' KHAWAJA SHAHAD AHMED, J.--- The instant appeal, by leave of the Court, is addressed against the judgment of the Shariat Court, dated 11-6-2005, whereby the appeal of the appellant was dismissed and the order of Judge, Family Court/Guardian Judge, Samahni, dated 5-3-2004 was maintained.
2. Brief facts of the case are that Mst. Sughra Bibi, appellant herein, was married with Akhtar Hussain, respondent, but due to the strained relations between the spouses, their marital tie ended and culminated into divorce. On 6-2-2003, respondent, herein, filed an application for guardianship of his minor daughter namely Yasrah Bibi, who was in the custody of the appellant and is still living with her. The main ground for the custody of his daughter which the respondent took before the trial Court, was that as Sughra Bibi, appellant herein, has contracted second marriage with another person, who is a stranger, the welfare of the minor could only be guarded by him as a real father of the minor. He also claimed custody on the grounds of his family and religious background, and that his mother (the paternal-grandmother of the minor) could also look after the minor. The Guardian Judge after relying upon a judgment of this Court reported as Shafique-ur-Rehman v.
Mst. Fazeelat Begum 1995 SCR 136 accepted the application and handed over the custody of minor Yasrah Bibi, to her father, respondent herein. In the estimation of the Court, it was in the welfare of the minor to keep her in the custody of her father. Dissatisfied with the finding of trial Court the appellant herein filed an appeal before the Shariat Court. The Shariat Court, while placing reliance on section 354 of Mahomedan Law which deals with disqualification of females including the mother from custody of the minor child, dismissed the appeal of the appellant, hence the instant appeal with leave of the Court has been filed by the appellant, Sughra Bibi.
3. Leave was granted by one of us in this case on 31-10-2005 but arguments could not be heard till 17-5-2006 when a Bench of this Court considered it proper to summon the parties as well as the minor. Yasrah Bibi, and posted the case for arguments to 14-6-2006 but the same could not be heard on that date and the case was further posted for arguments to 15-11-2006, when it was again adjourned to 1-12-2006.
4. We have heard the learned counsel for the parties and also gone through the record. The minor, Yasrah Bibi, was present in the Court today. She was found sufficiently prudent and intelligent.
When she was asked as to whether she wanted to live with her father, the respondent herein, or not? She replied in negative and told us that she has never seen her father, and that she is living with her mother/appellant. She also narrated in the open Court that she is studying in 4th class and is happy by living with her mother. The respondent was absent and his father was present in the Court who admitted that his son Akhtar Hussain, respondent, has also contracted second marriage and is living with his wife.
5. Mir Khalid Mehmood, the learned counsel for the appellant, assailed the judgments of the lower Courts on the ground that, in his estimation, the Courts below by ignoring the mandatory provisions of law, that the minor girl must be kept in the custody of her mother till she attains the age of puberty, have passed illegal orders. The main plank of his arguments is that, as the respondent has also contracted second marriage, the welfare of the minor can only be protected if she is given in the custody of her mother. The evidence has not properly been appreciated by the Courts below, submitted the learned Advocate. To substantiate his argument that the welfare of the minor lies with her mother he relied upon the cases reported as Mst. Hurbai v. Usman PLD 1963 Kar. 888, Zahoor Ahmed v. Mst. Rukhsana Kausar and 4 others 2000 SCM R 707, Irshad Begum v.
Mirza Muhammad Haleem and another 2003 YLR 3245 and Bashir Bibi v. Ghulam Rasool and 2 others 2005 YLR 547.
6. As against this, it has been contended by the learned counsel for the respondent that in view of the provisions of Mahomedan Law read with section 17(2) of the Guardians and Wards Act, 1890 the welfare of the minor lies in giving her in the custody of her father as, in his estimation, it is not safe for her in view of the fact that her mother has contracted second marriage with a stranger. The learned Advocate also pressed into service section 354 of the Mahomedan Law, which incurs disqualification of the mother if she marries a person not related to the minor child within the prohibited degrees and that if she, the mother, goes or resides at a considerable distance from the father's place of residence, she loses the right of custody of the minor. It has also been contended by the learned counsel that two Courts below have concurrently recorded the finding of facts, therefore, there remains less total for the appellant to defend. Living with her father in fact means living with all those who are related to her and fall within the prohibited degrees.
7. From record and what has been addressed at Bar, the following is the factual position:--
(i) That appellant and the respondent each have contracted second marriages;
(ii) The minor Yasrah Bibi is living with her mother and does not desire to go to her father and she has not seen him till today, the date of arguments;
(iii) She is a student of 4th Class and is happy to live with her mother. Her body language also confirms her statement;
(iv) The application for custody has been filed after the order of the competent Court to pay maintenance allowance to her by her father; and
(v) her father is working as cook in a school for religious education and her grandfather who was present in the Court expressed his willingness to take the custody of the minor child.
8. At this stage we must make it clear that in presence of the parents claiming the custody of the child grandparents or other legal guardians cannot be considered for handing over the custody to them under any law including Mahomedan Law and the Guardians and Wards Act. On this point the provisions of Mahomedan Law by D.F. Mullah are very clear, however, deviation from this view has been recorded in some cases but that also in the interest and welfare of the minor.
9. The learned Judge of the Shariat Court has almost repeated the grounds which prevailed with the Guardian Judge while handing over the ustody of Yasrah Bibi to her father/respondent herein.
Each party produced evidence in support and rebuttal of their respective contentions and stand by the other party which need not be discussed here in detail. Both the parties got their statements recorded in the trial Court and justified their right for the custody of Yasrah Bibi, minor. The contentions of each party are conventional in nature, which have since long been taken by the contesting parties in almost all cases relied upon by the learned counsel for the parties. As has earlier been mentioned, the trial Court while handing over the custody of the minor to her father- respondent, appears to be influenced by the provisions of Mahomedan Law by D.F. Mullah and a judgment of this Court titled Shafique-urRehman v. Mst. Fazeelat Begum 1995 SCR 136, which judgment of this Court gives the impression that it goes against the findings of the superior judiciary of Sub-continent. We have, therefore, decided to record an authoritative judgment for the guidance of the Court below. In this respect we have considered the provisions of Mahomedan Law, Guardians and Wards Act, 1890 along with all amendments and the cases reported as Mst.
Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCM R 299, Mst. Rashida Bibi v. Muhammad Ismail 1981 SCM R 744, Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252, Mst. Hamida Begum and another v. Ubedullah and others 1989 CLC 604, Mst. Fazeelat Begum v. Public in General and another PLJ 1994 AJ&K 33, Shafique-ur-Rehman v. Mst. Fazeelat Begum 1995 SCR 136, Muhammad Ramzan v Mst. Rukhsana Bi 1996 SCR 265, Irshad Begum v. Mirza Muhammad Haleem and another 2003 YLR 3245, Bashir Bibi v. Ghulam Rasool and 2 others 2005 YLR 547, Zahoor Ahmed v. Mst.
Rukhsana Kausar and 4 others 2000 SCM R 707 and Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCM R 1839. After going through the above-referred facts and authorities we are of the view that the findings recorded by this Court that welfare of the minors would be presumed with person who is entitled to the, custody under the Muslim Law is not absolute and shall always remain subject to the welfare of the minor
10. A collective reading of the statement of the parties, statement of Muhammad Bashir son of Noor Muhammad, Akhtar Hussain, a witness for appellant herein namely Muhammad Altaf son of Roshan Din and what has been stated above brings us to the proposition that as to whether if a disqualification is incurred by the mother, like one in hand that she has contracted second marriage with a stranger, but the welfare of the minor is found to put her in the custody of the mother, the Court has to hand over her to her natural guardian or to decide the question keeping in view the welfare of the minor? Before this proposition is answered, keeping in view the different provisions of law on the subject and the judgments delivered from time to time by the superior Judiciary of the Sub-Continent, it is felt necessary to appreciate the facts of this case. It is correct that in the present case appellant has contracted second marriage and that also with a stranger and in view of section 352 of the Mahomedan Law, she has incurred a disqualification for custody of the minor. Similarly the respondent herein has also contracted second marriage. On ground position does not end here. The case of the minor has to be looked into from another angle. It is not enough to say that she has to live either with her mother or father. If she is handed over to her mother, she in fact has to live with her step-father and face the agony of circumstances prevailing there which may include her physical insafety, mental torture and immoral attitude and as against it if she is given in the custody of her father, it obviously means to place her under the control of a step-mother, where again she has to bear that pressure which can only be felt or faced by one who is placed under such situation and atmosphere. We can only contemplate and have conservative calculations of that. In each case she has to live "between the devil and the deep blue sea" and "stand between wind and water". Under such circumstances the Courts have to find for her only "bad in the best", which needs evaluation after deep scrutiny of facts in each case keeping in view the provisions of law and changed social environment.
11. Unfortunately the authorities referred to at the Bar and other adjudication delivered from time to time by the superior judiciary are divergent. In some of the authorities strict adherence to the Personal Law has been pressed, whereas in many of the judgments it has been held that only welfare of the minor is the prime consideration for handing over the custody of the minor to the father or mother as the case may be.
12. In the case reported as Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252 in a constitutional writ petition, Justice (R) Tanzeelur-Rehman held that when under the Muslim Personal Law of a sect, the custody lies with the mother or father, heavy burden lies on the party to prove that welfare of the minor lies with the person other than one mentioned in the Law.
' In the case reported as Mst. Hamida Begum and another v. Ubedullah and others 1989 CLC 204 it has been observed that in view of the fact that the mother has contracted second marriage, the father would be entitled to have the custody of the minors who had attained the age of 7 years during the pendency of the proceedings.
' In the case reported as Mst. Rashida Bibi v. Muhammad Ismail 1981 SCM R 744, the father was declared competent to have custody of the child in spite of the fact that he had failed to pay maintenance allowance to the ward. In this judgment it was, however, held that the father does not become disentitied on this 'ground irrespective of other circumstances of the case.
' In the case reported as Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCM R 299, it was adjudicated upon by the Supreme Court of Pakistan that inability to maintain a minor is no ground to refuse the custody to the mother. It was observed that even if there be a presumption that it is in the welfare of the minor to hand over the custody to a person under the Personal Law the Court can refuse to change the custody if the circumstances of the case so warrant.
' In the case reported as Mst. Fazeelat Begum v. Public in General and another PLJ 1994 AJ&K 33 it was held that it is not necessary and obligatory that the minors who have attained the age of 7 years should be given to father. It was also held that the paramount consideration is the welfare of the minor and the Personal Law is subordinate to it.
' In the case reported as Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265, it was held that after attaining the age of 7 years by the minor, presumption goes in favour of the father unless some strong reasons are brought on record which disentitle him from the custody of the minor. In this judgment it was also held that despite the fact that the father has contracted second marriage, it cannot be presumed that the boy would not be brought up or educated.
' In the case reported as Irshad Begum v. Mirza Muhammad Haleem and another 2003 YLR 3245, while considering the dictum recorded by this Court and reported as Tassadiq Hussain Shah v. Mst.
Surraya Begum 1980 CLC 1802, a Division Bench of this Court handed over the custody of a minor girl to her maternal-grandmother mainly on the ground that the minor was putting on with her grandmother since her mother and father, after divorce, had contracted second marriage. In the latest judgment recorded by this Court and reported as Bashir Bibi v. Ghulam Rasool and 2 others 2005 YLR 547 while discussing sections 17 and 25 of the Guardians and Wards Act, it was held that the paramount consideration would be the welfare of the minor.
' From Pakistani jurisdiction three cases need mention as those reports appear to be in line with the legal proposition.
' In the case reported as Zahoor Ahmed v. Mst. Rukhsana Kausar and 4 others 2000 SCM R 707, Mst.
Firdous Iqbal v. Shifaat Ali and others 2000 SCM R 838 it was held that while deciding the question of custody of the minor paramount consideration is always welfare of the minor and that general principles of Mahomedan Law that father as a natural guardian, has the preferential right of custody, always remains subject to the welfare. Of the minor which is the prime consideration while considering the question of custody.
' In the first case reported, as Zahoor Ahmed v. Mst. Rukhsana Kausar and 4 others 2000 SCM R 707 a petition for leave to appeal was disposed of while holding that if the minor has to live with her grandparents of either side it would be in the welfare of the minor to allow him to stay with maternal-grand-parents where he was living even before the application under sections 17/25 of the Guardians and Wards Act. The facts of this case are that the father who was working abroad came forward for custody on the ground that he is financially better and well-to-do in status and can afford to give better education as a father of his minor son and that the mother having contracted second marriage with five children from her new marriage was ill-equipped to properly bring up and educate her minor son. Father was refused custody on the ground that as he was working abroad as a labourer, cannot possibly be held a fit person to hold the custody of the minor indirectly through his own parents. The boy was allowed to stay with his maternal-grand-parents as he had developed ties with the maternal-grand-parents. In this case, before the case of custody , came for adjudication, a decree for maintenance had already been passed by a competent Court. While discussing the facts and effect of this situation, the learned Judge of the Supreme Court in para.4 of the report held that the petition for custody is nothing but a counterblast by the petitioner to defuse the decree of maintenance of the minor. In this case the minor was summoned in the Court but he refused to go with his father and had informed the Court that he was happily living with his maternal-grand-parents.
' As far the second judgment reported at page 838 of the same authority is concerned, after discussing the Principle of Mahomedan Law and other books on the subject including Hidaya, 2nd Edition Vols.IV, (page 138) it was held that in spite of the disqualification incurred by the mother she can be handed over the custody of her minor child if the welfare of the minor so warrants. While speaking for the Court Mr. Muhammad Bashir Jahangiri, the learned Judge, observed at page 843 in para.l5 that the'custody of the minor can 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 any other. 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.
' In the last judgment reported as Muhammad Akhtar v. District Judge, Attock and. 2 others 2004 SCM R 1839 a Full Bench of the Supreme Court of Pakistan at page 35 in para.4 observed, "The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor.
The Court in the light of law on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation from the settled principle of law that in the matter of custody of the minor the paramount consideration is always the welfare of the minor. No doubt, general principle of Mahomedan Law is that a Muslim father being natural guardian of the minor has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of question of custody".
13. Section 349 of the Principles of Mahomedan Law provides that applications for appointment of the guardian of the persons or property are to be made under the Guardians and Wards Act, 1890 and subsequent principles deal with the right of different persons for custody of a minor whether he or she. Section 17 of the Guardian and Wards Act deals with the matters to be considered by the Courts which provides that keeping in view the law to which the minor is subject the guardian shall be appointed with the prime consideration of welfare of the minor. Subsection (2) provides that while considering what will be better for the welfare of the minor, the Court has to have regard of the age, sex and religion, of the minor, the character and the capacity of the proposed guardian, his nearness of kin to the minor and the wishes in the case of a deceased parent and any existing or previous relation of the proposed guardian with minor or his property. Subsection (3) speaks of an independent factor for the Court to consider which is reproduced as below:-- "Section 17(3). If the minor is old enough to form an intelligent preference, the Court may consider that preference."
14. By what has been stated above, we find that in spite of the fact that her mother has contracted second marriage with a stranger, Mst. Yasrah Bibi, on inquiry of the Court has categorically submitted that she desires to live with her mother and does not want to stay or go to her father or grandfather. The father has failed to maintain her which culminated into filing of an application for maintenance. The present proceedings are in fact a counterblast to defuse that situation. The economic condition of her mother and father are almost equal. Thus, keeping in view the circumstances of the present case, we cannot brush aside the .Desire of the minor to stay with her mother. Consequently, the proposition above-narrated, keeping in view the facts of this case and the authorities discussed above, can safely be answered by holding that the guidelines provided by the Mahomedan Law are not absolute in nature and while appointing a guardian of the person of a minor her choice cannot be overlooked and that the paramount consideration which has to weigh with the Court is welfare of the minor which also includes not only her well-being but has to be determined keeping in view the surrounding in and outside the house where her father or mother lives.
15. The Courts below have recorded their findings by relying upon a case reported as Shafique-ur- Rehman v. Mst. Fazeelat Begum 1995 SCR 136, wherein it has been held by a Division Bench of this Court that welfare of the minor would be presumed with the person who is entitled to the custody under the Muslim Law and that the Court may refuse to grant custody to the person other than the natural guardian except where strong circumstances justifying to refuse the custody to him are available. Similarly refusal to the natural guardian to maintain the minor would not disentitle him from custody of the minor. In our view this judgment of the Supreme Court runs counter to the law and the case-law on the subject as in our view the prime consideration for appointment of guardian is the welfare of the minor which must weigh with the Court irrespective of the provisions of Personal Law. Similarly the conduct of the father or mother must also be considered and in view of subsection (3) of section 17 the choice of the minor cannot be taken lightly and must be given due weight. We, therefore, while distinguishing some of the judgments wherein it has been laid down that strict adherence should be made to the Personal Law and that heavy burden is cast on the party to prove that welfare of the minor lies in the person other than one who has the right of custody of the minor under the Muslim Law, overrule the case relied by the Courts below and reported as Shafique-ur-Rehman v. Mst. Fazeelat Begum 1995 SCR 136.
16. For the above-stated reasons while recalling the orders recorded by the Courts below Mst.
Sughran Bibi, appellant herein, is given the custody of Yasrah Bibi (minor), as in our view living with mother is definitely better than living with her stepmother.
The appeal is accepted with no orders as to the costs.