P L D 1956 Lahore 484 (PLP)

No evidence was led as to the conduct of the appellant and in fact the pleas of the respondent relating to such conduct do not even find any mention in the judgment of the learned Guardian Judge: The learned Guardian judge, however, decided against the appellant because (i) the appellant had married again and the step‑mother could not ‑take proper care of the minor and (ii) it would be hard to separate the minor from his mother and sisters. Before me the question of jurisdiction has been reagitated, and: I will deal with it before I come to the merits. The relevant provisions are sections 4 (5) and 9 of the Guardians and Wards Act which run as below :‑ "4 (5) 'the Court' means‑ (a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or :declaring a person to be guardian ; or (b) where a guardian has been appointed or declared in pursuance of any such application. (i) the Court which, or `the Court or the officer who, appointed or declared the guardian or is under this Act ,deemed to have appointed or declared the guardian ; or (ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides ; or (c) in respect of achy proceeding transferred under section 4A; the Court or the officer to whom such proceed ing has been transferred. 9. (1) If the application is with respect to the guardian ship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having juris diction in a place where he has property. (3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction." The present application is under section 25 which lies to "the Court". "The Court" as explained in section 4 (5) (a) means the Court having jurisdiction to entertain an applica tion for guardianship. The Court having jurisdiction to entertain an application for guardianship is according to section 9 of the Act, the Court within whose jurisdiction the ward ordinarily resides So the condition for the existence of the jurisdiction respect of an application under section 25 is that the minor should ordinarily reside within the jurisdiction of that Court. Is ordinarily residence needed at the time of the applica tion or at the time the minor, in the words of section 25, 'leaves or is removed from the custody of a guardian? This question arose in Mst. Nazir Begum v. Ghulam Qadir Khan and others (1) with this difference that in that case the application was by a guardian appointed by the Court and the provision applicable was not section 4 (5) (a) but section 4 (5) (b). Section 4 (5) (b) refers to the residence for the time being. The learned‑judges who decided Mst. Nazir Begum v. Ghulam Qadir Khan and others (1) held that even in a case where the question was of the residence for the time being of the ward, the Court from whose jurisdiction the ward was removed had jurisdiction to try the case. They held that in spite of removal of the ward, the ward should be considered, as residing within the juris diction of the Court, for any other view would render the provisions of the Guardians and Wards Act, relating to the custody of minors, nugatory. The learned judges pointed out that in order to deprive a Court of jurisdiction the offender would only have to take the minor out of the Court's jurisdiction and if the minor is taken to a neighbouring state, no remedy would be available. If the minor can be said to be residing 'for the time being' within the jurisdiction of the Court from whose juris diction the minor was removed then there is greater justifica tion for holding that he should be considered to be 'residing' within such jurisdiction. The requirement in the present case is less stringent than in the reported case. The minor has, according to section 9, only to be `residing' within the jurisdiction of the Court. The facts relevant to this question are that the appellant and the respondent are residents of Lahore. The respondent belongs to Gowalmandi and the appellant has been living in Lahore for about 26 years and has a house here though the record does not disclose his original home. The parties were married at Lahore where they continuously resided till they fell out. There can be no doubt that at the time the respon dent took the minor to Karachi, the minor's ordinary place of residence was Lahore. The respondent took him away before the divorce and it cannot be said that she took him away with the intention of never returning. The residence of the minor did not change with temporary absence at Karachi. When the appellant divorced the respondent, it cannot be said that the ordinary residence of the minor changed with the fact of the divorce. In any case on the principle accepted in Mst. Nazir Begum v. Ghulam Qadir Khan and others (A I It 1938 Lab. 313) the Court from whose jurisdiction the minor was removed has jurisdiction to entertain the application. It may be stated that the application was filed soon after the divorce. Learned counsel for the respondent urges that the removal took place 'when the minor was yet below 7 years and the wife had the right to custody. The argument is without force for the right of the mother to the custody of the minor is subject to the control of the father, and if she takes away the minor against the wishes of the father to a place where the father cannot exercise supervision and control, she acts without authority and her taking away the minor amounts to removal of the & minor from the custody of the father. The custody of the mother is to be regarded as a kind of subordinate custody and the control of the father also is custody within the meaning of the Guardians and Wards Act. I hold that the Lahore Court had jurisdiction to entertain the application. I now proceed to determine the only issue on merits, that is, whether it is for the benefit of the minor that he be delivered to the appellant. The record is very meagre. The appellant put himself in the witness‑box and said that it was in the minor's benefit that he should be handed over to him. Nazir Ahmad, mukhtar of the respondent, made a statement that the respondent had been turned out of his house by the appellant and that he had later divorced her. The application for maintenance had been filed in a Karachi Court and an order of maintenance had been obtained. I have already explained in Muhammad Bashir v. Mst. Ghulam Fatima (1) the correct approach in such cases with respect to the determination of the welfare of the minor. If by Muhammadan Law a particular relation is entitled to the custody of a minor we should presume, in the absence of C proof to the contrary, that the welfare of the minor is in being delivered to that person. There is no conflict between the Muhammadan Law and section 25 of the Guardians and Wards Act which deals with the welfare of the minor. I have fully explained in Muhammad Bashir v. Mst. Ghulam Fatima (P L D 7953 Lah. 73) that all rules of Muhammadan Law governing custody of minors are rules relating to the welfare of the minor and are in all cases subject to this dominant consideration. They are rules which simply raise the presumption of welfare. It should be obvious that there cannot be any conflict between the right of custody under Muhammadan Law and section 25 of the Guardians and Wards Act. It cannot possibly be assumed that Muhammadan Law grants the custody to a person the grant to whom of custody is not in the interest of the minor. Any other interpretation of section 25 of the Guardians and Wards Act would, as I have explained in the above‑mentioned case lead to an anomaly. The minor being over 7 years of age, the right of custody under Muhammadan Law belongs to the father. Not only is there the ordinary presumption of the welfare of the minor, but we have also to keep in mind the strong position of the father with respect to guardianship of the person as well as the property of the child. In all systems of law he is regarded as the natural guardian of the child. He can appoint a guar dian of the person by will, as will appear from section 6 of the Guardians and Wards Act (relating to European British subjects), section 60 of the Succession Act arid Paragraph 357 of the Mulla's Muhammadan Law. His position is so strong that under section 19 of the Guardians and Wards Act no application for appointment or declaration as guardian lies at all as long as he is not found to be unfit to be a guardians by the Court and even if a guardian of the minor be appointed on account of the unfitness of the father, the power of that guardian ceases by virtue of section 41 (1) (e) of the Guardian and Wards Act by the father ceasing to be so unfit. He has been held to have an inalienable right to the custody of his children' vide Mst. Basant Kaur v. Gian Singh and others (A I R 1939 Lah. 359) and be entitled to such custody unless there are over whelm ing circumstances to the contrary, vide Abdul Aziz Khan v. Nanhe Khan (A I R 1927 All. 458) which follows Thain v. Taylor (1926 Chancery 676). Under Muhammadan Law even when the mother is, up to the age 7 years, allowed the custody of a male child, but as pointed out by their Lordships of the Privy Council in Imambandi and others v. Haji Mutsaddi and others (A I R 1918 P. C. 11), it is not she but the father who is the natural guardian. It should also be remembered that he is the person who is responsible for the maintenance of his children. The position of a father is not inferior to a guardian appointed by the Court, though it may in certain respects be superior. It has to be presumed that the welfare of the minor lies with the father and there should be strong reasons for depriving the appellant of the custody of his child. I have only to consider whether any such reasons exist. It is impossible to hold that if the father, who has divorced the mother of the minor marries again, he forfeits the right to the custody of the minor. I cannot presume that the second wife will ill treat the child though if the child was made to live with the stepmother and she in fact ill‑treated him that may be a good ground for an order against the father. In the present case in the grounds of appeal, an undertaking has been given by the father that he will put the child in a convent school and that undertaking has been repeated before me. Under these circumstances, there will be no occasion to subject the child to any ill‑treatment by the stepmother, even if there be any Around for such‑apprehension. I am going to make this order in favour of the appellant on the condition that he puts the child in a convent school. The other reason on which the learned Guardian Judge relied is hardly a serious consideration in this case. The minor will be separated from his mother and sisters but that can hardly stand in the way of an, order of custody in favour of the father. Muhammadan Law considers, that after the age of 7 years, the minor may be separated from the mother and even before that age the minors can be separated from the mother if she does not keep them under the supervision and control of the father. I set aside the order passed by the learned Guardian judge and direct that Aftab minor be delivered to the appellant. This order is conditional on the appellant putting the minor in a convent school at Lahore. If the appellant fails to do so within a reasonable period, it would be open to the respondent to apply to this Court for an appropriate order. This appeal is accordingly accepted but there is no order as to costs. A. H. Appeal accepted.