P L D 1965 (W (PLP)

(e) Guardians and Wards Act (VIII of 1890)

Ss. 7 & 19(b) Father of minor alive and fit to be guardian of person of minor No guardian can be appointed under S.

7. Muhammad Arif for Appellant. M. Idris Qureshi for Respondent. Dates of hearing: 2nd and 3rd March 1965. These two appeals, M. A. 82 of 1963 and M. A. 64 of 1964, arise out of the following facts: Mst. Sultana Begum was married to Mohammad Shafi, appellant on the 9th March 1958 and Mst. Farzana, minor, whose custody is in dispute, was born on the 2nd December 1958, but Muhammad Shafi divorced Mst. Sultana Begum on 9th August 1959. In March 1960, she married one Mohammad Anwar. On the 6th September 1961, Mst. Sultana Begum filed an application under section 488, Criminal Procedure Code claiming maintenance for Mst. Farzana minor and by a consent order made on the 11th January 1962, the Court directed payment of Rs. 50 per month as her maintenance. On the 30th January 1962, Mohammad Shafi made an application under section 25 of the Guardians and Wards Act for the custody of his daughter, Mst. Farzana, who was then about three years of age. The Guardian Judge rejected his application on 7th December 1962 holding that he had taken no interest in the child and had come forward to claim her custody so as to counteract her mother's claim for her maintenance, which had been awarded by a criminal Court. He was of the view that the mother's remarriage to a stranger did not militate against her. Mohammad Shafi appealed against this order, and on 23rd May 1963, the appeal was allowed by a learned Single Judge of this Court, who came to the conclusion that Mst. Sultana Begum had by her re‑marriage to a stranger lost her right of hizanat under the Mohammadan Law, that there was evidence of Mansoor Rais that she had neglected the minor, that there was no special reason for departing from the rule of Mohammadan Law, that the father was not unfit to have the custody of his daughter, and there was no justification for refusing her custody to him, particularly in view of the fact that he had adequate means of looking after the minor, and she had another daughter from Mohammad Anwar. The learned Judge directed that the custody of the minor be restored to him within a month from the date of the order. Mst. Sultana Begum filed a Letters Patent Appeal against this order, but it was dismissed on 13th June 1963. In pursuance of the order of the High Court, Muhammad Shall obtained the custody of Mst. Farzana, minor,

2. The matter did not rest there. Mst. Sultana Begum made an application on 12th July 1963 under section 43 of the Guardians and Wards Act for being allowed to see the minor, but this application was rejected by the learned Guardian 1 Judge on 1st August 1963 on the ground that no such arrangement or provision had been made in the order of the High Court. She filed an appeal in this Court against the order under section 47 (i) of the Guardians and Wards Act, and it has been admitted as M. A. 82 of 1963, in which an interim order was made that Mohammad Shall should leave the minor for two hours to meet her mother monthly at the house of Mst. Kalsoom Bi, grandmother of the minor.

3. On the failure of Mst. Sultana Begum to retain the custody of the minor, Mst. Kalsoom Bi, her mother, made an application under sections 7 and 25 of the Guardians and Wards Act for restoration of her custody to her, as she had a preferential right to her custody. She also prayed for the removal of Mohammad Shafi as her guardian. This application was accepted on 17th July 1964 to the extent that the custody of the minor was ordered to be restored to her within two weeks. She was preferred to Mohammad Shafi for having the custody of the minor in view of the principles of Mohammadan Law. Mohammad Shafi then filed an appeal in this Court, which is M. A. 64 of 1964 and obtained a stay of execution of the order.

4. Both the appeals will be disposed of by this order.

5. The appeal by Mst. Sultana Begum for being allowed to see the minor must succeed. The minor was in her custody up to the age of about four and a half years and in view of the motherly love and affection that she naturally has for the minor, it is necessary in her interest as well as that of the minor that she should meet her occasionally. When admitting the appeal the learned Single Judge directed that the minor be left at the house of her grandmother at 9‑00 a. m., on the second Sunday in each month, so that she can meet her mother. The learned counsel for the appellant prays that she should be left at the house of her grandmother for the whole of Sunday, but this arrangement would not be in the interest of the appellant herself, because she has to look after her present husband, and if she were to leave her house and be away for the whole day on Sunday, which day may be his off‑day, she may find her own happiness destroyed, and her home and family life may, as a result, be broken off. Taking all the circumstances of the case into consideration, I order that the minor be left at the house of her grandmother for three hours on every second Sunday in a month. To this the learned counsel for the respondent has no objection. The appeal by Mst. Sultana Begum is, therefore accepted, but the parties will bear their own costs.

6. There are several reasons why the appeal by Mohammad Shafi must also be accepted.

7. Firstly, Mst. Kalsoom Bi could not be granted the custody of the minor under section 25 of the Guardians and Wards Act, because she is not her guardian and because, I find that the minor had not left or been removed from her custody whether actual or constructive. Section 25 (1) provides that if a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make 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. The necessary conditions are A (1) that a ward should leave or be removed from the custody of the guardian of his person and (2) such leaving or taking should be from the custody of a guardian of his person; and if these conditions are satisfied, the Court may make an order for the return of the ward to the custody of the guardian, if it is for the welfare of the ward to return to his custody. The natural guardian of the minor is her father, Mohammad Shafi, appellant, and Mst. Kalsoom Bi is only a person who under the Mohammadan Law is entitled to hizanat, i.e., custody of the minor, Mst. Sultana Begum has lost the right of hizanat by her marriage to a stranger. Mst. Kalsoom Bi is not a natural guardian of the minor and does not even fall within the definition of guardian under section 4 (2) of the Guardians and Wards Act, B namely, a person having the care of the person of a minor or of his property or both his person and property. She is not proved to have the care of the person or property of the minor.

8. The Guardian Judge has held that Mst. Kalsoom Bi had custody of her person on the evidence of Altaf Rahman (P. W. 1), Mohammad Usman (P. W. 2), Abdul Hamid (P. W. 3) Badaruddin (P. W. 4), Nasim Mirza Chughtai (P. W. 5) and Mst. Kalsoom Bi, respondent who appeared as (P. W 6), but I am not inclined to accept their evidence and for good reasons. Altaf Rahman P. W. stated that Farzana minor is being brought up by her maternal grandfather, Mohammad Usman and he had never seen her father visiting her. He could not say whether Mst. Sultana was living in the house of Mohammad Usman. He did not even know whether Mohammad Shaft had divorced Mst. Sultana. He could not even identify Mohammad Shafi in Court as the husband of Mst. Sultana Begum. His evidence, is, therefore, of no value at all. Mohammad Usman (P. W. 2) stated that he shaved the hair of Farzana four and a half years ago when she was brought by her grandfather, but this is customary in the case of the first born child of a daughter, and proves nothing. He has also stated that her grandfather used to bring Farzana for hair cut. He does not depose that the minor was living in the house of Mohammad Usman, where he has been only once. His evidence cannot establish that the minor was living in the house of Mohammad Usman. Abdul Hamid P. W. made a bold statement that Farzana was brought up by her grandfather Mohammad Usman, but he had to admit that he never went to the house of Mohammad Usman. He did not know Mohammad Shafi or mother of Farzana. His evidence is equally valueless. Badaruddin P. W. deposed that he used to visit the house of Mohammad Usman, and Farzana was always with her maternal grandmother and her husband bore the medical expenses of Farzana. He admitted that it was customary that the delivery of the first child of a daughter takes place in her parents house and her hair is also cut by the maternal grand parent. He also admitted that after three months of the delivery of Farzana, Sultana went to the house of Mohammad Shafi. He is a neighbor of Mohammad Usman and has evidently come forward to give evidence as a friend. I am not inclined to believe his testimony on its face value. Nasim Mirza Chughtai P. W. claims to be a friend of Mohammad Shafi and also deposed that the delivery of the minor was arranged by the parents of Mst. Sultana Begum in a hospital and Mohammad Shafi was unwilling to visit his child saying that the child was not his, and was illegitimate, but he compelled him to visit her. There were Shafi disputes between the husband and wife and he brought about compromises between them. He is annoyed with Mohammad Shafi and had given up friendship with him since he took away the child from Mst. Sultana Begum. His story that Mohammad disowns the child appears to be a made up one. He is not able to mention the man with whom Mst. Sultana had immoral connection. His evidence, intended as it is to show that Mohammad Shafi was not likely to treat the minor as his own or to look after her well, does not appeal to me as being true. Mst. Kalsoom Bi, respondent deposed that Mohammad Shaft used to maltreat and beat her daughter. They themselves bore the expenses of the delivery of the minor in a hospital and Shafi never came to visit the child in the hospital. This part of her evidence is inconsistent with the statement of Nasim Mirza P. W.

5. She continued that when Sultana was divorced about seven or eight months after the birth of Farzana, it was agreed that she would remain with Sultana and he would pay her expenses to her. The minor remained in her custody even after the second marriage of Mst. Sultana, who used to visit her to see Farzana. The minor remained with her for about four and a half years. She denied that she knew that Mohammad Shafi had made an application for the custody of the minor, but it cannot be believed. She has admitted that she went to the High Court once to help Sultana in the litigation. I am quite certain that she was aware all along of the application made by Muhammad Shafi to get her custody but she made no application for her custody or claimed that she was in her custody. Muhammad Shafi as D. W. 1 stated that the minor remained with her mother from the time of her birth, even after her mother's divorce and until the time he obtained custody of the child under the order of the High Court. He denied that he ever stated that Farzana was not his daughter. He was still unmarried and claimed that he had incurred the expenses of the delivery of the minor. Mansoor Rais (D. W. 2), deposes that he lives in Rahat Mansions, in which Sultana resides with her second husband, Muhammad Anwar, and used to see Farzana residing with her mother in the same Mansion. Muhammad Shafi used to bring clothes and eatables for the minor, but the minor was neglected by her, as she had a daughter from Muhammad Anwar. Muhammad Khan (D. W. 3) similarly deposed that Farzana used to live with Sultana in Rabat Mansion and Shafi used to give to Sultana Begum presents, eatables and clothes for Farzana.

9. In the natural course of events, Mst. Farzana, because of her tender age, would remain with her mother. Of course when Mst. Sultana was divorced, she alongwith Farzana would be living in her parents house, but after her remarriage to Anwar and their living in Rabat Mansions, it is probable that the minor was also living with her mother. Sultana married Anwar in March 1960, when the minor was about sixteen months of age and it is unbelievable that she was parted from her mother and was left in the house of her maternal grand‑parents. It was Mst. Sultana Begum, who made the application under section 488, Cr. P. C. claiming her maintenance on 16th September 1961 and it can, therefore be inferred that the minor was living with her. When Muhammad Shafi appellant applied under section 25 of the Guardians and Wards Act on 30th January 1962 for her custody, he asserted that the minor was with her. No objection seems to have been raised by her that the minor was not staying with her. Mst. Kulsoom Bibi did not become a party and claim her custody. When the High Court directed delivery of the minor to Mohammad Shafi it was she who produced her before the Guardian Judge for delivery to the father. These circumstances and the evidence of Mansoor Rais D. W., Muhammad Khan D. W. and the appellant conclusively show that Mst. Farzana minor was living all alongwith her mother, Mst. Sultana, who had her custody. From her custody, the minor was directly delivered to the custody of Muhammad Shafi appellant. When did Mst. Kalsoom Bi have her custody and how is she to be treated as a guardian ? She cannot be treated as her guardian under subsection (2) of section 4 of the Guardians and Wards Act or even a de facto guardian. Nor can it be said that the minor left or was removed from her custody as a guardian. In Achrat Lal v. Chiman Lal (I L R 40 Bom. 600) it has been held that a person who has never had the custody of the minor cannot apply. In Manoo Ali v. Hawabi (A I R 1936 Rang. 63) it was even held that if a father has not had the custody of the child he cannot apply for custody although he desires to act as a natural guardian, when the custody of the minor has all along been with the mother.

10. Secondly, the circumstances made it clear that the application by Mst. Kalsoom Bi for getting the custody of the minor was not a bona fide application and in making that application she wanted to obtain the custody of the minor for the benefit of Mst. Sultana Begum, whose right of hizanat has been lost and she was found disentitled to the custody of the minor. She remained a silent spectator in the proceedings between Muhammad Shafi and Mst. Sultana Begum for the custody of the child and did not become a party to the proceedings. There are no circumstances to show that she was either anxious or had the means to support the child on her own. Of course she has a preferential right of hizanat, but she had stood by and had made no attempt to assert her right to it. She can even be said to have given it up or lost it. I am aware that an order of delivery of custody of the child is not of a permanent nature and may be changed if the welfare of the minor so necessitates but there must be clear and strong reasons and the circumstances must have so changed as to require a change of custody of the minor in the interest of his welfare. The learned counsel for the respondent cited Mrs. Shushila Ganju v. Kunwar Krishna (A I R 1948 Oudh 266) Saraswati bai Shripad Ved v. Shripad Vasanji Ved (A I R 1941 Bom. 103) and In Re Ghulam Mohammad (A I R 1942 Sind 154). In the first case it was held that orders as to custody of a minor are of a temporary character and if any time it should appear that the person entrusted with custody is not giving that care and attention to the child which is expected of her and is not giving the child a proper education, it will always be open to the other side to move the Court for a proper order. In the second case, it was observed that orders as to custody of the child are of a temporary nature and those interested in the minor are at liberty to apply to the Court again, in case the mother, who was granted custody of the child, was not fit to look after the child, or there was danger to the health of child from contact with her. In the third case, it was held that appointment under section 17 of the Guardians and Wards Act must necessarily be in the nature of things, not final and unalter able; and they can be altered from time to time, as circumstances require. If when the applicant shows that he is no longer a stranger to the boy, that he had taken an interest in the welfare of the boy, and is a fit and proper person to be appointed guardian of the boy, he can apply to the Court again. These cases bring out the principle that normally there should be a change in the circumstances or capacity of the guardian for a change in the custody of a minor to be ordered by a Court in the interest of the welfare of the minor. There are no circumstances established on this record to indicate that the circumstances had changed to justify the change of the custody of the minor from the father to the maternal grandmother. The minor was entrusted to him as it was found to be in her interest. In the circumstances it was not right or proper for the Guardian Court to have granted the custody of the minor to Mst. Kalsoom Bi.

11. Thirdly, the circumstances of the case do not indicate that the welfare of the minor lies in her remaining with Mst. Kalsoom Bi, but that in fact, her welfare lies in her remaining in the custody of Muhammad Shafi. It is true that under the Muhammadan Law, Mst. Kalsoom Bi, in view of Mst. Sultana Begum having lost the right of hizanat by her marriage to a stranger, has a preferential right to the hizanat, i.e., the custody of the minor even though Muhammad Shafi appellant is her natural guardian, and it has to be presumed that the welfare of the minor lies in her remaining in the custody of the person, who has the right of her custody under the Muhammadan Law, but the welfare of the minor is the paramount consideration. Welfare means his material, i.e. worldly, moral and spiritual well being. In awarding custody of the minor, the Court must initially presume that the welfare of the minor lies in giving custody of a minor according to the dictates of the rules of personal law, but if the circumstances of the case clearly point that his or her welfare dominantly lies elsewhere or that it would be against his or her interest to award custody according to the dictates of his personal Law, the Court must act according to the demands of the welfare of the minor, keeping in mind any positive prohibitions of personal law. Atia Waris v. Sultan Ahmad Khan (P L D 1959 Lah. 205). As observed already, the High Court has found the appellant entitled to the custody of the minor, because her welfare lay in giving him his custody. He has an income of Rs. 600 per month and has not married again. He has a mother and sisters who can look after the minor and bring her up according to the status of her father. She has been put in a school and is receiving education. I sent for her and found that though she is constitutionally frail, she is being well‑maintained and was healthy, happy and contended. She was well‑dressed, tidy and well‑behaved. She appeared to be devoted to her father and would not even look at her grandmother, apparently for the reason that she has not been living with her for any length of time. It is clearly in her interest that she should grow up in the family of her father and be educated and married by him. The responsibility of her marriage rests on his shoulders, and she will no doubt have all the love, care and attention which she needs. The minor has been with her father since over eighteen months and it is not in her interest to break the ties of love and affection which have developed between her and her father and her relations. Frequent breaking of the ties of love and affection, which she had developed, may even cause a psychological imbalance in her, frail as she physically is, and this must be avoided. There is nothing also to be gained by her being entrusted to the custody of her grand mother, who has no earning capacity of her own, and there is nothing on the record to show that her husband's income will be sufficient to sustain her and or to bring her up as well as her father would and to ensure the same future for her. The comparative turn out of the mother‑in‑law and the appellant and the minor showed clearly that the appellant was in more affluent circumstances than the respondent. Much stress was laid by the learned counsel for the respondent on the fact that the appellant had not provided for the maintenance of the minor and had neglected her. It was argued that as he had not applied for her custody he had lost the right to it. It cannot, however, be ignored that when Mst. Sultana Begum was divorced, the minor was only eight months old and when she married Anwar, she was fifteen months of age. At that tender age it would not have been right to separate her from the care and affection of her mother. When he applied for her restoration she was a little over three years of age and he has succeeded in getting her custody. I cannot in these circumstances alter a conduct on his part disentitling him to her custody or showing a lack of interest in getting her custody. I am clearly of the opinion that the welfare of the minor lies in her remaining with the appellant. Learned counsel for the respondent also argued that the discretion of the learned Guardian and Ward Judge having been exercised reasonably and judicially, I should not interfere, but from the reasons given by me above, it is amply clear that the custody of the minor could not be granted to the respondent under section 25 of the Guardians and Wards Act, nor was it in her interest.

12. It only remains to mention that though in the applica tion mention of section 7 of the Guardians and Wards Act was made, a guardian of the person of the minor could not be appointed in view of section 19 (b) of the Guardians and Wards Act since Mohammad Shafi father of the minor is alive and is not unfit to be a guardian of the person of the minor.

13. For the reasons given above, Mohammad Shafi's appeal is accepted and order of the Guardian Judge entrusting the custody of the minor to Mst. Kalsoom Bi is set aside, but there will be no order as to costs. S.Q. Appeal accepted.