1. ' MUHAMMAD TASNIM, J.---This constitutional petition has been filed by Mst. Sadori widow of late Khan Muhammad under Article 199 of the Constitution seeking direction to respondents to produce her minor son Sameer, aged about 6 years before this Court and handover the custody of said minor to the petitioner.
2. ' Brief facts leading to this petition are that petitioner was married to one Khan Muhammad, real brother of respondents Nos.4 and 5. Out of the wedlock, she had two sons, namely, Sameer aged about 6 years and Mehboob Ali aged about 4 years. It is alleged in the petition that her husband was got murdered through Gul Hassan and it is further stated that respondent No,4 with collusion and connivance with other respondents lodged F.I.R. No,40 of 2007 at Police Station Kotdiji, under sections 302, 34, P.P.C., in which brother of the petitioner Mir Khan Mehrani was also nominated along with other accused, however, her brother was let off by the police and case of other accused was challaned in the competent Court. It is further stated that the respondents Nos.4 and 5 in connivance with each other forcibly and illegally dispossessed the petitioner from her husband's house and also took away number of articles along with them. It is also claimed in the petition that respondents Nos.4 and 5 also took away her minor son Sameer against her will per force and said minor is in their unlawful custody. Petitioner has filed present petition for transfer of custody from the respondents to the petitioner.
3. ' Notice of this petition was issued to the respondents per order, dated 26-7-2010 and in compliance whereof respondents Nos. 4 and 5 appeared in Court on 2-8-2010 and admitted that the minor is in their custody. Accordingly, they were directed to produce the minor in Court on 4-8- 2010. In compliance of the aforesaid direction minor has been produced in Court today.
4. ' Learned counsel for the petitioner contended that the custody of the minor be handed over to the mother, who is the natural guardian of the minor Sameer, aged about 6 years. He further says that under the Muslim Personal Law, petitioner enjoys right of Hizanat and can keep minor during Hizanat period. He further says that the uncles of the minor have kept the minor against the will and consent of the petitioner. He further says that minor produced in Court be handed over to the petitioner who is mother of the minor. He further says that if respondents Nos.4 and 5 require custody of the minor they may file proper proceedings before Guardian Court, which will be contested by the petitioner in accordance with law.
5. ' Learned counsel for the petitioner has invited attention of the Court to the provisions relating to right of mother to custody of infant child as mentioned in The Principles of Mohamedan Law by Sir D.F. Mulla. In tabulation 352 right of mother to custody of infant child has been provided as under:-- "352. Right of mother of custody of infact children.---The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father."
6. ' In support of his contention that mother enjoys right of Hizanat and she is entitled to retain custody of the minor upto seven years as according to him petitioner has not remarried as yet, he has relied upon a judgment of Rahimtullah Choudhary v. Mrs. Syeda Helali Begum and others (1974 SCMR 302), wherein Hon'ble Supreme Court has dealt with the rule of Hizanat as under:-- "The rules on hizanat of children of tender age under Muslim law are based on the following tradition of the Holy Prophet (may peace be upon him); "A woman once applied to the Prophet, saying '0 Prophet of God that is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care to which the Prophet replied, 'thou hast a right in the child prior to that of thy husband, so long as thou does not marry with a stranger'."
7. ' The tradition is quoted 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 thy child than honey, 0 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 term 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 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 body, 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 a 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 that period the charge of her property 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."
8. ' He further relied upon case of Imtiaz Ali and another v. The State (1997 PCr.LJ 587), wherein learned Single Judge while dealing with a writ petition relating to custody of a child and in respect of right of hizanat has observed as under:-- "It is well settled that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she attains puberty. The right continues even though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father.
9. ' Even after the expiry of seven years, the mother is entitled to retain the custody of the minor child unless his welfare demands otherwise because in the final analysis, it is the welfare of the child that weights against all other weighty considerations. It may be observed that this controversy could only be decided by a Guardian Judge and the whims of prospective guardians paternal unless in this case, do not figure anywhere."
10. ' In another case of Mst. Rizwana Bohari v. Abdul Majeed Shah (1984 PCr.LJ 2582) minor was examined in Court and the minor expressed his desire to live with the respondents other than the mother, even then the learned Judge who was dealing with the case did not deliver the custody to the grandfather, however, custody was handed over to mother for the reasons expressed by the learned Judge in reported judgment which are as under:-- "(i) that a desire expressed by a minor to live with either of the party is not sufficient by itself to control the question of his custody,
(ii) he being below the age of seven years, his consent is immaterial,
(iii) that from appearance he is not old enough to form an intelligent preference and that he remained under the influence of respondent No,1"
11. ' On the other hand, advocate for the respondent No,4 contends that the brother of the respondent No,4 was killed by the petitioner's brother, hence custody may not be handed over to the mother as there is threat to the life of minor. He further says that minor is ailing boy and needs medical treatment which is being provided by respondent No,4. Learned counsel further says that mother is not entitled to custody as according to him welfare does not lie with the petitioner. The argument advanced by learned counsel for the respondent No,4 is highly misplaced and cannot be entertained in these proceedings.
12. Applying the above rule of Hizanat as interpreted by the Hon'ble Supreme Court as also other learned Judges of the superior Courts, the petitioner is entitled to have custody of the minor in view of right of Hizanat as mentioned herein above. The minor has been produced in Court by the respondent No,4, and custody whereof has been handed over in Court to the mother who undertakes to provide proper education A and medical treatment to the minor and shall keep welfare of the minor as prime consideration in bringing up the minor. Since minor was removed from the custody of mother illegally, same has been restored to the petitioner. If the respondents claim custody of the minor they may draw appropriate proceedings in accordance with law. This petition has served its purpose and is disposed of accordingly.