P L D 1967 Lahore 333 (PLP)

This appeal is directed against the ord9r, dated the 7th of December 1961, of the learned Guardian Judge, Mianwali, whereby he directed the appellant Mst. Bharai to deliver the custody of her minor daughter Mst. Khurshid Bibi to her father, Wazir Muhammad, the respondent. The order was made on at application by the latter, under section 25 of the Guardians and Wards Act, 1890.

2. The facts leading to the appeal briefly are that the appellant and the respondent married some 17 years ago. The marriage however, ended in divorce in 1953. There are two children of the marriage, the elder being Mst. Sultan Bibi no aged about 16 years, who is living with the respondent and the younger, Mst. Khurshid Bibi, is living with the appellant appears that by a writing, dated the 17th of November 195' marked Exh. A/1 the appellant agreed . to let the, custody of Mst. Khurshid Bibi remain with the appellant till she attained the age of 7 years. In the meantime, the appellant has married one Abdus Samad, who is even otherwise related to her, but is not related to her, but is not related to Mst. Khurshid Bibi ad within the prohibited degree. Another material fact worth mentioning at this stage is that in an application made under section 488 of the Code of Criminal Procedure, 1898, the appellant secured the order for the monthly maintenance at the rate of Rs. 20 in respect of the minor girl against the respondent, but the latter has not so far discharged his obligation under the order, although the arrears outstanding against him amount to about Rs. 400.

3. It was against the background of these facts that the respondent applied under section 25 of the Guardians and Wards Act for the restoration of the custody of Mst. Khurshid Bibi to him. The learned Guardian Judge accepted the respondent's ‑prayer, mainly on the ground that the appellant after having been divorced by the respondent had married Abdus Samad who was not related to the minor girl within the prohibited degree and, therefore, in accordance to the accepted principles of Muslim Law the appellant had forfeited her right to retain the custody of her minor daughter as against the minor's father, her previous husband. The main ground urged in this appeal is that in ordering the restoration of custody‑ of Mst. Khurshid Bibi to the respondent, the learned Guardian Judge completely overlooked the welfare of the minor girl which is the main governing factor in the case. It seems that the lower Court in ordering the restoration of the custody of the minor to her father has been influenced by monograph 352 in the Principles of Muhammadan Law by Mulla; 15th Edition, which, provides inter alia, that a divorced mother of a minor daughter retains the right to her custody (hizanat) until she has ,g attained puberty unless the mother marries a second husband in which case the custody belongs to the father. For the above proposition the learned author relied upon Ulfat Bibi v. Bafati (A I R 1927 All. 581).

4. The main question that falls for determination in this case is whether the principle of Muhammadan Law enunciated in monograph 352, referred to above, is absolute in its application or is variable in a case where there are certain exceptional circumstances which go to show that to follow .the above rule would conflict with the welfare of the minor? It is true that in some of the earlier precedents, this rule has been accepted as absolute, particularly in .the case of a female child when the mother contracts a second marriage with a person who is not related to the child within the prohibited degree. But of late this view has undergone a change. In Mst. Nazir Begum v. Abdus Sattar (P I. D 1963 Kar. 465) a divorced mother was allowed to retain the custody of her minor children from her previous husband, notwithstanding her second marriage with a stranger after the divorce. In that case the dispute concerned the custody of a minor son and a daughter and the Guardian Judge had awarded the, custody of the minor children to their father on the sole ground of the second marriage of their mother with a stranger. In that case, the learned Single Judge set aside the order of the Guardian Judge because he had failed to consider the grounds in favour of the mother for the continuance of the custody of the minor with her and observed:‑ "Minor children, especially females, should not be deprived of the loving care of their mother without sufficient justi fication." Similarly, in a later case in Mst. Zohra Begum v. Latif Ahmad Monawwar (P L D 1965 Lah. 695) the rule in monograph 352 referred to above was departed and it was held that where in an application under section 25 of the Guardians and Wards Act it was found that the mother for nine years had brought up her two minor children, a son and a daughter without any shortcoming and the father had not contributed a single penny towards their maintenance it would be to the welfare of the two minor children to remain in the custody of their mother in preference to their father. Following an opinion rendered by a Full Bench of this Court in Mst. Khurshid Jan v. Fazal Dad (P L D 1964 Lah. 558) it was also observed in this case that where there. is no Qur'anic or traditional text or an Ijma' on a point of law, a Court may form its own. opinion on the point of law. It would, therefore, be permissible for Courts in this country to differ from the rule of hizanat stated in the text‑books *on Muslim Law in the absence of a Qur'anic or traditional text bearing on the point. These authorities leave no manner of doubt that the rule enunciated in monograph 352 of Principles of Muhammadan Law by Mullah is not absolute h but can be departed from if there are exceptional circumstance to justify a departure from that rule.

5. This brings me to the question as to whether there are any exceptional circumstances in this case which would justify to Mst. Khurshid Bibi remaining in the custody of her mother, notwithstanding her second marriage with Abdus Samad. In this behalf I may observe, at the outset, that in matters like this, the policy of the Courts generally has been not so much to be nice in defining the legal rights of the disputing parties, who are claiming custody of minors as to put prominently before them the welfare of the minors which plainly is the paramount and determining consideration. Bearing this principle in mind,. to which no exception can possibly be taken, the following facts emerged clearly from the evidence produced before the learned Guardian Judge. (i) The respondent, too, has since taken a second wife from whom he has also some children. The respondent admitted in his evidence that he had not so far been able to send to Mst. Sultan Bibi, his elder daughter from the appellant, to any school, though he qualified his statement that he now intended to send her to some school after he had been created a lancenaik implying thereby that would be able to foot the bill of her education. As against this, there is credible evidence on the record that Mst. Khurshid Bibi is not receiving religious instructions but is also reading in a primary school in the village. (ii) The respondent admitted in his cross‑examination that since 19j8, he had not paid a penny towards the maintenance of Mst. Khurshid Bibi. He further admitted that a main tenance order under section 488, Cr. P. C. was passed against him by a Criminal Court though he had not so far discharged his liability under that order. (iii) It is in the evidence of Khan Muhammad R. W. 1, who is a common relation of the parties, that Mst. Sultan Bibi is being treated as a domestic servant by her step‑mother and this incidentally also explained why she has not been sent to school. (iv) Mst. Khurshid Bibi having lived her whole life with her mother it would scarcely conduce to her welfare if she is required to go over to live with her step‑mother where her elder sister, as the evidence of Khan Muhammad would have us believe, is more of a domestic servant than a full member of the family. (v) It is not possible to get rid of the impression that the respondent applied for the custody of Mst. Khurshid Bibi not out of any love or compassion for her but merely to avoid execution of the maintenance order that had been made against him.

6. From the above circumstances the conclusion becomes irresistable that it would be rather unkind if not cruel to require Mst. Khurshid Bibi to leave her mother and to reside with her father, the respondent, where the prospects of a happy life are far from bright.

7. For the foregoing reasons, I accept this appeal, set aside the order of the Court below, leaving the parties to bear their own costs. K. M. A. Appeal accepted.