PLD 1966AzadJ&K 1 (PLP)

It has been argued by the learned counsel for the appellants that even if the mother be held to be disqualified to hold the custody of the minor, the other females mentioned in Art. 353 of Mulla's Muhammadan Law be considered for appointment as the guardian of the minor daughter in preference to the father. In the first place there is nothing on the record to show that there are any female members such as the mother's mother, how‑high- soever or other females enumerated in that list; secondly, the mother having re‑married loses her right of custody of her minor child and the father becomes entitled to such custody. In Chapter XIV of Hedaya by Hamilton, it is recorded that:‑ "If a separation take place between a husband and a wife, who are possessed of an infant child, the right of nursing and 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 in 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'. " It was next argued by the learned counsel that the welfare of the minor daughter lies in remaining with the mother even though she has married a stranger not within the prohibited degrees. Article 351 of Chapter XVIII regarding the guardianship of person and property of the Mulla's Muhammadan Law recites that:‑-- "In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor." The welfare of the minor is to be adjudged not arbitrarily or according to the sweet will of the Judge but subject to the law to which the minor is subject. Tyabji in his Muhammadan Law 1931 Edn. on p. 207 says that there are many eases in which the Courts have said broadly that the welfare of the minor shall be the paramount consideration in appointing or declaring guardian, and this may afford an explanation of different views taken on the point whether the Courts should consider the welfare of the minor in the first instance or subordinate the consideration to the law by which he is governed. Sir R. K. Wilson in his Muhammadan Law Third Edn. on pp. 180‑181 has referred to the words of the Act (Guardians and Wards Act), to its history, and to the decisions of the Courts in support of the view that the law governing the minor is the paramount consideration. Mr. Tyabji supports the view of Sir R. K. Wilson and says:‑- "The terms of the Act (Guardians and Wards Act), its history and the decisions of the Courts support the view that the law governing the minor is the paramount consideration. But on examination it will be found that to connect the welfare of the minor with the law, by which the minor is governed, is to over look certain fundamental notions underlying the law and its administration. As the Judges are themselves required to follow the law, not to give decisions in accordance with their own views of expedience, it is almost a contradiction in terms to say, that the paramount consideration would be not the law, but any other matter e.g. the opinion of the Court as to the welfare of the minor. Moreover, the law is professedly based on regard for the welfare of the minor. Assuming that it fails in its purpose, it is not the function of the Judicial Tribunals to set right the short‑comings of the Legislature." The law presumes that where the legal custody is, there is the greatest welfare of the minor to be placed. The Court is bound by the provisions of law informing this opinion as to whose custody is best for the welfare of the minor. The occasional dicta, therefore, that the minor's welfare is the paramount consideration, must be understood in the sense that the principle on which the Legislature proceeds, is that the welfare of the minor shall be the paramount consideration and that this fact may be borne in mind in interpreting the words of the enactments, sometimes, the welfare of the minor clearly points who should be selected as the guardian and in the confidence that the ultimate object of the law is minor's welfare. The dicta must be with the reservation that the Judges cannot set their own views above those of the legislator and if the law does lay down that a certain person is entitled to the custody of the child, the Courts are bound to give effect to the manner in which the law requires it to be safe guarded, for the Courts cannot put their own ideas of what is deemed to be the welfare of the minor above the behest of the Legislature. Where the law leaves a discretion to the Judge, that discretion of course will be exercised primarily with the object of promoting the welfare of the minor in accordance with Judge understanding; but in doing so the Judge acts in accordance with the law by which the minor is governed which requires the Judge to exercise his own discretion. Kaikaus, J. in P L D 1953 Lah. 73, has strengthened the view of Wilson and Tyabji by fresh argument. Pullan, J, in A I R 1928 Oudh 220 categorically stated that:‑

"Where the law definitely lays down that an appointment of a certain guardian cannot be made, it is not proper for the Court to disregard the law even in the interest of the minor." Abdul Qadir, J. in A I R 1932 Lah. 493, held that:‑‑

"Where the law is clear the Court cannot disregard the law even in the interest of the minor." The learned counsel for the respondent cited P L D 1952 B J 53, wherein Abdul Aziz Chief Justice held that:‑

"Under Muhammadan Law the mother is disqualified from the guardianship even of her minor daughter if she is married to a man who is not related to the minor within the prohibited degrees. Where the law definitely lays down that an appoint ment of a certain guardian cannot be made, it is not proper for the Court to disregard the law even in the interest of the minor." In P L D 1952 Pesh. 77, Muhammad Shafi, J. held that the father being the natural and lawful guardian of a minor does not require to be so appointed and where the father had applied for being appointed as guardian of his minor child held that there was nothing to prevent the Court from treating such an application as one under section 25 of the Guardians and Wards Act. It was, further, held 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's custody when she ceases to be their lawful guardian. In A I R 1939 Lah. 359 the mother too had re‑married and at the time of separation from her husband she had agreed to hand over the child to her father and in this way there was a step‑mother on one side and a step‑father on the other, the custody was given to the father on the ground of the welfare of the minor. I agree with Kaikaus, J. who has observed in P L D 1953 Lah. 73 and P L D 1956 Lah. 484 that if by Muhammadan Law a particular relation is entitled to the custody of a minor, we should presume, in the absence of proof to the contrary, that the welfare of the minor is in being delivered to that person. There is no conflict between Muhammadan Law and section 25 of the Guardians and Wards Act which deals with the welfare of the minor. The mother having re‑married a stranger not within the prohi bited degrees to the minor she loses her right to the custody of her minor daughter and the father becomes entitled to the custody of such minor daughter even though she is about 6 years of age. The learned District Judge has rightly ordered that the minor be delivered into the custody of the respondent. The appeal is dismissed. S. A. H./S. Q. Appeal dismissed.