This Constitutional petition is directed against the judgment dated 30-5-1988 passed by the Guardian Judge, Layyah and that of the District Judge, Layyah dated 16-10-1988, whereby the Guardian Judge had allowed the custody of Mst. Kalsoom Bibi, minor to Mst. Taj Bibi, respondent No.1 and the said order was upheld by the learned District Judge in appeal.
2. The contest for the custody of the minor is between Mst. Jindan Mai, maternal-aunt of Mst.
Kalsoom Bibi aged about 9 years, on the one hand, and Mst. Taj Bibi, real sister of the minor on the other. An application for custody of the minor was filed by respondent No. 1 on 27-2-1987. Another application for being appointed as the guardian of the minor was filed by the petitioner on 9-4- -1987. Both the applications were consolidated by the Guardian Judge vide order dated 9-3-1988.
In support of her claim Mst. Jindan Mai appeared as AW 1 and also produced Manzoor Hussain as AW 2. Mst.'Taj Bibi respondent appeared as RW 1 and produced two witnesses namely Ghulam Hussain and Muhammad Ramzan as RW 2 and RW 3, respectively.
3. The learned counsel for the petitioner contended that the minor was brought up since her infancy by the petitioner who is her real maternal-aunt. The petitioner is issueless and has given the true love of a mother to the minor and brought her up well. He further submitted that although the petitioner was married to a person who is not related to the minor within the prohibited degree but he is a very old person and always treated the minor as his own daughter. Lastly, he submitted that it would be in the interest of minor to remain in the custody of the petitioner. He has placed reliance on Sh. Abdus Salam v. Addl. District Judge (1988 SCM R 608). On the other hand the learned counsel for the respondent laid great stress on the fact that the writ petitioner was disqualified under the law to have the custody of the minor as she is married to a person who is not related to the minor within the prohibited degrees. Placing reliance on Mst. Asma v. District Judge, Sialkot (1988 SCM R 1340) he contends that it would be in the welfare of the minor to be given in the custody of Mst. Taj Bibi who is the sister of the minor. The learned counsel also contended that where the Act is silent the principles of Islamic Law should be followed. Lastly, he contended that the minor was taken away treacherously and now estrangement had resulted between the father and the minor.
4. At the time of admission of the writ petition I had directed the petitioner's counsel to produce Haji Muhammad, husband of the petitioner in the Court on the next date of hearing. He accordingly appeared in the Court on 6-12--1988 and was also present in the Court on 16-1-1989 when the arguments were finally heard. From his appearance he seemed to be a fairly old person aged about 65 years and expressed profound love for the minor. He verbally stated that he always treated the minor as his own daughter. By the time the minor comes of age, he will be about 70 years of age. No doubt, he is not related to the minor in the prohibited degree but the minor is in the safe hands of her real maternal-aunt who being issueless has devoted her heart and soul in the upbringing of the minor. Disqualification attached to the petitioner is not absolute but a qualified one. The overriding consideration remains to be the welfare of the minor. It has come in the evidence of the petitioner that at the time of the death of Mst. Zainib, mother of the minor, she had handed over the minor to the present petitioner. Since then, the father or for that matter respondent No. 1 sister of the minor took no interest whatsoever in the welfare of the minor. During this crucial period, the minor was practically abandoned by the father as well as Mst. Taj Bibi, respondent No. 1.
5. As mentioned above the petitioner is issueless and the minor is the centre of her devotion and attention. She also gave education to the minor. On the other hand respondent No. 1, though has priority over the petitioner in the matter of custody as laid down under para. 353 of Mohamadan Law by Mulla, she does not deserve to have the custody of the minor. The petitioner had alleged that Mst. Taj Bibi had strained relations with her husband. While appearing as RW 1 Mst. Taj Bibi admitted that a suit for restitution of conjugal rights was filed against her but it was dismissed. This clearly proves that Mst. Taj Bibi has strained relations with her own husband. It appears that she had filed the application for the custody of the minor at the instance of Muhammad Ramzan father of the minor. As mentioned above, neither the father nor respondent No. 1 had taken any interest in the minor earlier. Now after about nine years love has suddenly sprung up in their hearts. The petitioner had stated that Muhammad Ramzan father of the minor was keen to obtain the custody of the minor so that she may be offered in Watta for his own marriage. Though Muhammad Ramzan denied this allegation while appearing as RW 3 but I feel that the apprehension expressed by the petitioner is not altogether without substance. Watta marriages are frequent in this area and Muhammad Ramzan father of the minor is a young man aged about 35 years. He had practically abandoned the minor long ago. He appears to have got the application for the custody of the minor instituted through Mst. Taj Bibi and himself appeared as a witness on behalf of Taj Bibi, respondent No. 1 although he was arrayed as one of the respondents in the application for custody.
At present Mst. Taj Bibi who is aged about 17/18 years appears to have strained relations with her husband and is living with her father Muhammad Ramzan. She may come back to the house of her husband at any time in case of reconciliation.
6. The minor has already reached the age of discretion and is emotionally attached to the petitioner, who brought her up since her infancy as her own daughter. If the minor is now handed over to Mst. Taj Bibi she will suffer emotional disturbance which will be detrimental to her health.
This question was considered in the case of Sh. Abdus Salam v. Addl. District Judge (1988 SCM R 608). In this case, contest was between father and the issueless sister. The minor was handed over by the father to his issueless sister when the child was only one year old. When the minor son became 9 years of age his custody was claimed by the father. While dealing with the question of welfare of the minor the Supreme Court was pleased to hold as under: "It is also in the welfare of the child that he should live with the appellants who have looked after him for 9 years and brought him up as their son."
It was further observed:-- "Obviously the child grew up considering the appellants as his real' parents and not the respondents. After a lapse of 9 years they should be considered as estopped from claiming his custody particularly when they were total strangers so far as the minor was concerned."
The other judgment in the case of Asma v. District Judge (1988 SCM R 1430) relied upon by the learned counsel for the respondent is distinguishable on facts. In the said case contest was between father and the mother and the minor was also produced in the Court who expressed utmost revulsion and hatred against his own mother. This was considered by the Court to be highly unnatural for a boy of tender age of over 7 years. The Court allowed the father to retain custody of the minor but the arrangement with the mother was modified. It was directed that the minor should be made available for the company of mother for a fortnight during winter vacation and 10 days during summer vacation, each year.
7. As mentioned above Mst. Taj Bibi respondent is a young girl and might go to the house of her husband at any time. If not already married as claimed by her, she is likely to be married in the nearby future. On the other hand the petitioner being issueless- is whole-heartedly devoted to the minor who is happily living with her.
8. The learned counsel for the respondents had expressed an apprehension that the petitioner will give the hand of the minor in marriage to some body without even consulting the father. The petitioner's counsel has undertaken that when the minor reached marriageable age her marriage would be arranged with the consent of the father.
9. The upshot of the above discussion is that this writ petition is allowed and the orders dated 16- 10-1988 and 30-5-1988 passed by the learned District Judge, Layyah, and the Guardian Judge, Layyah, respectively, are set aside. The custody of the minor shall remain with the petitioner subject to the undertaking given regarding the marriage of the minor. Muhammad Ramzan, father of the minor is allowed to visit the minor at the house of the petitioner once in a fortnight so as to obviate the possibilities of estrangement between him and the minor. The parties shall bear their own costs.
H.B.T./J-55/L