1989CLC1377 (PLP)

The preference expert doubt, relevant, but not final or binding on the Courts. It has to be judged with reference to the welfare of the minor. The minor being under the direct influence of the petitioner and apparently tutored rather brainwashed by her, has levelled wild allegations against her own parents and even stated that she would die rather than go to her parents. Immature as she is she cannot visualise the hazards of life and exercise sound discretion qua her welfare. It is the duty of the Court while exercising its parental jurisdiction, to judge the welfare of the minor in the context of the facts and circumstances of each case. It was stated by respondent No.3 and the two witnesses namely Masooda Naqashbandi and Gul Sanober' produced by him that the writ petitioner had no blood relation with the minor. The only person in the petitioner's family having blood relation was Quddus Khalid who had died. The petitioner's real sister Brigadier Nusrat is married to Salim Naz, who had controverted to Christianity. This was clearly suggested to the petitioner who appeared as RW.3. In reply she merely expressed lack of knowledge about it. She also expressed ignorance that after change of religion the students had attempted to give beating to him. The ignorance expressed by the petitioner is nothing but a veil to hide the truth that her sister's husband had become a convert to Chiristianity. It is significant to mention that the minor had stated that she was living with the petitioner and RW.1 (Brigadier Nusrat Jehan) for the last one year and three months. Even Mst. Shaukat Khalid, the petitioner, stated that she was living with her Brigadier Baji. Thus it is obvious that the minor is practically living in the family of Brigadier Nusrat Jehan whose husband is a Christian. It is not desirable that the minor, who is of impressionable age, should live in a family on which shadow of a different religion was cast. Here I may quote with advantage the following passage from the Muhammadan Law by Amir Ali:‑ "It may be stated as a general rule, that as the right of hazanat has in view the exclusive benefit of the infant, each particular case would be governed by the doctrine in force among the sect to which the child is supposed to belong; or, if that cannot be ascertained, by a consideration of what would be best for the child as a Muslim child." The family of Brigadier Nusrat Jehan is certainly not the one where the minor ' was supposed to live. The petitioner, after the death of her husband is no longer' in a position to provide the independent and protective atmosphere as was available to her during the lifetime of Quddus Khalid, uncle of the minor. At this juncture of life, the minor needs a protective atmosphere, the company of her own near and dear ones and fragrance of parental love and affection for a safe and happy future life. It has come in evidence that the real mother of the minor and her six paternal aunts are alive. The children from the paternal aunts are all highly educated. In the parents family, there are brothers and sisters of the minor apart from her grandfather, paternal aunts and a number of cousins. Hence,; placing reliance on the cases reported in PLD 1985 SC 436, 1978 SCMR 299, 1974 SCMR 305 and PLD 1975 Lah. 86, I am not inclined to place any reliance on the preference expressed by the minor in the instant case and hold that her welfare lies in residing in the family of her parents. ,

9. Now coming to the question as to whether the petitioner has any right i under the law to claim custody of the minor in preference to the father, the, straight answer in that she has none. The mere fact that she has brought up the minor since her infancy and has developed deep love for her does not clothe her with a right to claim custody of the minor. While appearing as AW.3 Raja Taj Muhammad respondent No.3 had clearly stated that the minor was handed over to his issueless brother, on his asking. In cross‑examination this part of the statement was not challenged. He had further stated that Quddus Khalid deceased had agreed that respondent No.3 could get the minor back whenever he so desired. The latter part of his statement alone was challenged in cross examination. Thus it can be gathered that the custody of the minor was given by respondent No.3 to his issueless brother (who died on 3rd of November, 1986). After his death, the present petitioner has no legal claim but a merely sentimental one for the custody of the minor. As the petitioner has invoked the constitutional jurisdiction, she has to show violation of a legal right vested in her so as to make her an "aggrieved person" within the meaning of the law. The mere fact that she treats the minor as her own daughter and that grief would come to her as a human person on being deprived of the custody of the minor is not sufficient to entitle her to invoke constitutional jurisdiction. There is force in the submission of the learned counsel for respondent No3 that acceptance of claim of the petitioner would amount to recognition of "adoption" which has no place in the Islamic Law. As mentioned above the right to claim the custody of the minor now vests in the father (respondent No.3). In the scheme of the law right to claim custody of the infant child vests in the mother as mentioned in Section 352 of Muhammadan Law by Mulla. In default of the mother, the right vests in the female relatives of the minor as mentioned in section 353 in the following order;‑ (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 sisters; and (10) paternal aunt, also in like order as sisters. In default of the female relations, then the right vests in the male relations of the minor as mentioned in section 355, in the following order: (1) the father; (2) nearest paternal grandfather; (3) full brother; (4) consanguine brother; (5) full brother's son; (6) consanguine brother's son; (7) full brother of the father; (8) consanguine brother of the father; (9) son of father's full brother; (10) son of father's consanguine brother; In case of a minor girl who has attained puberty the right of custody vests in the father as mentioned in section 357 of the Mulla's book. Failing the father, the custody belongs to the paternal relations in the order given in section 355, referred to above. Thus it would be seen that the petitioner who is not related to the minor figures nowhere in the scheme of the law in relations to the right of Hizanat of the minor girl. Hence, whatever the depth of her feelings, emotional I involvement and sense of grief as a human person, in case of being deprived of the custody of the minor, the Court cannot help the petitioner because she is not an aggrieved "person" within the meaning of Article 199 of the Constitution of Pakistan.

10. It is also worth mentioning that after the demise of Quddus Khan, respondent No.3 demanded the custody of the minor on the eve of Chehlum of his late brother. This fact on the one hand, negatived the petitioner's allegation that father had abandoned the minor and on the other hand proved that the custody was initially handed over to Quddus Khalid and after his death the custody was reclaimed by the father. The petitioner also realized the weight of the claim made by respondent No.3 and wrote a detailed letter to hind wherein she agreed, though with a heavy heart, to hand over the custody of the minor to him. The letter dated 5‑5‑1987 was not placed on the record in the Courts below but the petitioner while appearing as RW.3 had admitted that she had written the letter to respondent No.3. The relevant portion of her statement is reproduced below:‑ A photocopy of the said letter was placed on the record during the hearing of the writ petition. The learned counsel for respondent No.3 had, at one stage, denied the correctness of the said copy of the letter but respondent No.3, when shown the copy in the Court, honestly admitted that the said letter was received by him. Statement of respondent No.3, in this behalf, was also recorded by me in the Court. No doubt, the contents of the letter show the petitioner's feeling of love for the minor and the sense of shock in case she was handed over to respondent No.3. Nonetheless, she had agreed to hand over the minor to the father, presumably in recognition of his right, to claim the custody of the minor. The subsequent refusal on the part of the petitioner from her written commitment on the pretext of the ensuing litigation between the parties or desire of the minor to stay with her, was not sufficient in law to resile from .the commitment.

11. It may be mentioned in the end that the judgments of the Courts below do not suffer from any infirmity requiring interference by this Court in the exercise of constitutional jurisdiction. The findings on the question of welfare of the minor recorded by the Courts below are based on cogent material and otherwise consistent with the personal law of the parties.

12. For the foregoing reasons this writ petition fails and is dismissed leaving the parties to bear their own costs. AA./M‑1247/L Petition dismissed.