1. SHAH ZAMAN BABAR, J.----This is an appeal by Juma Khan applicant-appellant from the order dated 7-10-70, whereby the Senior Civil Judge, Kohat, has refused to make an order for the return of Sadullah Khan and Munawar Khan, minor sons of the appellant, to his custody, from the custody of their mother Mst. Gul Farosha respondent, under section 25 of the Guardians and Wards Act.
2. From the record of the case in hand, case No. 33/4 decided on 18-5-1970 under section 488, Cr. P.
2. C. And the present appeal file, the resume of the facts of the case are given below Mst. Gul Farosha was married to Juma Khan appellant, about 20/22 years back. The pair have Nadir Khan, aged about 16/17 years, Sadullah Khan aged about 12 years, Mst. Jamsheda, aged about 10 years, and Munawar Khan, aged about 7/8 years, as their issues. The parents and the children lived together in village Banda Garhi Nawaz Khan, Tehsil and District Kohat. About 7/8 years back Juma Khan married a second wife. The second wife also has children. Mst. Gul Farosha with her children and her co-wife with her children were occupying separate kothas in the same house. In the month of September 1969 there was a separation between Juma Khan and Mst. Gul Farosha. Mst. Gul Farosha along with her sons, Sadullah Khan and Munawar Khan, took shelter in the house of her father Mashki Khan respondent in Abdur Rehman Banda, Garhi Nawaz Khan which is distant about a mile from Banda Garhi Nawaz Khan. Nadir Khan and Mst. Jamsheda remained with their Father Junta Khan. Juma Khan lodged a report about this at Police Station City Kohat on 6-9-1969.
3. On 4-11-1969 Mst. Gul Farosha applied under section 488, Cr. P. C. For the fixation of maintenance allowance for herself and her two sons Sadullah and Munawar Khan. During the pendency of the proceedings Juma Khan divorced his wife Mst. Gul Ferosha on 3-1-70. The original divorce deed Exh.
4. P. B. Is on the file. A notice of this divorce appears to have been given to the Chairman, Union Council who after constituting an Arbitration Council pronounced the Talaq on 6-2-70 vide certified copy of the order dated 6-2-1970 on the file of the present case. The Judge Family Court (Magistrate 1st Class) Kohat in conclusion of the proceedings under section 488, Cr. P. C. By his order dated 18-5-70 ordered that Juma Khan respondent shall pay Rs. 50 per month to Sadullah Khan and Rs. 50 per month to Munawar Khan petitioners with elect from 4-11-69 under section 488, Cr. P. C. Juma Khan was also ordered to pay at the rate of Rs. 50 per month as maintenance for four months (Iddat period), total Rs. 200 with effect from 3-1-70 to Mst. Gul Farosha petitioner No. 1.
5. In appeal by Juma Khan the Additional District Judge, Kohat by his order dated 12-9-70 reduced the monthly allowance of each of the two children from Rs. 50 to Rs. 35 per month. With this modification the appeal was rejected.
3. On 16/18-7-70, Juma Khan filed an application against Mst. Gul Farosha and her father Mashki Khan, under section 25 of the Guardians and Wards Act for the return of his minor sons Sadullah Khan, then aged 13 years 5 months and Munawar Khan, then aged 7 years 4 months. This application was put in the Court of District Judge Peshawar. The District Judge Peshawar by his order dated 18-7-70 forwarded the application to the Senior Civil Judge, Kohat for disposal. The Senior Civil Judge, Kohat took cognisance of the case. Mst. Gul Farosha and Mashki Khan submitted Weir written statement. P. W. 1 Juma Khan petitioner, P. W. 2 Malik Mohammad Akram, a B. D.
6. Member, P. W. 3 Sana Din and P. W. 4 Jamadar were examined on the side of the petitioner while Mst. Gut Farosha alone appeared in support of her case. The Senior Civil Judge Kohat, by his order dated 7-10-1970, held the view that it will not be for the welfare of the minors to return them from the custody of their mother to the custody of their father Juma Khan and hence rejected the application. The grounds formulated for the rejection of the application are:
(1) That although Mst. Gul Farosha, mother of the minors, owns no property, but she will be able to maintain the two minors sons in her custody according to their social status on the maintenance allowance fixed in their favour.
(2) That Mashki respondent, father of Mst. Gul Farosha, in his social status of being a doom, will not adversely effect her character and the character of the children.
(3) That Juma Khan petitioner had married another wife, who is also a mother of children; the atmosphere can hardly be congenial that the minor should remain under the same roof with their step mother.
(4) That Sadullah is quite grown up and in a position to some extent to know his well being, and refused to go to the house of his father, and
(5) That the petition is delayed and it proves mala fide of the petitioner.
4. Juma Khan has come up on first appeal to this Court, challenging the order of the Senior Civil Judge, Kohat, dated 7-10-70.
5. S. Safdar Hussain Shah, counsel for the respondents raised two preliminary objections; firstly, that the Senior Civil Judge, Kohat has heard and adjudicated upon the matter as a Senior Civil Judge and not as a Family Court of exclusive jurisdiction, and secondly, that the impugned order was appeal--able under section 14 of the West Pakistan Family Courts Act, 1964, to the Court of District Judge and not to this Court.
7. Both the contentions are not well founded in law.
8. For the appreciation of the first point, the relevant provisions of the 'test Pakistan Family Courts Act, 1964, as amended up-to-date (hereinafter called the Act), and the West Pakistan Family Courts Rules, 1965, as amended up-to-date, (hereinafter called the Rules) are reproduced: "Section 3. Establishment of Family Courts.-Government shall establish one or more Family Courts in each District or at such other place as it may deem necessary and appoint a Judge for each of such Courts."
9. "Section 4. Qualification of Judge.-No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge or a Civil Judge."
10. "Section 5. Jurisdiction.--Subject to the provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matter specified in the Schedule."
SCHEDULE
1. Dissolution of Marriage.
2. Dower.
3. Maintenance.
4. Restitution of Conjugal rights.
5. Custody of children
6. Guardianship.
7. Jactitation of marriage.
11. "Section 25. Family Court deemed to be a District Court for purposes of Guardians arid Wards Act, 1890.----A Family Court stall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act shall, in dealing with matters specified in that Act, follow the procedure prescribed in that Act."
12. Rules, 1965.
13. R. 2(b) "'Court' means the Family Court established under the Act."
14. 2 (e) " `Suit' includes and application for the custody of children or guardianship under the Guardians and Wards Act, 1890."
15. "3. Subject to the provisions of rule 7, the Courts of the District Judge, Addl. District Judge and Civil Judge shall be the Family Courts for the purposes of the Act.
16. 7(1) Suits relating to the custody of children and for guardianship shall be instituted in, and be heard and tried by the Court of the District Judge, but such Court may transfer any such suit to the Court of the Additional District Judge the Civil Judge, First Class or the Civil Judge, First Class (Additional) having jurisdiction as provided in rule 6, and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try the same."
17. "Jurisdiction" means "authority to judge, or administer justice". (The Law Lexicon).
18. From a bare reading of the above sections of the Act and Rules, it can be concluded that the Senior Civil Judge (First Class) is a Family Court for the purpose of the Act. The application (suit) under section 25 of the Guardians and Wards Act was instituted in the Court of District Judge, who under rule 7, transferred the suit to the Court of Senior Civil Judge, and no such the Senior Civil Judge lead jurisdiction to hear and try the same. The fact that the Senior Civil Judge has not described himself as a Judge, Family Court, while hearing and trying the suit, will not affect his jurisdiction as a Judge, Family Court. More so, the non-description has not affected the merits of the case or resulted in failure of justice.
19. "Appeal-(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable -
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge, and
(b) to the District Court, in any other case.
(2) No appeal shall lie from a decree by a Far lily Court -
(a) for dissolution of marriage., except in the arse of dissolution for reason& specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;
(b) for dower not exceeding rupees one thousand
(c) for maintenance of rupees twenty-five or less per month."
20. In the Oxford English Dictionary, Vol. I, "appeal" has been indicated to mean, `to remove a case formally from an inferior to a higher Court'. The right of appeal is a matter of procedure. It is substantive right created by a statute. An appeal is said to be a continuation of a suit or is included within the word "suit".
21. In Garikapati veeraya v. N. Subbiah Choudhry and others (PLD 1957 SC (Ind.) 448), it is held:- "The legal pursuit of a remedy, suit appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
22. The right of appeal is not a mere matter of procedure but as a substantive right.
23. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
24. The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced."
25. In F. A. Khan v. The Government of Pakistan (PLD 1964 SC 520), it is observed at page 529:- "In respect of the nature of an appeal the following propositions may be regarded as established;
(i) when an appeal is filed the matte: becomes sub judice and is reheard by the appellate Court which does not Act merely as a Court or error (sic.);
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court;
(iii) the original and appellate proceedings are steps in one proceeding."
26. Reverting to section 25, reproduced above, for the purposes of Guardians and Wards Act, a Family Court shall be deemed to be a District Court and notwithstanding anything contained in this Act, a Family Court shall in dealing with natters specified in the Guardians and Wards Act, follow the procedure in that Act. In Begum Zainab Tiwana v. Ch. Aziz Ahead Waraich, District Judge, Lahore (PLD 1967 Lah. 977), it has been observed at page 988, para. 18 "The procedure prescribed `in', not by or under, the Guardians and Wails Act, 1830 has been retained."
27. Thus I am of the view that the present suit having been instituted in the Court of District Judge, Peshawar and transferred by him under rule 7 to the Court of Senior Civil Judge, Kohat, the procedure adopted will be the procedure under the Guardians and Wards Act. An order under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian, is appealable under section 47(c) of the Guardians and Wards Act to the High Court. An appeal being a matter of procedure and a continuation of the suit, the order of the Senior Civil Judge (Judge, Family Court) in the matter of suit under section 25 of the Guardians and Wards Act will thus be appealable to the High Court under section 47 of that Act. In Mohammad Ismail v. Fazal Ahmad (PLD 1969 Lah. 834), it has been held that an order of Administrative Civil Judge as a Family Court in the guardianship case is appealable to the High Court under section 47 of the Guardians and Wards Act.
28. This appeal, therefore, has been correctly, in law, preferred in the High Court.
6. On merits, the impugned order of the Senior Civil Judge is not maintainable. Juma Khan and Mst.
29. Gul Farosha had married about 20/22 years back. They have four children from this marriage, namely, Nadir Khan, Sadullah Khan, Mst. Jamsheda, and Munawar Khan. About 7/8 years before this suit, Juma Khan married a second wife and has got children from that wife also. Mst. Gul Farosha with her own children lived in a separate kotha while the other wife with her children lived in a separate kotha. Nadir Khan is alleged to be aged about 16 years while Mst. Jamsheda is stated to be aged about 10 years. Sadullah Khan, according to the school certificate Exh. P. 1, was aged 13 years, 5 months and 6 days while Munawar Khan, according to the birth certificate Exh. P. L. Was aged 7 years, 4 months and 6 days on the date of the institution of the suit. It appears that Sadullah Khan was reading in 6th Class and Munawar Khan was reading in second Primary during the period they were living with their father till date of the institution of the suit. It is in the evidence of Mst. Gul Farosha that Sadullah Khan has left going to school. The allegation of the counsel far the appellant, during the hearing of the appeal, that Munawar Khan has also left going to school, could not be refuted by the respondents. Thus the two minor children, for the return of whose custody Juma Khan has instituted the suit as well as the appeal, were school-going children and both have abandoned the studies while they separated from their father and came under the custody of their mother, Mst. Gul Farosha with her two minor children is living in a house occupied by her father Mashki Khan in a village distant about a mile from the village of Juma Khan. Mashki Khan or Mst.
30. Gul Farosha have no house of their own or any other immovable property. Mashki Khan plays clarionet (Surna) and earns his meagre livelihood. There is no evidence that Mst. Gul Farosha earns her livelihood. The Court has fixed monthly maintenance allowance at the rate of Rs. 35 for each child. Mst. Gul Farosha has complained. In her evidence that Juma Khan has not paid the children the maintenance allowance. The maintenance allowance even if paid regularly will not be sufficient for the maintenance and education of the two minors Thus, I am of the view, that Mst. Gul Farosha will not be able to maintain her two minors and educate them if the two minors remain in her custody. In the proceedings under section 488, Cr. P. C. Mst. Gul Farosha in her application has alleged that Juma Khan has got a yearly income of over Rs. 15,000. In her statement she has stated that the annual income of Juma Khan from the gardens (guava) is Rs. 8,000. Juma Khan has admitted in his statement in the same proceedings that his monthly income is Rs. 500. The fact that there is no evidence on the suit file regarding the monthly or annual income of Juma Khan will not preclude me from considering the evidence of income of Juma Khan on the file of proceedings under section 488, Cr. P. G.
31. In PLD 1967 Lah. 977, it has been observed at page 985, para. 14 that "guardianship proceedings are hold in exercise of parental jurisdiction which is not a proper branch of law for enforcement of technicalities of pleadings or strict formalities." Thus Juma Khan has got the capacity to maintain the two minors and educate them according to their social status.
32. The argument that the two minors will not be having a harmonious and peaceful life with their stepmother, does not appear to be weighty. The two minors had lived for about 7/8 years in the same house with their stepmother before their separation. Their brother Nadir Khan, aged about 16 years and their sister Mst. Jamsheda, aged about 10 years, are having a harmonious life with their stepmother fn the same house. Juma Khan's suit for the return of the two minors to him does not suffer from any inordinate delay nor it appears to be mala fide. The present suit has been instituted within about six months of the separation. During this interval, as explained above, Juma Khan appears to have been convinced that Mst. Gul Farosha is not capable to maintain and educate the two minors. The choice of Sadullah Khan minor in preferring to live with his mother is not an intelligent preference in the circumstances of the case. Moreover, such a preference is one of the matters to be l considered by the Court in appointing guardian under section 17 of the Guardians and Wards Act and not a matter to be considered in a suit under section 25 of the Act. The two E minor sons being over the age of seven years, Mst. Gul Farosha is not entitled to their custody (hizanat), under the Muslim Law. The father Juma Khan is the legal guardian of the two minors and is entitled to their custody, under the Muslim Law. Section 352 of the Principles of Muhammedan Law by D. F. Mulla relates to the right of mother to custody of her children. It reads:- "The mother is entitled to the custody (hizanat) 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."
33. Section 357 of the book relates to the right of father and paternal relations to custody of boy over seven and of girl who has attained puberty, and reads "The father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in section 355 above, and subject to the proviso to that section.
34. If there be none of these, it is for the Court to appoint guardian of the person of the minor."
35. In Imambandi v. Mutsaddi ((1918) 45 I A 73), their Lordships of tile Privy Council said: "It is perfectly clear that under the Mohammadan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the But she is not the natural guardian; the father alone, or, it he be dead, his executor (under the Sunni Law) is the legal guardian."
36. "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 the 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) ---------------------..
37. "Custody" mentioned in this section is actual as well as construc--tive custody and the legal guardian should be deemed to be in constructive custody of the minor. In deciding the question of p the custody of a minor the welfare of the minor alone is to be considered. If the guardian of a minor makes an application under section 25 of the Guardian; and Wards Act for restoration of the custody of the minor, the opposite-party must make out welfare of the ward will be better served by its being out of the custody of its guardian and by being retained in the custody of the person against whom the application is made, Under the Muslim Law a mother is entitled to keep the custody of her son until he attains the age of seven years. After that his father has a legal right to the custody of his children in preference to the mother. After the attainment of the age of seven years the custody of the minor son by the mother immediately becomes unauthorised. The minor would then be presumed to be in the constructive custody of the father and if the mother refused to hand over the children to the father, it would be tantamount to her removing ward from the custody of father. Normally when a person has been given the guardianship of the minor by his personal law it would be presumed that it would be for the welfare of the minor that the person should be given his custody in preference to everybody else, till exceptional circumstances are proved to rebut the presumption.
38. "The word `custody' as used in section 25 refers not only to or legal custody. When the father of a child is alive and has not abandoned his right, the maternal grandfather or for the matter of that any other relation who has the actual custody of the boy must be deemed to have that custody with the knowledge and consent of the father. Legally it is the father who has the custody of the child in such circumstances, and the child can be deemed, within the meaning of the section to be removed from such legal custody, when the person in whose actual possession he is, repudiates to the guardian's knowledge the right of the latter to the actual or legal custody of the minor."
39. In Mst. Zebu and another v. Mizaj Gul (PLD 1953 Lah. 73), it is held: "It will be putting a ridiculous construction on section 25 of the Act to hold that after a Muslim father becomes entitled to the custody of the children, who were until then lawfully in the custody of their mother, he has no remedy open him under the Guardians and Wards Act. After the attainment of the specified age, the custody of the minor by the mother immediately becomes unauthorised. The minors would then be presumed to be in the constructive custody of the father, and if the mother refuses to hand over the children to the father it would be tantamount to her removing the wards from the custody of their rightful guardian.
40. Section 25 of the Act, should received a liberal construction, and must be held to include the right of a father to get the custody of his minor children.
41. A father is perfectly competent under section 25 of the Guardians and Wards Act to get the custody of his minor children from the mother, when she ceases to be their lawful guardian.
42. Normally, when a certain person has been given the guardianship of a minor by the Personal Law, which governs him, it should be presumed that it would be for the welfare of the minors that that person has their custody in preference to everybody else in the world, including the mother. It will be for the party contending against this normal presumption to prove affirmatively and positively that it would be against the interests of the minors to return them to the custody of their natural guardian."
43. In Mohammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lah. 73) it is held: "All rules of Mohammadan Law relating to the guardianship and custody of the minor are merely the application of the principle of benefit of the minor to diverse circumstances. Welfare of the minor remains the dominant consideration and the rules only to try to give effect to what is minor's welfare from the Muslim point of view."
44. In Mst. Atia Waris v. Sultan Ahmad Khan and others (PLD 1959 Lah. 205) it is held: "A comparison of section 25 with section 17, Guardians and Wards Act indicates that the dominant consideration in an application under section 25 is the `welfare' of the minor.
45. In section 17 in appointing a guardian the welfare of the minor has to be considered consistently with the law to which the minor is subject. Section 25 does not contain the words "consistently with the law to which the minor is subject.' It thus appears that in an application under section 25 which can be made by a legal guardian or a natural guardian, the dominant consideration is the welfare of the minor. This does not, however, mean that the personal law to which the minor is subject is of no consequence.
46. Welfare of the minor, however, is the paramount considera--tion; material, moral and spiritual well being is the deciding and governing consideration in awarding custody of the minor.
47. In considering the welfare the Court must presume initially that the minor's welfare lies in giving custody according to the dictates of the rules of personal law."
48. "In the absence of evidence to the contrary, it should be presumed that the welfare of minor lies in such minor being handed over to a relation entitled under Muhammadan Law to the custody of the minor.
49. When the minor is over 7 years of age, it should be presumed that its welfare lies in returning to the father. That the father has married another wife and the step-mother may not treat the minor properly, or that the minor will be separated from the mother and sisters, can hardly stand in the way of an order of custody in favour of the father.
50. "The refusal by a person to deliver back the child to its natural guardian when asked to do so by the latter, amounts in effect to a removal from his custody and he can, therefore apply under section 25 of the Act."
51. "The fact that the father has married a second wife is not a sufficient ground for holding that he is unfit to be the guardian of his children."
7. In conclusion, I accept the appeal, set aside the impugned order dated 7-10-70 of the Senior Civil Judge, Kohat and declare that Juma Khan appellant is entitled to the custody of his two minor sons, namely, Sadullah Khan and Munawar Khan in preference to their mother Mst. Gul Farosha respondent. Mst. Gul Farosha respondent is directed to forthwith return the two minors to the custody of their father Juma Khan appellant.
52. The parties to bear their own costs.