1988 PLP 832 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Petitioners seek leave to appeal from the judgment of a learned Single Judge of the Sind High Court, dated 30th December, 1987, whereby the constitutional petition filed by them was dismissed.

2. Briefly stated the facts are that Mst.Zubaida Khanum, respondent herein, is the widow of Sikandar Ali Khan, since deceased. Out of their wedlock three children were born. A son named Faisal born on 25th August, 1976, another son Muhammad Saleh alias Khan born on 19th November, 1981, and a daughter Mst.Paras born on 16th October, 1983. Sikandar Ali Khan, husband of the respondent died in a motor car accident on 28th July, 1984. In the events that happened there arose a dispute about the guardianship and the custody of the three minor children between their mother, the respondent and Mst.Aziz Khatoon, petitioner No.1 their grandmother (the mother of Sikandar Ali,Khan).

3. As a result of this dispute petitioner No.1 filed a guardianship application under section 10 of the Guardians and Wards Act, on 17th September, 1984. Soon thereafter as the children were in the custody of the grand parents the respondent also filed an application under section 25 of the Guardians and Wards Act, for restoration of the custody of the minors. It is not necessary to give the details of the history of proceedings as it is sufficient for present purpose to state that eventually the two applications were decided by the learned IVth Senior Civil Judge, Karachi East, by a consolidated judgment dated 28th September, 1986, whereby petitioner No.1's application was allowed with the result that she was appointed as guardian of the person and property of all the three minors. However, by the same judgment the learned Judge held that the respondent had lost the right of Hizanat by residing separately from her husband during the subsistence of their marriage and dismissed her application for restoration of the custody of the minors.

4. Being aggrieved by the judgment the respondent filed two separate appeals which were partly allowed to the extent as under, by a consolidated judgment dated 1st August, 1987, by the learned District Judge, South Karachi. The conclusions and decision of the learned District Judge, are summed up in the following passage of the judgment:‑ "The appellant who is the mother of the children is admittedly an educated lady and is able to look after the minors' education and emotional well being. The upshot of the above discussion is that since Faisal has crossed the age of seven years and getting education at Abbottabad, I am of the view, that welfare of this boy demands that his custody should not be disturbed. So far as the custody of Muhammad Saleh alias Khan and Baby Paras is concerned, I am of the considered view, that welfare demands that their custody should be returned to their mother as these children because of their tender ages need love and affection of their mother. With regard to the appointment of guardian in respect of the property, I find that the trial Court has rightly appointed Mst.Aziz Khatoon a guardian of their property as no other relative of the children has come forward to claim the appointment. Since most of the properties are situated in Nawabshah and most probably are jointly owned, therefore, I uphold the order of Lower Court appointing Aziz Khatoon the guardian of the properties of the minors shown in Schedules 'A' and 'B' of the application on the same terms and conditions as laid down by the trial Judge. While partly allowing this appeal I set aside the order of lower Court refusing to restore the custody of Muhammad Saleh alias Khan and Baby Paras and order the Respondents to hand over the custody of Muhammad Saleh alias Khan and Baby Paras to appellant Zubaida Khanum."

5. Being dissatisfied with the judgment of the learned District Judge both parties filed separate constitutional petitions, in the Sind High Court, the petitioners seeking to challenge the appellate judgment of the learned District Judge to the extent it granted the custody of minors Muhammad Saleh and Paras to the respondent as without lawful authority and of no legal effect. By the impugned judgment the learned Single Judge dismissed both the constitutional petitions on the ground that the judgment of the learned District Judge was "well‑reasoned and does not suffer from error of jurisdiction or error of law".

6. Before us the only question is whether the order of the learned District Judge directing restoration of custody of the two minors to the mother under section 25 of the Guardian and Wards Act, calls for interference. Learned counsel for the respondent /caveator made a categorical statement that the respondent is now satisfied with the order of the District Judge with regard to the eldest minor, namely, Faisal who is now above the age of 7 years and does not claim the right of guardianship of the property of the minors. The respondent claimed the custody of the minors on the right of Hizanat being their natural mother and also pleaded that the welfare of the minors lay in being restored to her custody.

7. Before the High Court the main contention of the petitioners was that the relations between the deceased Sikandar Ali Khan and the respondent were not cordial and as she had neglected the minors during the life time of her husband, by leaving the family house at Nawabshah about 2 months before the death of their father, she had lost the right of Hizanat. The learned Judge in the High Court repelled this contention and made the following observations: "These are some points which are admitted that Sikandar Ali met with an accident and died on 28‑7‑1984, while he was coming from Karachi to Nawabshah. It is on the record that Sikandar had a Bungalow in Karachi, near the house of the parents of his wife, Mst. Zubeda Khanum. The ages of the minors are not disputed. It is also on record that Mst.Zubeda Khanum was admitted in Rajputana Hospital, Hyderabad, from 2nd June, 1984 to 25‑6‑1984, and such documents have been produced and her operation was done on 4‑6‑1984, and these documents have not been controverted by Mst.Aziz Khatoon. It is relevant to note that operation of Mst.Zubeda Khanum was conducted about more than 1 months before the death of Sikandar. Mst.Zubeda Khanum in her evidence stated that relations between her and her late husband were very cordial as before his death he purchased one flat in Karachi to which he in writing made her nominee of the flat but her relations with the parents of the husband were not cordial. She has explained that on knowing about the death of her husband, she rushed to Nawabshah and could see his face at graveyard. This fact has also not been denied by the witnesses of Mst. Aziz Khatoon. After the death of Sikandar his father Noorullah Khan filed a Civil Suit for declaration and Specific Performance in respect of the bungalow of Karachi in which he impleaded Mst.Zubeda. Aziz Khatoon, his wife and three minors as parties. Without going. into the merits of the suit which is still pending, it is clear that this suit against the minors and their mother and even against his wife clearly indicate that there was ill‑will between them and their daughter‑in‑law. The learned District Judge by a detailed judgment discussed the entire evidence of the parties and allowed the custody of only two minor children to the mother, Mst.Zubeda Khanum. Under Article 353 of Muhammadan Law by Mulla, the mother is entitled to custody 'Hizanat' of her male child until he crossed the age of 7 years and her female child until she has attained puberty. This right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father. The female loses the right of custody if she marries a person not related to the child within the prohibited degree, a stranger and if she is leading an immoral life, neglects to take proper care of the child and goes and resides during the subsistence of the marriage at a distance from the child's place of residence." In what we regard as a well‑reasoned judgment the learned Single Judge found that none of the disqualifying conditions were proved in the evidence produced as was found by the learned District Judge. The main ground on which the learned Single Judge declined interference was that in constitutional jurisdiction it was not open to the High Court to upset findings of fact recorded by the subordinate Court of competent jurisdiction, in the absence of a jurisdictional error, which was not established in the present case. The support for this view was taken by the learned Single Judge from several judgments of this Court including Sher Ahmad v. Mst. Zubeda Bibi N L R 1984 S C J 182, Haji Abdul Rahim v. The District Judge, Lahore 1987 S C M R 1414 and Muhammad Rashid Khan v. Ch.Saeed Akhtar 1987 S C M R 441.

8. We may once again emphasise that in this case there is no allegation that the respondent has married a person not related to the minor children within the prohibited degrees, nor has the allegation that she took up residence during the life time of her husband in a separate place been proved, nor that she is leading immoral life or has neglected to take proper care of the minors. These are questions of fact and were competently decided in favour of the respondent. Therefore, interference in constitutional jurisdiction by the High Court was rightly refused.

9. It may also be pointed out that according to Muslim Law even in default of the mother and the female relations of the mother, the right to the custody of minors belongs to the father if he is alive and next to the paternal grand father (section 355 Principles of Muhammadan Law by Mulla edition 7th). In the present case the grand father, who is the husband of the petitioner, has not claimed the custody of the minors apparently because he is locked in litigation with them.

10. Faced with this situation learned counsel contended that the order of the learned District Judge suffered from error of jurisdiction and law inasmuch as the minor children were not taken from the custody of the respondent but she herself had abandoned them and consequently the jurisdiction under section 25 of the Guardians and Wards Act was not attracted. This is once again a question of fact, which has been decided against the petitioner on the basis of the evidence produced before the original Court. Therefore, this is not a pure question of law and can be sustained only if the finding of fact is disturbed. There is no reason to hold that the subordinate Courts, committed an error of law in coming to the conclusion that the custody of the two minors was taken from the respondent who is their mother. The reliance on Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others P L D 1987 S C 447, is therefore, of no assistance to the petitioner.

11. For the foregoing reasons no exception can be taken to the impugned judgment of the High Court and this petition is accordingly dismissed. S.Q./A‑174/5 Petition dismissed.