1996 PLP 1534 (CLC)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, with the leave of ate Court, has been directed against an order recorded by the Shariat Court of Azad Jammu and Kashmir on October 26, 1995, whereby the order passed by the Family Court, Kotli on March 9, 1995, was set aside. The precise facts forming the background of the present appeal are that the dispute between the parties relates to the custody of their minor son Muhammad Naeem who was about 14 years of age at the time the proceedings for his custody were initiated. On account of strained relations M;st. Nasim, Begum, respondent was divorced by the appellant and she was living with her maternal aunt and uncle alongwith her minor son Muhammad Naeem. The appellant, herein, moved the Family Court, Kotli for his appointment as guardian and the custody of his minor son on September 22, 1994. The Family Court, Koth vide its order, dated March 9, 1995, granted the petition filed by the appellant and ordered the custody of the minor son to be given to the appellant On appeal preferred,by Mst. Nasim Begum respondent the Shariat Court vide its impugned order reversed the order passed by the Family Court and allowed the respondent to retain the custody of the minor mainly on the following grounds:‑‑ (i) That it was an undeniable fact that the appellant had contracted a second marriage and was living with his new wife and if the minor was to be given to the ‑custody of the appellant his interests will be seriously jeopardized on account of maltreatment. likely to be meted out to him by his step‑mother; (ii) that although the initial presumption of welfare of minor lies in favour of the appellant, the father, but all the same the appellant right from the very beginning never cared to provide any maintenance to his minor son or his wife or .to show that he had expressed any concern for the up-keeping and proper maintenance of his minor child at any time prior to the initiation of maintenance proceedings against him; (iii) that Muhammad Sharif the husband of Mst. Nasim Begum's aunt had transferred his landed property and residential house in equal shares to both his wife Mst. Rasool Bibi.and Mst. Nasim Begum respondent through gift‑deed, dated February 14, 1991; and (iv) that the deciding factor in the matter of custody of minor even in the case of natural guardian would be the interest and welfare of the minor child without having regard to the right or benefit of the parents. Arguing the case on behalf of appellant Mr. Abdul Majeed Mallick, the learned counsel for the appellant, maintained that the Shariat Court has failed to appreciate the relevant law in its true perspective and arrived at a wrong conclusion after appraisal of the evidence led by the parties. According to the learned counsel the father being the natural guardian was entitled to the custody of his minor son under the personal law and the welfare of the minor shall be presumed in favour of a person who is entitled to the custody of minor under personal law. The learned counsel referred to an earlier judgment of this Court reported as Shafique‑ur‑Rehman v. Mst. Fazeelat Begum (1995 SCR 136). It was submitted with vehemence by the learned counsel for the appellant that the mere fact that the appellant had contracted a second marriage or that when the maintenance proceedings were initiated against him under section 488, Cr. P.C. he felt advised to initiate the proceedings for obtaining the custody of minor are no grounds in the eye of law to deprive the father from the custody of his minor son. The learned counsel maintained that the Shariat Court misdirected itself by recording its verdict on mere assumption that in case the minor was handed over to the custody of the appellant he will not be properly looked after by the step mother. The learned counsel also relied on Mst. Munawar Jan v. Master Muhammad Afsar Khan (PLD 1962 Lahore 142), Sultana Begum v. Mir Afzal and others (PLD 1988 Kar. 252) and Mst. Zebo v. Mizaj Gul (PLD 1952 Pesh.77). It was also argued by the learned counsel for the appellant that the Shariat Court in the impugned judgment has held that the appellant did not care to provide any maintenance to‑his minor son or his wife Mst. Nasim Begum and after initiation of ‑maintenance proceedings by them he thought advisable to seek the custody of minor Muhammad Naeem. Elaborating the argument the learned counsel maintained that there was nothing on record suggestive of the fact that the appellant neglected to, properly rear and bring up his minor child or refused to provide any maintenance to him or his mother. The record of the Family Court as well as that of the Shariat Court shows beyond doubt that none of the witnesses for the parties have deposed so nor any judgment of any Court competent to decide the maintenance proceedings has been brought on record. Thus, the learned . counsel for the appellant maintained that the impugned judgment be‑ set aside and the custody of minor Muhammad Naeem be handed over to the appellant. Controverting the arguments of the learned counsel for the, appellant, Raja Muhammad Siddique Khan, the learned counsel for respondent No: 1, contended that the appellant had contracted a second marriage and was living with his new wife. In case the custody of minor Muhammad Naeem is given to the appellant the interests of minor are likely to be seriously jeopardized. The learned counsel argued that a step‑mother can never be a substitute for the real mother and moreover the conduct of the appellant throughout has been so callous towards the minor that he, did not deserve to be given the custody of minor. According to the learned counsel the paramount consideration in matters of custody of minor child or children has always been the welfare of the minor. The circumstances of this case clearly disentitle the appellant from obtaining the custody of minor. The learned counsel for the respondent No. 1 relied upon cases reported as ' Mst. Khalida Begum v. Muhammad Latif' 1983 CLC 678, and 'Tassadiq Hussain Shah v. Mst. Surraya Begum' (1980 CLC 1802) and maintained that the minor had been throughout in the custody of respondent mother who had been looking after him properly and the welfare of the minor demands that he should remain in the custody of his mother. , After hearing the points canvassed by the learned counsel for the parties and perusing the record it may. be pointed out that in the instant case minor Naeem when the custody proceedings were initiated was admittedly of the age of about 14 years. At the present moment his age ranges between 15 to 16 years. The question that needs resolution by this Court is as to what is the relevant law which will be applicable to a child admittedly of the age of more than 7 years. For the convenience it is deemed expedient to reproduce the case‑law cited by the learned counsel for the parties. In a recent case of this Court decided by this Bench and reported as Shafique‑ur‑Rehman v. Mst. Fazeelat Begum (1995 SCR 136) it was opined by this Court at page 140.as under:‑‑ "However, from the perusal of the case‑law cited by the parties, it appears that weight of the judicial view is that welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable and if the circumstances are brought on record which tend to show that to fact the welfare of a minor lies with a person other than one who is not entitled to have the custody of the minor, under Personal Law, the Court may refuse the custody to the person who is entitled to it under Muslim Law. However in such a case there must be strong circumstances justifying to refuse the custody to the one who is entitled to the same under Muslim Law. In the instant case the mere fact the minors have been previously, living with the mother and they have en also attending schools or that their preference is in favour of their mother do not deprive the appellant from seeking the custody of the minors. Similarly, as has been seen from the case‑law cited by the parties, referred to above, the mere fact that the order of maintenance in favour of the minors by the Court under section 488, Cr.P.C. would not disentitle the person from custody, if he is entitled to it under Personal Law. " In the aforesaid case all the three boys; the question of whose custody was, in dispute, were of the ages between 12 to 16 years and they were given in the custody of father rather than the respondent, their mother. In the case reported as 'Mst. Zebo v. Mizaj Gul' (PLD 1952 Pesh.77) the application made for the appointment of the guardian of a minor was treated as one under section 25 of the Guardians and Wards Act. It was observed that the father being natural guardian of a minor does not need to be appointed as guardian because the right of natural guardianship from him cannot be taken away until and unless it is proved that he was unfit to be guardian of the minor. It was further observed that as after attaining the specified age, the custody of the minor by the mother immediately becomes unauthorised, her refusal to hand over the custody to the father would tantamount to remove the minor from his custody and, thus, the application for appointment of the guardian could be treated one for the restoration of the custody of the minor under section 25 of the Guardians and Wards Act. It was also observed that the welfare of the minor would be presumed with the person who is entitled to the custody of the minor under Muslim !raw. In case reported as ' Mst. Munawar Jan v. Master Muhammad Afsar Khan (PLD 1962 Lah. 142) it was held that mere fact that father has taken a second wife and also has children from her and he applied for the custody of the minors after the minors were awarded maintenance under section 488, Cr.P.C. by the order of Magistrate would not disentitle him to the custody of the minors after the attainment of age of seven vears In case reported as 'Sultana Begum v. Mir Afzal and others' (PLD 1988 Kar. 252) the question of custo,1v of minors came up for consideration in a Constitutional writ petition. While dealing with the case‑law on the subject, Tanzil‑ur‑Rehman, J. (as he then was) expressed the view that when under Muslim Personal Law of sect, custody lies with mother or 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 given right of custody of the minor by the Muslim Personal Law of the sect. It was further observed that in absence of any proof to the contrary the presumption would be that welfare of the minors would be in the custody of the person who is entitled under Muslim Personal Law to have such custody. In case reported as 'Mst. Khalida Begum v. Muhammad Altaf' (1983 CLC 678) referred by the learned counsel for the respondent it was held that the application for the appointment under section 19 of the Guardians and Wards Act can be treated as an application under section 25 of the Guardians and Wards Act. It was held that male child attaining the age of seven years need not necessarily‑be given in the custody of the father if it is‑established that the minor may not be looked after properly in presence of step‑mother. It was also observed that as minor has been in the custody of mother who has been looking after him properly the welfare of the minor lies if he remains in the custody of his mother.. The learned Judge also observed that the provisions of Personal Law regarding the custody of a minor have been subordinated to the welfare of the minor. Identical view was taken in case reported as ' Tassadiq Hussain Shah, v. Mst. Surraya Begum' (1980 CLC 1802). . After the survey of the case‑law the weight and preponderance of judicial authorities is that the welfare of a minor boy who has attained the age of 7 years or more would be presumed with a person who is entitled to the custody under Muslim Law. The aforesaid presumption is, however, rebuttable. If strong circumstances are brought on record which show that in fact the welfare of minor lies with a person other than the one who is entitled to have the custody of minor under Personal Law, the Court may refuse the custody to the A person who is entitled to it under Muslim Law. In the instant case as said earlier the minor boy is of more than 7 years of age so the presumption of his welfare would lie obviously in favour of appellant, the father. From the perusal of record it transpired that nothing was brought on record suggestive ‑of the fact that the appellant ever neglected to take care of his minor son and provide any maintenance to him or his mother and it was only after initiation of maintenance proceedings against the appellant that he moved an application for securing the custody of minor. None of the witnesses for the parties deposed so or any order from any Court of competent jurisdiction dealing with the maintenance proceedings was brought on record. In our view the learned Judge in the Shariat Court was probably misled by some extraneous circumstances not forming the part of the record but as said B earlier we have held in Shafique‑ur‑Rehman's case refeited to above that the mere fact that the order of maintenance in favour of minors by the Court under section 488, Cr.P.C. would not disentitle the person from the custody if he is entitled to it under personal law. We follow the view expressed in Shafique‑ur Rehman's case and endorse the same. We have seriously pondered over the fact as to whether in presence of step‑mother the minor will be brought up in a cogenial atmosphere. Although this factor per se is no ground for refusing the custody of minor to the father if he is otherwise found entitled to it but all the same it took us some time to think over the matter end we have ultimately come to the conclusion that if some safeguards are provided to which we will be adverting to in the later part of this judgment we are of the.opinion that this factor by itself does not deprive the father from obtaining the custody of his minor son. In the case in hand the minor had been living with his mother and the appellant was never given the custody of his minor son. In absence of any adverse circumstance we cannot presume that the appellant‑father will not look after or bring up the minor with love and affection or due care. If at any time some circumstances seriously prejudicial to the interest and welfare of minor are brought on record duly supported by tangible evidence the respondent shall be free to move the Court of competent jurisdiction afresh on the basis of a new cause of action or grievance. For the reasons stated above we accept the appeal and set aside the l impugned order recorded by the Shariat Court and order that the custody of minor Muhammad Naeem be handed over to the appellant. However, keeping in D view the circumstances of the case we direct that the appellant shall make the minor available to live with his mother Mst. Naseem Begum at least two days every week till he attains majority. The Family Court, Kotli shall see to it that the aforesaid meetings of the minor with his mother take place regularly. We leave the parties to bear their own costs. A;A./119/SC/AJ&K Appeal accepted.