1983 PLP 793 (SCMR)

(i) that under the principles of Muslim Law, the petitioner being father was their legal and natural guardian: (ii) that financially he is much more affluent that the family of the respondent whose husband draws monthly pension of Rs. 150 per mensern with no other ostensible means; (iii) that the minors were on the roll of Jesus Mary Convent at Lahore which imparts a much higher standard of education than Gulistan High School at Karachi where the minors being educated; and (iv) that though initially the respondent was validly entrusted with the custody of the minor's her Hizanat had terminated because of her refusal to send the minors to live with their father at Lahore. On appeal by the respondent, the judgment of the learned District Judge was reversed by the High Court. A learned Single Judge on a careful analysis of the evidence produced in the case found:‑ (i) that at the time of his marriage with the minor's mother, the petitioner was already married and had children by his first wife but he suppressed that fact and held himself out as bachelor at the time of his marriage with the minors' mother; (ii) that Mst. Shamim‑un‑Naeem led an unhappy married life; (iii) that before‑her death, the minors, mother on being taken seriously ill was flown to Copenhagen for treatment by her brother Mr. Muhammad Suleman who bore the entire expenses; (iv) that the petitioner since the death of the minors' mother is not proved to have remitted any money towards the expenses of their education or maintenance; (v) that Mst. Nails the eldest of the three girls had appeared before the Guardian Judge to say that she and her younger sisters would like to stay on with their grandmother rather than go to live with their father; (vi) that even during their appearance in Court the general attitude of the petitioner towards the minors did not show any warmth characteristic of a loving father; (vii) that the petitioner has since married a third wife with whom he is living and (ix) that Gulistan High School where the minors are studying at Karachi is a reputable institution apart from the private coaching by their mother's younger sister Mst. Janat‑un‑Naeem who is a teacher in a local school. Against the background of these facts and after referring to a number of text books on Muslim Law bearing on the Hizanat of minor, the learned Single Judge came to the conclusion that notwithstanding that the petitioner, as father, is natural and legal guardian of the minors, nevertheless it would conduct to their welfare to remain in the cutsody of the respondent. The learned Judge opined that the general rules set out in the various text books are in the nature of guidelines, the paramount consideration always being the welfare of the minor. Mr. A. K. Brohi, learned counsel for the petitioner submitted that the petitioner being the natural and legal guardian of the minors has throughout remained in his constructive custody even when he entrusted their custody to the respondent after the death of their Mother and this right includes the right of personal supervision, which is being wrongly denied to the petitioner. The emphasis was on the petitioner's right to have the minors with him at Islam abad where he is presently posted so that they grew up under his case. Learned counsel further pointed out that since the commencement of this litigation, Naila has attained the age of puberty. Therefore, apart from any other considera tion the respondent cannot claim the right to her custody. Learned counsel also expressed the apprehension that now that Naila has attained marriageable age, she might be given away in marriage without the petitioner's consent. Lastly learned counsel pointed out that the petitioner has in affidavit stated that he has on the average been sending Rs. 200, per month to the three girls apart from presents in kind on special. occasions. In our opinion the argument of learned counsel overlooks the findings of fact reached by the High Court particularly the misrepresentation practised by the petitioner at the time of his marriage with the minors' mother and his not very congenial treatment towards her as long as she remained alive. These facts per se may not be directly relevant to the question of hizanat of the three girls. But these facts are certainly explanatory of the choice which the eldest of them made when she stated before the Guardian Court" that she would remain with her maternal grandmother, rather than to go with her father. Therefore, the learned Guardian Judge was not right to say that Naila was not mature enough to give an intelligent or rational preference in favour of her maternal grandmother as against her father. This statement was reasonably representative of the choice of her two younger sisters. Courts have always given due consideration to the wishes of the minors, in such cases. Another very significant fact is that the petitioner has led no evidence to show that he had been regularly paying any amount towards the mainte nance and upbringing of the three girls. In his affidavit he states to have paid on the average Rs. 200 per mensem which to say least is ridiculously a small amount having regard to the high cost of living these days and also his position in life. Lastly, if the girls were to join the petitioner at Islamabad, they will have to suffer the company of a step‑mother. In their father's house which human nature as it is, can be anything but congenial. This also explains the choice made by the eldest of the three girls. As to the apprehension expressed by learned counsel that the respondent or her husband might give the eldest of the three girls in marriage, Mr. Jamil Hussain Rizvi Advocate, who appeared as Caveator on one of the intermediate dates in the cape, categorically stated at the Bar that the respondent or her husband had no such intention whatever, and that any such proposal without petitioner's consent was unthinkable. Having anxiously considered the peculiar facts of the case, in our opinion; the case was rightly decided by the High Court. The petition is accordingly dismissed. Petition dismissed.