1/6/24, 3:14 PM 2000SCMR838

2000SCMR838

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and

Sh. Riaz Ahmed, JJ

Mst. FIRDOUS IQBAL---Petitioner

versus

SHIFAAT ALI and others----Respondents

Civil Petition No. 1095 of 1999, decided on 28th February, 2000.

(On appeal from the judgment, dated 2-3-1999 of the Lahore High Court,
Rawalpindi Bench, Rawalpindi passed in Writ Petition No. 11 of 1999).

Guardians and Wards Act (VIII of 1890)---

---S. 25---Custody of minor son---Right of father to claim the custody of minor

son, was not an absolute right---Welfare of minor always a paramount
consideration---Father may disentitle himself to custody, on account of his
conduct in the light of the facts and circumstances of each case---Principles.

The welfare of the minor, however, remains the paramount consideration in

determining the custody of a minor notwithstanding the right of the father to
get the custody after seven years of age of the male minor child. The custody
of a minor can, however, be delivered by the Court only in the interest of the
welfare of the minor and not the so-called right of one parent or another. It is
true that a Muslim father is the lawful guardian of his minor child and is
ordinarily entitled to his custody provided it is for the welfare of the minor. It
would, thus, be noticed that right of the father to claim the custody of a minor
son is not an absolute right, in that, the father may disentitle himself to custody
on account of his conduct in the light of the facts and the circumstances of
each case. In the present case, the evidence on the record showed that father
who sought custody of the minor, neglected the child since the separation of
the spouses inter se and had voluntarily left the custody to the mother. She had
brought him up and educated him till she had to opt for her second marriage.
Even then she had not been negligent in the care of her minor son. She had
entrusted that duty to her mother, and father and minor is being properly
educated till date in a local school. All along this entire period, the father never
bothered even to go to meet the minor muchless than providing maintenance to

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him, when the mother sued him for providing maintenance allowance to the
minor. It was only then that he had made an application for custody of the
minor. Again the father had also taken another wife who has got one or two
children out of the wedlock. The second wife of the father was living in the
village of the father whereas he himself in an Army Personnel in service of
Pakistan Army and remains under posting from one cantonment to another.
Consequently, he would also not be present in the house where he proposed to
lodge his son. The minor would be exposed to the on slaughts of the step-
motherly treatment of his second wife. There would be no one to stop the step-
mother from the well-known step-motherly treatment. It was in these
circumstances that the Court had concurrently found as a fact that the welfare
of the minor lay in leaving him to the custody of the real mother through her
parents rather than giving him to the father who was himself away from his
household which had been left to the charge of the step-mother.

High Court, therefore, erred to interfere in the concurrent findings of fact that
the welfare of the minor lay in leaving him to the custody of the mother
through her own parents and that too in the exercise of the Constitutional
jurisdiction of the High Court.

Supreme Court converted petition into appeal, accepted the appeal and while
setting aside the order of the High Court, restored those of the two Courts that
the welfare of the minor lay with the mother and that she was entitled to retain
his custody.

Principles of Muhammadan Law by Mulla, para.354; Hedaya (Garady's Edn.);

Digest of Muhammadan Law by Baillies; Fatwa-i- Alamgiri (Bangali Edn.)
and Commentaries on Muhammadan Law by Syed Ameer Ali and
Muhammadan Law by Tayabji. ref.

Syed Misbah-ul-Hassan Abdi, Advocate Supreme Court for Petitioner.

Abdur Rehman Lodhi, Advocate Supreme Court and M. A. Zaidi, Advocate-

on-Record for Respondent No. 1.

Date of hearing: 28th February, 2000.

JUDGMENT

MUHAMMAD BASHIR JEHANGIRI, J.---Mst. Firdous Iqbal petitioner

seeks leave to appeal against the judgment of a learned Judge in Chambers of
the High Court whereby Writ Petition filed by Shifaat Ali respondent was

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accepted and the custody of minor Muhammad Muddassar was handed over to
his father Shiffaat Ali respondent.

2. The facts relevant to this order which we have been able to gather from the
record are these. The petitioner and respondent No. l were married and out of
the wedlock a son Muhammad Muddassar was born to them on 13-11-1989.
He is, thus, aged more than 10 years now. It appears that the petitioner was
divorced somewhere in 1990 and the minor was left to her custody. The
petitioner then contracted second marriage on 24-11-1994. Similarly the
respondent No. l had also taken another wife and has been blessed with a child.
The petitioner filed a suit against respondent No.l for providing the
maintenance allowance to her son. Respondent No.l filed an application for the
custody of his son under section 25 of the Guardians and Wards Act (VIII of
1890) in the Court of Guardian Judge, Chakwal. The claim in the petition
apparently proceeded on the ground that pursuant to the Muslim Law the
petitioner was not entitled to retain the custody of the minor who had attained
the age of more than 7 years and that being the father, the respondent has
attained,the status of the minor's natural guardian. The application was
opposed by the petitioner in the written statement, and inter alia, it was urged
that the respondent's claim had been belatedly made by way of a counterblast
to petitioner's suit for the maintenance of the minor.

3. The learned trial Judge settled the following solitary issues:-----------

(1) Whether the applicant is entitled to the custody of the minor?

(2) Relief.

4. Main evidence in the case was provided by the respondent and the petitioner
each side giving its own version of their claim. The learned trial Judge after
appraising the evidence led by the parties, observed that the minor was
studying in the school, as per certificate Exh.R.l; that the parties were
separated in the year 1990 and since then the minor was living with the
respondent (the petitioner herein) and finally; that it was "in the welfare of the
minor that he should continue living with the respondent" (the petitioner
herein) and dismissed the application.

5. Dissatisfied with the order of the trial Judge, the respondent filed an appeal
before the learned Additional District Judge, Chakwal, which was also
dismissed.

6. Feeling still aggrieved, the respondent challenged the orders of the two
Courts below in Writ Petition No. 110 of 1999.

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7. In finding that the petitioner had forfeited her right of 'Hizanat' of the minor,
the learned Single Judge of the High Court principally relied on the rule,
without explicitly referring thereto, enunciated in para. 354 of the "Principles
of Muhammadan Law" by Mulla to which we shall refer presently. It was
observed by the learned Judge that:-----

" ....The law on the subject is explicit that where a mother contracts second
marriage, she is disqualified to keep the minor born out of the earlier wedlock,
in her custody. This disqualification is almost automatic and is unqualified. It
is well settled that where a male child reaches the age of seven years and has
enough sense to attend to his daily needs of his own, he does not need
protection of his mother and then the father is considered to be more suited to
bring up the child. In this case, the minor was born on 13-i 1-1989 and by the
time the decision was rendered by Guardian Judge on 27-4-1998, he was
almost at 9 years old. The Guardian Judge did not evaluate the respective
stands of the parties and simply declared that welfare of the minor demanded
that he should stay in the custody in his mother, further that the judgments
passed by the learned lower Courts are against the law on the subject and the
question of welfare of the minor was not determined by the lower Courts
adequately."

8. In consequence of these findings the petition was allowed and the orders of
the two Courts below were annulled.

9. In support of this petition, Syed Misbah-ul-Hassan Abdi, learned Advocate

Supreme Court, relied on the case-law and reiterated before us the quotation
from the next of para. 354 of the Principles of Muhammadan Law by Mulla on
the subject of forfeiture of "Hizanat" referred to above.

10. The petitioner in essence raises the question whether under Muslim Law a
mother absolutely loses the right of Hizanat of her male minor children who
are aged more than 7 years or there are some exceptions to this general rule as
well.

11. In the treatise entitled "Principles of Muhammadan Law" by Mulla, the

rule is tabulated in paragraph 354 as follows:-----

"A female including the mother, who is otherwise entitled to the custody of a
child, loses the right of custody:

(1) If she marries a person not related to the child within the prohibited degree;
or

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(2) If she goes and resides during the subsistence of the marriage, at a distance
from the father's place of residence; or

(3) If she is leading immoral life, as where she is a prostitute; or

(4) If she neglects to take care of the child. "

12. The rule enunciated in para.354 of Principles of Muhammadan Law by

Mulla suffers from over simplification. Similarly the statement of law from
textbooks on Muslim Law 'made by the learned Single Judge is not
comprehensive. Similarly he has ignored many relevant portions of the
textbooks on the subject of Hizanat.

13. In the other textbooks including Hedaya (Grady's Edition); Digest of

Muhammadan Law by Baillies, Fatawa-i-Alamgiri (Bangali Edition) and
Commentaries on Muhammadan Law by Syed Ameer Ali and Muhammadan
Law by Tayabji to which we shall refer presently, it has been observed

"It was noticed that the mother is, of all persons, the best entitled to the
custody of her infant child during marriage, and after separation from her
husband unless she be an apostate, or wicked, or unworthy to be trusted and
the right to the custody of her infant male child continues till he is independent
of her care, that is till he is seven years of age. "
14. In Hedaya (2nd Edition, Vols.I-IV, page 138) in Chapter XIV of Hizanat, or
"the care of infant children" and under section "In case of separation the care
of the infant children belongs to the wife", it is followed by the comment that:-
-----

'A mother is naturally not only more tender, but also better qualified to cherish
a child during infancy, so that committing the care to her is of advantage to the
child and Siddeek alluded to this, when he addressed Omar on a similar
occasion, saying, 'the spittal of the mother is better for the child than honey, O
Omar' which was said at a time when separation had taken place between
Omar and his wife, the mother of Assim. The latter being then an infant at the
breast. Omar desirous of taking him from the mother and these words were
spoken in the presence of many of the companions, none of whom contradicted
him. "

At page 139 under the title "Length of the terms of Hizanat" it is said:-----

"The, right of Hizanat with respect to a male child, appertains to the mother,
until he becomes independent of it himself that is to say, he becomes capable

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of shifting, eating, drinking and performing other natural functions without

assistance after which the charge devolves upon the father, or next paternal
relation. The Hizanat with respect to a boy, ceases at the end of seven years, as
in general a child at that age is capable of performing all the necessary offices
himself, without assistance. But the right of Hizanat with respect to a girl
appertains to a mother, grandmother, and so forth; until the first appearance of
the menstrual discharge, that is to say, until she attains the age of puberty,
because girl has occasion to learn such manners and accomplishments as are
proper to women, to the teaching of which the family relations are most
competent, but after at period the charge of her properly belongs to the father,
because a girl, after maturity, requires some person to superintend her conduct,
and to this the father is most completely qualified "

15. As stated earlier, the main consideration which weighed with the learned
Judge in Chambers of the High Court for making the order of delivery of
custody of the minor to the father was only that after attaining the age of seven
years, the right of 'Hizanat' of the male minor child under the Muslim Personal
Law vested in the father as he is the natural guardian under section 25 of the
Guardians and Wards Act, (VIII of 1890). The welfare of the minor, however,
remains the paramount consideration in determining the custody of a minor
notwithstanding the right of the father to get the custody after seven years of
age of the male minor child. The- custody of a minor can, however, be
delivered by the Court only in the interest of the welfare of the minor and not
the so-called right of the one parent or another. It is true that a Muslim father is
the lawful guardian of his minor child and is ordinarily entitled to his custody
provided it is for the welfare of the minor.

It would, thus, be noticed that right of the father to claim the custody of a
minor son is not an absolute right, in that, the father may disentitle himself to
custody on account of his conduct in the light of the facts and the
circumstances of each case. In the instant case, the evidence on the record
showed that the respondent father who sought custody of the minor, neglected
the child since the separation of the spouses inter se and had voluntarily left
the custody to the petitioner-mother. She had brought him up and educated him
till she had to opt for her second marriage. Even then she had not been
negligent in the tare of her minor son. She had entrusted that duty to her
mother and father and minor is being properly educated till date in a local
school. All along this entire period, the father never bothered even to go to
meet the minor muchless than providing maintenance to him, when the
petitioner-mother sued him for providing maintenance allowance to the minor.
It is only then that he had made an application for custody of the minor. Again
the respondent-father has also taken another wife who has got one or two
children out of the wedlock. The second wife of the respondent is living in the

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village of the respondent whereas the respondent himself is an Army Personnel

in service of Pakistan Army and remains under posting from one cantonment
to another. Consequently, he would also not be present in the house where he
proposed to lodge his son. The minor would be exposed to the onslaughts of
the step-motherly treatment of his second wife. There would be no one to stop
the step-mother from the well-known step-motherly treatment. It was in these
circumstances that the learned Courts below had concurrently found as a fact
that the welfare of the minor lay in leaving him to the custody of the real
mother through her parents rather than giving him to the respondent who is
himself away from his household which had been left to the charge of the step-
mother.

16. The learned Single Judge has, therefore, erred to interfere in the concurrent
findings of fact that the welfare of the minor lay in leaving him to the custody
of the mother through her own parents and that too in the exercise of the
Constitutional jurisdiction of the High Court.

17. We are, therefore, constrained to convert this petition into appeal; accept
the appeal and while setting aside impugned order of the learned Judge in
Chambers of the High Court, restore those of the two Courts below that the
welfare of the minor lies with the appellant-mother and that she is entitled to
retain his custody. This judgment shall not, however, disentitle the respondents
to see his child subject to such terms and conditions as may be determined by
the learned Guardian Judge upon application moved in this behalf by the
respondent. There shall be no order as to costs.

M.B.A./F-3/S Order accordingly.

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