P L D 1970 Karachi 619 (PLP)

Sirajuddin Shaikh for Appellant. G. M. Qureshi for Respondent. Date of hearing : 16th September 1969. The question in this case is whether the custody of Asma Khatoon, aged 31 years, should remain with her father or should be given to the mother, that is, the appellant before me. The brief facts necessary to appreciate this question are these:

1. The parties were married sometimes in 1960 at Sinjhoro. They had four sons, but all of them died in infancy. Then Asma Khatoon was born. She was born in Baghdad during the appellant's visit to that place to meet her mother. The appellant complained of ill‑treatment on the respondent's part. She even wrote a letter from Baghdad dated 15‑1‑1966, in reply to notices sent to her by the Union Council, in which she expressed a desire to obtain divorce from the respondent. Both parties agree that when the appellant returned to Pakistan, she could obtain divorce from the respondent under agreement dated 12‑9‑1967 executed before two witnesses, namely, Nasir Ahmad Chowdhury and Hafiz 1kram Ahmad. The appellant's father also attested this agreement as a witness. The agreement was produced and confirmed before the Union Council at Sinjhoro. This was done on 30th October 1967. The agreement not only grants divorce to the appellant, but also contains provisions with regard to the custody of Asma Khatoon, that is, that the respondent, Asma Khatoon's father, shall have the sole custody of his child. The appellant's case is that actually the child was snatched from her uncle by the respondent. But I do not believe her in this respect. There is abundant evidence that the agreement referred to above was duly executed by the appellant and in this agreement she agreed that Asma Khatoon should remain with her father, namely, the respondent on the allegation that Asma Khatoon had been forcibly taken from her, the appellant brought proceedings before the guardianship Court at Sanghar for the custody of the child. This application, however, was dismissed by order dated 23‑8‑1968, which order is impugned before me in these proceedings.

2. The case raises two questions‑(1) whether the agreement whereby custody of the child was to remain with the respondent is valid and should be given effect to and (2) whether the welfare of the child at her present age lies with the father or with the mother. On the first point, there can be no dispute that questions with regard to the custody and guardianship of minors cannot be settled by a private compromise or even by arbitra tion. An agreement of this nature, therefore, cannot be enforce able. But such an agreement may be evidence of the abandonment of the child by one of the, parents. The question, therefore, is A whether in this case I should hold that by agreeing that Asma Khatoon should remain with her father, the appellant, in effect, abandoned all claims to her child. I think in the circumstances of this case I cannot draw any such inference. The appellant complained of ill‑treatment alleged to have been meted out to her `by the respondent. In her letter" to the Union Council from Baghdad she expressed a desire to obtain divorce. I would venture to think that the appellant agreed to the inclusion of the provision with regard to Asma Khatoon's custody in the aforesaid agreement only to make it easy for her to induce the respondent give divorce, as otherwise the appellant would have had to go to civil Court for dissolution of her marriage, which proceedings, as is my experience, generally last for 6 to 10 years. I would not, therefore, put any blame on the appellant that to obtain divorce she agreed to abandon Asma Khatoon. I would, for these reasons decline to accept this agreement as evidence of abandonment of Asma Khatoon by the appellant.

3. With regard to the second point, it is again not disputed that the parties are Sunni Muslims and the appellant should have the custody of Asma Khatoon until the latter attains the age of puberty, subject, however, to Asma Khatoon's welfare. There is nothing in the evidence to show that Asma Khatoon's welfare would be adversely effected if she lives in the custody of her own mother. It is not even alleged that the appellant has either ire‑married or is contemplating a second marriage. What is suggested is that the appellant has no source of income and would not be able to support Asma Khatoon. But then there is the appellant's father, who is said to have a monthly income of nearly Rs. 500 from his urban property, and appellant's real uncle, who has no issue himself, but has considerable agricultural property. Therefore, on this point the apprehensions, if any entertained by the respondent are without any justification. The requirement of the Muslim Law being that a Sunni girl should live in the custody of her mother until she attains the age of puberty, the appellant is entitled to succeed in this appeal. As I have said there is nothing on record to suggest that Asma Khatoon's welfare would be adversely affected by giving her over into the custody of the appellant. Here I may quote the famous observation of Beaumont, C. J. in the case of Saraswatibai Shripad Ved v. Shripad Vasanji Ved (A I R 1941 Bom. 103) that "it is quite impossible to find an adequate substitute for the mother for the custody of a child of tender years." This observation would apply with equal force in the case before me, Mr. G. M. Qureshi, however, expressed an apprehension that Asma Khatoon may be taken away by the appellant to Baghdad, where the appellant's mother is stated to be in permanent residence. But this fear can be met' effectively by requiring the appellant to give security to the effect that she will not take away Asma Khatoon out of the territorial limits of the Districts of Sanghar and Hyderabad, without the permission of the Guardian Judge at Sanghar. For this purpose the appellant shall give security in the sum of Rs. 20,000 with two sureties to the Court of the Guardian Judge at Sanghar within one month. I will further direct that whenever the appellant proposes to take the child out of Sinjhoro, she will give advance information to the respondent and, further, that the child Asma Khatoon shall spend every weekend with her father, that is from Friday afternoon until Monday morning the child wall be with her father. With these qualifications, I accept the appeal but make no orders as to costs. This arrangement will come into effect immediately the appellant has given security in terms of this judgment. K. B. A. Appeal accepted.