' RAJA MUHAUMAD KHURSHID KHAN, J.-The controversial point which falls for determination in this appeal by leave against the judgment passed by the learned Single Judge of the High Court, on 4- 4-1977, is whether the appellant, who is the father of Khalid Hussain minor, is entitled to have his custody or his divorced mother (the respondent) with whom he lives and resides since ten years is entitled to retain his custody.
2. An application by the appellant, the father of the minor, was brought before the Guardian Judge (District Judge Mirpur) for his custody. The learned Judge, vide his order passed on 15-6-1976, found that the appellant is entitled to the custody of the minor Khalid Hussain in preference to his mother, the respondent. On appeal before the High Court, a learned Judge, as stated earlier, vide his order dated 4-4-1977, accepting the appeal found that the welfare of the minor lies with the mother as the appellant (the father) due to his second marriage had disentitled himself to have the custody of the minor and he can be properly looked after by the mother in preference to the father.
3. Leave to appeal was granted to the appellant (father) to consider whether under sections 25 and 17 of Guardians and Wards Act read with the provisions of Muhammadan Law a male infant who has attained the age of seven years, as is the case before us, ought to be necessarily, irrespective of the welfare of the minor, delivered to the custody of the father, the legal guardian of the minor.
4. The parties are in agreement :- (a)That the respondent was divorced by the appellant when the minor was hardly three years of age ; and (b)That the appellant had re-married and there are (as admitted by the learned counsel for the appellant) children from the second wife.
5. It had been forcefully argued by the learned counsel for the appellant :-
(1) That the appellant wants to educate the child and for that reason the welfare of the minor demands the custody of the minor with the father ;
(ii) That the appellant is the Manager of a bank and thus he is in a better financial position as compared with the respondent to look after the welfare of the minor. The child, according to him, has reached the age when he should get better education and that end can be achieved only if the custody of the minor is given to the. Appellant who is the legal guardian of the minor ;
(iii) That after attaining the age of seven a male is necessarily to be delivered to the custody of the father as his welfare with the legal guardian is presumed."
7. As against this, it had been argued by the learned counsel for the respondent that the welfare of the minor is the paramount factor to be taken into account for deciding the question of custody of a minor. In view of the fact that the appellant had remarried and has children from the second wife and that the minor re-mained unattended throughout the period for more than ten years, the application for the custody of the minor is mala fide one and in fact that the appellant has disentitled himself to have the custody of the minor.
8. The learned counsel for the respondent further undertook that if father of the appellant wants to educate the minor, as claimed, in a good school the respondent will have no objection to it but it will be subject to the condition that during the vacation in such school the minor shall reside with the mother.
9. Before resolving the controversial point let us see as to what is the nature of the evidence. We have gone through the evidence on record. The evidence makes us to believe that the appellant had taken little care and interest in the minor who is now aged about fourteen years
10. The minor lived all this period with his mother and for that reason his ways must be entirely different from the ways of the appellant. Apart from it, the appellant had remarried and has children from his second wife. The proverbial maltreatment of the step-mother outweighs the presumption that the welfare of the minor lies with the father.
11. Besides, in our view, a guardian even if not having actual custody of the minor shall be deemed to have its constructive custody. Therefore, a father is definitely liable under Muhammadan Law to maintain the child as its natural and first guardian. It would be thus said that the child who is in actual custody of the mother remains in charge of the mother, but in constructive custody of the father. Thus father would be the custodian having constructive custody of the boy and lady would be incharge of the minor. The child, in the present case, therefore, will be said to be in care of the mother but under the guardianship of the father.
12. Under section 25 of the Guardians and Wards Act emphasis is laid on the welfare of the minor.
Welfare of the minor, therefore, is the guiding factor in the matter of delivery of the custody. Under the Guardians and Wards Act, personal laws have been subordinated to the welfare of the minor and a Court may order the return of ward to the custody of the guardian only if it thinks it as necessary in the interest of minor. The welfare of the minor is also partly dependent on the eligibility of the guardian to get the custody. A guardian can assert to Ion as he is a fit person to get the custody.
13. Before going through the cases which speak about the fitness of the father it is necessary to remember that the rights of parents, regarding the custody and control of their children, are to be exercised not in the interest and for the benefit of the parents but in the interest and for the welfare of the children themselves. In this view of the matter, the Court would be perfectly justified in imposing limits upon the father's right of custody if the exercise of such rights would materially interfere with the health and happiness of the minor.
14. In M. Biru v. Beharilal (1) it was laid down that after second marriage, when first wife lives separately, the custody of the child born of the first marriage should be refused to the father and should remain with the mother even though the father remains the natural guardian.
15. The sole criterion for decision as to who is entitled to have the custody of the minor is the welfare of the minor and as held in Manfit Singh v. Bakhshish Singh (2) 'the right of the father is liable to be defeated if it is found that the application of the father is not bona fide. In this case, the father who sought the custody of his minor son had separated from the mother of the boy, had remarried and had two children by the second wife.' In the instant case before us also the appellant (father) had divorced the respondent, remarried and on the top of it has children from the second wife and also neglected to maintain the minor till today. His application as such for the custody of the minor cannot be said to be made in good faith.
16. We cannot, for a moment, conceive that the step-mother will be any substitute for the mother in the matter of rearing up the minor. We have no doubt in our mind that mother's lap 'is God's own cradle for a child and as between the father and the mother, other things being, equal, a child in the circumstances of a given case should remain with' the mother.' We are not prepared to say that the appellant is a fit person to have the custody of the minor. Of course, when the mother is found to be leading a bad and immoral life, which is not the case here, the father is entitled to take the custody of the minor children.
17. It is now settled law that decision of each case depends upon its circumstances. However paramount the right of a father may be that right, in our opinion, is liable to be defeated where it is shown that it is better in the interest of the minor and for its welfare that it should remain where it is.
If a minor has for many years from the tender age, as in the present case, lived with his mother and has been well cared for and during that time the minor's father has shown lack of interest in the minor, these are, in our opinion, circumstances of very great importance. They bear both upon the question of the interests an welfare of the minor and on the bona fides of the appellant.
18. The learned Judges in Bai Tara v. Mohanlal Lallubhai and others (3) remarked :- "The petitioner has married again, and it is obvious that the boy, who was only seven years old at the time this application was (1) AIR 1956 J & K 31 (2) AIR 1952 Pb. 129 (3) AIR 1922 Bora. 405 made, will be much better off living with his mother than with his father, No suggestion whatever has been made as to the character of the mother, which would be a good ground for taking away the boy from her tender care and handing him over to the father who would be a perfect stranger to him.
The stepmother cannot be expected to be very much interested in his welfare."
19. In T. Sivasankara Mudaliar v. Radhabai Ammal and another (1) it was observed :- "Where a father delivers his infant daughter to the custody of another and for over 15 years takes no interest in her, but allows other to do what he as a father should do, it is evident that he is not fitted to exercise the rights of a father. He is certainly not a person in whose favour the Court should pass an order under section 25, Guardians and Wards Act. It is abundantly clear in this case that the minor will be in far better custody if she remains with respondent 1."
20. Summarising the deductions that could be drawn from the above cases it will be seen that while all priority in preference is given to the father the mother's custody is being preferred more and more because of the warmth of affection, an equal to which, the Courts have been definite, could not be got elsewhere. The step-mother in the household of the father has been taken almost as a factor against the welfare of the minor. A father may render himself unfit for the custody of the minor child and without rendering his house unfit for the minor's residence by bringing in a stepmother for him. The appellant in this case had not visited minor since a long time throughout minor's life and he had not taken the slightest notice of him and so he has disentitled himself to have his custody.
21. Ch. Muhammad Taj the learned counsel for the appellant has cited Ali Akbar v. Mst. Kaniz Maryam (2), Mst. Munawar Jan v. Master Muhammad Afsar Khan (3) in support of his contention that the welfare of the minor lies with the appellant and he, in all circumstances, is entitled to the custody of the minor and the presumption is that welfare lies with the legal guardian, i,e, the father in the present case.
22. Ch. Sher Zaman, the learned counsel for the respondent, as against this, has cited Mst. Zohra Begum v. Sh. Latif Ahmad Munawwar (4) to show that it is the Judge who decides as to in whom the welfare of the minor lies in accordance with the circumstances of each case.
23. In Ali Akbar v. Mst. Kaniz Maryam it was held :- "If by Muhammadan Law a particular relation is entitled to the custody of a minor we should presume, in the absence of proof to the contrary, that the welfare of the minor is being delivered to that person. There is no conflict between the Muhammadan Law and section 25 of the Guardians and Wards Act which deals with the welfare of the minor. I have fully explained in Muhammad Bashir v. Mst. Ghulam Fatima that all rules of Muhammadan Law governing custody of minors are rules relating to the welfare of the minor
(1) AIR 1939 Mad. 611
(2) PLD 1956 Lab. 484
(3) PLD 1962 Lab. 142
(4) PLD 1965 Lab. 695 ' and are in all cases subject to this dominant consideration. They are rules which simply raise the presumption of welfare. It should be obvious that there cannot be any conflict between the right of custody under Muhammadan Law and section 25 of the Guardians and Wards Act. It cannot possibly be assumed that Muhammadan Law grants the custody to a person the grant to whom of custody is not in the interest of the minor. Any other interpretation of section 25 of the Guardians and Wards Act would, as I have explained in the above-mentioned case, lead to an anomaly."
' It was further observed :- "It has to be presumed that the welfare of the minor lies with the father and there should be strong reasons for depriving the appellant of the custody of his child. I have only to consider whether any such reasons exist."
24. This clearly shows that the father for entitlement to the custody of the minor can lose such right if such circumstances of a given case show that welfare of the minor will not lie with the father. In the present case, as stated earlier, the father has neglected to look after the minor with a father's eye for 14 years and also cared not to maintain/ him and for that reason he has disentitled himself to have custody of the minor. If the appellant puts him in a convent or some other good school the mother would not put any hindrance in the way of the father.
25. In Mst. Munawar Jan v. Master Muhammad Afsar Khan it has been observed that paramount consideration in the matter of the custody of a minor of tender years is the interest of the child rather than the rights of the parents. Under Mahomedan Law there is a presumption that welfare of the minor lies in living with the party entitled to the hizanat but this presumption can be rebutted and if in a given case circumstances are brought out to justify depriving the party entitled to the custody under Mahomedan Law, an order can he made to that effect.
26. Apart from it, the judicial decisions primarily apply to the facts on which they are given. Such observation generally is made on consideration of the peculiar facts of a particular case. If they are applied indiscriminately to other cases, it is likely that it may result in miscarriage of justice. A case is, in fact, an authority applicable to the facts of a particular case and not for any general purpose that may seem to follow logically from it. Obviously it would not be safe to rely on general proposition of la decided in any individual case to form foundation of general principle because the observation in a judgment separated from the context would not support the isolated data in another case. It would consequently b misreading to apply the inference drawn from certain facts and circumstances to other cases based on different facts and circumstances.
27. It therefore follows that law laid down in a case naturally only applies to the facts of that case and it cannot be said that such a law attains authenticity for every case of the nature.
28. In Mst. Zohra Begum v. Sh. Latif Muhammad Munawwar it has been observed :- `Where there is no Quranic or Traditional Text or an Ijma on a point of law, and if there be a difference of views between A'imma and Faqihs, a Court may form its own opinion on a point of law. It would, therefore, be permissible for Courts to differ from the Rule of Hizanat stated in the Text Books on Muslim Law where there is no Quranic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which, according to Imam Al-Shafai, is included in the doctrine of Qiyas. Where the rule propounded in different Text Books on the subject of Hizanat is not uniform, it would be permissible for the Courts to depart from the rule stated therein if, on the facts of a given case, its application is against the welfare of the minors.
' Where, therefore, in an application under section 25 of the Guardians and Wards Act, 1890, it was found that the mother for nine years had reared and brought up her two minor children, a son and a daughter, without any shortcomings and all these years the father had not only not seen the children but had not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother."
30. If the minor is capable of making an intelligent preference the' Courts may consider the preference alongwith the welfare of the minor. But before the Court gives effect to the personal inclination of a minor, it must be satisfied that the opinion is an intelligent opinion and in the L interest of the minor. The Courts, therefore, have been interrogating the minor almost in every case.
In many cases, minor's inclinations have been the deciding factor. In Murari Lal v. Saraswati (1) it was held that Mst. Ramon, who was merely of sixteen years of age and Mst. Durgi, her sister, fourteen years of age, are not willing to live with Lala Murari Lal and they are in a position to exercise their discretion in this matter, they ought not to be forced to live under the guardianship of the appellant towards whom they have feelings of antipathy. Again in Mst. Janak Dulari v. Mt.
Ganga Dei (2) it was held that the step-son, whose custody was wanted by the step-mother, did not want her as a guardian for himself and in the circumstances of the case, step-mother cannot be appointed as guardian.
31. The minor, in the present case, was examined by the learned Single Judge of the High Court who was much impressed by his statement who refused to go with the appellant. In Mohideen Ibrahim Nachi v. L. Mahomed Ibrahim Sahib (3) the application was by the father under section 25 of the Act for custody of the son. The minor had not seen the father. He stayed all through with his grand- mother with whom he preferred to remain. Sadasiva Aiyar, J. Concurred with the District Judge who said that the boy's preference is not unnatural. The boy was aged between 15 and 16.
32. The statement of the minor before the learned Single Judge, in the circumstances of the case, seems to be one borne of conviction and we are convinced that he was capable to make intelligent choice for his own welfare.
33. In view of the above we are of the view that the welfare of the minor lies with the mother and there is no reason to interfere with the judgment of the learned Single Judge of the High Court. Of course, the father will be entitled to get the child admitted in a convent or in any other standard school and the respondent (mother) will have no objection if the ward is admitted in such a school, but it will be subject (1) AIR 1925 Lah. 375 (2) AIR 1931 Oudh 326(3) AIR 1917 Mad. 612 to the condition that during the vacation in such school, reside with respondent and the appellant, of course, will be society of the minor at the house of his mother.