' RAJA MUHAMMAD KHURSHID KHAN, C. L-Mst. Khalida Begum, appellant, through this appeal wants to call up and quash the finding recorded by Mr. Justice Sardar Said Muhammad Khan, a learned singie Judge of the High Court, on 13-12-1980, whereby in upsetting the order of the Guardian Judge (District Judge, Mirpur), dated 6-4-1980, the custody of the minor sons, Qamar Zaman and Naveed Ahmed, born of the spouses the parties to this appeal (the minors are above seven years of age) was entrusted to Mohammad Altaf respondent their father in preference to the appellant their mother with whom the minors were living after their separation from their father.
2. Before the learned Guardian Judge, the parties led evidence to prove their respective claim to retain the custody of the minors. The learned Judge, after discussing the evidence, found that the welfare of the minors lies with the mother and she only is entitled to retain their custody as she had not, in any way, disqualified herself to hold this position. In his estimation Muhammad Altaf, respondent, their father, the natural guardian of the minors, a Lecturer in the Education Department, had disentitled himself to have the custody of the minors because he had neglected to maintain them during the period of their stay with their mother. On the other hand it has been found that they had been properly looked after and fed by their maternal uncle, Muhammad Rashid, and his brothers who are also giving them proper education under the care and protection of their mother.
3. It may be observed that despite the fact that the learned Judge in the High Court had not controverted the finding of the Guardian Judge to the effect that welfare of the minors lies in the custody of their mother, he felt advised to hold that the welfare of the male minors, who are above seven years of age, in all circumstances, according to the Fiqah Hanafi, even if the evidence established otherwise, shall be presumed with the father who is their natural guardian. The observation of the High Court may, with advantage, be reproduced :- "While dealing the question of the custody of the minors, the welfare of the minors, is a paramount consideration. There is ample authorities in support of the proposition that welfare of the minors will be presumed in the custody of person who is entitled to the custody under Personal Law. As has been seen that some of the authorities are of the view that there is no Qur'anic or traditional authority with regard to the custody of the minors, while on other hand, there are authorities in support of the view that, according to the Hanfi mother is entitled to the custody of the minor daughter, till she attains the age of 14 years and her son till he is 7 years of age, provided she does not marry outside prohibited degrees of the minor children. I prefer the latter view."
4. Leave to appeal was granted to consider the following points :-
(1) Whether application for appointment of a guardian moved under section 17 of the Guardians and Wards Act could validly be treated by the High Court as an application for the custody of minors under section 25 of the Guardians and Wards Act?
(ii) Whether welfare of the minors .In all circumstances, as held by the High Court, even if the facts ,speak otherwise, lies with the natural guardian ? And
(iii) Whether on facts of the case the welfare of the minors shall be deemed to be with their mother?
5. About point No, (i), it has frankly been conceded by Khan Ali Muhammad, the learned counsel for the appellant, that an application for appointment of a guardian by the father can be treated to be an application for the custody of the minors under section 25 of the Guardians and Wards Act (VIII of 1890). In a case reported as Muhammad Bashir v. Mst. Ghulam Fatima the identical view prevailed.
6. The general principle is that the Courts should avoid technicalities and try to do real and substantial justice between the parties. In the absence of a statutory bar, there is nothing improper in treating one form of proceedings as another. We, therefore, agreed with the learned Judge of the High Court B that an application of a natural guardian under section 19 of the Guardians and Wards Act for appointing him the guardian of the minors may be treated as an application for the custody under section 25 of the Guardians and Wards Act.
7. Let us now proceed to determine as to whether the welfare of the minors, as held by the learned Judge in the High Court, in all circumstances, even if the evidence does not establish so, lies with the natural guardian and whether the evidence in the present case establishes the fact that mother had disentitled herself to retain the custody of the minors. In other words the concise point which we are called upon to determine is, whether under sections 25 and 17 of the Guardians and Wards Act read with the provisions of Muhammadan Law a male infant who has attained the age of seven years, as is the case before us, is to be necessarily, irrespective of his welfare, given in the custody of the father, the legal guardian of the minor, even if he treats him with cruelty, because welfare is always presumed with the natural guardian.
8. We regret we cannot agree that a male minor, who has attained the age of seven years, must necessarily be given in the custody of the natural guardian even if the evidence establishes that he cannot be properly looked after by him. Section 25 of the Guardians and Wards Act, reads :- "(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) .
(3) .1 ' It would appear that emphasis is laid on welfare of the minor. Welfare of the minor, therefore, is the guiding factor in the matter of delivery of custody. A Court may order the return of a ward to the custody of the guardian only if it thinks it as necessary in the interest of a minor. The rights of parents-regarding the interest and control of their children are to be exercised not in the interest and for the benefit of the parents but in the interest and for the welfare of the children themselves.
The sole criterion for decision as to wh is entitled to have the custody of the minors is the welfare of the minors. The C right of the father, who is the natural guardian of the minors, is liable to be defeated if it is found that his application is not bona fide.
9. In this case the father, who seeks the custody of the minors, is living apart from his wife and the minors. During the period of separation he cared not to look after their welfare and neglected to provide them maintenance, clothing etc. It is significant that he moved the application for the custody of the minors on 25-10-1977 when an application on behalf of the minors against him for providing them maintenance allowance had already been moved before a Civil Court on 2-10- 1977. This fact convinces us that his application for the custody of the minors was only made to frustrate the maintenance application and such an application cannot naturally be said to be made in good faith.
10. We have also gone through the evidence recorded before the Guardian Judge and we totally agree with him that the minors, who are living with the mother, are getting proper education and are properly looked after and their welfare lies with the mother. Even the learned Judge in the High Court has not controverted this finding.
11. Another factor which tilts the balance in favour of the mother is that the respondent (husband) has got a step-mother who is not expected to give so much love to the infants as is given by their mother. We cannot, for a moment, conceive that the step-mother of the respondent will be any substitute for the mother in the matter of rearing up the minors. Mother's lap "is God's own cradle for a child and as between the father and the mother, other things being equal, a child in the circumstances of a given case should remain with the mother". If a minor has for some years from the tender age lived with his mother and has been well-cared for and during that time the minor's father has shown lack of interest in the minor, these are, in our opinion, circumstances of very great importance. They bear the question of the interest and welfare of the minors and on the bona fides of the appellant. The crux of the matter is that only in the absence of the evidence to the contrary and not otherwise ; it should be presumed that the welfare of the minors lies in such minors being handed over to a relation uncle D Muhammadan Law entitled to the custody. The welfare of the minors is a dominant factor and such welfare does not necessarily lie in the custody o of natural guardian.
' In Mst. Zainab Bibi v. Abdul Karim it has been observed that a Court passing an order appointing a guardian of a minor should not solely base his order upon who is entitled to be guardian under personal law of the minor but the Court has also to consider the welfare of the minor.
' Same view prevailed in Seeyall Veettil Abubacker v. Ovinakath Vayyilapurayil Mariyumma. It has been held in that case that a Muhammadan father as the lawful guardian of his minor children under his personal law is entitled to make an application under section 25; but the fact that he is a lawful guardian does not compel the Court to pass an order in his favour. The Court can only make an order for return of the ward to the custody of the guardian if it is for the welfare of the minor which is of primary importance.
' In Zainab Bibi v. Feroze-ud-Din it was said by Mr. Justice B. Z. Kaikaus, J. (as he then was) that while it requires a strong case to rebut the right of the father to custody, it is not an absolute right and if the father has been guilty of such conduct that in the opinion of the Court custody of the minor should not be granted to him ; Muhammadan Law does not stand in the way.2 3 4 ' The proposition that the father may disentitle himself to custody on account of his conduct is one to which hardly an exception can be taken and is well supported by authority. I may refer to 32 P W R 1917, AIR 1937 Lah. 481, AIR 1923 Lah. 283, AIR 1939 Mad. 611, and 1951 E P 338. Learned counsel for the respondent relies on AIR 1928 Lah. 896, AIR 1927 All. 358, and my own judgment in Muhammad Bashir v. Mst. Ghulam Fatima. Once we accept the principle that it is the welfare of the minor that is the dominant consideration, it is a matter to be decided on particular circumstances of each case.
' Case reported as Mst. Zohra Begum v. Sh. Latif Ahmad Munawar is also in line with the above- cited authorities. It has been observed in that case :- "Where there is no Qur'anic or Traditional Text or an Ijma on a point of law, and if there be a difference of views between A'imma and Faqihs, a Court may form its own opinion on a point of law. It would, therefore, be permissible for Courts to differ from the Rule of Hizanat stated in the Text Books on Muslim Law where there is no Quranic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which, according to Imam AI-Shafai, is included in the doctrine of Qiyas. Where the rule propounded in different Text Books on the subject of Hizanat is not uniform, it would be permissible for the Courts to depart from the rule stated therein if, on the facts of a given case, its application is against the welfare of the minors.
' Where, therefore, in an application under section 25 of the Guardians and Wards Act, 1890, it was found that the mother for nine years had reared and brought up her two minor children, a son and a daughter, without any shortcomings and all these years the father had not only not seen the children but had not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother."
12. It would appear that welfare of the minors is the main consideration under the Guardians and Wards Act and the personal laws have been subordinated to the welfare of the minors. This view also prevailed in a case decided by this Court reported as Tassadiq Hussain Shah v. Mst. Surraya Begum. It has been observed in that case :- "Under section 25 of the Guardians and Wards Act emphasis is laid on the welfare of the minor.
Welfare of the minor, therefore, is the guiding factor in the matter of delivery of the custody. Under the Guardians and Wards Act, personal laws have been subordinated to the welfare of the minor and a Court may order the return of ward to the custody of the guardian only if it thinks it as necessary in the interest of minor."
13. The learned counsel for the appellant also submitted that the above-cited case was quoted before the learned single Judge of the High Court. This submission of the learned counsel is also owned by Raja Lehrasap Khan, the learned counsel appearing on behalf of the respondent.
Unfortunately this case has no mention in the report under appeal. If the learned counsel are correct then it may be said that the learned Judge has acted in violation of the provisions of section 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which is to the effect :- "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Azad Jammu & Kashmir."
14. It is thus manifest and admits of no exception that all the subordinate Courts, including the High Court, are bound to obey the dictum and pronouncement of this Court. Violation of this constitutional requirement, we are afraid, cannot be appreciated and at times it may create unhappy situation. We hope that in future the learned Judges in the High Court would ensure that their orders do not run counter to the judgments of this Court. The superior judiciary of a country is to protect the constitution in letter and spirit.
15. It is also significant that the learned Judge in the High Court has also overlooked the dictum of Mr. Justice Sardar Muhammad Sharif Khan, the learned Acting Chief Justice of the High Court, in a case entitled Mst. Surraya Begum v. Syed Tassadiq Hussain Shah earlier decided and relied upon5 6 by the learned Guardian Judge in his report. The Supreme Court, in fact, in the case mentioned in para. 12 above, felt advised to agree with the pronouncement of Mr. Justice Sardar Muhammad Sharif Khan resulting in the dismissal of the appeal of Syed Tassadiq Hussain, the husband. This case, which also decides that the welfare of the minors does not necessarily lie in the custody of the natural guardian, should not have escaped the attention of the learned judge as the judgment of the learned Gurdian Judge, under appeal, before him was mainly based on the judgment recorded by Mr. Justice Sardar Muhammad Sharif Khan. In these circumstances even in the absence of the dictum of this Court if the judgment of the single Judge of the High Court earlier recorded was not to be followed the appropriate method to resolve the issue was to refer the matter to a larger Bench of the Court for decision.
16. The learned counsel for the respondent, Raja Lehrasap Khan, has cited All Akbar v. Mst. Kaniz Maryam, Mst. Zahida Begum v. Muhammad Nazir Khan and Juma Khan v. Mst. Gul Ferosh in support of his arguments that a minor male, after attaining the age of seven years, must necessarily be given in the custody of the father and his welfare, in all circumstances, shall be presumed with him. We have gone through these citations. There is nothing in any of the judgments cited by the learned counsel for the respondent which would negative the proposition that the father may not, by his conduct, lose right of the custody of the children or that an application with ulterior object must, in all circumstances, be allowed to succeed.
17. Under these circumstances, we allow this appeal and setting aside the order of the learned single Judge of the High Court restore the judgment of the Guardian Judge and hold that the welfare of the minors lies with the mother and she is entitled to retain their custody.
18. The application of the respondent shows his keenness to get the minor children admitted in a good school. He is at liberty to do so and the appellant (mother) will have no objection if the minors are admitted in such a school. It will be however subject to the condition that during the vacation in such a school the minors will reside with the appellant and the respondent, of course, will be entitled to the society of the minors at the house of their mother.
' The Deputy Registrar, Supreme Court, is directed to send a copy of this judgment to Mr. Justice Sardar Muhammad Sharif Khan, Acting Chief Justice High Court and Mr. Justice Sardar Said Muhammad Khan, Judge High Court, for their perusal. PLD 1953 Lab. 73 AIR 1926 Lab. 117 A 1 R 1946 Mad. 110 PLD 1954 Lab. 704 PLD 1965 (W. P.) Lah. 695 1980 CLC 1802 PLD 1956 Lah. 484 PLD 1966 Azad J& K 1 PLD 1972 Pesh. 1