ABID HUSSAIN CHATTHA, J: This constitutional Petition is directed against the impugned Order / Judgment and Decrees dated 03.11.2023 and 01.02.2024 passed by Judge Family Court and Additional District Judge, Sialkot, respectively.
2. Brief facts of the case are that Ameer Hamza (the "Minor") was born on 20.07.2021 as third son to Respondent No. 3 (the "Respondent") and Muhammad Azam who is not a party to this Petition and shall hereinafter be collectively referred to as (the "Real Parents") of the Minor. The dispute emanates from the fact that on the very day of birth, the Minor was adopted by the Petitioners who are maternal uncle and aunt of Muhammad Azam, the father of the Minor.
3. The Minor since his birth is being raised and nourished by the Petitioners. However, after about 20 months on 14.04.2023, the Respondent as real mother instituted a Custody Petition seeking custody of the Minor from the Petitioners on the ground that she was pressurized and coerced to agree with the proposed adoption, whereafter, she conditionally consented against unequivocal assurance of the Petitioners that she will meet the Minor every day or whenever she wanted. Nevertheless, about 15 days prior to institution of the Petition, when the Minor was with her, he was forcibly snatched from her by the Petitioners which compelled her to file a Petition under Section 491 of the Code of Criminal Procedure, 1898 and during its proceedings, Birth Certificate of the Minor presented by the Petitioners depicted that his birth record has been registered under the parentage of the Petitioners instead of the Real Parents. As such, it is inviolable right of the Respondent to seek custody of the Minor being her natural guardian. Accordingly, the Respondent prayed that custody of the Minor be conferred to the Real Parents and his Birth Certificate be also amended by incorporating their names.
4. The Petitioners candidly admitted the fact that the Minor is the son of the Real Parents who was adopted with their voluntary consent. In fact, a year before the birth of the Minor, it was settled with free consent of the Real Parents and paternal grandparents of the Minor that if the Respondent is blessed with another son, the Real Parents will allow his adoption by the Petitioners as they have three daughters but did not have blessings of a son and in furtherance of this promise, custody of the Minor was voluntarily given to the Petitioners immediately upon his birth on compassionate and humanitarian grounds who borne all the delivery expenses, incorporated his name as Muhammad Ameer Hamza in the concerned Union Council under their parentage with the consent of the Real Parents and have raised him with utmost care and attention. As such, the Petitioners have deepest love for him who in turn is also profoundly attached to them and recognizes them as his parents. The Petitioners have left no stone unturned to provide a peaceful and flourishing life in terms of wellbeing of the Minor and have never created any impediment in free access of his Real Parents to meet him as and when they so required. Moreover, they are also ready to undertake any other arrangement for free access of the Real Parents qua their meetings with the Minor. Hence, the best welfare of the Minor vests with them which entitles them to retain his custody.
5. After framing of issues and recording of evidence, the Family Court held that the Minor being adopted child cannot get inheritance benefits from the Petitioners who are alien for him and fall within the prohibitory degree, the Real Parents have preferential right to hold custody of the Minor and there is no substitute to the lap of the real mother. As such, welfare of the Minor vests with the Real Parents and the earlier oral arrangement of adoption was unjustified. The Appellate Court concurred with the Judgment of Trial Court.
6. Learned counsel for the Petitioners submitted that the Courts below ignored an important aspect of the case that Real Parents gave the custody of Minor to the Petitioners with their free will and consent and Minor is residing with them since his birth, therefore, the Real Parents are not entitled to his custody at belated stage which is against the paramount consideration of welfare of the Minor. The Petitioners have discharged their obligations in terms of welfare of the Minor and there is no allegation in this respect. The Minor has spent most sensitive part of his life with the Petitioners and is deeply attached with them which fact was acknowledged by Family Court in its interim order dated 24.07.2023. He further contended that adoption is not regulated under any statutory framework in Pakistan, however, it is recognized in our jurisprudence by the Superior Courts and the act of adoption neither violates the laws of Pakistan nor the principles of Islamic Law. Section 2 of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 provides that questions in relation to, inter alia, adoption and guardianship are to be decided in accordance with Muslim Personal Law where the parties are Muslims. In this case, both parties are Muslims and adoption is not prohibited under Islamic Law. Article 119 of the First Schedule of the Limitation Act, 1908 also provides for a period of limitation to obtain a declaration that an adoption is valid. This provision reflects that the legislature has conceived that a declaration can be validly sought pursuant to Section 42 of the Specific Relief Act, 1877. It can, therefore, be safely submitted that there is no prohibition under the law in force in Pakistan against adoption and where non-biological parents adopt a child, they are entitled to seek a declaration regarding the legal character of such relationship. Thus, a declaration of adoption can be sought to secure the rights of the adopted child and custodial parents. This is particularly so when Article 4(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") stipulates that no person shall be prevented from or be hindered in doing that which is not prohibited by law. Hence, the Petitioners did not do any wrong while adopting the Minor. He quoted the following instance from Islamic history as narrated in case titled, "Mariam Bibi through Abida Parveen v. Naseer Ahmad and 2 others" (PLD 2015 Lahore 336):- "9. With regard to the concept of adoption in Islam, we can seek guidance from Sunnah of Prophet Muhammad (P.B.U.H.). At the time of prophet's marriage (P.B.U.H.) with Hazrat Khadijah (R.A.), she gave a slave namely Zayd Bin Haritha to Prophet Muhammad (P.B.U.H.) and the Prophet Muhammad (P.B.U.H.) took good care of him and their relationship changed from that of master and a slave into one of father and son. Zayd was one of the first persons to have accepted Islam.
When his father and uncles came to know about his whereabouts, they came to Makkah and told Prophet Muhammad (P.B.U.H.) that Zayd had been captured by some thieves and sold into slavery. The Prophet set him free, but Zayd refused to leave Prophet Muhammad (P.B.U.H.) and go home with his father. Haritha the father of Zayd, became very angry and openly declared that from now on "Zayd is not my son". The Prophet immediately responded by adopting Zayd. Zayd came to be known as Zayd Bin Muhammad.
10. This continued till after the Prophet Muhammad (P.B.U.H.) migrated to Medina. Zayd had grown up and was now a married man. However, his marriage did not work out. Allah revealed some verses related to Zayd's divorce in which Almighty also talks about the issue of "re-naming" the adopted children. The Almighty says: "And Allah did not make your adopted children your sons. That is only your words coming out from your tongues. And Allah says the truth and He guides you to the right path. Call them with reference to their (real) fathers. It is more just in the sight of Allah".
(33:4)
After the revelation of this verse, Zayd was again called Zayd Bin Haritha and not Zayd Bin Muhammad. However, this change in name did not affect the relationship of the Prophet Muhammad (P.B.U.H.) and Zayd. They were still like father and son."
7. Learned counsel stressed that the above reference explains that adoption is allowed in Islam, however, changing parentage of the adopted child is not allowed. Learned counsel also narrated other incidents. He said that the Holy Prophet (P.B.U.H.) handed over daughter of Hazrat Hamza (R.T.A.) in the custody of Hazrat Jaffar (R.T.A.). Similarly, Hazrat Abu Huzaifa Bin Atba Bin Rabeea Bin Abd Shams (R.T.A.), a companion of the Holy Prophet (P.B.U.H.) adopted one child Salim Bin Ma'qal and gave his niece to Salim Bin Ma'qal' in wedlock. He also stated that the Holy Prophet (P.B.U.H.) as an orphan was adopted and raised by his uncle Hazrat Abu Talib. Accordingly, he submitted that the Minor was lawfully adopted, therefore, welfare of the Minor in view of the peculiar facts and circumstances of the case rests with the Petitioners. Reliance was placed on cases titled, "Rabia Khatun v. Azizuddin Biswas and others" (PLD 1965 Supreme Court 665); and "Miss Fauzia Iqbal v.
Farhat Jahan and others" (PLD 2015 Lahore 401).
8. Conversely, learned counsel for the Respondent submitted that based upon the admission of the Petitioners, both the Courts below concurrently ruled in favor of the Real Parents on the touchstone of welfare of the Minor. It is established on record that the Respondent was forced to hand over the Minor on his birth to the Petitioners to which she had reluctantly agreed under coercion on the specific condition that they would allow free meeting of the Minor with her every day which condition was violated. Hence, the Respondent was compelled to institute Habeas Petition followed by Custody Petition. After the verdict of the Family Court, the Respondent also instituted a declaratory suit which was decreed in her favor and she has succeeded to correct parentage of the Minor in his birth record. He emphasized that according to Muhammadan Law and law laid down by the Apex Court, the real mother is entitled for custody of his child who is in his tender age unless it is proved that welfare of the child demands otherwise. Similarly, it is equally settled that although adoption is permissible yet it is necessary to record particulars of the biological parents in birth record of the child who is only entitled to inherit from his biological parents. As such, the Petitioners committed a grave wrong by consciously recording wrong parentage of the Minor in his birth record. He stated that although there is no specific statutory dispensation qua adoption of a child in Pakistan yet it is imperative to execute an adoption deed containing terms and conditions thereof by affixing signatures and thumb impressions of both the parties and two marginal witnesses after securing guardianship certificate from the Guardian Court. However, it is necessary to record the actual parentage of an adopted child in his birth record. It is only if the adopted child is orphan or his parentage is unknown and is adopted from an NGO or Orphan House through the Child Protection Court, then the names of custodian parents can be recorded in his birth record as per mandate of the Punjab Destitute and Neglected Children Act, 2004 (the "PD&NC Act"). Hence, the Petitioners did not follow proper procedure qua adoption of the Minor. Placing reliance on case titled, "Mst. Shahnaz Mai v. Additional District Judge, etc." (2022 LHC 7138), learned counsel vociferously contended that given the peculiar facts and circumstances of the case, there is no occasion to interfere in the concurrent findings of facts recorded by the Courts below in exercise of constitutional jurisdiction.
9. Arguments heard. Record Perused.
10. The question for determination before this Court is as to whether the Petitioners or the Real Parents are entitled to custody of the Minor in terms of his welfare. The parentage of the Minor is admitted. The Respondent as real mother has compassionately pleaded that she was coerced to give custody of the Minor which she had reluctantly agreed subject to the condition that the Petitioners would allow meeting of the Minor with her on daily basis as both the Real Parents and the Petitioners are relatives and are residing in close vicinity. When the said arrangement was breached, the Respondent was compelled to institute a Habeas Petition followed by the Custody Petition. The Respondent also specifically alleged that parentage of the Minor was deliberately wrongly recorded under the name of the Petitioners in the birth record of the Minor with deception.
The alleged facts are established from record as the Petitioners conceded by responding that they did not obstruct meeting of the Minor, are ready for any other arrangement for his frequent meetings with the Respondent and that parentage of the Minor was recorded under their names with the consent of the Real Parents. The only defence taken by the Petitioners is that as the adoption was on the basis of voluntary consent of Real Parents, therefore, change of custody cannot occur at a belated stage when they have raised the Minor with utmost care and responsibility since the very day of his birth who is also deeply associated and attached with them.
This raises a pertinent question as to whether the Respondent as real mother of the Minor can be deprived from custody of her son when she has unequivocally claimed that the act of adoption was undertaken under coercion and was contingent upon daily meeting with the Minor which condition was breached by the Petitioners. The act of adoption in the manner as stated above also raises a fundamental question as to whether welfare of the Minor was duly considered at the time of permitting his adoption irrespective of the fact that such adoption was voluntary or under coercion.
11. There is no cavil to the proposition that adoption is permitted under the principles of Islamic Law but compelling circumstances under which adoption was necessary are required to be established. It is well settled that Real Parents have preferential right qua custody of their child unless the welfare of the child demands otherwise. In the given circumstances of the case, there was no justification for adoption in the first instance merely for the reason that the Petitioners did not have blessings of a son. The Respondent as real mother was not obligated to accept desire of the Petitioners which had found a soft corner with her husband and parents-in-law. No written deed of adoption was executed between the parties and the arrangement remained informal. The assertion that the Minor is deeply associated or attached with the Petitioners is without substance since a child naturally becomes associated and attached with the person, in whose custody he is being nourished from the date of his birth. Certainly, the Real Parents, against whom there is no allegation of any nature, whatsoever, that they were reluctant to raise the Minor, are the best choice for his custody. Therefore, welfare of the Minor was compromised when a dubious arrangement of adoption was undertaken. The real father of the Minor / husband of the Respondent was examined by this Court on 16.01.2025 who unequivocally supported the cause of the Respondent. The Minor is in tender age, therefore, his intelligent preference cannot be obtained.
12. Mere fact that the Respondent instituted a Habeas Petition or the Custody Petition after a lapse of sometime cannot be allowed to perpetuate a wrong, particularly, when the Respondent has offered reasonable and plausible explanation for such delay. Perpetuating this wrong any further would be detrimental to the interests and welfare of the Minor. Paras 352 and 354 of the Muhammadan Law confer the custody of a child to his natural parents on the touchstone of welfare, particularly, the mother who is bestowed with inbuilt and inherent love and affection for her child more than anyone else in the world. There is no reason to deprive the Minor from his entitlement to be raised by his Real Parents alongwith his siblings. Such an act is precisely according to the principles enunciated by Islam which does not treat custodial parents as the same or equal in contrast to biological parents. The facts and circumstances of this case do not permit to deviate from this normal rule, especially, in view of the fact that an adopted child is not entitled to inherit from his custodial parents but from his biological parents. Reliance is placed on cases titled, "Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi and 2 others" (1991 SCMR 19); and Shahnaz Mai case (supra).
13. The incidents quoted by learned counsel for the Petitioners in paragraph Nos. 6 & 7 of this Judgment also unequivocally reflects that adoption does not change relationship of a person with his Real Parents and siblings. Precisely for this reason, Hazrat Zayd-bin-Haritha (R.T.A.) was instantly allowed to go with his father. The other examples cited by learned counsel for the Petitioners are irrelevant inasmuch as there was no contest of custody with biological parents. In cases where biological parents of a child are not available for any reason, whatsoever, naturally custody of such child has to be assumed by someone else in order to raise the child and it is in this context that adoption of the child is permissible. However, in any event, the fundamental and cardinal principle of welfare of the Minor remains the guiding principle to decide custody matters depending upon the facts and circumstances of each case. The Rabia Khatun case (supra) relied upon by learned counsel for the Petitioners is not attracted to the facts of the titled case, whereas, Miss Fauzia Iqbal case (supra) is distinguishable inasmuch as the same was decided based on intelligent preference of the child.
14. It is proved that the Petitioners got entered name of the Minor under their parentage in his birth record. Irrespective of the fact that such act was undertaken with the consent of father of the Minor or otherwise, the said act was clearly against the injunctions of Islam as the Holy Quran unequivocally proclaims and ordains to call an adopted child by his real father's name as already stated in Mariam Bibi and Mst. Shahnaz Mai cases (supra).
15. During course of arguments, learned counsel for the Respondent apprised that the Respondent has already got corrected parentage of the Minor in his birth record by filing a suit for declaration and as such, the said matter has already been resolved.
16. The facts of this case also underscore absence of any statutory dispensation qua adoption in Pakistan and corresponding need for regulating the law of adoption. There may be innumerable cases where adoption is imperative, therefore, it is necessary that a law is promulgated by the legislature spelling out the circumstances under which adoption of a child can take place, the procedure for adoption and the rights and obligations of the adopted child and the custodial parents so that questions regarding adoption can be regulated and adjudged, accordingly. The PD&NC Act falls short to achieve this objective due to its limited scope.
17. In view of the above, this Court is constrained to hold that the Courts below have rightly and aptly passed the impugned decisions which do not suffer from any irregularity, jurisdictional defect and misreading or non-reading of evidence on record calling for interference by this Court in exercise of constitutional jurisdiction vested under Article 199 of the Constitution. Hence, the titled Petition is dismissed.
18. Office is directed to transmit a certified copy of this Judgment to the Secretary, Law & Parliamentary Affairs, Government of the Punjab for consideration and initiation of process of appropriate legislation on the subject of adoption.