2005 PLP 547 (YLR)

(1) Shafiq‑ur‑Rehman v. Mst. Fazeelat Begum 1993 SCR 136. (2) Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265, and (3) Azra Bi v. Zafar Iqbal 2002 MLD 1213.

5. We have heard the learned counsel for the parties and also gone through the record carefully. It is not disputed between the parties that the trial Court after appreciating the evidence handed over custody of the minors to the mother. It may also be stated that the said minors were already living with their mother. The learned Judge in the Shariat Court on an appeal filed with him set aside the order passed by the trial Court on the sole ground that their age is above seven years, therefore, the appellant was not held entitled to the custody. It was also held that the preference made by the minors to live with their mother has no legal validity. Tile record also reveals that the application filed on behalf of respondent No.1 for the custody was made when an application for maintenance was instituted on behalf of the appellant.

6. By now, it is a settled proposition of law that while appointing or declaring the Guardian of a minor or handing over the custody of the minor under sections 17 and 25 of the Guardians and Wards Act, the paramount consideration would be the welfare of the minor. The law laid down in Irshad Begum's case 2003 YLR 3245 can be referred in support of the proposition. The relevant observations appearing in paras.Nos.9 and 10 are reproduced:‑‑ "

9. According to the aforesaid provisions of law the Personal Law to which the minor is subjected should be the guide for the appointment of a guardian which is further subject to two limitations: (i) The provision of this section (ii) and welfare of the minor. If consideration of the welfare of the minor or the conclusions arrived at as a consequence of the guidance in the section itself makes it impossible to follow the guideline of the Personal Law then the same may be abandoned and steps most conducive to the welfare of the minor and consistent with the provisions of the section have to be taken. If the Personal Law of the minor is not inconsistent with either of the provisions of this section or the welfare of the minor then it should be followed.

10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material, well being. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor if he or she is intelligent enough to make it. "

7. The case‑law referred to by the learned counsel for respondent No.1 does not lay down a different law as referred to above. The authority referred to by the learned counsel reported as Azra Bi v. Zafar Iqbal 2002 MLD 1213 is usefully reproduced. The relevant observations are at page 586 as follows:‑‑ "

8. So far as the case of other child, Ebtesam Zafar is concerned, this boy in the light of the documentary and oral evidence produced by Azra Bi, has not yet attained the age of seven years. He is continuously residing with his mother up to this time and is also getting education in a school. The learned trial Court after appraising the evidence led by the parties observed that the welfare of this child lies in the custody of his mother. This order was upheld by the Shariat Court. Under the Muslim Law the mother can claim the custody of male child up to seven years as of right. Before attaining the age of seven years she can be deprived from the custody of the male child only if some strong circumstances are brought on record to justify that it would not be in the welfare of such child to keep him in the custody of her mother. In the present case it is proved that both minor children all along remained with their mother. Their father Zafar Iqbal asked for the custody of these children when his divorced wife demanded from him the maintenance allowance for these children ‑‑‑‑‑‑‑‑‑"

8. It may also be pointed out that the other case relied upon by the learned counsel i.e. Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 was also considered in the above authority.

9. In view of the above state of facts and law, we are of the view that the learned Judge in the Shariat Court has failed to consider the following important points of facts and law:‑‑ (i) that the learned Judge in the Shariat Court has passed the order without adverting to the question of welfare of the minors and has recorded the order on the sole ground that the age of the minors is more than seven years; (ii) that the verdict of the trial Court was not taken into account while deciding the matter of custody; (iii) that the application for custody was filed when a maintenance suit was instituted on behalf of the appellant; and (iv) that both the minors made a preference to live with their mother with whom they were already living.

10. As discussed above, the appeal is accepted by setting aside the order of the Shariat Court. Consequently, the order passed by the trial Court stands restored with costs. H.B.T./131/SC(AJ&K) Appeal accepted.