' This appeal is directed against the judgment of the District Judge Kotli passed in his capacity as Guardian Judge on 8-4-1984, whereby three minor children of the parties were given to the custody of their mother, Mst. Riaz Sultana, respondent.
2. The brief facts forming background to the filing of this appeal are that out of the wedlock of the parties four children, two male and two female, namely Asif Mehmood, Muhammad Rasab, Miss Ferhat Jabeen and Nusrat Jabeen were born during their stay in England. They were all minors and are living with, their parents in Mexbrough, a county of South Yorkshire of U.K. when they were brought to Mirpur (A.K.) by their father Khadim Hussain, appellant in the year, 1984 leaving behind their mother in U.K. The mother of the minors, on coming to know about their children having been taken to Mirpur, made an application through her father and attorney. Ch. Muhammad Hussain to the Guardian Judge, Mirpur on 24-6-1982 for the return of the minors to her custody in which it was alleged that the appellant without her knowledge and consent while she was admitted in the hospital, had taken her minors children to Azad Kashmir and is keeping them there in his custody thereby depriving them of her affection and love.
3. It was further alleged that the separation of the minors from her was adversely effecting them psychologically as well as their physical and mental development. It was further the case of the respondent that she had obtained a decree for judicial separation from the competent Court at Doncaster in England according to which her minor children were also given to her custody and that in order to frustrate the said order of the Court, the appellant had taken them to Azad Kashmir for permanent residence.
4. The appellant resisted the above application both on legal grounds as well as on merits. He took the plea of application being unmaintainable on the ground of its having been filed through the attorney while the respondent herself was living in England. On merits it was alleged that he is an old patient of asthma and therefore, came to Mirpur alongwith his children when the respondent refused to accompany him and got herself admitted in the hospital on the pretext of some mental ailment, as he was advised by his Doctor to go to some country of worm climate when he had severe attack of the said disease. It was further alleged by him that the respondent had suffered from mental ailment many times and in the year, 1974 had also attempted to strangulate her elder son named Asif Mehmood whose life was saved by timely help.
5. The case was transferred to the District Judge, Kotli for hearing and disposal by the order of the Supreme Court made in an appeal against the order of the High Court, rejecting the application of the appellant for the transfer of the case from the Court of the Guardian Judge Mirpur to some other Court. During the trial, the Guardian Judge on being moved by the respondent handed over the minors to her interim custody but on appeal by the appellant, the above order was set aside by the High Court to the extent of Asif Mehmood who had run away from the interim custody of the respondent to live with the appellant. On conclusion of the trial, the Guardian Judge vide its order dated 8-4-1984, gave all the minors except Asif Mehmood to the custody of their mother.
6. Feeling aggrieved by the above order of the Guardian Judge, the appellant has filed the present appeal.
7. I have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the appellant has frankly conceded that in the ordinary circumstances, the respondent being the mother had the right of the custody of her minor children but however, he contended that she had lost the right of their custody for the following reasons:-
(i) That the respondent is suffering from mental ailment for which reason it was neither safe nor in the interest and welfare of the minors to give them in her custody and care;
(ii) That the appellant being the natural guardian of his minor children was legally entitled to exercise control and supervision over them but the respondent intends to deprive him of such control and supervision as she is going to remove them to England for which purpose she had already obtained their passport from the British High Commission in Pakistan;
(iii) That the respondent had placed obstacle in the way of the appellant of meeting his minor children at her residence during their interim custody and as such has dishonoured the order of the Court entrusting her with the interim custody of the minors; and
(w) That the respondent is creating up hatred in the minds of the minors against the appellant by taking undue advantage of their custody.
8 On the other hand, it has been argued by the learned counsel for the respondent that the respondent is perfectly a healthy woman suffering from no mental or other ailment and that the appellant had not taken any such plea in his written statement and rather have categorically mentioned therein that in order to avoid coming with him to Mirpur, the respondent had got herself admitted in the hospital on the pretext of mental ailment and that there is no evidence on the record to show that she was suffering from any mental disease and was not a normal person, either at the time of her making application for the custody of the minors or passing the impugned order by the learned Guardian Judge.
9. It is further argued by the learned counsel for the respondent that the allegation of the appellant regarding the removal of the minors from Azad Kashmir or Pakistan by the respondent is without any foundation and substance and the respondent does not intend to take them to any foreign country. His further contention is that the minors are British Nationals who were brought to Pakistan on the British Passport and since they have been given in the custody of the respondent by the Court, the British Embassy was approached to hand over their passport to her which fact does not, in any way, go to show that they are being removed by her to England. The learned counsel for the respondent has also refuted the allegation of the appellant that he was being prevented by the respondent in seeing the minors at her residence in violation of the order of the trial Court and on the contrary, it was contended that it was the appellant himself who had left meeting his children as allowed by the trial Court.
10. After giving my due consideration to the above arguments addressed at the bar and I am of the opinion that there is no ground for interfering in the decision of the Court below of giving the minors to the custody of their mother. Mst. Riaz Sultana, respondent. Under the 'Hanfi' law the mother had the right of 'Hazanat' of her female child till she attains the puberty and of her male child till he attains the age of 7 years unless, of course, the Court comes to the conclusion that due to certain reasons such as her being of unsound mind, her leading immoral life, her having entered into second marriage with a person not related to her female child within prohibited decree, change of domicile by her so as to deprive the father of the minors from supervision and control, it is not in the welfare and interest of the minors to give them in her custody. But in this case, no such factor which may disqualify the respondent from being given the custody of her minor children exists.
11. The contention of the learned counsel for the appellant that the respondent is a woman of unsound mind, is not substantiated by any evidence on the record. To prove the above allegation, the appellant has examined Muhammad Tariq, Mian Khan and Abdul Malik but their evidence in no way go to prove that the respondent is a patient of some mental disease and is thus unable to take care of her children.
12. Muhammad Tariq, D.W. only states that the respondent was slightly ill in the year, 1974 and it appeared that her mental condition was not sound as she used to beat and abuse har children and that she was admitted in a hospital meant for the patients suffering for mental diseases. He further stated that the respondent also remained under treatment in a Mental Hospital in the month of December, 1980. In cross-examination this witness stated that in his presence only once the respondent had reprimanded her elder son Asif Mehmood. This witness is a relative of the appellant.
13. Mian Khan, D.W. has stated that 7 to 8 years back the respondent had become of unsound mind and used to beat her children and that she was got admitted into the hospital for patients suffering from mental diseases. This witness himself admits that when he joined the army he had entered date of his birth incorrectly in the record in order to show himself of less age and that similarly he had entered wrong date of his birth in an application for passport.
14. Abdul Mallak, D.W. has stated that in the month of December, 1974 the respondent was admitted in the Mental Hospital in Shefhield because she used to beat her children. This witness is a cousin of the appellant.
15. The above evidence of the witnesses mostly related to the mental condition of the respondent in the year, 1974 which does not establish that the respondent was suffering from any mental ailment as their opinion about her mental condition is based upon their own guess and estimation. No trustworthy evidence has been produced by the appellant to prove that the respondent in fact is mentally deranged person and as such it is not safe and in the interest of the minors to give them in her custody. There is no medical or other reliable evidence on the record in this respect and the mere opinion of the laymen who also appear either to be relatives of the appellant or untrustworthy that she had suffered from mental ailment in the year, 1974 is not sufficient to hold that she is unfit person to be given the custody of her minor children. Before she can be held disqualified to claim the 'Hazanat' of her minor children, it was necessary for the appellant to prove to the satisfaction of the Court that the respondent was of unsound mind at the time of making the impugned order by the Court below whereby her minor children were given in her custody and care. But there is not even a iota of evidence on the record to show that the respondent was of unsound mind when either she applied to the Guardian Judge for handing over the custody of her minor children to her or when she was given their custody. It may not be out of place to mention here that even the appellant in his written statement had made an averment that the respondent had got herself admitted in the hospital on the pretext of some mental ailment in order to avoid accompanying him to Azad Kashmir. This statement shows that she was not actually suffering from any mental disease but pretended to be so suffering.
16. The correctness of the other grounds urged by the counsel for the appellant in support of this appeal have also not been established. The mere fact that the British Embassy had delivered the passports of the minors to the respondent does not in any way lead to the conclusion that they would be removed by her from the jurisdiction of the Court of Guardian Judge and taken to England especially when the fact of there being British Nationals having come to Pakistan on the British Passport, is taken into consideration. If the mother who has been entrusted with the custody and care of her minor children by the competent Court, receives their British Passports from the concerned Embassy, does not mean that she would take them to the United Kingdom as she is the proper person to keep their passports. Anyhow, the mere apprehension of the appellant that the minors would be taken to England by the respondent is no ground for not giving them in her custody when she has the right of their 'Hazanat' under the Rules of their personal law. She would lose her right of 'Hazanat' if she actually removes the minors to a place where their father i.e. the appellant is unable to exercise his control and supervision over them because in that case she would deprive the minors of the opportunity to see their father which fact, of course, would be injurious to their mental and emotional health. But mere entertainment of apprehension that the minor children would be removed to England by the respondent cannot be made ground for depriving the respondent of her right of 'Hazanat' of her minor children.
17. Similarly, there is nothing on the record to substantiate the allegation of the appellant that during the period of her interim custody of the minors, the appellant was hindered in seeing them and have thus violated the order of the Court giving them in her interim custody. This allegation is not supported by any evidence on record and therefore, on mere allegation of the appellant it cannot be held that the respondent having dishonoured the order of the Court by not allowing the appellant to meet his children had disentitled herself to retain their custody.
18. As stated earlier, under the personal law of the parties, the respondent has the right of 'Hazanat' of her minor children upto certain age and therefore, the initial presumption is that the welfare of the minors also lies in giving them in her custody and care till such time the appellant becomes entitled to their custody. However, I feel that the condition imposed by the Court below that the appellant shall meet his minors at the residence of the respondent in her presence is not justified in the circumstances of the case under which the impugned order of giving them in the custody of the respondent, has 'been passed. The relation of the spouses in this case are strained and they are living separate from each other for quite a long time. In these circumstances, the minors under consideration as well as the appellant would not feel free and uninhibited to meet and talk to each other in presence of the respondent and rather her presence at their meeting would be most embarrassing for them and will certainly have the effect of placing restraints on the expression of their mutual love and affection for each other and free exchange of views.
19. For the above reasons the very purpose of allowing the appellant to meet the minor children would be frustrated, if the above condition imposed by the trial Court is allowed to stand. Therefore, the aforesaid condition is removed and the appellant would be allowed to meet his children at the residence of the respondent in presence of the Guardian Court's representative.
20. With the above modification, the appeal is dismissed with costs.