P L D 1952 Peshawar 77 (PLP)

MUHAMMAD SHAFI, J. Mst. Zebo, one of the appellants in this case, was previously the wife of Mizaj Gul respondent, who was in the service of Zahoor Ahmad Khan, the second appellant, son of one K. B. Muhammad Ali Khan, of Banda Ahmad Nagar, Tahsil and District Kohat. While Mizaj Gul was in such service it appears that Zahoor Ahmad Khan con tracted a liaison with Mst. Zebo. At the time she had three minor children from Mizaj Gul respondent, namely, Mst. Sadiq Jan, aged about 11 years, Mst. Lal Marjan aged about 9 years, and Abdullah Khan, aged about three and a half years. As a result of this illegal intimacy between Zahoor Ahmad Khan and Mst. Zebo, Mizaj Gul was turned out of service. Mst. Zebo and her three children, however, continued to live with Zahoor Ahmad Khan. Proceedings under sections 497 and 498, Pakistan P. C. were taken against Zahoor Ahmad Khan, and under section 30 F. C. R. against Mst. Zebo. There is nothing in the record to show as to what happened to those proceedings, but this is clear from the evidence produced that Mizaj Gul divorced Mst Zebo, who has since married the said Zahoor Ahmad. On 17th September, 1945, Mizaj Gul made an application to the Court of the Senior Sub‑Judge, Kohat, for his appoint ment as the guardian of the person of the three minors. It was specifically mentioned in the application that Mst. Zebo was a woman of bad character, and that this fact was bound to have an adverse effect on the character of the three minors. This application was dismissed by S. Jaggat Singh, the then Senior Sub‑Judge, Kohat, on the ground that under Muslim Law, the mother was entitled to the custody of the male child until he completed the age of seven years, and to that of the female children till they attained majority. As regards the loose character of Mst. Zebo, the learned trial judge remarked that on the evidence then produced it could not be said with any amount of certainty that Mst. Zebo was, as a matter of fact, committing adultery with Zahoor Ahmad Khan, or that the latter was the former's paramout. Mizaj Gul has now made a second application, and has requested that he should be appointed the guardian of the three mirrors. According to hurl the two girls had attained puberty and the boy was more than seven years of age, but they were all still minors, being under17 years of age. The learned Senior Sub‑Judge, held that the father being the natural guardian of the minors, the Court could not appoint or declare him a guardian. Under section 19 of the Guardians and Wards Act, no guardian can be appointed or declared of a minor whose father is living, and is not iii the opinion of the Court unfit to be a guardian of the person of the minor. The view of the Legislature seems to be that the father being the natural and lawful guardian of a minor does not require to be so appointed. The natural guardianship which vests in him cannot be taken away from him until and unless it is proved that 'Lie is unfit to be' the guardian of the person of the minor, I consequently concur: in the finding of the learned trial Court that the father could not be appointed or declared the guardian of the three minors, and his applica tion for that purpose was misconcieved, and in itself a fallacy. There is, however, nothing to prevent the Court to treat, this application as one under section 25 of the Guardians and Wards Act. This in fact has been done by the learned trial Court, who has ordered that the children should be given into the custody of the father, the applicant. It is this order against which an appeal has been preferred to this Court by Mst. Zebo, and her new husband Zahoor Ahmad Khan. An objection has been raised in appeal that the learned trial Court was wrong in treating this application as one under section 25 of the Guardians and Wards Act, because it was never meant to be for the purpose contained in this section. Section 25 of the Act runs as under :‑ "(1) If a ward leaves or, is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the cus tody of his guardian, may take an order for his return, and, for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the Code of Criminal Procedure, 1882. (Now the Code of Criminal Procedure, Act V of 1898). (3) The residence of a ward against the will of his guar dian with a person who is not his guardian does not of itself terminate the guardianship". The perusal of this section would show that for a Court to pass an order under this section, it is not at all necessary that an application to that effect should be made by the aggrieved guardian. The Court suo moto, or if it is moved to that effect either orally or in writing can take proceedings against the person, who has removed a wards from the custody of a guardian. The argument, therefore, that the learned trial Court could not treat the application of Mizaj Gul as one under section 25 of the Act, falls to the ground. The next argument which has been addressed to me at the Bar on behalf of the appellants is that no order could be passed under section 25 of the Act; because the minors had never been in the custody of Mizaj Gul, and, therefore, no question of the minors leaving or being removed from such custody arises. Under Muslim Law, which governs the parties in this case, a mother is entitled to keep the custody of her son until he attains the age of seven years, and that of the girls until they attain puberty. After that, under the same law, the father has a legal right to the custody of his children in preference to the mother. It will be putting a ridiculous construction on section 25 of the Act, to hold that after the father becomes entitled to the custody of the children, who were until then lawfully in the custody of their mother, he has no remedy open to him under the Guardians and Wards Act. In my view, after the attainment of a specified age, the custody of the minor by the mother immediately become unauthorised. The minors would then be presumed to be in the constructive custody of the father, and if the mother refuses to hand over the children to the father, it would be tantamount to her removing the wards from the custody of their rightful guar dian. Section 25 of the Act, should receive a liberal construc tion, and must be held to include the right of a father to get the custody of his minor children. It is also contended that the natural guardian, in any case, cannot have recourse to section 25 of the Act, because it is meant only to help those guardians who are appointed by Court. This argument is devoid of all force, because the section does not limit its application in any way. A guardian of the person of a ward, be he the guardian appointed by the Court or by the. Personal Law, by which he is governed, is charged with the custody of the ward. It is his statutory duty to look to his support, health and education, and such other matters as the law, to which the ward is subject, requires. It will be absured to say that a guardian though charged with the cus tody of‑the minor and liable to perform the duties mentioned above, is not entitled to seek the help of the Court under the Guardians and Wards Act to get the custody of the child from an unauthorized person. I consequently hold that a father is perfectly competent under section 25 of the Guardians and Wards Act to get the custody of his minor children from the mother, when she ceases to be their lawful guardian. It was then contended that it would be for the welfare of the wards if they are let to‑remain with their mother and not returned to the custody of their father. Normally, when a certain person has been given the guar dianship of a minor by the Personal Law, which governs him, it should be presumed that it would be for the welfare of the minors that that person has their custody in preference to everybody else in the world including the mother. It will be for the party contending against this normal presumption to prove affirmatively and positively that it would be against the interests of the minors to return them to the custody of their natural guardian. In the case before me the father, who appears to be an honest and straightforward man, has not done anything to disqualify him from getting his children, and bringing them up according to his liking. Though he has divorced Mst. Zebu for which he is not to be blamed, yet he does not lose the filial affection, which he has for the children. He is the best person to look after them, and bring them up honourably in keeping with the Islamic principles. The minors can certainly not be left with Mst. Zebu, who has married Zahoor Ahmad Khan under the circumstances, which, keeping in view the law governing the society to which they belong, are far from honourable and moral. The children are bound to be affected adversely by a continuing idea existing in their minds, that their mother, while still in the legal wedlock of Mizaj Gul, contracted illegal intimacy with Zahoor Ahmad Khan, and as a conse quence thereof got divorce from their father, and married Zahoor Ahmad Khan. Great stress has been laid on the statements of Mst. Sadiq Jan and Mst. Lal Marjan made in Court, that they were quite happy to live with Zahoor Ahmad Khan, who was a Khan and a good man. They further stated that they were not happy to live with their father. Obviously the two girls made these statements while they were still under the influence of Zahoor Ahmad Khan and their mother. The girls cannot under the Islamic or the law of the country be permitted to continue to live with Zahoor Ahmad Khan, who is not related to them within the prohibited degree. The two girls told lies in Court when they said that they were actually taken by Mizaj Gul, but were then turned out. Keeping in view the relations between Mst. Zebu and Mizaj Gul, and the litigation which started in 1945, it is impossible for any person who is possessed of a grain of commonsense to believe that the girls as a matter of fact went to their father's house, who kept them with himself for sometime, and then turned them out. Mst. Sadiq Jan has made another preposterous statement, that if she, her sister and brother are sent to their father's house, he would sell them away. To attribute this intention to the father clearly shows how the mother and Zahoor Ahmad Khan are busy in poison ing the minds of these children against their own father. Neither the father nor the mother, even if they are entrusted with the custody of their children, are justified to poison their minds against the other party. It is the duty of the person keeping the custody of the children to teach them to live with their parents, and have utmost respect for them. Mst. Zebu by creating this impression in her mind which Mst. Sadiq Jan has reiterated in her evidence with regard to Mizaj Gul, has com pletely disqualified herself to have the custody of the children even for a single day more. I consequently uphold the order of the learned trial Court, and direct that the three minors should at once be returned to the custody of the father, and that the learned trial judge should for the purpose of enforcing this order exercise all those powers which are vested in him by law, including the one mentioned in section 25 (2) of the Guardians and Wards Act. The appeal is dismissed with costs. Pleader's fee Rs.

150. Orders announced. A. H. Appeal dismissed.