1985 PLP 592 (CLC)

Present constitutional petition under Article 9 of the Provisional Constitution Order, 1981 assails order dated 12-7-1984 of the learned Additional District Judge, Faisalabad, passed on appeal under Section 14 of the Family Courts Act, 1964, affirming order dated 12-2-1984 of the learned Guardian Judge, Faisalabad, restoring custody of two minor daughters to their real mother Mst. Bashiran Bibi, respondent No.1 herein.

2. Facts lying in the background of the present controversy which led to the initiation of proceedings under section 25 of the Guardians and Wards Act briefly are that the parties were mutually married on 18-8-1975. Mst. Bashiran gave birth to two daughters out of this wedlock. The names of two daughters are Mst. Parveen Akhtar and Mst. Rukhsana. Mt. Bashiran Bibi was divorced by Talib Hussain, petitioner on 7-12-1982. The divorce has been rendered effective.

3. On 14-2-1983 an application under section 25 of the Guardian and Wards Act for restoration of the custody of two minor daughters above-named was moved by Mst. Bashiran in the Court of Guardian Judge, Faisalabad. It was stated in the petition that the two minors were of such a tender age that they needed the love and affection of their real mother and their welfare and interest demanded that their custody should be handed over to the petitioner Mst. Bashiran Bibi. Claim for custody of two minor daughters as laid before the Court, was resisted by Talib Hussain. Divergent stands of the parties gave rise to the following issues:- (1) Whether the petitioner qualifies to seek the custody of minor daughters in the light of welfare of the minors? O.P.P. (2) Relief.

4. Both the parties adduced evidence on the said issues. Learned Guardian Judge, Faisalabad, found issue No.1 in favour of the petitioner. Overall welfare of the two minors, in view of their age and sex was found to favour the retoration of their custody to their mother. Learned Guardian Judge, while discussing issue No.1 observed:- "So far as the ages as well as the sex of the minors are concerned, they favour the petitioner's claim of custody. Both the minors are females and are of very tender ages. In such an age, none can give them more on this earth, than the love and affection of their real mother. The real motherly affection is incomparable in the world and this is the best God given gift for those who need it, appreciate it and are fortunate enough to enjoy it. In the present case, in view of their sex and ages, the minor daughters need the care, shelter, love and affection of their mother. So the petitioner is entitled to secure the custody of her minor daughters and it is also in the interest and welfare of the minors that their custody should be handed over to the petitioners." These observations were made after analysing the evidence of the parties and the law relating to custody and guardianship matters. Order of Guardian Judge was brought under challenge in appeal under section 14 of the Family Courts Act, 1964 before learned District Judge, Faisalabad. The appeal, however, was disposed of by learned Additional District Judge of the same District. Father of the minors who was appellant before the Court below did not succeed in his appeal which was dismissed as stated above on 12-7-1984. Both the Courts below, therefore, have found in favour of mother and the custody has been ordered/restored to her. These two judgments concurrently holding that the welfare of the minors lay in their living with their mother have been assailed in constitutional jurisdiction with a prayer to declare them to have been passed without jurisdiction and lawful authority. I have heard learned counsel for the petitioner and perused the record. Learned counsel for the petitioner contended that the minors were staying with their father and were being properly looked after by him and the paternal grandmother of the minors. They were hale and hearty. The eldest daughter had already been put in. School. They are being provided with every facility consistent with the means of the petitioner. Minors have became accustomed with their present stay with the petitioner and to separate them and hand over their custody to the mother at this stage would adversely affect their emotional set up. The petitioner is a well-to-do person compared to the mother of the minors who is not possessed of sufficient means to provide for the minor daughters. To support his contentions, learned counsel has placed reliance on Rahim Ullah Chaudhry v. Mrs. Sayeda Helali Begum and others 1974 S C M R 305, Marina Pushong v. Derick Noel Pushong PLD 1975 Lah.

793. It has been vehemently contended that the Courts below have not adverted to the welfare of the minors in the context of evidence brought on record by the parties and the guardianship petition has been decided merely on the rule of presumption relating to Hizanat as laid down in Islamic Law. Learned counsel pointed out that the paramount consideration in such cases is the welfare of the minors alone and the Rules of Muslim Law in regard to Hizanat are subordinate to this important consideration of welfare of the minors. It is admitted that the parties were married on 18-8-1975. It is also admitted that Mst. Bashiran has been divorced and that divorce has been made effective under the provisions of Muslim Family Laws Ordinance, 1961. Date of birth of minors has neither been given in the petition under section 25 nor is available from the record. However in para. 2 of the petition seeking custody of minors the ages of minors were given as 4 years and two years, respectively. This fact has not been contested by Talib Hussain. Father, though a natural guardian, yet the custody of the minors in case of male up to the age of 7 and in case of a female until she attains the age of puberty vests with mother. This is quite in accord with the provisions of Muslim Law. However, the question of custody, on a combined reading of sections 17 and 25 of the Guardian and Wards Act, 1819 turns on the question of the welfare of the minors which alone is the guiding factor in deciding the matter of custody by the Court. Under section 17(2) of the Guardian and Wards Act, the Court in considering as to what will be the welfare of the minor stall pay due regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes if any of deceased parent and any existing or previous relations of the proposed guardian with the minor or his property. In the case of minor who has reached an age where he can formulate an opinion for preference, the Court may also consider his choice. In the case under consideration no infirmity has been alleged in regard to the character of the respondent mother. The factor which has been highlighted most is that she had no means of her own whereby she can sustain herself and bring up the minor children in befitting manner. This by itself is no ground to deprive a mother of her right of Hizanat guaranteed to her under provisions of Muslim Law unless of course there are other weighty considerations weighing against her affecting the welfare of the minor materially. She may be in impecunious conditions as stated but then it is the duty of the father to provide maintenance and other necessaries of life to the minors so that their future growth, physical, emotional and intellectual does not suffer. Father cannot take advantage of this weakness on the other side for purposes of gaining an advantage in the matter of guardianship of the minors. If he is so keen for the welfare of his children, then what debars him to provide for them when they are with their mother. Both the minors are of very tender age. Their age and sex demands that they should have a constant company and supervision of their mother. It is too well-known to be emphasised that in case of minor daughters, the love, affection and the training which is well-needed to prepare them to shoulder their future responsibility can only be provided by mother and father can be no good substitute for it. It is in this view of the matter that Islam in case of female minor has allowed the custody to the mother till the female has attained the age of puberty. Both parties are admittedly Changers. There is not much difference in their status and way of life. Mother in the very nature of things is more affectionate, kind and tender and is better qualified to bring up a child during his/her infancy. Right of Hizanat with respect to a minor girl appertains to a mother, grandmother and so forth until the first appearance of menstrual discharge that is to say until she attains the age of puberty because a girl has occasion to learn such manners and accomplishments as are proper to woman to the teaching of which the mother can better contribute. Even otherwise who can bestow greater love and affection as compared to a mother who has herself kept the child in her womb for nine months and then nourished him/her with great care during the early period of infancy. I may not at all be understood to under-estimate the role of father in regard to his children. Leaving exceptional cases apart, I am of the firm view that the welfare of the minor daughter lies in remaining with her mother till she crosses the age of discretion, when she returns to her father. This however is not an absolute or inflexible rule capable of being applied to all the case. If a mother suffers from any serious moral infirmity which reacts upon proper upbringing of the minor, then she may lose her right of Hizanat. In that case the welfare of the minor may demand that she be deprived of the right of custody. In the case under consideration the learned Judges of the Courts below had considered all the points to which their attention was invited and found that the welfare of these two minors who are yet of tender age requires that they should be handed over to the custody of their real mother. In doing so I do not think that the Courts below have acted without jurisdiction or without lawful authority. The order passed, therefore, does not suffer from any error apparent on the face of record nor from non-reading or misreading of the evidence. At least none has been pointed out by learned counsel who appeared for the petitioner before me. The decision made by learned Additional District Judge has attained finality is right of second appeal is not available under the provisions of Family Courts Act. The intention appears to be that such family disputes must end expeditiously and at District Courts level. In net result of what has gone above, I do not find the petitioner has succeeded in making out a case for interference in constitutional jurisdiction of this Court. The petition, therefore, fails and is dismissed in limine. M.B.A. Petition dismissed.