P L D 1965 (W (PLP)

It is, therefore, expedient that this case should also be heard along with R S A 486 of 1961. Munawwar Akhtar for Appellant. Ch. Karam Elahi Chauhan for Respondent. Date of hearing: 29th March 1965. This will be read in continuation of the order of reference made in these two appeals (F. A. O. 65 of 1962 and F. A. O. 88. of 1962) on the 24th of June 1963, and the opinion of the Full Bench delivered on the 5th of May 1964.

2. The dispute relates to the custody of two minor children Sheikh Latif Ahmad Munawwar and Mst. Zohra Begum (parties to the two appeals), namely, Khalid Latif, who attained the age of seven years and Robeena Khatoon, who is yet below the age of puberty. Both the children are in the custody of the mother, but in pursuance to an application made by the father under section 25 of the Guardians and Wards Act. Mr. Ishaq Rahim Bakhsh, Guardian Judge, Lahore, had directed that the custody of the boy be handed over to the father and the custody of the girl retained by the mother. It is against this order that both the parties have preferred the above‑mentioned appeals in this Court.

3. The relevant facts are that Sheikh Latif Ahmad Munawwar and Mst. Zohra Begum were married on the 15th of April 1951. The two children named above were born of this wedlock during 1952 and 1953; but as misfortune would have it, the relations between the parents progressively became strained until in 1953 Mst. Zohra Begum felt compelled to leave the house of Sheikh Latif Ahmad Munawwar, along with the two children, and since then has been residing with her parents in Lahore. No rapprochement could be made between the strained spouses during the next eight years until on the 24th April 1961, the marital ties between them were dissolved by the pronouncement of divorce by Sheikh Latif Ahmad Munawwar. This led to multifarious litigation between the parties. On the 3rd of June 1961, Mst. Zohra Begum instituted two civil suits against Sheikh Latif Ahmad Munawwar, one for payment of dower and the other for recovery of her dowry, A little later, she filed a complaint under section 488, Criminal Procedure Code, against Sheikh Latif Ahmad Munawwar for grant of maintenance of the children in the Court of a Magistrate 1st Class, Lahore. In reply, Sheikh Latif Ahmad Munawwar instituted the present application under section 25 of the Guardians aril Wards Act for the custody of Khalid Latif and Robeena Khatoon, out of which, as stated above, these two appeals have arisen.

4. The claim for the custody of Khalid Latif and Robeena Khatoon by Sheikh Latif Ahmad Munawwar proceeded on the averments that Mst. Zohra Begum was mentally deranged and incompetent to look after the welfare of the minors and was not possessed of independent means of livelihood to bring them up properly. The petition was resisted by Mst. Zohra Begum, who in her written statement maintained that the claim put forth by Sheikh Latif Ahmad Munawwar was a counterblast to the suits and the complaint under section 488, Criminal Procedure Code, instituted by her against him. On facts, the respondent pleaded that as a result of maltreatment meted out to her by Sheikh Latif Ahmad Munawwar she had, for a little while, gone out of her mind, but since then she was fully recovered and was capable of looking after her minor children. As regards the means to bring up the children, it was maintained ‑that Sheikh Latif Ahmad Munawwar up 'to date had not contributed a single penny for their maintenance and, as such, he was not entitled to claim their custody.

5. On the pleadings of the parties, the learned Guardian Judge framed an issue as to whether it would be for the welfare of the minors to be given into the custody of the father or in their remaining with the mother. The hearing was adjourned to enable the parties to examine evidence in support of their respective claim, but in the meantime a change took place in the presiding officer of the Court. Mr. Ishaq Rahim Bakhsh, the new incum bent, on examining the record of the case on the 22nd of April 1962, recorded an order which, for facility of reference, may be reproduced in extenso:‑ "I have examined the file. My learned predecessor rightly converted the application under section 7 into one under section 25 as application under section 7 by father is not competent. The father seeks custody of son of 7 years and of daughter who has not attained puberty. He has levelled two allegations. First, the mother is not in a position to bring up the children for lack of means and secondly she has been a patient in the Mental Hospital. The application is resisted. The contention of the respondent mother is that the petitioner abandoned her after one and‑a‑half years' conjugal company and has never taken interest in the welfare of the children and that she had to move the criminal Court under section 488, Cr. P. C. here are no other allegations with respect to the averments in the application under section

25. The father claims to be a gazetted officer. It goes without saying that welfare of the minor is the cardinal principle in dealing with the application for the appointment of the guardian or for restoration of the custody of the minors. His Lordship Mr. Justice Abdul Hamid after canvassing various authorities on the subject, ruled in P L D 1958 Pesh. 26, that the rule of Personal Law proceeds on the welfare of the minors and welfare of the minor does not mean that appointment shall be incon sistent with the rule of Personal Law. His Lordship Mr. Justice Jamil Hussain Rizvi in P L D 1962 Lah. 162 even went to the extent of laying down that where a father takes another wife and neglects the children of first wife notwithstanding the order under section 488, Cr. P. C. cannot be refused the custody of the children under section.25 of the Guardians and Wards Act. The allegations in the present case speak for themselves and no evidence apart from physical mental incapacity of the mother is invited. It will be for decision whether she is physically incapable to look after the children. If the decision goes against the petitioner, the allegation that she is not sufficiently possessed by means will not be a ground for depriving her of the, custody of the girl because under the Muhammadan Law it is the duty of the father to maintain the children even' if they are not in his custody. If he thinks that the girl is not receiving proper education, let him put her in a good school of his choice and foot the bill of her education. With these observations. I confine myself only to the evidence of mother's physical capacity in so far as the custody of the girl is concerned." The welfare of the minors was, thus, not to be inquired into by the Court. The boy who had attained the age of seven years must be given in the custody of the father and the girl to remain in the custody of the mother unless the father succeeded in proving that the mother was mentally unfit to bring up Robeena Khatoon.

6. The evidence produced by Sheikh Latif Ahmad Munawwar in support of the mental incapacity of Mst. Zohra Begum consisted of the testimony of Dr. Muhammad Rashid Choudhary, Medical Superintendent of the Government Mental Hospital, Lahore. The substance of his evidence was that Mst. Zohra Begum was admitted in the Mental Hospital on the 10th of May 1958. He found her suffering from schizophrenia (split personality), as a result of which she had been aggressive, crying and tearing her clothes and breaking utensils; but by the time she was discharged from the hospital the aggressiveness had disappeared. In reply to a Court question the doctor amplified (i) that environmental struc ture precipitates the ailment from which Mst. Zohra Begum suffered though the prerequisites in the form of emotional and mental make‑up were either inherited or acquired by her and (ii) that the removal of stresses playing upon the nerves of the patient like Mst. Zohra Begum contributes to restoration of normalcy. Appearing as her on witness, Mst. Zohra Begum deposed that she was a sensitive and thoughtful person and went off her head as a result of maltreatment by the petitioner; but as a result of treatment of Dr. Muhammad Rashid she had recovered and had had no mental trouble since then. In the light of this evidence the learned Guardian Judge held that Mst. Zohra Begum was not mentally incapacitated to look after the welfare of Robeena Khatoon, and in the result directed that Khalid Latif should be given to the custody of the father and Robeena Khatoon should remain with the mother.

7. The order of the learned Guardian Judge, dated the 22nd of April 1962, was based on the view expressed by this Court in Chand Bibi v. Bulbullah (P L D 1958 Pesh. 26) and Khanamji v. Farman Ali (P L D 1962 Lah. 166). In the first case Abdul Hamid, J. expressed the view that "the language of the phrase `consistently with the law to which the minor in subject' clearly means that the appointment should be consistent and not inconsistent with the personal law of the minor. If the interests of a minor demand that his person should be in the care of his mother who has remarried a stranger, but the rule of minor's personal law forbids the appointment of such mother, the appoint ment of the mother will be inconsistent with that law." In the second case Jamil Hussain Rizvi, J. extended the rule still further by laying down that if a father otherwise neglects the children of the first wife and fails to maintain theta notwithstanding an order made against him under section 488, Criminal Procedure Code, the Courts have no authority to refuse to him the custody. of the children under section 25 of the Guardians and Wards Act, A more exhaustive decision on 'the subject was delivered by Kaikaus J. in Muhammad Bakhsh v. Mst. Ghulam Fatima (P 4 D 1953 Lah. 73). In construing the clause `consistently with the law to which the minor is subject' the learned Judge laid down that "all rules of Muhammadan Law relating to the guardianship and custody of the minor are merely application of the principle of benefit of the minor to diverse circumstances. Welfare of the minor remains the dominant consideration and the rules only try to give effect to what is minor's welfare from the' Muslim point of view." These observations are confined to the construction of section 17 of the Guardians and Wards Act, but the same considerations were applied to section 25, which does not contain the provision 'consistently with the law to which the minor is subject', on the following reasoning:‑ "It may be objected that if every rule of Muhammadan Law is subordinate to the interests of the child, how do the rules affect a case under section 25 at all. The answer is simple. We will regard the rules as raising a presumption till exceptional circumstances are proved. The above question from Tyabji's Muhammadan Law is substantially to the same effect. If I were dealing with an application under section 17, I would have to apply Muhammadan Law because of the words 'consistently with the law to which the minor is subject' in that section. But the Act recognises the father as natural guardian and the only application he can file is under section 25, If I do not apply Muhammadan Law in this case it would create an anomally in that if a relative other than the father applies under section 17 he can have all the rights which personal law gives him, whereas the father, because he has to apply under section 25, would not get the benefit." With utmost respect to the learned Judge, I may venture to say that a father can, in no circumstances, be placed at a disadvantage in comparison to any other relative of the minor, who may apply under section 17 of the Guardians and Wards Act for appointment as a guardian. A father is a natural guardian of his minor children and, as observed by the learned Judge at page 81 of the report even when the minor children are in the custody of the mother, the legal control of the children vests in the father. This cannot be said of any other relative who is appointed as a guardian of the minor. In determining the question whether the custody of a minor shall be given to such a relative under sections 17 and 25 of the Guardians and Wards Act, the Court will be primarily guided by the welfare of the minor and if, on the facts of a given case, a father does not succeed as against the mother in obtaining the custody of the children, no Court would give their custody to a relative, other than the father, who applies under section 17 of the Guardians and Wards Act.

8. The more important question which falls for determina tion in the case is, "What is the law to which the minor is subject? " Mr. A. R. Sheikh (as he then was), learned counsel, brought to my notice various Text Books on Muslim Law in which there is a divergence of opinion as to the age of a minor son and a daughter at which the mother loses the right of their custody. In view of this conflict, one of the questions referred to the Full Bench was "In case of conflicting views expressed in text books on Muslim Law, such as Hedaya, Fatawai‑i‑Alamgiri, Radd‑ul- Mukhtar, Muhammadan Law by Sayyed Amir Ali, etc., how are the Courts to determine which view is correct? " The answer given by the Full Bench is that where there is no Quranic or Traditional Text or an Ijma' on a point of law, and if there be a difference oft views between A'imma and Faqihs, a Court may form its own opinion on a point of law. In support of this view reliance was placed on the following questions and answers in Al‑Risala by Imam‑Al‑Shafai." "He asked: I have found the scholars in former and present times, in disagreement on certain (legal) matters. Is it permis sible for them to do so? "(Shafei') replied: Disagreement is of two kinds; one of them is prohibited, but I would not say the same regarding the other." "He asked. What is prohibited disagreement? "(Shafei') replied: On all matters concerning which God provided clear textual evidence. His book or (a Sunna) uttered by the Prophet's tongue, disagreement among those to whom these (texts) are" known is unlawful. As to matters that are liable to different interpretation or derived from analogy, so that he who interprets or applies analogy arrives at a decision different from that arrived at by another, I do not hold that (disagreement) of this kind constitutes such strictness as that arising from textual (evidence)." On this view, it would be permissible for Courts to differ from the Rule of Hizanat stated in the Text Books on Muslim Law for there; is no Quranic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclu sions by process of Ijtihad which, according to Imam‑Al‑Shafei', is included in the doctrine of Qiyas. It has been mentioned earlier C that the rule propounded in different Text Books on the subject of Hizanat is not uniform. It would, therefore, be permissible to depart from the rule stated therein if, on the facts of a given case, its application is against the welfare of the minor. I am fortified in this view by the instances in which a Qazi finding hardship in the application of a rule of law to which the parties belonged sent the case to the Qazi of another School of Law which took a liberal view of the matter.

9. Turning to the merits of the present case, it is not difficult to pronounce where the welfare of the minors lies. It has been found that the mother does not suffer from any mental ailment and by now has for the last 9 years brought up the two children without any apparent shortcoming. Both of them attend school and no complaint was made by Sheikh Latif Ahmad Munawwar about their physical well‑being. It has, therefore, to be seen whether it would be in the welfare of the .minors to give them in the custody of the father. It is an admitted fact that uptil now Sheikh Latif Ahmad Munawwar has not contributed a single penny towards their maintenance. In fact, he has not even seen them once since 1953. In the circumstances, if the custody of Khalid Latif and Robeena Khatoon is given to Sheikh Latif Ahmad Munawwar, they shall find themselves, more or less, choked in the custody of a stranger, who has had such a long drawn and bitter litigation with their mother. In the circumstances, it is likely that if they are removed from the affection of their mother, their emotional and mental growth may be retarded. The plea raised in the written statement that the petition under section 25 of the Guardians and Wards Act by Sheikh Latif Ahmad Munawwar was a counterblast to the civil suit and the complaint under section 488, Criminal Procedure Code, instituted by Mst. Zohra' Beg‑um against him rather than motivated by a sudden outburst of affection for the welfare of the minors.

10. In the result, it is found that it is in the welfare of Khalid Latif and Robeena Khatoon, minors, to remain in the custody of their mother, Msr. Zohra Begum. F. A. O. No. 88 of 1962 by Sheikh Latif Ahmad Munawwar, accordingly, stands dismissed and F. A. O. No. 65 of 1962 by Mst. Zohra Begum allowed; but, in the circumstances of the case, there will be no order as to costs in both the appeals. K. B. A. Appeal accepted.