This constitutional petition is directed against the judgments dated 1-3--1988 and 29-5-1988 passed by the learned Guardian Judge and Additional District Judge, respectively, on an application filed by respondent No.3 for custody of his minor daughter named Mst. Memuna Khalid.
2. The brief facts of the case are that the petitioner was married to Quddus Khalid, real brother of Raja Taj Muhammad respondent No.3. Quddus Khalid had no issue and his real brother Raja Taj Muhammad respondent No.3 agreed to hand over his minor daughter aged about 2/3 years to him somewhere in the year 1977. The minor was brought up by the petitioner and her husband Quddus Khalid. Quddus Khalid, unfortunately, passed away on 3-11-1986. Shortly, thereafter, the real parents demanded the custody of the minor back. On refusal by the petitioner, respondent No.3 the father of the minor filed a petition on 12-4--1987 under section 25 of the Guardians and Wards Act for the custody of the minor in the Court of Mr. Habib-ur-Rehman, Guardian Judge/Judge Family Court, Rawalpindi. The petition was resisted by the petitioner and on the pleadings of the parties the trial Court framed the following issues:- (1)"Whether it is in the welfare of the minor to be given in the custody of the applicant.
(2)Relief."
The applicant/respondent No.3 produced Mst. Masooda Naqashbandi and Mst. Gul Sanobar as AW.1 and AW.2, respectively and himself appeared as AW.3 in support of his case. On the other hand, the present petitioner produced Brigadir Nusrat Jehan as RW.1 and Memuna Khalid, the minor as RW 2 and herself appeared as RW.3 in support of her case. After going through the evidence of the parties the Guardian Judge, allowed the application vide his order dated 1-3-1988. The petitioner's appeal was dismissed by the learned Additional District Judge, Rawalpindi, vide his order dated 29-5-1988. Hence this petition.
3. Sh. Zamir Hussain, Advocate, learned counsel for the petitioner strenuously urged that the biological father who had come forward to claim the custody of the minor had abandoned her in her infancy and was disentitled to revive his claim after the lapse of about 12/13 years. He submitted that the minor was emotionally attached to the petitioner and considered her to be her own mother and made a statement in the Court opting to live with the petitioner. He added that the right of the presumptive guardian i.e. The father was not absolute but a qualified one. He attacked the judgments of the Courts below on the ground that the Courts had misread the evidence and drawn wrong conclusions there from. He particularly referred to the letter dated 5-5- 1987 (which was placed on the file during the hearing of the present writ petition) and urged that the Courts below had wrongly held that the petitioner had expressed willingness in her statement to hand over the custody of the minor to respondent No.3. According to the learned counsel, the statement made in the Court, if read in conjunction with the contents of the letter, would demonstrate that the petitioner had agreed, with a heavy heart and unwillingly to hand over the custody of the minor to the father. Lastly the learned counsel contended that the minor had come of age and could legally contract marriage of her own accord. Hence, she could no longer be forced to go back to her parents. In support of his contentions the learned counsel has placed reliance on Sh. Abdus Salem v. A.D.J. 1988 SCMR 608, Mst. Talat Nasira v. Mst. Munawar Sultana and two others 1985 SCMR 1367, Mst. Aisha v. Manzoor Hussain PLD 1985 SC 436, Mushtaq Ahmad v.
Mirza Muhammad Amin PLD 1962 Kar. 442, G. Ponniah Asari v. Suppiah Asari and others AIR 1935 Mad. 363, Narasimiha Setty v. Chennemnia and another AIR 1950 Mys. 8, Sivasafikara Mudaliar v.
Radhabai Ammal and another AIR 1939 Mad. 611 and Mst. Rashida Begum v. Shahab Din PLD 1960 Lah. 1142.
On the other hand Mr. Muhammad Bilal, learned counsel for respondent No.3 urged that respondent No.3 had never abandoned the custody but given the minor to his issueless brother for his emotional satisfaction and happiness. The parents have been meeting the minor and watching her up-bringing to the family of the petitioner and immediately on the death of the brother demanded the custody of the minor back. He submitted that the minor was handed over to the deceased brother of respondent No.3 and after his death, the minor could not be permitted to live with the strangers. He urged that the choice of the minor alone was not sufficient for the decision of the question of custody. The minor had attained the age of puberty and the father was entitled under the Islamic Law to get her custody as laid down in section 357 of the Mahommedan Law by Mullah. He added that the welfare of the minor demanded that she should no longer live in a family of strangers amongst whom Mr. Saleem Naz Paul, husband of the petitioner's sister was a Christian.
He further submitted that the question of giving preference to one over the other party in matters of custody of minors had to be determined between persons having some right of the custody.
According to the learned counsel the petitioner had no right at all to claim the custody of the minor. Moreover, her own conduct was contumacious as she had firmly stated that she would not permit the father to meet the minor. He submitted that hatred had been inculcated in the mind of the minor against the parents. This was evident from the statement made by the minor. He pointed out that the said statement was a product of tutoring. Lastly he urged that the petitioner had herself agreed to hand over the custody of the minor to respondent No3. As regards the letter dated 5-5-1987, the learned counsel complained that the copy of the letter stated to have been written by Mrs. Shaukat Khalid, the petitioner, was placed on the file of the writ petition without notice to respondent No.3. He denied the correctness of the said letter but when the said copy was shown, to respondent No.3, he admitted that the said letter was received by him from he petitioner.
His statement was also recorded in the Court. The learned counsel placed reliance on Altaf Ahmad v. The Guardian Judge, Sialkot and others PLD 1985 SC 440, Muhammad Sadiq v. Sadiq Safoora PLD 1963 Lah. 534, Faiz Bakhsh v. Mst. Sakina 1980 CLC 1989, Mst. Rashida Bibi v. Muhammad Ismail 1981 SCMR 744, Ghulam Muhmamad and another v. Mst. Noor Bibi and 5 others 1980 SCMR 933, Mst.
Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299, Rahimullah Chaudhry v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305, Mukhtar Ahmad Khan v. Mst. Aziza Begum PLD 1975 Lah. 86, Mst. Maryam Zohra v. Yunus Kamal and 2 others, 1986 CLC 1857 and also tried to distinguish the judgments cited by the other party.
4. In reply the learned counsel for the petitioner reiterated that the father's right of custody was not absolute and that the welfare of the minor demanded that she should live with the petitioner who had spent her whole life in bringing her up like a real mother.
5. I have given my anxious consideration to the contentions raised by the learned counsel for the parties and am persuaded to hold that the welfare of the minor requires that she should go back to her own parents. The evidence on the record clearly establishes that the father of the minor, who was blessed with a number of children, felt sympathy for his issueless brother Quddus Khalid and decided to give the minor in his custody for his emotional happiness. Indeed, it must have been a difficult moment for the real mother as well as the father to part with the company of their infant baby. This an act of sacrifice on the part the real parents. The sacrifice made by the real parents cannot be allowed to be converted into a punishment at this juncture of their lives when the minor has reached marriageable age and a right has also accrued to the father to claim her custody under the Islamic Law. No doubt, the right of the father to claim the custody of the minor on her attaining puberty is a qualified one but there is no valid reason to deny the said right to respondent No.3 on the facts and the circumstances of the present case. It really goes to the credit of the real parents that they had been meeting the minor on ceremonial occasions but never whispered into her ears that she was their daughter. On the other hand, the petitioner appears tohave poisoned the mind of the minor and created hatred in her mind against the parents. The element of estrangement and hatred created between the minor and the real parents cannot be lost sight of while deciding the question of welfare of the minor: Not only that, the minor went to the extent of levelling uncalled for allegations against her own parents which are a product oftutoring and brainwashing.
6.Learned counsel for the petitioner heavily relied on the judgment reported as Abdus Salam v.
Additional District Judge 1988 SCMR 608. The said case is distinguishable from the present one for a number of reasons. Still in the precedent case the contest was between the father of the minor and his paternal aunt. The aunt had blood relation with the minor and had obtained his custody permanently on the basis of aagreement In the present case the contest is between father and Mrs. Shukat Khalrd, petitioner, who has no Hood relation with the minor. Custody of the minor was given to Quddus Khalid, uncle of the,minor has since diedand not to the petitioner. Secondly in the precedent case a concurrent finding of abandonment of custody on the part of the father was recorded by the Courts. There is no such finding in the present case. Instead there is evidence to show that the father and the minor had been meeting on all ceremonial occasions and that he kept an eye on the upbringing of the minor by the petitioner. The father never abandoned the custody in the present case but made a sacrifice for the sake of his issueless brother. Thirdly in the precedent case the question of father's right of custody on the minor's attaining the age of puberty was not involved whereas in the present case the said question is directly in issue between the parties. The case of Mst. Talat Nasira v. Munawar Sultana and two others 1985 SCMR 1367 relied upon by the learned counsel for the petitioner is also of no help to him. In that case only leave to appeal was granted to consider as to what weight should be attached to the minor's preference and whether marriage of mother with a stranger disentitled her to claim the custody of her minor.
In that case the minor was a boy, aged 12/13 years and desired to remain with the real mother in preference to the grandmother. Obviously the facts of the precedent case are different. Moreover, in a case where the minor had made an honest and straightforward choice himself,, it may be given due weight by the Courts. However, in the present case the minor's statement appears to be a product of brainwashing and tutoring. In the case of Mst. Aisha v. Manzoor Hussain PLD 1985 SC 436 the Hon'ble Supreme Court had held that the minor was not the best Judge regarding his/her welfare. In the said case Mst. Samina the minor aged 12 years had expressed the desire to live with her own 'mother but the Court held that her welfare required that the custody be restored to father.
The Guardian Judge had handed over the minor to Mst. Aisha, the maternal grandmother because Mst. Tasnim Akhtar the mother had remarried. On an appeal by the father the minor was ordered to be restored to him by the . Learned District Judge. The said order was maintained by the High Court as well as the Supreme Court. As regards the minor's preference the Supreme Court was pleased to hold as under:- "It may be mentioned that although preference of the minor may, in such cases, be taken into consideration but it is not always relevant because the minor is not the best Judge as to where his (or her) welfare lies. We have noticed generally that a child is apt to prefer to continue living with the parents or relative with whom he/she has been allowed to live for sometime as such person is in a position, be it the father or the mother, to brainwash the child against the other claimant to the child's custody". In Mushtaq Ahmad v. Mirza Muhammad Amin PLD 1962 Kar. 442 the marriage of a Muslim girl of 15 years was treated to be valid and it was held that the Court had no power to appoint a guardian of her person unless the husband was not fit in that regard. In the instant case the minor is not yet married, hence Mushtaq Ahmad's case has no relevancy at all. In the case of G.
Ponniah Asari v. Suppiah Asari and others AIR 1935 Mad. 363 the father was denied the custody of the minor daughter who was brought by her maternal-uncles. Two applications were filed for her custody; one by the father and the other by the elder brother. It was claimed by the father that the minor was aged nine years and was going to be married away in violation of the Child Marriage Restraint Act. The Court held that the minor girl was aged 13 years and refused her custody to the father in view of his past indifference and neglect. The statement of the minor showed that she had neither seen her father nor her brothers and sisters. The father had contracted another marriage shortly after the death of minor's mother and had four children by his second wife. The father showed complete lack of interest in the minor. His application for custody was held to be mala fide and an outcome of spite and grudge against the maternal uncles and not for the welfare of the minor girl. This case has no application to the facts of the present case. In Narasimiha Setty v.
Chennamia and another AIR 1950 Maysor 8 custody of the minor daughter was refused to the father on the ground of neglect on his part. In this case the parties were not Muslims and the minor was brought up as foster child by the respondent, an issueless woman who even settled her property upon the minor. This case also has no bearing on the facts of the present case. Similarly, the judgment in Sivasankara Mudaliar v. Radhabai and another AIR 1934 Mad. 611 is not applicable because the parties were Hindus. The father had handed over the minor to his sister a few months after the death of minor's mother. After about 9 years the said sister died and the minor was handed over to the charge of another sister of the deceased. The appellant, thereafter, remarried and had a daughter by his second wife. The woman who had first brought up the minor had given her house to her other sister and the minor, jointly. It was in these circumstances that the Court denied the custody of the minor to the Hindu father. In Rashida Begum v. Shahab-ud-Din PLD 1960 (W.P.) 1142, it was held, keeping in view the welfare of the minor, that the right to custody should not be taken away from the mother simply because she had remarried a person not related to the minor within the prohibited degree. This judgment only shows that in matters relating to custody of minors, overriding consideration is the welfare of the minor.
7. Now a reference may be made to the judgments relied upon by the learned counsel for respondent No.3. In the case of Altaf Ahmad v. The Guardian Judge PLD 1985 SC 440, the question involved related to interim custody of the minor. It was held that even if a person remained unsuccessful up to the Supreme Court that would not necessarily mean that he would also remain unsuccessful on major question of welfare of minor. The said judgment is not relevant for the present controversy. In the case of Muhammad Sadiq v. Sadiq Safoora PLD 1963 Lah. 534 it was held that notwithstanding the fact that a minor girl had attained puberty she still continued to be a minor under the law till she attained the age of 18 years. In that case it was also attempted to be argued that on attaining puberty the minor girl legally became major and was emancipated from the control of the guardian. The said contention was repelled and the Court was pleased to hold that the father continues to be natural guardian of his children until they attain the age of 18 years.
On attaining puberty the minor girl is treated to be sui Juris for the purpose of contracting marriage to accord legitimacy to the offspring. If she remains unmarried then she continues to live under the guardianship of the father, the mother, or any other guardian declared or appointed under the law.
In Mukhtar Ahmad v. Mst Aziza Begum PLD 1975 Lah. 86, while dealing with the question of custody of a minor son aged 13/14 years, who lived with the mother since infancy the Court restored the custody to the father although the minor had expressed desire to live with the mother. In the said case it was attempted to be argued that the father was like a stranger to the minor and the minor should not be forced to live with almost a stranger. The said contention was repelled by the Court.
A relevant portion from the judgment is reproduced below:- "1t also appears that the minor has not been given balanced training by the respondent and her close relations in so far as his regard for the father is concerned. I also examined the minor. He had come from the respondent's custody and obviously he supported her by expressing the desire that he would like to stay with her. If he had lived for such a long period since his infancy with the appellant, I am certain he would have made a contrary choice. 1n the background of the above circumstances, therefore, the desire expressed by the minor gets explained and is not sufficient by itself to control the question of his custody."
In Mst. Feroze Begurii v. Lt.-Col. Muhammad Hussain 1978 SCMR 299 and Faiz Bakhsh v. Mst. Sakina 1980 CLC 1989 the preference of the minor, alone, was not considered to be sufficient for deciding the question of custody. It was also held that his welfare lay in residing with the person who was legally entitled to have his custody. In Rahimullah Chaudhry v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305 it was held that the question of welfare of the minor was a question of fact and had to be resolved on the basis of the material placed before the Court. The Supreme Court was pleased to hold that the mother did not forfeit her right of custody of the two sons by reason of removing them from the ordinary place of residence of the father and that it was even otherwise not in the welfare of the minors to deliver them into the custody of the father while they were of tender ages (about 5 and 7 years). In Ghulam Muhammad etc. v. Mst. Noor Bibi etc. 1980 SCMR 933 it was held that the findings of fact supported by evidence could not be disturbed in the exercise of constitutional jurisdiction under Article 199. In Mst. Maryam Zuhra v. Younas Kamal 1986 CLC 1857 it was held that the finding of fact based on evidence and otherwise consistent with the personal law of the parties could not be interfered in the exercise of the writ jurisdiction. In Mst. Rashida Bibi v.
Muhammad Ismail 1981 SCMR 744 it was held that the failure to pay maintenance did not disentitle the father to claim custody of the minor.
The preference expert doubt, relevant, but not final or binding on the Courts. It has to be judged with reference to the welfare of the minor. The minor being under the direct influence of the petitioner and apparently tutored rather brainwashed by her, has levelled wild allegations against her own parents and even stated that she would die rather than go to her parents. Immature as she is she cannot visualise the hazards of life and exercise sound discretion qua her welfare. It is the duty of the Court while exercising its parental jurisdiction, to judge the welfare of the minor in the context of the facts and circumstances of each case. It was stated by respondent No.3 and the two witnesses namely Masooda Naqashbandi and Gul Sanober' produced by him that the writ petitioner had no blood relation with the minor. The only person in the petitioner's family having blood relation was Quddus Khalid who had died. The petitioner's real sister Brigadier Nusrat is married to Salim Naz, who had controverted to Christianity. This was clearly suggested to the petitioner who appeared as RW.3. In reply she merely expressed lack of knowledge about it. She also expressed ignorance that after change of religion the students had attempted to give beating to him. The ignorance expressed by the petitioner is nothing but a veil to hide the truth that her sister's husband had become a convert to Chiristianity. It is significant to mention that the minor had stated that she was living with the petitioner and RW.1 (Brigadier Nusrat Jehan) for the last one year and three months. Even Mst. Shaukat Khalid, the petitioner, stated that she was living with her Brigadier Baji. Thus it is obvious that the minor is practically living in the family of Brigadier Nusrat Jehan whose husband is a Christian. It is not desirable that the minor, who is of impressionable age, should live in a family on which shadow of a different religion was cast. Here I may quote with advantage the following passage from the Muhammadan Law by Amir Ali:- "It may be stated as a general rule, that as the right of hazanat has inview the exclusive benefit of the infant, each particular case would be governed by the doctrine in force among the sect to which the child is supposed to belong; or, if that cannot be ascertained, by a consideration of what would be best for the child as a Muslim child."
The family of Brigadier Nusrat Jehan is certainly not the one where the minor ' was supposed to live.
The petitioner, after the death of her husband is no longer' in a position to provide the independent and protective atmosphere as was available to her during the lifetime of Quddus Khalid, uncle of the minor. At this juncture of life, the minor needs a protective atmosphere, the company of her own near and dear ones and fragrance of parental love and affection for a safe and happy future life. It has come in evidence that the real mother of the minor and her six paternal aunts are alive.
The children from the paternal aunts are all highly educated. In the parents family, there are brothers and sisters of the minor apart from her grandfather, paternal aunts and a number of cousins. Hence,; placing reliance on the cases reported in PLD 1985 SC 436, 1978 SCMR 299, 1974 SCMR 305 and PLD 1975 Lah. 86, I am not inclined to place any reliance on the preference expressed by the minor in the instant case and hold that her welfare lies in residing in the family of her parents. ,
9. Now coming to the question as to whether the petitioner has any right I under the law to claim custody of the minor in preference to the father, the, straight answer in that she has none. The mere fact that she has brought up the minor since her infancy and has developed deep love for her does not clothe her with a right to claim custody of the minor. While appearing as AW.3 Raja Taj Muhammad respondent No.3 had clearly stated that the minor was handed over to his issueless brother, on his asking. In cross-examination this part of the statement was not challenged. He had further stated that Quddus Khalid deceased had agreed that respondent No.3 could get the minor back whenever he so desired. The latter part of his statement alone was challenged in cross-- examination. Thus it can be gathered that the custody of the minor was given by respondent No.3 to his issueless brother (who died on 3rd of November, 1986). After his death, the present petitioner has no legal claim but a merely sentimental one for the custody of the minor. As the petitioner has invoked the constitutional jurisdiction, she has to show violation of a legal right vested in her so as to make her an "aggrieved person" within the meaning of the law. The mere fact that she treats the minor as her own daughter and that grief would come to her as a human person on being deprived of the custody of the minor is not sufficient to entitle her to invoke constitutional jurisdiction. There is force in the submission of the learned counsel for respondent No3 that acceptance of claim of the petitioner would amount to recognition of "adoption" which has no place in the Islamic Law. As mentioned above the right to claim the custody of the minor now vests in the father (respondent No.3). In the scheme of the law right to claim custody of the infant child vests in the mother as mentioned in Section 352 of Muhammadan Law by Mulla. In default of the mother, the right vests in the female relatives of the minor as mentioned in section 353 in the following order;-
(1) mother's mother, how highsoever;
(2) father's mother, how highsoever;
(3) full sister;
(4) uterine sister;
(5) consanguine sister
(6) full sister's daughter
(7) uterine sister's daughter;
(8) consanguine sister's daughter;
(9) maternal aunt, in like order as sisters; and
(10) paternal aunt, also in like order as sisters.
In default of the female relations, then the right vests in the male relations of the minor as mentioned in section 355, in the following order:--
(1) the father;
(2) nearest paternal grandfather;
(3) full brother;
(4) consanguine brother;
(5) full brother's son;
(6) consanguine brother's son;
(7) full brother of the father;
(8) consanguine brother of the father;
(9) son of father's full brother;
(10) son of father's consanguine brother; In case of a minor girl who has attained puberty the right of custody vests in the father as mentioned in section 357 of the Mulla's book. Failing the father, the custody belongs to the paternal relations in the order given in section 355, referred to above. Thus it would be seen that the petitioner who is not related to the minor figures nowhere in the scheme of the law in relations to the right of Hizanat of the minor girl. Hence, whatever the depth of her feelings, emotional I involvement and sense of grief as a human person, in case of being deprived of the custody of the minor, the Court cannot help the petitioner because she is not an aggrieved "person" within the meaning of Article 199 of the Constitution of Pakistan.
10. It is also worth mentioning that after the demise of Quddus Khan, respondent No.3 demanded the custody of the minor on the eve of Chehlum of his late brother. This fact on the one hand, negatived the petitioner's allegation that father had abandoned the minor and on the other hand proved that the custody was initially handed over to Quddus Khalid and after his death the custody was reclaimed by the father. The petitioner also realized the weight of the claim made by respondent No.3 and wrote a detailed letter to hind wherein she agreed, though with a heavy heart, to hand over the custody of the minor to him. The letter dated 5-5-1987 was not placed on the record in the Courts below but the petitioner while appearing as RW.3 had admitted that she had written the letter to respondent No.3. The relevant portion of her statement is reproduced below:- A photocopy of the said letter was placed on the record during the hearing of the writ petition. The learned counsel for respondent No.3 had, at one stage, denied the correctness of the said copy of the letter but respondent No.3, when shown the copy in the Court, honestly admitted that the said letter was received by him. Statement of respondent No.3, in this behalf, was also recorded by me in the Court. No doubt, the contents of the letter show the petitioner's feeling of love for the minor and the sense of shock in case she was handed over to respondent No.3. Nonetheless, she had agreed to hand over the minor to the father, presumably in recognition of his right, to claim the custody of the minor. The subsequent refusal on the part of the petitioner from her written commitment on the pretext of the ensuing litigation between the parties or desire of the minor to stay with her, was not sufficient in law to resile from .The commitment.
11. It may be mentioned in the end that the judgments of the Courts below do not suffer from any infirmity requiring interference by this Court in the exercise of constitutional jurisdiction. The findings on the question of welfare of the minor recorded by the Courts below are based on cogent material and otherwise consistent with the personal law of the parties.
12. For the foregoing reasons this writ petition fails and is dismissed leaving the parties to bear their own costs.