1980 PLP 1989 (CLC)

"(1) Whether the application is liable to dismissal in view of preli minary objection No. I ? (

7. P. R. (2) Whether the welfare of the minor lies in the custody of the applicant ? Q. P. A," Learned trial Judge discussed both issues together and to begin with look the view that whenever a woman contract a second marriage, she loses her right to the custody of children. Learned Judge, it appears, wanted to convey that ever, right of Hizanat of a mother is brought to an end on her marrying a stranger. He then relying on a judgment of tills Court in Amar Ilahi v. Rashida Akhtar (P L D 1953 Lah. 412) proceeded to hold that not withstanding that, the welfare of the minor is of paramount importance in deciding the question whether a mother should or should not be deprived of the actual custody of the children. He took two main aspects of the case into consideration to hold that, in the instant case, the welfare ref the minor lies in the minor's allowing to remain with 'the mother. ~ The circumstances considered were that at one time appellant tried so obtain custody of the minor through an application under section 552, Cr. P. C with the intervention of the District Magistrate but the minor declined to go with the appellant. fie wits then impressed by the circumstance that if the minor is allowed to reside whit cite father, sate will have to live with her step-mother. He went on to observe: :-_._ It is well understood from the circumstances of the parties that the petitioner is not a person off such a status as would be able to keep the minor aloof. He is a villager of lower middle class who earns, his livelihood by himself. Naturally he cannot live at home ail the time. The minor will have try live with the step-mother. From 0the circumstances of the case it also transpires that this step-mother was responsible for the divorce of the minor's mother. No step- mother can be expected to be benevolent towards step children and particularly when some sort of enmity against the minor's mother cannot be ruled out, it seems unjust to leave the minor with such a step-mother," He concluded the discussion observing :-- The parties are almost of equal status and it cannot be held that the minor would be better of when with the father than with the mother. , It is also true that the step father of the minor has neither second wife nor children. This means that the minor is practically living in loving care of her mother and now giving her custody to the father would mean giving her practically to the step mother. In this case, I think the choice is between the mother and the step mother."

2. Learned counsel for the appellant has taken me through the evidence on the file. He brought to my notice certain circumstances which tire learned Guardian Judge has not adverted to. It is in evidence that the spouses had three children namely Mst. Haseena Mai, whose custody is in dispute and two sons named Ramzan and Ajmal. On the separation between the parties only one of the two sons, namely Ajmal, the youngest of the children, went with the mother. The daughter and the second son Ranizan, remained with the father Ramzan, is, undisputedly, with the father About one and a half years after the divorce and after she had contracted second marriage, relatives of the second husband of the respondent, forcibly took away the minor and a case regarding the abduction was registered which was pending before the initiation of the proceedings before the Guardian Judge. Some months thereafter a relation of the appellant was allegedly, murdered by the second husband of the mother respondent and his father. He is facing trial in the case and is still in custody. However, his father has been released on bail. In this way the appellant was virtually denied any control over the minor although he as accepted by every civilized society is the natural guardian of the minor..

3. The respondent in her evidence has admitted that her second husband was stranger to the minor. She has not raised any serious allegation that the appellant is disqualified for any special reason to take custody of the minor: As held by the learned Guardian Judge there is hardly any difference between the status of the parties and therefore, it is not a case where the respondent mother can give the minor a better education. It is settled rule that the Courts are to presume that the welfare of the mirror lies in her custody with the guardian recognized by the personal law. Therefore, while examining the aspect of the welfare of the minor, Courts are required to examine if the guardian under the personal law of the minor is disqualified for any given reasons. If the guardian under the personal law of the minor is not found to suffer from any serious disqualification. Court should, invariably, give the custody, to them, In cases of separation between the parents on account of the divorce of the mother, her right to retain the custody of the minor, as a term of art, is known as Hizanat. In Hedaya Second Edition, page 138, rule of Hizanat has thus been laid down :- "If a separation takes place between a husband and wife, who are possessed of an infant child, the right of nursing arid keeping it rests with the mother, because it is recorded that a woman once applied to the prophet, saying O Prophet of God, this is my son, the fruit of my womb, cherished iii my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care ; to which the Prophet replied, "thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with a stranger ? . . . . and Siddeek, alluded to this when be addressed Omar on a similar occasion, saying the spittle of the mother is better for thy child than honey, O Omar" which was said at a time when separation had taken place between Omar and his wife, the mother of Assim, the latter being then an infant at the breast, and Omar desirous of taking him from the mother . . . ." All the latter jurists therefore, are agreed that the mother loses her right of Hizanit on marrying a stranger. The rule is to be enforced with absolute jealousy when a female child is approaching the age of puberty. The rule has consistently been followed and the trend of the authorities leans in favour of the proposition that if the father does not suffer from any serious disqualification on the termination of the period of Hizanat either on marrying the mother to a stranger or on attainment of puberty in case of a female minor, the custody should be restored to the father. In Muhammad Sadiq v. Mrs. Sadiq Safoora (P L D 19633 Lah. 534) the present Chief Justice of Pakistan, Anwarul Haq, J. (as his Lordship then was) laid down the proposition thus:- " . . . . a Muslim father is the legal and the natural guardian of his children until they attain the age of majority under the general lave of the land, namely, Majority Act, 1975, i.e., 1S years. The mother has the right of custody or Hizanit upto the age of seven years in the case of a male child, and upto the age of puberty i.e 15 years, in the case of a female child. Even during this period the right of Hizanat or custody is to be exercised under the supervi sion and control of the father who is responsible for the maintenance of the children. The right of Hizanat can be lost under certain circumstances, but in the present case we are not concerned with that aspect of the matter. The father has constructive custody of his children, although the actual or physical custody may be with the mother or some other female relative, or some other person nominated by the father." In Muhammad Bashir v. Mst. Ghulam Fatima (P L D 1953 Lah. 73), B. Z. Kaikaus, J. observed :

All rules of Muhammadan Law relating to the guardianship and custody of the minor are merely the application of the principle of benefit of the minor to diverse circumstances. Welfare of the minor retains the dominant consideration and: the rules only try to give effect to what is minor's welfare from the Muslim point of view. There is a presumption that the welfare of a Muhammadan minor girl lies in her being restored to the father unless facts leading to a contrary inference arc proved."

4. In the instant case, therefore, the learned Guardian Judge has not directed himself to these principles of Muslim Law in deciding the issue as to where the welfare of the minor lies. The tenor of the judgment I shows as if be was comparing the cage of the mother with the step-moth, of. There is an added reason for the view I am proposing to take. In the application which was moved in the year 1975, the age of the minor was shown to be 10/11 years. She must be approaching the age of puberty by now. The mother, therefore, is no more entitled to retain the custody of the minor for more than one reasons firstly, that she has married a stranger and secondly, that the minor is approaching the age of puberty. The judgment of the learned Guardian Judge, in the circumstances, cannot be sustained. The same is accordingly set aside. This appeal succeeds. I direct that the custody of the minor be handed over to the appellant the father of the minor.

5. There will be no order as to costs. M. A. K. Appeal accepted.