of minors to preference to father and even to mother, who had disqualified herself under certain circumstances. Under Fatawa-i-Alamgiri Jild II and Ain ul-Hadaya' Book II also substantiate the right of grand mother in respect of her grand children. In Ain-ul-Hadaya' at page 326 an incident of era of first Caliph Hazrat Abu Bakkar (Razi-ullah Tala Anhu) is referred. This incident has been reported by Abu Bakar bin Abu Shaben, Abdul Razzaq, Malik and Beheeqi. It is stated that Hazrat Ummar (Razi ullah Tala Anhu) had married a lady of Ansars. A son Asim bin Umar born out of this wedlock. Later on Hazrat Umar divorced her. Once Hazrat Umar found his son Asim playing in front of Masjid Quba' he took him in his lap and tried to take him, but mother-in-law of Hazrat Umar caught hold of the minor, Asim: This dispute was brought before the first caliph who decided the matter in favour of mother or mother-in-law. In the said book the specific words of Abu Bakar (Razi ullah Tala Anhu) are that:- O' Umar this boy would like much the spitting water of her mother than the delicious honey given by you". As stated above so far the question of custody of minor is concerned it is a question of fact. The above discussion with regard to right of grand maternal mother is only for the purpose to determine whether under the Muhammadan Law grand maternal mother is entitled to the custody of her grand minor children or not. The only question before this Court is with regard to immediate/interim custody. From the above discussion it has become clear that in absence of mother, maternal grand mother, has preferential right of immediate/interim custody than the father. The authorities referred to above relate to cases where the matter was determined after recording of evidence and determination of facts and circumstances of each case. In the instant case the detailed facts can only be determined by the Court of competent jurisdiction. Anyhow from the above discussion it is proved that it is proper and also in fitness of circumstances that till final determination of the question of custody, the minors should remain with their maternal grand mother. The custody of minors with father in the said circumstances is not proper and it is prima facie against the law.

7. The arguments advanced by the learned counsel for respondent that in a petition under section 491 of Cr.P.C. this Court should not interfere in such like matters as the same falls within exclusive jurisdiction of Guardian Judge, is devoid of any force and I do not agree with this contention. The matter of immediate custody of minors should be settled promptly in accordance with the law after tentative appreciation of the facts of the case. Reliance in this respect can be placed on 1988 SCMR 1891, 1994 SCMR 339, PLD 1995 SC 633, 1996 SCMR 268, PLD 1995 Lahore 151 (DB) and 1997 SCMR 1480. As I have held earlier, the custody with father for the time being is improper and illegal, therefore, to remove such an illegality and impropriety it is just and fair that immediate/interim custody of minors should be given to the maternal grand mother. The father can seek the custody of minors in a proper way through the Court of competent jurisdiction.

8. The petitioner has averred in her petition that the respondent had got the custody of minor forcibly while they were putting up with the petitioner. A photocopy of an application submitted before S.S.P., Multan by the respondent has been produced on record by the learned counsel for petitioner in support of this contention of petitioner. A factual inquiry is needed to determine such forcible removal of the minors. However, prima facie, it is evident that the minors had been living with their grand maternal mother after death of their mother as it is admitted fact that the respondent/father lived as Ghar-Daimad during the life time of his wife. Even otherwise when it is held tentatively that the custody of minors with their father is improper and illegal in the given circumstances of the present case it should have been with the maternal grand mother, then their custody could have been' delivered to her on her asking for.

9. The result of above discussion is that this petition is allowed and the minors shall be handed over to their maternal grand mother, the petitioner. The respondent may seek his remedy for custody of his minor children before the Court of competent jurisdiction if so advised. The respondent can meet his minor children once in a week on Sunday in the house of Mr. Abdul Qadir Hashmi, Advocate, for two hours. N.H.Q./K-66/L Petition allowed.