' B. G. N. KAZI, J.-The petitioner seeks to challenge the judgment dated 8-11-1977 of the First Family Judge, Karachi and appellate judgment dated 19th March, 1978 of the Third Additional District Judge, Karachi in both of which, she was directed to hand over custody of her minor son of respondent No. 1, father of the minor.
2. The facts leading up to the filing of the petition are as under : ' Respondent No. 1 married the petitioner at Karachi on 17-5-1979 and a son named Mohammad Farooq was born to them on 23-3-1970. Respondent No. 1 used to live jointly with respondents 2 and 3 who are his foster parents who had adopted him as their son. The father of respondent No. 1 is the brother of respondent No, 2 and his mother is sister of respondent No,
3. The two brothers had married the two sisters and since respondents 2 and 3 had no child of their own and further since the father and mother of respondent No. 1 had several children, respondents 2 and 3 had adopted respondent No. 1 and had brought him up as their own adopted son. At the time of marriage and thereafter respondent No. 1 alongwith petitioner resided with his foster parents. On 3-11-1972 respondent No. 1 left the petitioner and his minor son Muhammad Farooq with respondents 2 and 3 and went to Japan where he got employment. It is the case of the petitioner that on 18-9-1973 during the absence of respondent No. 1 respondents 2 and 3 malterated her and threw her out of their house and therefore, she along with her minor son started living with her parents. On 1-11-1974 respondents 2 and 3 took away Muhammad Farooq from her custody and therefore, she had filed the family suit (No, 607 of 1975) for the custody of the child and for her appointment as guardian of his person. She had also filed an application under section 12 of the Guardians and Wards Act, 1890 (VIII of 1890) for the interim custody of the minor, and the Court was pleased to allow the said application and the minor has been living with the petitioner ever since. On 29-5-1976, respondent No. 1 had divorced the petitioner. On 8-11-1977 the first Family Judge, Karachi (respondent No, 4) dismissed her suit and directed her to hand over custody of the minor within 7 days.
3. Being aggrieved by the judgment of the First Family Court dated 8-11-1977 she preferred an Appeal No, 93 of 1977) which was eventually heard and decided by the Third Additional District Judge, Karachi (respondent No, 5) on 19-3-1978. Her appeal was dismissed and she was directed to hand over custody of the minor to respondent No. 1 within 7 days of the order, The petitioner then filed the instant petition.
4. To complete the full narration of the facts of the case it may be here stated that during the pendency of this petition, after the admission of petition the operation of the impugned order was ordered to remain suspended and therefore, the petitioner continued to have the custody of the minor. However, as an interim measure the petitioner was directed to send the child to the house of respondents 2 and 3 every Friday at 10 a.m. And to fetch him back at 5 p.m. For the time that the child remains in her custody. It was further directed that respondents 2 and 3 will not remove the child from the jurisdiction of this Court without permission and to ensure compliance of this condition respondents 2 and 3 were directed to furnish security in the sum of Rs, 10,000, Incidentally the security was never furnished.
5. On 2-9-1980 the learned Advocate for respondents 1 to 3 filed by an application under section 151, C. P. C. For restoration of the custody of the minor alleging that petitioner had remarried and is presently residing with her husband and therefore, the minor is also compelled to reside with his step father who is a total stranger and not related to him within the prohibited degree. The further ground was taken that the minor at the time of making of the application is over 10 years of age.
Incidentally it be remarked that the fact with regard to the petitioner having married again has not been denied and is therefore to be accepted as correct. The miscellaneous application for restoration of custody of the minor to respondents by consent has been heard alongwith the main petition.
6. It is admitted factual position that the minor as well as the petitioner and respondents 1 to 3 are Sunni Muslims and Muhammadan Law is their personal law. The application for appointment as guardian of the minor was made before the First Family Court under section 7 of the Guardians and Wards Act, 1890. Section 17 of the aforesaid Act which is with regard to matters to be considered by the Court in appointing guardian inter alia provides that the Court is to be guided by what consistent with the law to which the minor is subject appears in the circumstances to be for the welfare of the minor. As already stated the minor is subject to the Muhammadan Law and, therefore, in considering what will be in the welfare of the minor it has to be considered that under the personal law under which the father is the legal guardian of the minor, the petitioner has no right for appointment as guardian or even for custody of the minor. Under the personal law the mother is entitled to the custody of the person of her minor child in case the child is male up to the age of 7 years and 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. In view of the admitted factual' position that the minor is at present 10 years old and the mother had remarried a stranger there can be no doubt about the fact that the prayer of the petitioner for appointment as guardian of the minor and for custody of the minor is not consistent with the personal law of the parties.
However, it has been stressed at the very outset that the paramount consideration is to be given to the welfare of the minor and therefore, the Court has got plenary powers to pass orders which it considers to be for the welfare of the minor with reference to the matters indicated in subsection
(2) of section 17 of the Guardians and Wards Act, 1890.
7. Mr. Nizam Ahmad, the learned counsel for the petitioner contends that the paramount consideration for appointment of guardian of the person of the minor and for giving custody of the minor is the welfare of the minor and this basic requirement of the law was not satisfied in the impugned orders of the Family Court as well as the appellate Court, inasmuch as, the following material points were not appreciated :-
(1) That since the father of the minor lives in Japan, the impugned orders in his favour ; even granting him permission. If he considered it to be for the welfare of the minor to take him outside Pakistan are not in the interest of the minor as he would be permanently separated from his mother with whom he has been staying ever since birth.
(2) That in case he is taken outside the country the Court cannot exercise control over the guardian, which is a factor not in the interest of the minor ; specially as he is at present receiving education in one of the best schools and there are good reports about his performance in the school.
(3) That the Family Court and the appellate Court should not have considered the financial position of the petitioner as even if the custody of the minor remains with the mother, the father is liable for maintenance of the minor even though it is considered in the interest of the minor and in accordance with his welfare that he should continue to remain in custody of the mother.
4) Finally it is argued that even if the mother has married again, her losing the right to Hizenat under the Muslim Law should not be considered as overruling the welfare of the minor which can only be safeguarded by permitting him to live with his mother. We will consider each of the for points.
8. With regard to points Nos. 1 and 2, the learned counsel for the petitioner has referred to clause
(h) of section 39 of the Guardians and Wards Act, 1890 which mentions as a cause for removal of a guardian his ceasing to reside within the local limits of the jurisdiction of the Court. However, as pointed out by the learned counsel for the respondents Nos. 1 to 3, the section B applies to a guardian appointed or declared by a Court or a guardian appointed by will or other instrument, and does not apply to natural or de facto guardian. The provision could not possibly be conceived as applying to father of the minor who is the natural and legal guardian under the personal law.
Similarly the provisions of section 44 of the Act which are about penalty for removal of ward from jurisdiction of Court do not apply to father as natural and legal guardian. To hold otherwise would make it possible for any person to apply for removal of the father of a minor if he wants to take his child abroad with himself for any reason, which could not possibly have been the intention of the Legislature in enacting the provision.
9. The only other consideration pertinently referred to is the separation from the mother, which has now to be weighed in the changed circumstances after the remarriage of the mother, with the loss of control and company of the father. With regard to the performance in the school, it has been urged on behalf of the respondents that the admission of the minor in the school was due to their efforts and that on the contrary after the petitioner obtained interim conditional custody of the child she wanted to remove him from the school and she was prevented from doing do so only by order of the Family Court before whom the respondents had pleaded for the directive.
10. With regard to point No, 3 admittedly the liability to maintain the 7 minor is of the father but the right of the mother to the custody of the minor under the personal law was over, firstly when the by crossed the age of 7 years and secondly the petitioners lost her right to custody of the minor after she married again. In these proceedings the primary consideration has to be, not the preservation of petitioner's right but the welfare of the minor.
11. The learned counsel for the petitioner has referred to the decision of Supreme Court in Muhammad Ramzan v. Mst. Fazal Nishan (1) to show that the argument that the mother did not possess enough money to bring up the minor was not reason enough for refusing her prayer to be appointed guardian of the minor. The facts of that case were totally different as the guardianship was applied for in respect of minor girls whose custody could be claimed by the minor till they attained puberty. The two sons one of whom was aged 10 years and the other 7 years old were permitted to live with the father.
12. The learned counsel for the petitioner has next referred to Supreme Court decision in Civil Petition for Special Leave to appeal Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (2) in which it was observed as under : "Under the Shariat Law, the mother is entitled to the custody (Hisanat) 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. Needless to mention here that the father is the natural guardian of his minor {{FOOT NOTE}}
(1) 1968 SCMR 1435 (2) 1978 SCM R 299 {{FOOT NOTE}} ' children and the mother's custody is a subordinate custody is a subordinate custody and is subject to the control of the father. But the more inability to maintain the children is not a ground for depriving the mother of the custody of her children. In Hurbai v. Usman it was held that the mother's poverty is no hinderance to the custody of her minor daughter. Indeed in law it is for the father to provide for their maintenance."
' It was no doubt observed that the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. Reference was made to the decision in Rahimullah Choudhry v. Helali Begum (I) in which the Court had observed that the question to be decided under section 25 is not the right of guardian to obtain the custody of ward as that right is given to him by the Statute but the welfare of the ward. It was further observed as under :- "A natural or a certificated guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specifically that although the guardian is, entitled to such a custody, no order will he made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Even if there be a presumption that it is for the welfare of the ward to deliver him unto the custody of guardian the Court will have to weigh it against the other weighty considerations on record."
' The considerations on record in that case were that the petitioner had shifted to a particular town for the sake of education of her children in English Medium School there and it was observed that she appeared to have dedicated her life for the sake of her children and had not married whereas the husband had contracted a second marriage when he had divorced her and had two daughters and a son from his second marriage. The facts of the instant case are altogether different, not only the right of the mother to custody of the minor is over but the petitioner has married again unlike the father who has denied all allegations about his having married in Japan.
13. The learned counsel for the petitioner has also referred to the Supreme Court decision in Bashir Ahmad v. Mst. Rehana (2) but the facts of the case are distinguishable in that the wife had contracted another marriage after the husband divorced her but the minor girl born of the union of parties was left to the custody of her maternal grandparents who were definitely well-to-do people able to look after her.
14. In the instant case there are concurrent findings of the Family Court and the appellate Court holding that it is in the welfare of the minor that he should be in the custody of his father. The appellate Court even observed that if the father considered the taking of the minor to Japan to be for his welfare, he could do so. The respondent No. 1 has sworn an affidavit to show that even in Japan due to effort of Col. Gadafi of Libya there is propagation of Islam and Islamic ideals under societies known as Islamic Call Societies.
15. It is undisputed legal position that the father being the natural and lawful guardian of a minor does not require to be appointed. The natural guardianship which vests in him cannot be taken away from him until and unless it is proved that he is unfit to be the guardian of the person of the minor. {{FOOT NOTE}}
(1) 1974 SCM R 305 (2) 1978 SCM R 192 {{FOOT NOTE}}
16. After a Muslim father becomes entitled to the custody of the children who were until then lawfully in custody of their mother under the personal law ceases to be entitled to the custody, after the attainment of specified age. On the aforesaid contingency happening, the custody of the minor by the mother immediately becomes unauthorised and the minor would then be presumed to be in the constructive custody of the father. In the decision of the Peshawar High Court in Mst.
Zeho and another v. Miraj Gul (1) it was observed as under :- "Normally when a certain person has been given the guardianship of a minor by the personal law, which governs him, it should be presumed that it would be for the welfare of the minors that that person has their custody in preference to everybody else in the world including the mother. It will be for the party contending against the normal presumption to prove affirmatively and positively that it would be against the interests of the minors to return them to the custody of their natural guardian."
17. It has been contended by Mr. Nizam Ahmed the learned counsel for the petitioner that the personal law of the minor is not absolutely binding on Court and can be ignored in appointing guardian if welfare of minor so requires. He has relied upon the decision of Dacca High Court in Zohura Begum v. Maimuna Khatun (2). In that case a Muslim woman on death of her husband had married another person not related to her minor daughter by previous husband within prohibited degree. It was held that she was not disqualified to be guardian of minor and her guardianship was allowed to prevail over claim of paternal grand-mother in the circumstances of the case. The facts stated are distinguishable altogether from the facts of the instant case. Assuming for the sake of argument that personal law of minor is not absolutely binding, there is no reason in the instant case to depart from it as nothing which could be considered serious enough has been alleged against the father of the minor which could give us the impression that it would not be in the interest of the minor and for his welfare to give the custody of the minor to the father specially under the fresh circumstances of the mother having married a person who is a total stranger. The wisdom of the rule of personal law depriving the mother of the right to the custody of the minor on her re-marriage cannot be gain said in that usually there will be other children born after the second marriage who looking to the norms of human behaviour would be more loved and protected by the new husband of the mother than the child of the previous husband by the same mother, The apprehended behaviour on the part of the new husband is sure to create feeling of jealousy about treatment of the children born of the second marriage, on the part of the child of the first marriage. Such feelings can affect the health, happiness and even the personality of the minor concerned. The mother not enjoying any independent financial position the choice is between the natural father and a step father who even assuming that he is a good citizen cannot conceivable provide the love and protection of a natural father.
18. Although there is no Qur'anic or traditional text on the point with regard to mother's Hizanat of minor children it is well established that while passing orders with regard to custody of minors care had to be taken that while keeping interest of minors in view the order as far as possible should be consistent with the personal law of the minor. It has been contended on behalf of the petitioner that after the birth of the child the mother has borne {{FOOT NOTE}} PLD 1952 Pesh. 77 (2) PLD 1965 Dacca 290 {{FOOT NOTE}} ' all the expenses including those of his schooling and on his upkeep and that the suit filed by her for maintenance of the child is pending in a Family Court. In the counter affidavit filed by the respondent No. 1 and respondents 2 and 3 the aforesaid assertion has been totally denied and it has been stated that till the father left for Japan he maintained the petitioner as well as the minor and after his departure the petitioner and the minor were being looked after by respondents 2 and 3 on behalf of respondent No. 1. It is further stated that it was due to the efforts of the respondents that the by got admission in St. Paul's School and that after the petitioner had taken away the minor out of the care and custody of the respondents she on the contrary tried to take the by out of the school. It has further been urged that as first the fees etcetera were being paid by the respondents and later since the school was Nationalized there was no question of payment of heavy fees.
19. Having discussed the case on the paramount consideration of the welfare of the minor we find no reason to differ from the findings of the Family Court and the Appellate Court. Before concluding this judgment it may be observed that the learned counsel for the respondents 1 to 3 had taken a preliminary objection to the maintainability of the petition on the point that since the petitioner had filed suit under section 7 of the Guardians and Wards Act, 1890 read with section 5 of the West Pakistan Family Courts Act, 1977 c and against the decision had filed appeal under section 47 of the Act which too had been decided, under section 48 the order had become final and is not liable to be contested by suit or otherwise.
20. The learned counsel for respondents Nos. 1 to 3 contends that the impugned orders were passed in exercise of exclusive jurisdiction. Detailed reasons have been given as to why it is in the interest of the minor and conducive to his welfare if his custody is given to his father and even if it had been a case of misappreciation of evidence he has relied on the decision of this Court in Asghar Ali and 3 others v. Haji Khamiso and 3 others (1) wherein it was held that order passed in exercise of exclusive jurisdiction cannot be challenged on the ground that it was passed on a misappreciation of evidence.
21. The Supreme Court in Civil Appeal Muhammad Hussain Munir and others v. Sikandar and others
(2) observed as under :- "The High Court's supervisory jurisdiction made under Article 99 (2)(a)(ii) of the 1962 Constitution (or for that matter under Article 199 (1) (a) (ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section 115 of the Civil Procedure Code except in two important respects : first the former jurisdiction being a creation of the Constitution stands on a higher pedestal than that under section 115, C. P. C., second the former jurisdiciton has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts. However, that may be, it is wholly wrong to consider that the above constitutional provision was designed to empower the High Courts to interfere with the decision of a Court or tribunal of inferior jurisdiction, merely because in its opinion the decision is wrong. In that case it would make the High Court's jurisdiction indistinguishable from that exercisable in a full- fledged appeal, which plainly is not the intention of the Constitution-makeRs," {{FOOT NOTE}}
(1) PLD 1976 Kar. 659 (2) PLD 1974 SC 139 {{FOOT NOTE}}
22. The petition is, therefore, misconceived and even on the merits no reason at all has been made out for interference on or part with the concur-I rent findings of the Courts below in the impugned ordeRs, The petition is, therefore, dismissed but in the circumstances of the case no order is made as to costs. The petitioner should hand over the custody of minor to respondent No. 1, within seven days of this order.