"No mother shall be treated unfairly on account of her child, no father on account of his child"[1] ANWAAR HUSSAIN, J. This writ petition is directed against the judgment dated 04.01.2014 passed by learned District Judge, Layyah who accepted the appeal of respondent No.3, namely, Muhammad Aslam ("the respondent") and allowed the guardian petition of the respondent, by setting aside order dated 18.04.2013 passed by learned Guardian Judge, Layyah whereby the said guardian petition was earlier dismissed.
2. Concise facts of the case are that the respondent filed a guardian petition, under Section 25 of the Guardian and Wards Act, 1890 ("the Act"), with the averments that he contracted marriage with the petitioner, on 03.03.2004, in accordance with Shariah and out of this wedlock, the parties were blessed with the minor, Muhammad Umair ("the minor") who has been residing with the petitioner; the marriage of the parties, however, could not sustain and ultimately, the suit instituted by the petitioner for dissolution of marriage was decreed against the respondent; the petitioner had contracted second marriage, with one Muhammad Hanif who was already married and now had children from the second mar as well, due to which the petitioner could not look after the minor; the respondent could better look after and maintain the minor and arrange his education better than the petitioner, as such, the welfare of the minor lies with the respondent.
3.The petitioner contested the guardian petition by filing written reply thereto. Divergent pleadings of the parties led to framing of issues. Evidence of the parties was recorded. Learned trial court dismissed the petition of the respondent vide order dated 18.04.2013. Feeling dissatisfied, the respondent filed appeal, which was allowed by learned District Judge, Layyah, vide judgment dated 04.01.2014. Hence, this writ petition has been filed.
4. Learned counsel for the petitioner, inter alia, contends that learned appellate court has set aside the well-reasoned order of learned trial court without proffering any plausible justification as the minor made a clear choice before learned trial court; the evidence of the parties has not been properly appreciated by learned appellate court; there is misreading and non-reading of evidence in the impugned judgment, which has been passed in a mechanical and arbitrary manner and without application of judicious mind. Therefore, it cannot sustain in the eye of law and prays for acceptance of this writ petition by setting aside the impugned judgment of learned lower appellate court and restoration of order passed by learned trial court.
5. Conversely, learned counsel for the respondent has vehemently opposed this writ petition submitting that under the law, once a male child attains the age of 7 years, father becomes entitled to guardianship, ipso facto, and the choice of the former is not to be given much weightage. He avers that learned lower appellate court has delivered the impugned judgment after having thrashed out the evidence of the parties judiciously and rightly set aside the order of learned trial court, as such, the impugned judgment does not suffer from any illegality.
6. Arguments heard. Record perused.
7. It is the case of the petitioner that the minor is not interested in residing with the respondent as latter has always neglected the minor and has not made any attempt to strengthen bonding between them, therefore, it would run counter to the welfare of the minor to compel him to live with such a parent. On the other hand, it is the case of the respondent that since Islamic law mandates the handing over of a male child to father after the child attains the age of seven years, therefore, learned appellate court below has rightly granted the custody of the minor to the respondent and exercise of choice by the minor in the instant case is not relevant, more particularly, when the petitioner is married to a stranger.
8. Question as to who is entitled to hold custody of a child under the law does not normally arise during the subsistence of a marriage. It is only after the separation, and/or divorce between the parents that both parties become bitter and angry and such separation in itself creates tension between them, which generally leads to hostile and vengeful behaviour in our social set-up. In such like situation, it is imperative to understand that the children are a trust from Allah (Subhanahu Wa Ta'ala), and they should be treated and looked after in a proper manner and hence, while dealing with issues of custody of a child, his or her welfare is always the supreme consideration. It is well settled that a mother has a right to the custody of her son till the age of seven years and thereafter it goes to the father. However, this is not an absolute and invariable rule as there is no cavil to the proposition that notwithstanding the right of the mother or father for the custody of male or female child under the personal law, welfare of the child is given paramount importance. This Court has to consider child's welfare and interest over that of parents rights as the courts in the cases of custody and guardianship exercise parental jurisdiction. Section 17 of the Act declares the "welfare of a minor" as paramount consideration rather than the right of the parents.
Welfare is to be determined by taking into account many factors including the choice of a minor provided such minor is capable of forming such preference. Welfare of a minor being a question of fact has to be determined on case to case basis after appraising evidence on record. In "Mohammad Bashir v. Mst. Ghulam Fatima"[2], this Court held that ordinarily, a woman is entitled to custody of a minor but she forfeits her right of custody on contracting second marriage.
However, such rule was held not to be absolute and invariable as special consideration may require the custody of a minor to be retained by the woman despite having contracted second marriage. In Muhammad Bashir supra, a para from the Ameer Ali's Muhammadan Law, page 257, Volume II, Edition 1929 was quoted and relied upon which spells out as under: "Although ordinarily the woman entitled to the custody of a child forfeits her right on contracting a marriage with a stranger, special consideration regarding the interest of the child may require that its custody should be retained by her. For example if a woman separated from her first husband, were to marry a second time in order to secure for her infant child better and more comfortable living, she would not forfeit her right of hizanat."
The court justified its deviation from the rules of Islamic Personal Law by stating that in Islam, consideration of welfare of a minor is paramount and all rules of personal law as well as other factors contributing. to the entitlement of custody are ultimate guidebook for determining the welfare of a minor. In "Mst. Hifsa Naseer v. ADJ Gujar Khan and 3 others"[3], this Court also observed that disentitlement from custody due to second marriage is not an absolute rule.
Sometimes remarriage of the father and his having children from such marriage is also considered as an impediment. "Amar Ilahi v. Mst. Rashida Akhtar"[4] can also be referred where a mother who had remarried was given the guardianship of the minor. In view of the above discussion, the objection raised by the respondent that the petitioner on her remarriage is not entitled to be the guardian of the minor is repelled.
9. This takes me to the nub of the matter. The respondent objected to the giving of preference to the choice of the minor. Before dilating upon the jurisprudence developed on the subject hi Pakistan, it is pertinent to mention that right of a child to choose between the parents has been recognised by Shariah as it was also made basis for decision by the Prophet Muhammad (Sallallahu Alaihi Wasallam). A woman came and asked "O Messenger of Allah my husband wishes to go away with my son" and the Prophet Muhammad (Saltallaljp Alaihi Wasallam) said to the boy; "This is your father and this is your mother. Take the hand of either of them whom you like" and the boy caught the hand of his mother and she went away with him.[5] Right of choice is also based on the practice of Companions.[6] Therefore, the objection of learned counsel for the respondent that once the child turns above seven years of age, his custody must be shifted to the father automatically under the Shariah and no importance should be given to the choice of the minor, in the instant case, is misconceived. Choice of a minor in matters related to his well-being is also recognized under the Convention on the Rights of the Child, 1989,[7] which Pakistan signed and ratified in the year 1990, where under it has been clearly envisaged that the children have a right to be heard in all matters affecting them and their views should be given due weightage in accordance with their age and maturity,. In addition to the fact that choice of a minor qua right of the parents for his or her custody has its traces during the period of Prophet (Sallallahu Alaihi Wasallam) and His Companions, as well as International Law, the argument of learned counsel for the respondent that on attaining the age of 7 years, the custody of a minor child is to be handed over to the father ipso facto is nothing but unbridled flight of fancy on part of the respondent and runs counter to the spirit of subsection (3) of Section 17 of the Act as well, which is reproduced as under: "If the minor is old enough to form an intelligent preference, the court may consider that preference."
Such statutory discretion vested in the court to consider the intelligent preference of the child where he is old enough to form it brings out the hollowness of the argument of learned counsel for the respondent. However, such preference of a minor does not underpin as an exclusive or only factor for handing over custody rather the same is one of the factors to be considered for determination of custody. In "Abdul Razzaque and 3 others v. Dr. Rehana Shaheen ",[8] learned Sindh High Court held that choice of a minor is a factor to be taken into consideration but it cannot be a decisive factor in matters related to custody. In that case, the custody was contested by the grandparents against the mother. Two children aged twelve and eleven showed their unwillingness to accompany their mother. The Sindh High Court awarded custody to the mother by stating that if choice of a child contradicts his welfare, the latter prevails. The court also noticed that children can be influenced by older people to make a particular choice. In "Mst. Aisha v. Manzoor Hussain and others'[9], the Hon'ble Supreme Court held that a minor is not the best judge of his/her interests.
Thus, their choice will be considered only if it is in their interest. In view of the above, it is clear that every case has its own facts and the choice made by a well-grown minor is required to be considered accordingly.
10. In the instant case, the minor appeared before this Court and when asked about his choice, he categorically opted for the petitioner and stated that his father hardly cared to meet him. He further stated that it was his paternal uncle only who used to meet as and when he was taken to the trial court for meeting. Therefore, this Court is of considered view that compelling the minor to reside with the respondent, with whom he has no emotional attachment, is not in the welfare of the minor. Even though the petitioner is married to a stranger, still under the present facts and circumstances of the case, welfare of the minor lies with the petitioner. I am fortified by the view of the Hon'ble Supreme Court of Pakistan in the case of "Sardar Hussain and others v. Mst. Parveen Umar and others.[10] In Sardar Hussain supra, the August Supreme Court gave custody of the minor therein, who was seven years old, to the mother despite her remarriage due to the fact that the minor was emotionally attached to her and regarded his father as a stranger. Sardar Hussain supra is applicable to the present case on all fours. The minor, present in the Court, prima fade, looks like a well-behaved and well-groomed person, which exhibits efforts of the petitioner in looking after the minor even after her marriage with a stranger, and the statement of the minor cannot be easily ignored. The minor is also accompanied by the step father today and appeared to have developed a fair bonding with the latter. Moreover, admittedly, the respondent has also stopped paying the maintenance to the minor. Failure of respondent/father to develop closeness with the minor coupled with failure to make payment of maintenance[11] and the intelligent preference of the minor disentitles the respondent from the guardianship of the minor.
11. In view of the above, the present petition is allowed and the judgment of learned appellate court below is set aside and that of learned trial court is restored.
1. Sura Al-Baqara, Verse 233. "The Holy Quran, Text, Translation and Commentary," by Abdullah Yusuf
2. PLD 1953 Lahore 73
4. PLD 1955 Lahore 412
5. Sunan Abu Dawood, Volume.3, Haidth No. 2277, at page 80 (Publisher: Darussalam)
6. Mandi Zahraa and Normi A. Malek, "The Concept of Custody in Islamic Law", Arab Law Quarterly, Vol. 13, No.2 (1998), Pp 155-177(at Page 166) (http://www.jstonorgistable/3381578). The authors have quoted Ibn Qudamah to refer that Umar (Radi Allahu Anhu) made a boy choose between his father and his mother. Similarly, has quoted Al-Shafi'ie, to refer that Ammarah Al-Jarmi reported that "Ali (Radi Allahu Anhu) asked me to choose between my paternal uncle and my mother and at that time I was a child of seven or eight years."
7. Article 12(1): "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child."
10. PLD 2004 SC 357
11. Masroor Hussain v. Additional District Judge, Islamabad and 2 others [2011 CLC 851 (Islamabad)), Mst. Rasheedan Bibi v. Additional District Judge and 2 others [2012 CLC 784 (Lahore))