P L D 2002 Lahore 283 (PLP)

"Prohibited to you (For marriage) are:‑‑ Your mothers, daughters, Sisters: father's sister, mother's sister, brother's daughters, Sister's daughters; foster‑mothers (Who gave your suck), forster‑sisters, Your wives' mothers, Your step daughters under your guardianship, born of your wives To whom ye have gone in,‑‑(Those who have been) Wives of your sons proceeding From your loins; And two sisters in wedlock At one and the same time, Except for what is past; For All/is Oft‑forgiving, Most Merciful",‑‑ (b) The discussion on the subject in the light of above Ayat is found in a Book published in the name of Holy Qur'an English translation of the meanings and Commentary in Saudi Arabia. The relevant portion is read as under:‑‑ "Foster male played an important part in Islamic Society and count like blood‑relationships: it would, therefore, seen that not only foster‑mothers and foster sisters but foster mother's sister, etc, all come within the prohibited degree." (c) Ayat No.2 of Surat Al‑Majadla reads as under:‑‑ (d) The discussion on the issues relating to the social problem of adopted child from a Book "Anwar‑ul‑Quran" written by Dr.Ghulam Murtaza. The relevant portion at page 538 of the said Book is read as under:‑‑ (e) In a Book written by Allama Abu Bakkar Allaw-ud‑Din Kasani under Chapter Kitab‑ul‑Raza, the issue was discussed at page 14 as under:‑‑ (f) Similar issue was expressed in "Fatawa Aalam Giri" at page 266 (Second Volume) and the Muslim Jurists in the following manner:‑‑ (i) Hanfite, in the light of the right of Hazanat, mother is entitled to the custody of the minor child notwithstanding the dissolution of marriage or its existence between the parties. (ii) Malkia: The custody of the child will go to the mother and after mother, the preference will be given to maternal side and not the paternal side. (iii) Shaafia: In presence of father and mother, the preference shall be given to the mother and in absence of mother, the grandmother shall be entitled to the custody of the female child and in absence of grandmaternal mother, the grand‑paternal mother will be entitled and, thereafter the mother's sister and father's sister respectively. On the male side, the first right goes to the father and in absence of father, the grandfather and brother and step‑brother etc. (iv) Hambalia: The mother has the first right of custody. In nutshell, the learned counsel contended that the principle for the custody of an adopted minor should not be different to that of a real child except the certain limitations relating to the inheritance. Learned counsel has, however, submitted that the concerned Ministries and Departments in the Provincial and Federal Governments are under a legal and moral obligation to regulate the matters relating to the custody of destitute child in their welfare and should establish Institutions for orphans, abandoned and destitute children as a State obligation as provided under Chapter 2 of the Constitution (Principle of Policy) and made special allocation for their education, health and marriages etc. from Zakat Funds.

7. Having considered the arguments of the learned counsel for the parties and Dr. Z.13abar Awan, Advocate, who has rendered a very valuable assistance to the Court, I hold as under:‑‑ (a) The parties in Criminal Miscellaneous No.109‑H of 2001, have jointly adopted a minor girl from Gehwara Institution, therefore, respondent would have no exclusive right of custody of the minor son or daughter, as the case may be, being the male partner of the transaction of adoption. The parties willingly adopted the child jointly when they were in marriage tie. The petitioner accepted the duty and responsibility of bringing up the child with motherly love and affection and how after the dissolution of marriage, the said responsibility can be discharged by the respondent or can be shifted to any other woman. The petitioner being the most essential partner of adoption in the light of the concept of right of custody of such H child in Islam would exclusively be entitled to the custody of child. The welfare of the child at this stage would also demand that he/she should remain in the custody of the female partners of adoption. In nutshell, the petitioner having enjoyed the status of mother of the minor would be entitled to retain her custody in exercise of the right of Hazanat and would not be deprived of such right for wordily consideration, I, therefore, allow this application and direct that the I custody of the minor with the petitioner shall not be disturbed except in accordance with law. (b) In Criminal Miscellaneous No.130‑H of 2001, the petitioner is the sole contestant for the custody of the child, who has willingly adopted the abandoned child with the consent of the people of the area. Undoubtedly, the Institution namely Gehwara is rendering a noble service for the settlement of destitute and abandoned child and regulates the matters relating to the adoption by giving their custody to the needy people but the petitioner having willingly adopted the child would have exclusive right to retain his custody and the institution of Gehwara or any other official Organization or a private person except the real mother and father of the child would have no right to deprive the petitioner from the custody of the child as mother. The petitioner has voluntarily accepted the responsibility of bringing up the child as her son/daughter as the case may be, therefore, under the law, the petitioner shall be entitled to the custody of the child adopted by her without the intervention of Gehwara. However, in the interest of welfare of child and to regulate the matter relating to his custody as an adopted child, the petitioner will give an undertaking to Gehwara for giving motherly love and affectiop, to the child and abide by the Rules andr Regulations of Gehwara relating to the adoption of child and will not further deliver his/her custody to any other person without the permission of Gehwara. It may be observed that with a view to provide shelter to the orphans and destitute children, the Federal and Provincial Governments are under Constitutional obligation to establish such Institutions at large scale to regulate the affairs of such unattended children in the light of mandate of Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) as provided under Chapter 2 of the Constitution of Islamic Republic of Pakistan, 1973. These petitions are, therefore, allowed in the above terms.

8. The copy of this order shall be sent to the Ministry of Religious Affairs, Government of Pakistan for possible action in the matter. H.B.T./I‑105/L Petition allowed.