RAZA ALI KHAN, J. The captioned appeal by leave of the Court has been directed against the judgment, dated 28.11.2019, passed by the Shariat Appellate Bench of High Court of Azad Jammu and Kashmir (hereinafter to he referred as High Court) whereby, the appeal filed by the appellant, herein, has been dismissed.
2 The facts forming the background of the captioned appeal are that both the contesting parties, herein, filed separate applications for < guardianship of the minors, before the Additional District and Sessions Judge/ Guardian Judge Bagh, which were contested by the rival parties by filing the objections. In the application filed by the appellant, herein, it was claimed that the respondent, herein, has forcibly snatched the minors and kept them at an unknown place, due to which their education is being adversely affected, hence, the guardianship certificate may be issued in her favour. On the other hand, the respondent, herein, claimed that the appellant has- run away with an unknown person by leaving the minors, hence, she is not entitled to the guardianship. After necessary proceedings, the. Guardian Judge/Family. Judge, vide its consolidated judgment/order, dated 31.08.2019 accepted the application of respondent, herein, and issued the guardianship certificate in his favour. Feeling aggrieved, the appellant, herein, approached the learned High Court by filing an appeal. The learned High Court after necessary proceedings has dismissed the appeal, through the impugned judgment, dated 22.11.2019.
3. Mrs. Rahat Farooq Raja, the learned Advocate for the appellant after narration of the necessary facts submitted that impugned judgments of the learned High Court as well as the trial Court are the result of misconception of law and the facts. She argued that neither the trial Court nor the learned High Court has appreciated the record in its true perspective and has issued the guardian certificate in favour of the respondent. She further argued that the age of. minor Ahtesham is 7 years and minor Irkham is under regular treatment of Cardiologist and for better up-bringing and nourishment, both the children need mother's care. She emphasized that the respondent, herein, is unemployed and is not able to take care of the children. She added that while leveling the fake allegations, a forged and fabricated FIR was also lodged by the respondent for abduction of the appellant which have not been proved from the oral as well as the documentary evidence, but inspite of that the guardianship certificate has been issued in favour of the respondent. She further added that the impugned judgment on the face of it is against law and the facts and a result of mis-reading and non-reading of evidence. She submitted that both the Courts below have failed to appreciate the material available on record while handing down the impugned judgments, hence the same are not maintainable in the eye of law. She further submitted that appellant being natural guardian can better look after the minors and for guardianship of the minors, she is continuously pursuing the matter upto this Court, which itself shows her affection and love towards the children, hence, being a natural-guardian, she was entitled to the guardianship certificate. Al these legal aspects of the case escaped the notice of the Courts below while issuing the guardianship certificate in favour of the respondent, hence, the interference by this Court is warranted under law. She finally submitted that while accepting this appeal, the impugned judgments of the Courts below may kindly be reversed. The learned Advocate in support of her submissions placed reliance on the case reported as Tahir Zaib v. Wafa Ahmed and others 12017 CLC 96].
3. Conversely, Raja Jalil Umar, Advocate, the learned Advocate for the respondent vociferously opposed the petition on the ground that the learned trial Court has not committed any illegality while Granting the guardianship certificate to the respondent and the learned High Court has rightly affirmed the same. He argued that both the Courts below while passing the impugned judgments properly appreciated the evidence and the record, hence, concurrent findings of facts cannot be interfered by this Court unless there is misreading and non-reading of the evidence. He further argued that the allegations levelled against the appellant were categorically admitted by the appellant and her father during cross-examination before the Guardian Judge Bagh and has failed to prove her good character and capacity for being a Guardian, whereas, the respondent has proved that the welfare of minor lies with him. He submitted that appellant is employed in a bakery and draws reasonable salary, hence, can maintain the minors very well. The Courts below have resolved the controversy in a legal manner, hence, the interference by this Court is not warranted under law. He finally prayed that this appeal is not maintainable which is liable to be dismissed. In support of his submissions, the learned Advocate placed reliance on the cases reported as M. Ramzan Mst. Rukhsana Bibi [1996 SCR 265], Shafiqurehman v. Mst. Fazilat Begum [1995 SCR 136], M. Rasheed and another v. M. Bashir and another [2009 SCR 237], Nasrullah v. Shamim Akhtar and others [2010 PCr.LJ 1623], M. Ismael and another v. State and another [2008 SCR 584], Munir Hussain Shah and others v. Qasim Hussain Shah and others 1999 CLC 828 and Adalat Khan v. Fazal Hussain and another [1995 SCR 151].
4. We have heard the learned Advocates for the parties and gone through the record of the case made available. The examination of the record divulges that both the parties filed applications for the issuance of guardianship certificate before the Additional District Judge/Guardian Judge. The learned Guardian Judge consolidated both the applications, framed issues and directed the parties to lead evidence in support of their claims. At the conclusion of the proceedings, the learned trial Court accepted the application of the respondent and issued the guardianship certificate for the minor children in favour of the respondent, through the judgment, dated 31.08.2019. The aforesaid judgment of the learned trial Court was challenged by the appellant herein, before the Shariat Appellate Bench of the High Court. The learned High Court after necessary proceedings and hearing the parties, observed in the impugned judgment that:- "In every matter relate to a minor, the Court will give preference to the child's welfare and interest over that of parent's right. According to Guardian and Ward Act, welfare of minor is a paramount and the same will be considered in the interest of the child to live with his/her sibling. In the case in hand, guardian ship was refused to the mother because of their character. The allegation against her is that she used to run away with unknown person. A perusal of file of trial Court reveals that as per Annexure DA an FIR was lodged in this regard at Police Station Dheer and allegations levelled by the respondent, herein, in FIR is proved from the statement of appellant during cross-examination. He also annexed Exh. "DB" through which Muhammad Munir respondent, herein, filed complaint against Fahad Mazhar, who was arrested but later was released by the apex Court of Pakistan. He also annexed at page 39, an order of judicial Magistrate, where. appellant, herein, submitted application against the respondent, herein, for sending him to Dar-ul-Aman due to dire consequences of respondent, herein, from the evidence led by parties and as well as documentary evidence referred to and relied upon by the respondent, herein, it is proved that the appellant, habitually run away and custody of minors to appellant does not fall within the definition of good welfare, hence, in the aforesaid circumstances, the Guardian Judge has rightly handed over the custody of minor in favour of father. In view of above, finding no force in this appeal, the same is hereby dismissed."
5. In our considered view, the utmost priority of the Court in determining the custody of a minor is the welfare and well-being of the minor. This is the reason law provides a parental jurisdiction to the Guardian Judge in such cases. The objective of the law is not just handing over the custody of the minor, but to examine all the aspects which come with it. The power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare. The word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values. The Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents. No doubt according to certain Muslim jurists, custody of a minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father. However, it is an established principle of law that the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case allow. Section 17 of Guardians and Wards Act, 1890, deals with the appointment of the Guardian of a minor, which reads as follows:- "(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provision of this section, be guided by what, consistently with law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of the deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.
(4) Omitted by the Federal Laws (Revision and Declaration; Ordinance, XXVII of 1981.
(5) The Court shall not appoint or declare any person to be a guardian against his will.
The Court has to consider the character and capacity of the proposed guardian as mentioned in section 17(2) of Guardians and Wards Act, 1890. In the case in hand, allegations levelled against the respondent are of serious nature and in this regard a FIR No. 391 was also lodged at Police Station Dheer Bala under offences 496-A. Another FIR No. 224/ 2016 with same allegations was lodged at Police Station Bagh under offences ZHA 19, 10/11. In the regard of this matter of fact, relevant statements of the respondent and witnesses are on record. The statement deposed by the respondent in cross-examination before the trial Court is reproduced as under:--- The respondent witness, Muhammad Waris Khan Stated in his statement that:- Another witness of the respondent, Raja Anayat, stated that:- Similarly, the respondent, herein, Munsif Khan stated in his statement that:- After the appreciation of the record produced by the parties, we are of the view that some serious allegations leveled against the appellant, in different cases are still sub judice before the Courts below and it would be inappropriate to comment on these merits of the case, because the learned counsel for the appellant categorically denied these allegations, levelled in the FIR, but such toxic state of affairs lead to an unpeaceful and unhealthy atmosphere which adversely affects the well- being of the minor. It is the paramount duty of the Court to make sure that the environment in which the minor is to be brought up is suitable for his health, religious and moral well-being and does not in anyway harm his mental and physical health or his religious and moral values.
6. It would, be advantageous to reproduce para 352 of the D.F. Mulla's Principles of Muhammadan Law:-
352. Right of mother to custody of infant children.---The mother is entitled to the custody (hizana) 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."
In the case in hand, both minors are admittedly over the age of seven years. No doubt, that in case of separation between husband and wife, the right of nursing and keeping the infant child rests with the mother, but there are exceptions and room for extra-ordinary circumstances which differ case to case. It is a settled principle of law that the Court will prefer the betterment of minor over that of parent's right in such cases. The said principle allows the Guardian Courts to determine the custody of the minor on the basis of his best interest which can lie with either of the parents.
Admittedly, the spouses are now segregated and allegedly, the appellant has married to another person, therefore, we are of the view that minors are school going grown-up boys, living with their father since long and they can he better looked after by the respondent (their father) rather than appellant, (their mother). In the case reported as Muhammad Ramzan v. Mst. Rukhsana Bi [1996 SCR 265], this Court observed in para 20 that:- "From the survey of the case law it becomes abundantly clear that after attainment of the age of 7 years of the minor by the presumption of welfare lies in favour of father, unless some strong circumstances are brought on record which disentitle the father from the custody of the minor son."
In another case reported as Shabana Naz v. Muhammad Saleem [2014 SCMR 343], it was held that:- "8. It may be noted that in terms of section 7 of the Guardians and Wards Act, 1890 (the Act), the paramount consideration for the Court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children but indeed the Court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to be custody of minor and some of the factors could be, where the father is habitually involved in crimes or is a drug or alocohol addict, maltreats his child/children does not have a capacity or means to maintain and provide for the omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor.
11. Para 352 of the Muhammadan Law provides the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child until she has attained puberty and the right contains though she is divorced by the father of his child unless she marries a second husband in which case the custody belongs to the father.
12. Para 354 provides for disqualification of female from custody of the minor, which includes the mother and one of the instance laid down is that if she marries a person not related to the child within the prohibited degree e.g. a stranger but the right revives on the dissolution of marriage by death or divorce.
13. Thus, it is apparent from reading of the two para of the Muhammad Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she taken second, husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. It has been construed by the Court in Pakistan that his may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody."
The same view has been taken in the case reported as Sultana Begum v. Mir Afzal an4 others [PLD 1988 Karachi 252], in para 20 of the judgment that:- "20. It may, however, be stated by me that if under Muslim Personal Law of a sect as recognized under Article 227-Explanation of the constitution, 1973, custody lies with a mother or a father, heavy burden is cast on the other party to prove that the welfare of the minor lies with the person other than the person who has been given right of the custody of the minor by the Muslim Personal Law of that sect. Thus, the law presume that where is the legal custody, there is placed the welfare of the minor. If, by Muslim Personal Law, a particular relation is entitled to the custody of minor, the Courts, in the absence of proof to the contrary, may presume that the welfare of the minor lies in being delivered to that person. Under the law appliable to parties, who are, probably, Hanif's, the mother/petitioner is entitled under her Muslim Personal law to the custody of her male child upto 7 years of his age. The boy having reached that age, his custody under the Muslim Personal Law now lies with the father/respondent No.3."
In the other case titled Mst. Hamida Begum and others v. Ubedullah and others [1989 CLC 604], it has been observed that:- "The rule of Muslim law is not absolute. It is always subject to the consideration of the welfare of the minor. However, petitioner No.1, herself agreed to keep the custody of the minor son till his attaining the age of 5 years in the compromise application. In any case during pendency of these proceedings the minor is Row admittedly of about 9 years. It is also admitted by the counsel for the petitioner that ex-wife of the respondent has contracted another marriage. His last contention as also stated in the petition that the custody of the minor be given to her mother, the maternal- grandmother of the minor, further strengthens the conclusion of the two Courts below that the welfare of the minor lies with the respondent as compared to the petitioner mother. In Islamic law, too, the father is entitled to the custody of his minor son on his attaining the, age of seven years and that the welfare of the minor lies with the father unless contrary is proved."
In the light of above, we are of the view that the learned trial Court after due appreciation of the record and evidence, has issued the guardianship certificate in favour of the respondent which is rightly upheld by the learned High Court.
7. We also fully agree with the contention of the learned Advocate for the respondent that the concurrent findings of the facts recorded by the Courts below cannot be interfered by this Court unless some gross illegality, mis-reading, non-reading of evidence or some substantial injustice has been pointed out. In this regard, reliance can be placed on the case reported as Muhammad Din v. Muhammad Ashraf and others [2005 SCR 225], wherein, it was held that:- When a question of fact concurrently decided by the Courts below is upheld by the High Court then it is not proper for this Court to substitute its opinion against the opinion of the Courts below...".
In another case titled Kamal Hussain v. M. Shabir and others [2017 SCR 236], it has been observed that:- "The defendant appellant could not succeed to point out any misreading or non-reading of evidence, therefore the findings of facts concurrently recorded by the Courts below cannot be disturbed or interfered with merely on the strength of the argument which does not find support from the law or record."
We do agree with the case law relied upon by the learned counsel for the appellant in the case reported as Tahira Zaib v. Ghaffar Ahmed [2017 CLC 96], but the same in the peculiar circumstances are distinguishable and not applicable in the case in hand.
In view of the holistic readings of the provision, as enumerated before, case laws on the issue of guardianship and reasoning of the impugned judgments, the appellant has failed to identify any illegality or legal infirmity that calls for interference by this Court. The learned High Court has rightly affirmed the judgment of the trial Court. Eventually, this appeal being merit less, is hereby, dismissed. No order as to cost.