2019 PLP 2792 (YLR)

RAZA ALI KHAN, J.

The captioned appeals filed against the judgment dated 31.01.2019 arise out of common judgment and raise common questions of facts and law, hence, were heard together and are decided through this single judgment. Precise facts of the case are that Shahzeb Nawaz (father) appellant/ respondent filed an application for appointment as guardian of the minor against Taseen Kousar (mother) and others in the Court of Additional District Judge/Guardian Judge Bhimber on 11.10.2018, stating therein, that the minors are the real children of the applicant. Non-applicant No.1 is the mother of the minors and the spouses are living separately, therefore, for the welfare of the minor, the applicant may be appointed as guardian of the minors. Respondent No.1 filed objections on the application. A counter application was also filed by Taseen Kousar (mother) against Shahzeb Nawaz (father) and others in the same Court for her appointment as guardian of the minor. It was stated by her that she is real mother of the minor and respondent No.1 has snatched the minors from her. It was further submitted that the welfare of the minors lies with their mother. Respondent No.1 filed objections on the application. The learned trial Court framed issues in light of the pleadings of the parties, provided them opportunity to lead evidence and at the conclusion of the proceedings appointed Shahzeb Nawaz (father) as guardian of the minor Abdus Sayyam and Taseen Kousar was appointed the guardian of minors/wards Kounain Fatima and Muhammad Aalyan through the impugned judgment dated 31.01.2019. The learned Advocate for the appellant/respondent Taseen Kousar has argued that Shahzeb has contracted second marriage and the minors have been handed over to their uncle for look after. He further argued that the mother is the natural guardian and she did not contract second marriage just for the welfare of the minors and the custody of minors should be given to the mother for the betterment and welfare of the minors. The learned Advocate appearing for Shahzeb argued that the minors are matured enough and their complete look after was made by their father, therefore, the mother now cannot claim custody of the minors. He fully defended the impugned order passed by the learned Guardian Judge. I have heard the learned counsel for the parties and gone through the record of the case. Sections 17 and 25 of the Guardians and Wards Act, provides the factors which are necessary to be considered for appointment of guardian of the minors. For ready reference, sections 17 and 25 of the Guardians and Wards Act are reproduced as under: "

17. Matters to be considered by the court in appointing guardian. (1) In appointing or declaring the guardian of a minor the Court shall, subject to the provisions of this section, the guided by what, consistency with the law to which the minor is subject, appear in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the court may consider that preference. (4) The Court shall not appoint or declare any person to be a guardian against his will." "

25. Title of guardian to custody of ward. (1) If ward leaves or in removed from the custody of a guardian of his person, the Court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by section 100 of the [Code of Criminal Procedure (1898 Act V of 1898)]. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship." It manifests from the above that the Courts, while deciding the question of custody shall be guided by the principles enunciated hereinabove and prime consideration before the Court would always be the betterment of the minor but not the wishes of rival contesting parties. The rule of law laid down by the Hon'ble Supreme Court of Azad Jammu and Kashmir in Irshad Begum's case (2003 YLR 3245) can be referred in support of the proposition. The relevant observations appearing in paras Nos.9 and 10 are reproduced:-- "

9. According to the aforesaid provisions of law the Personal Law to which the minor is subjected should be the guide for the appointment of a guardian which is further subject to two limitations: (i) the provision of this section (ii) and welfare of the minor. If consideration of the welfare of the minor or the conclusions arrived at as a consequence of the guidance in the section itself makes it impossible to follow the guideline of the Personal Law then the same may be abandoned and steps most conducive to the welfare of the minor and consistent with the provisions of the section have to be taken. If the Personal Law of the minor is not inconsistent with either of the provisions of this section or the welfare of the minor then it should be followed.

10. While appreciating the welfare it has to be seen that the welfare includes his moral, spiritual and material well doing. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kinship to the minor and the preference of the minor if he or she is intelligent enough to make it." In the case in hand it is an admitted position that Shahzaib, father of the minors has contracted second marriage and his second wife has two daughters from her earlier husband while Taseen Kosar, mother of the minors has not contracted second marriage up till now. It is correct that minors are living with their father since the desertion of the spouses, however, it is also evident from the record that Taseen Kosar, mother of the minors, made efforts for the custody of the minors through different forums and finally she filed application before the Guardian Judge for custody of the minors. Mother of a child always has natural love and affection for her children and apart from love, care and affection of real mother a daughter requires her company and association for preparing her to shoulder responsibilities in future. This is the reason that Islamic law recognized the preferential right of mother to the custody of her minor children. Last Prophet Mohammad (PBUH) said as narrated by Abu Dawood (2276) from Abdullah "Ibne Amr" according to which a women said 'O messenger of Allah, this is my son, my womb was a vessel for him, and my breast gave him to drink and my lap was protection for him. His father has divorced me and he wants to take him away from me. The messenger of Allah (PBUH) said "you have more right to him so long you do not remarry". The above quoted Hadith of Holy Prophet (PBUH) is clear cut declaration of preferential right of mother to the custody of her children subject to her remarriage. The Hon'ble Supreme Court of Pakistan in the case titled Shabana Naz v. Muhammad Saleem [2014 SCMR 343] while taking this issue very elaborately outlined the factors disqualifying mother and father from the custody of minor in the following words:-- "

23. Thus it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to father. It has been constructed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody." It is according to scholarly consensus that mother has preferential rights of custody of minor children over father because she is more compassionate and more kind, who knows better how to raise small children and she is more patient in dealing with difficulties involved. The mother has more right to custody of her child, whether it is boy or girl, so long as she does not remarry and so long as she meets the conditions of custody. It is world wide accepted factor that no one can love his children more than a mother, who always has natural and pure love with her children. Under law the custody of the minors vests with mother until it is proved that the mother is not a lady of good character or the atmosphere of her house is unfair for the welfare of the minors. Though Shahzaib, appellant, levelled allegation that the atmosphere of the house of father of Taseen Kosar is not good but he could not prove these allegations through any evidence, so mere on allegation of opposite party that the atmosphere of the house of mother is not good, a mother cannot be deprived of from the custody of minors. The appellant/respondent Shahzaib, also admitted in his statement that Taseen Kosar is lady of good character. The relevant portion of his statement is reproduced as under:- It is pertinent to mention here that Taseen Kosar, in her statement categorically stated that applicant, Shahzaib does not work and this portion of her statement has not been cross-examined. Haji Sardar Ali, father of the application Taseen Kosar, stated in his statement that Shahzaib does not work and he only got fights pigeons, Cocks and dogs and this portion of the statement has not been cross-examined, hence, would be deemed admitted. Although it is an established law that father is a natural guardian of his minor children but indeed the Court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. It is also an admitted position that Shahzaib (father) has already handed over custody of one of his son (Muhammad Alyan) to his brother Shoaib Nawaz, and in his statement he deposed that he did not know that whose name is entered in the record as father of the minor (Muhammad Alyan) adopted by his brother Shoaib Nawaz, which shows his inadvertence and carelessness. The minors are living with their aunty ( ) who brought them in the Court today. She admitted in the open Court that the minors are in her custody and she and her husband Shoaib Nawaz look after them. An aunty ( ) may have love and affiliation with her minor nephew and niece, but, she cannot be preferred over real mother while deciding custody of the minors. Although the learned counsel gave assurance that father will take the minors at his own house but it is evident from record that father of minors who is careless person so, in his absence, minors will be at mercy of their step mother. Good treatment toward minors cannot be expected from a step mother. In my considered view, in the circumstances of this case and evidence brought on record, the welfare of the minors lies with their mother. There are many factors which may disentitle a father to appoint as guardian, where father does not have capacity or means to maintain and provide for the healthy bringing up of his children or where the father deliberately omits and fails in meeting his obligation to maintain his children, or where character of father is dubious and habitually involved in unlawful activities or maltreats his children or where father remarries and minors are on the mercy of step-mother. Although the factors noted above are not exhaustive and they may also not be considered as conclusive, for that each has to be decided on its own facts and merit in keeping with the only and only paramount consideration of welfare of minors. In view of above, the appeals filed by Taseen Kosar are accepted and she is appointed as guardian of the minors, subject to furnishing surety bonds in the sum of Rs.2,00,000/- for each minor in the terms that she will be responsible to the welfare of the minors and will produce them whenever are called by any Court of competent jurisdiction and will not shift them from the jurisdiction of the Family Court Bhimber. The appeals filed by Shahzaib are hereby dismissed. The Family Court shall arrange meeting of the minors with their father, uncle Shoaib Nawaz, his wife and grandmother once in a month. ZC/15/Sh.C. Order accordingly.