1999 PLP 1202 (CLC)

(iv) That the petitioner intends to take the minor out of the access and control of father; (v) That if the child is taken to Japan, she will be brought up in an un-Islamic environment and the father will be deprived to have access; (vi) That the mother, father and child are residents of Singapore. The petitioner being a Japanese national is not ordinarily resident of Singapore. The father is also likely to abandon his residence in Singapore. The proper Court to decide the matter is Guardian Judge and lastly; (vii) That the petitioner did not come to the Court with clean hands because she had got a case registered against the respondents by misstating true fact's.

5. On facts paras. Nos.l and 3 of the petition were partly admitted wheres, paras. Nos.2 and 4 were denied. In para. No.5 it is stated that the father had already taken the child to Singapore prior to filing of habeas corpus petition by the petitioner. Para. No.6 was denied. A grievance was made that a false case was got registered against the grand‑parents. Para. No.7 was not denied and it was stated that Shariah Court had finally decided the custody matter but without assigning any reason or considering the welfare of the minor. Para. No.8 was admitted to the extent that the child was produced before the Shariah Court, Singapore, the rest of the para. was denied. Para. No.9 was not denied. Para. No.10 was vehemently denied. Paras. Nos.ll, 12 and 13 were denied with vehemence. Various grounds were subsequently urged in the statements which will be dealt with infra while discussing the merits of the case.

6. On behalf of respondent No.2 i.e. Faheemul Islam father, a Criminal Miscellaneous No. 1392 of 1998 was moved praying for issuance of notice to the father which was acceded to and a notice was ordered to be conveyed through some express service and also a publication was ordered to be made in a newspaper. Syed Riazul Hassan Gillani, Advocate entered appearance on his behalf and submitted the written statement supplemented with necessary documents. He raised three preliminary objections:‑‑ (i) That the petitioner has no locus standi to file the petition as she is "Murtad" (apostate). She poses herself to be Muslim only to avail the benefits of Muslim law; (ii) Under objection No.2, he, however, showed his willingness to reconcile with the petitioner and to accept her as his wife; (iii) That the petition had been moved with mala fide intention as she has deliberately changed the forum of litigation from Singapore to Pakistan because she wants to take away the minor to Japan.

7. On facts para. No. l was admitted to be correct. Para. No.2 was also admitted to be correct. However, added that the petitioner has resiled from Islam. Paras. Nos. 3, 4, 5, 6, 7, 8 and 10 were denied being false and incorrect. Para. No. 9 was admitted to be correct. In Para. No. l l it was clarified that on 14‑6‑1998 the respondents made a true statement. Para. No. 12 was partly admitted. Paras. Nos. 13 and 14 were denied being incorrect and mala fide. Five grounds were added to the written statement urging that the petition be dismissed mainly emphasising that the petitioner has apostatised, as such was not entitled to the custody of the minor.

8. During the course of proceedings a development took place. On 22‑10‑1998 C.M. Nos.2 and 3 of 1998 were moved by Maulana Riaz‑ul‑Hasan Noori, Deputy Director Islamic Human Rights Forum and Islamic Welfare Trust and other by Moulana Abdul Malik, Member Islamic Ideology Council of Pakistan, for getting themselves impleaded as party. Since both the applicants were neither necessary nor proper party, the prayer was declined. However, keeping in view that important questions involving Islamic Law were involved they were allowed to address and assist the Court as amicus curiae. Apart from them, Syed Afzal Haider, Advocate, who is a former President of the Bar and Minister of Law and Member of Islamic Ideology Council of Pakistan was requested to assist the Court as amicus curiae. All the three eminent scholars have very kindly addressed the arguments, quoted relevant provisions of law and as such rendered valuable assistance to Court, for which they amply deserve gratitude which is hereby extended.

9. It has been argued on behalf of the petitioner by the learned counsel Ms. Asma Janagir and Hina Jillani, Advocates that during the course of proceedings in a previous habeas corpus petition the respondents wilfully avoided to produce the minor in Court. A number of adjournments were granted but the child was not produced in Court. On 31‑12‑1997 this Court ordered that the child not to be removed and taken to Singapore. as such the order has been wilfully violated; that the petitioner is a Muslim who embraced Islam about one and quarter year prior to her marriage and she continues to be Muslim, the allegation that she has apostatised is incorrect; that under the Islamic Law the petitioner has first right of custody as against anyone else unless she is disqualified to hold the custody, or Hizanat. She does not suffer from any disqualification, therefore, the custody of the child by grandmother, grandfather or aunt is not lawful; that the child is of tender age and only the mother can look after the child, therefore, her welfare and well being abundantly lies in her custody with the mother; that the prayer that the child should be given to her and she wants to take her to Singapore is by no means illegal or improper. The respondent father as well as other respondents have continuously been pleading that the custody of the child can be determined only by the competent Court in Singapore, both the father and mother are stationed in Singapore, therefore, the child who holds Japanese nationality can live in Singapore with the petitioner where the father has access to her; that the order regarding the custody of the child has already been passed by a Shariah Court in Singapore where both the petitioner as well as respondent father were party to the proceedings, both being Muslims cannot deny the jurisdiction of Shariah Curt and the respondents, therefore, are estopped from challenging the custody given to petitioner b) a Court of competent jurisdiction and lastly that the present writ petition being in continuation of the previous habeas corpus petition, the proceedings taken therein and the written statement filed by the respondents and the prayer made therein, may be taken into consideration and accordingly the petitioner be hand over the custody of the child. She being mother can take her to Singapore where the father, is also stationed at the moment.

10. Conversely, Mr. Zia Ullah Khan, Advocate appearing on behalf of respondents Nos.1, 3 and 4 i.e. grandmother and grandfather and aunt, contested the petition vehemently and as already noted raised various objections. The main stance taken by the respondents Nos. l, 3 and 4 is that the welfare of the child lies by entrusting her custody to the grandmother. She is being brought up well and receiving education in a well‑reputed school at Lahore; that the guardianship proceedings are pending before the Guardian Judge wherein the grandmother has applied to have her custody; that the petitioner is likely to take the child away from her father because ultimately she will be removed to Japan; that the petitioner has not come to Court with clean hands and lastly that the respondents being devoted Muslims, grandfather, grandmother and aunt of the child who are highly educated, can look after the child better than the petitioner and that the welfare and well‑being of the minor lies in her custody with the respondents.

11. The learned counsel Syed Riazul Hassan Gillani, Advocate assistfd by Miss Alia Neelam, Advocate, appearing on behalf of father has mainly argued that the petitioner who has apostatised and as such has become Murtad is no more entitled to have the custody of the child whose father is Muslim, therefore, she is also Muslim. He, however, came forward with an alternate offer that the respondent is willing to affect a compromise and arrive at reconciliation with the petitioner which of course would be in the interest of the parties and more in the interest of the child. He also canvassed that the petition has been moved with mala fide intention. On legal plane he raised objection that the custody with respondent No. l i.e. grandmother cannot be treated as unlawful, therefore, the case of the petitioner does not fall within ambit of Article 199 of the Constitution of Pakistan. The writ petition as such is not maintainable. The question of propriety etc. cannot be gone into during proceedings under Article 199 of the Constitution which could only be permissible in a petition under section 491, Cr.P.C. He, therefore, prayed for the dismissal of the petition.

12. All the learned counsels appearing for the respective parties quoted a number of authorities and judgment in their favour, various Text Books and opinion of Scholars in support of their respective contentions. Reference was also made to some verses from Holy Qur'an.

13. Syed Afzal Haider, Advocate, Moulana Riaz‑ul‑Hassan Noori and Moulana Abdul Malik whose eminancc, proficiency in Islamic Law and the calibre is undeniable have very kindly referred to Holy Qur'an, Sunnah of Holy Prophet (S.A.W.), verse, opinions and Text Books of Islam in detail. The valuable contribution made by these Scholars cannot be referred to in detail. However, in brief their opinion and contentions are being referred hereafter.

14. On factual plane with the exception of the movement of the child from Pakistan to Singapore and then again from Singapore to Pakistan, there has been some difference but even then that stands resolved from the documents brought on the file. The facts are almost admitted that both man and wife were in Singapore, mother is a Japanese, father Pakistani and the daughter was borne in Japan on 11‑6‑1994. Father is a born Muslim whereas the mother got converted to Islam and a certificate in that behalf establishing her conversion to Islam is present on the file. It is significant to note that the petitioner embraced Islam on 29‑3‑1992 whereas the marriage took place on 2‑8‑1993 i.e. after about more than one year and four months. It would, therefore, show that the petitioner did not get converted to Islam just to get herself married but appears to be that she was pursuaded to do so after she got acquainted with the principles, Injunctions, A the rights and duties conferred by Islam. When even a non‑Muslim comes within the fold of Islam it would be highly unjust to presume that the same has been done out of some mala fide intention or ulterior motive. Of course there can be some exceptions that someone may pretend to be Muslim for some worldly gain but the same has not to be readily inferred or accepted. To adopt Islam is not a mere pronouncement but it amounts to a covenant between an individual and Allah (God Almighty). If someone falsely represents himself to be a Muslim A which in fact he is not, he is not betraying only fellow‑beings but also trying to betray God Almighty. The wrath and displeasure of God Almighty is bound to follow. The petitioner, therefore, being Muslim would be governed by the principles of Islamic Law which are enunciated in Holy Qur'an, Holy Sunnah (Practices and sayings of Holy Prophet S.A.W.), Fiqah (Islamic jurisprudence) and Qias (analogical deductions). Muslims are governed by principles of Islamic Law amongst parties regarding determination of guardianship. There is unanimity among all sects of Islam that guardianship of a minor child may be male or female remains with the father. However, the right of custody of a minor is primarily with the mother. This proposition has not even been disputed by the respondents. Section 352 of Mulla's Mahommedan Law as well as other authoritative works referred to by the parties are unanimous on the point that the mother has first right of Hizanat to the exclusion of everyone else. There is e difference in some sects with regard to Hizanat,after certain. age but for a female child of four years, mother is entitled to have her custody. It is, therefore, argued that the mother being the first person to hold the custody, disentitles anyone else to hold the same and if someone else, may be paternal‑grandmother is holding the custody against the mother the same cannot be treated as lawful or proper. Syed Afzal Haider, Advocate while elaborating this aspect argued that the mother is to continue to have the custody unless she remarries, He quoted an instance when Hazrat Umar (May Allah be pleased with him) brought a child from her mother who had been divorced. Hazrat Abu Bakr Siddique (May Allah be pleased with him) prevented him from doing so and asked him to refrain from coming in between the child and her mother. He quoted Fiqah Abu Bakr Saddique (May Allah be pleased with him) pages 124‑

126. He also referred to passage from "Ta'lif‑e‑Qaloo". He further clarified that justice i.e. "Adal" is associated with "Ehsan" which orginates from "Hassan", meaning thereby that justice has to be dispensed with while keeping in mind the fact that it should be expressive of magnanimity. When father hands over the custody of child to her mother it thus, reflects magnanimity on his part. Of course both father and mother have love and affection towards the child and their desire or claim to have the custody of the child abundantly demonstrates that they intend the well being and welfare of the child. But due to unfortunate incident of separation of spouses the custody has to be handed over to one of either parents. The mother r being female her love, affection and care is comparatively more tender and ` passionate, therefore, her claim to have the custody has been accepted under Islamic Law. The learned Scholar has quoted a decision rendered in PLD 1995 Lah. 151 (D.B.) The relevant pages are 162, 164 and 170, wherein, it is held that in case the custody is granted by a Court and if some one obtains custody by adducing some false evidence, parties may be responsible but the decision of the Court has to be honoured.

15. Moulana Abdul Malik who next argued although agreed with said injunction, thus, acceded that the mother has to be given the custody but maintained that this injunction is only followed when both the parties are residing in "Darul Islam" but if one of the party reside in "Darul Kufr" or "Darul Harrb" then this injunction is not applicable. According to him, the petitioner who is citizen of Japan and has been residing in Singapore both countries cannot be treated as "Darul Islam" . He has quoted a number of instances from newspapers, books and other journals to canvass that social or moral conditions prevailing in the two countries are such that they cannot be accepted as "Darul Islam". As against that respondents Nos.1, 3 and 4 are nationals and residents of Pakistan which being a Muslim country is by means "Darul Islam". A child cannot be removed from "Darul Islam" to "Darul Kufr". Since the petitioner being ordinarily resident of "Darul Kufr" is not a proper "Hizzanah" i.e. not a good custodian. .

16. Moulana Riazul Hassan Noori, who addressed the arguments thereafter, argued that the right to hold the custody ceased to be operative if the mother has a profession of singing or such‑like other profession not in consonance with injunction of Shariah, she cannot claim the custody of a child. A wife if demands divorce on the ground not permitted by Islamic Injunctions she cannot enter the paradise. Further, argues that if a woman ordinarily resides in a society of "Mushraqeen" (pretending to be Muslims but in fact infidels) she too would be disentitled to hold the custody of a minor. He quoted Hadith from "Sunnan‑i -Abu Dawood". If a mother takes the child from father and after that father has not access to her, she too would be disentitled to the custody. The learned Scholar supported his contentions with various references from "Hdiah" and works of eminent scholars and jurists of Islam.

17. While assessing the respective claims and assertions of the parties, there remains no doubt that the mother has first right of custody which of course is D qualified with various conditions. The same can be regulated under section 491, Cr.P.C. Reliance is placed on case title Saadia Ahmed v. The State 1996 MLD 30, wherein, at page 35 it was held that Article 199 of the Constitution or section 491 of the Cr.P.C. can be invoked. Similarly in "Hina Jilani v. Sohail Butt case PLD 1995 Lah. 151, Article 199 was read with section 491, Cr.P.C. and it was observed that custody of the child with father may not be illegal but the Court having parental jurisdiction not to be hindered by technicalities. Relevant observations are contained at pages 159 and 161 of the citation. The other authorities on the subject are Noor Safia v. S.P., Sialkot 1997 PCr.LJ

84. In this very volume other case is Yasmen Aamar v. Khaliq‑uz‑Zaman at page

581. The case of a Japanese woman, i.e. "Hiroku Muhammad v. Muhammad Latif 1994 MLD 1682, the custody of the minor was given to her. In view of the clear Injunction and law laid down in this behalf by the Courts, mother's first clear right to hold the custody unless disqualified stands fully established. Jurisdiction can be exercised under Article 199 of the Constitution as well as under section 491, Cr.P.C. Mere fact that section 491, Cr.P.C. has not been noted in the E petition and the Court otherwise has the jurisdiction to exercise the power, the omission cannot, in any manner, deter the Court from exercising the jurisdiction. As noted above earlier a habeas corpus petition was moved which remained pending for a considerable time but the child was removed from the jurisdiction of the Court, therefore, the same was disposed of. Subsequently, the child was again brought within the jurisdiction of the Court and the petition under Article 199 of the Constitution was brought in, the same could be treated as proceedings in continuation of the earlier proceedings. Any reason to hold or treat the custody as illegal may be under Article 199 of the Constitution or under section 491 of the Cr.P.C., can be taken note of and any appropriate order can be passed.

18. Although the first right of the petitioner to hold the custody has not been denied or controverted yet a strong objection has been raised that the petitioner stands disqualified on the ground of apostasy and that she will remove the child away from the father. As regard the question of apostasy, the learned counsel for the father i.e. Syed Riazul Hassan Gillani, Advocate has argued with vehemence that by mere pronouncement and by calling himself as a Muslim one does not become Muslim. For example, according to him, even members of Ahmadia sect claim themselves to be Muslim but they are not accepted as Muslims. To substantiate his contention argued that petitioner changed her Islamic name and again adopted her non‑Muslim name of Aya Sasaki. The child who had been given the name of Khadija Faheem her name has been changed to Yu Sasaki. The mother of the petitioner is follower of Shinto religion, according to which the ancestors are worshiped. He, therefore, argued that the petitioner is not a true Muslim but is pretending herself to be Muslim to reap the benefit of Islamic Law regarding the custody of minor in her favour. Whether a person is a true Muslim or not and whether he or she has accepted Islam from heart is purely a subjective behaviour and attitude. As a fellow Muslim to treat or to accept someone else as a Muslim his objective attitude, conduct, behaviour etc. may be taken into account but subject to the fact that when a person declares himself to be a Muslim a strong presumption arises to his favour. The same cannot he conveniently rebutted to his disadvantage. The true intention is known to God Almighty alone. Applying the test to the present case the fact, as already noted the petitioner got converted to Islam much before her marriage to the respondent. Her unequivocal statement in Court that she is Muslim and that she embraced Islam of her own free‑will may not be disbelieved or even doubted. The case of members of Ahmadia sect is different because according to Muslims the lasthood of Prophet Muhammad (S.A.W.) is being disputed by them and they claim that there is a messenger after the Holy Prophet (S.A.W.). They have been declared to be non‑Muslims under the Constitution. Petitioner's case has no synonymity. The plea that the petitioner has changed her name and also child's name and has adopted non‑Muslim names, is controverted by the petitioner. According to her, her original name being Aya Sasaki has to be used because all the documents contain the same name. She has not abandoned her Islamic name which is evident from the fact that when she moved Shariah Court at Singapore she gave her Islamic Name i.e. Shams Islam. About the name of the minor she states that the name was adopted with the mutual consent of the petitioner and her father. Subsequently, anyhow, when the child came to Pakistan she was given the name of Khadija Faheem which has not been abandoned. Be that as it may, it is very difficult to enumerate which is an Islamic name and which is un‑Islamic Any name which does not derogate or offend against any of the Islamic principles of the faith can be treated and accepted as an Islamic name, if of course there is some name, for example, u during the dark era before the advent of Islam the people carrying names specifying their allegiance not to Allah (God Almighty) but some idol, such as "Munaf and Hubble" etc. and name like "Abdul Manaf" could not be accepted as Islamic name. Muslim names differed from place to place and from country to country. For example, in Pakistan many people adopt their family name after their sub‑caste and they are mostly addressed by these names. Although these names have no similarity with the Arabian names or the names used by Muslims in other countries yet those names cannot be treated as un‑Islamic and holders of such names cannot be held as non‑Muslims. To declare a person who claims himself to be a Muslim as an apostate is not a mere accusation but entails extremely harmful consequences. This may be a strongest stigma on any Muslim who claims to follow the Islamic faith. I fail to find out any mala fide on the part of the petitioner that she is pretending to be Muslim to obtain custody of her daughter. As far as I understand under majority of legal and religious systems mother invariably is entrusted with the custody of young child. The fact that the petitioner approached the Sharia Court to obtain divorce and also the custody of the minor speaks volumes against the accusation made against her. 1 am, therefore, not convinced to hold or treat the petitioner as non‑Muslim.

19. The argument that the petitioner will remove the child away from her father is negated by the pleadings of the respondents themselves. The respondent father is admittedly residing in Singapore and the petitioner also intends to take the child to Singapore. The father himself intended to take the child there to Singapore. He rather moved an application before the learned Guardian Judge praying that the restraint order passed by the learned Guardian Judge may be withdrawn so that he i.e. father may take his daughter with him to Singapore. Not only the father but the other respondents also took up the plea in the written statement in the habeas corpus petition as well as in the present petition that this Court should refrain from assuming jurisdiction as the matter Is already subjudice before the Shariah Court at Singapore. If removal of the child to Singapore by the petitioner is so detrimental to her welfare then why the plea was raised by the respondents themselves that the minor be allowed to be taken to Singapore. Conflicting pleas, therefore, have been raised by the respondents. On one hand they showed their intention to take the child to Singapore and on the other hand, they maintained that removal of the child to Singapore will not be conducive to her welfare. It tantamounts to approbation and reprobation.

20. The arguments have been addressed in detail by the learned counsel for the respondents as well as by the learned Scholars that the child should not be allowed .to be removed to a country which according to them is "Darul Kufr" or "Darul Harb". A number of quotations, citations, press publications have been referred that a child cannot be taken from "Darul Islam" to "Darul Harb". On a query as to which country should be treated as "Darul Harb" or "Darul Kufr", it was answered that a country which is inhabited predominantly by non‑Muslims may be treated as "Darul Kufr" or a country where one is allowed to lead his life in accordance with the Injunctions of Islam or profess Islamic religion also comes within the category of "Darul Kufr". The mere fact that a country is predominantly inhabited by non‑Muslims, to my mind cannot be treated as Darul Kufr. In my humble estimation if in any country religious freedom is guaranteed and people of the country can lead their lives in accordance with dictates of Islam, it would be too difficult to hold that the country is "Darul Kufr". Position was different in the early days of Islam because the countries which were extremely hostile to Islam and did not in any manner permit or allow any one to profess or follow Islam was rightly treated as "Darul Kufr" but the circumstances have now materially changed. In most of the civilised countries religious freedom has been ensured and the security to followers of any religion is guaranteed by the State. Coming to the case of Singapore not only the independence of religion has been guaranteed but a Shariah Court has been established which deals with the cases of Muslims and dispenses justice in accordance with Islamic law. In the instant case as well the Shariah Court has passed an order entrusting the custody of the minor to the petitioner. The order passed by that Court has to be honoured and respected unless the same is found to be in contradiction with Islamic law or highly unjust or improper. The order passed by Shariah Court is in accordance with Islamic law and is, thus, just and proper. There have been decided cases in Pakistan where the decisions rendered by the Foreign Courts were honoured and complied with. The following cases may be referred to in this behalf:‑‑ (i) Ebtisam Ashour Naqvi v. S. Saeeda Bano 1993 SCMR 1690, (ii) Sara Palmer v. Muhammad Aslam 1992 MLD 520, (iii) Lorraine M.C. Doucet v. Aslam M. Nasim 1991 PCr.LJ Note 62 at p.44, (iv) Hassena v. Mst. Mini 1992 MLD 1460, (v) Iffat Mir v. Mobeen Qasim Mir 1991 PCr.LJ 2372. In the last noted case, mother ultimately took the minor to England. The decisions noted above were rendered in writ petitions or petition under section 491, Cr.P.C. In Muhammad Ajmal Khan's case PLD 1976 Lah. 396 it was held that scope under Article 199 of the Constitution is larger than under section! 491, Cr.P.C.

21. In answer to these judgments, the learned counsel for the respondent No.2, Mr. Riazul Hassan Gillani, Advocate quoted the case of Mrs. Mosselle Gubbay v. Kh. Ahmad Said and others PLD 1957 (W.P.).Kar. 50 and argued that the mother who was .Indian national and was residing in India was not allowed to have custody of two minors, a boy and a girl, whose father was Muslim. The learned counsel did not perhaps advert to the observations made at pages 51 and 52, which reveal that the mother who had adopted Islam got reverted to her Jewish faith and was national of India. Before parting with the judgment, it was held that it was improper to give the custody of the two Muslim children to a Jewish mother. There is no parity between the decided case and in the instant case where the petitioner is Muslim and she intends to take the child to Singapore as even desired by her father. The learned counsel has also tried to differentiate the various precedents quoted by the learned counsel for the petitioner as noted above, attempting to demonstrate that the petitinoer's contention was not supported by them but no convincing reason could be assigned or put forward.

22. As a result of above discussion, I hold that the petitioner has a preferential right to have the custody of the minor daughter Khadija Faheem K alias Yu Sasaki. Similar order has already been passed by the learned Shariah Court at Singapore on 14‑9‑1998. This petition, therefore, is accepted. The respondent No.l Mst. Zarina Akhtar who at present holds the custody of the minor shall hand over the custody of he minor to the mother forthwith. The minor may accompany her mother Aya Sasaki to Singapore where the father of the minor Faheem‑ul‑Islam as well is stationed. The petitioner, however, will allow access to the father to her daughter Yu Sasaki and as already mandated by the learned Shariah Court, Singapore he may keep her with him for over night stay during weekends or during the school holidays. The petitioner soon after her arrival in Singapore will intimate the father about arrival and presence of the minor at Singapore and will allow him to meet the minor and take her with him as observed above. In case the petitioner is not in a position to establish a contact with the father she will inform the learned Shariah Court, Singapore about her obtaining the custody of the minor, so that the proceedings to give effect to order passed by this Court as well as by the learned Shariah Court be taken up. Before parting with the judgment I extend my gratitude and appreciation to the learned counsel who rendered valuable assistance and especially the Scholars for their sparing valuable time to assist this Court. H.B.T./A‑26/L Petition accepted.