MUHAMMAD YAQOOB ALI, J.-This appeal raises the question whether under Muslim Law a mother loses the hizanit of her children of tender age if she, removes them from the ordinary place of residence of the father and that it shall be deemed to be in their welfare, to return them into his custody.
2. That facts relevant to this order which we have been able to gather from the record are these.
The appellant and respondent No. 1 were married on 7-2-1960 and had lived together for only few months in Dacca when differences arose between them and the latter went away to Chittagong and took up residence with her sister, wife of respondent No. 3, who was posted there as District and Sessions Judge. The elder boy Tarik Mahtab Rahim alias Misha was born during this period of estrangement in Chittagong on the 30th December 1960. A reconciliation thereafter took place and respondent No. 1 along with the child came back from Chittagong and resided with the appellant in Dacca for about 2 years. The second boy Jabed Salam Rahim alias Mohi was born to respondent No. 1 during this period on the 15th September 1962. On the night of 31st August 1963, the appellant allegedly beat respondent No. 1 as a result of which she ceased taking food from his house and sent for meals from the house of her sister Mrs. Sanaul Haq. On the 10th October 1963, the respondent No. 1 along with the two boys as a result of this fresh estrangement left the house of the appellant and went over to the house of respondent No. 2 and after staying there for a few days joined her elder sister Mrs. Abdul Hakim Khan at Mymensingh. She stayed there with the boys until 21st April 1964, when the respondent No. 3 was transferred to Dacca and they all came back to reside here. During her stay at Mymensingh the appellant corresponded with respondent No. 1 and paid her more than one visit. The two boys were allowed to remain in the company of the appellant1/2 on these occasions for several hours daily. On her return to Dacca the respondent No. 1 stayed with respondent No. 3 in "Sagarika" Elephent Road, in the same locality where the appellant resides. The two boys were `dressed' and `groomed' and sent to the appellant during this period every day and they remained with him for 7/8 hours. On 1-Q-1964 the appellant detained the elder boy and did not allow him to go back to respondent No. 1. The boy stayed at 222, New Eskaton Road for four days until on the 4th August he rang up respondent No. 1 and asked her to take him away. In response to the call respondent No. 1 went to the house of the appellant who himself was away and brought back the elder boy at 11 a.m. At 11-30 a.m. The appellant who was informed about the visit of respondent No. 1 by his servant came to the house of respondent No. 3 and picked up a row which resulted in a more ugly incident bringing about final rupture between the spouses.
3. After the 4th August 1964, the two boys were not sent to the house of the appellant whereupon he filed the present application for their custody under section 25 of the Guardians & Wards Act, on the 18th August 1964, in the Court of District Judge, Dacca, being Miscellaneous Case No. 119 of 1964.
Besides Mrs. Sayeda Helali Begum, respondent No. 1 Mr. Sanaul Haq and Mr. Abdul Hakim Khan the husbands of her two sisters were also impleaded as pro forma opposite-party which in view of the relief claimed in the case was quite unnecessary.
4. The claim in the petition proceeded on the grounds (i) that as a result of removing the minor boy from the lawful custody of the appellant the respondent No. 1 had forfeited the right of hizanat and
(ii) that it was for the welfare of the minors to restore their custody to the appellant. The application was opposed and the three respondents filed separate written statements controverting the appellant's claim to the custody of the minor boys. A lengthy account was also given of the cruel treatment which the appellant had all along meted out to the respondent No. 1 as a result of which she had felt compelled to take shelter with her elder sister.
5. Mr. M. A. Jabir, the Additional District Judge, Dacca, to 'whom the application was entrusted for disposal framed the following issues in the case : "(1) Is the application maintainable and is it a bona fide one?
(2) Have the minors been removed from the custody of their legal guardian? If so, will it be for the welfare of the minors to return them to the custody of their legal guardian?
(3)To what relief, if, any is the petitioner entitled?
6. Main evidence in the case was provided by the appellant and respondent No. 1 each side giving its own version of the causes which had led to the estrangement between them more particularly in regard to the incidents of the 31st August 1963 and 4th August 1964. The appellant in additions examined five witnesses, namely, Ziaul Ahsan, P. W. 3, the husband of another sister of the respondent No. 1 Wahidur Rahman, P. W. 4, driver of the appellant, Abdul Bashar Khan, P. W. 5, proprietor, Green Pharmacy, Mug Bazar Road, Ramna, Mr. Nurul Amin, P. W. 6, a member of the local bar and Sujana Rozario, P. W. 7, Aya of the minor boys. Four of them deposed in relation to the incident on the night of the 31st August 1963, and the fifth regarding the occurrence outside "Sagarika" on the 4th August 1964.
7. The appellant deposed that his marriage with respondent No. 1 was arranged by Mr. Sanaul Haq, respondent No. 2, and that after the marriage they pulled on well. Before the elder son was born respondent No. 1 however, without his knowledge or consent went to Chittagong and stayed there with Mr. Abdul Hakim Khan respondent No. 3. On the inducement of his mother-in-law he went to Chittagong to meet respondent No. 1 but he was not welcomed by Mr. Abdul Hakim Khan who behaved "unusually" towards him. Nevertheless he continued to visit Chittagong to see the respondent No. 1 and used to stay there in the Chittagong Club. After the birth of the first child he brought back respondent No. 1 to Dacca in the first week of January 1961. And thereafter they lived "peacefully". On 31st August 1963, the respondent left No. 222-New Easkaton Road at 2 p.m. And returned at about 10-30 p.m. While he was lying ill. He there--upon reprimanded for her leaving the children alone on which she lost temper and sent for her sister and respondent No. 2. At about mid- night they both came to his house and the latter began to abuse him. He eventually succeeded in sending them back, but while leaving they held out threats to teach him a lesson. On account of this incident the respondent -No. 1 ceased taking food from his house and on the 10th October 1963, she left his house along with the two boys and went over to the house of respondent No. 2. From there she went away to Mymensingh on 31st October 1963, and stayed there with respondent No. 3 until 21st July 1964, when the latter was transferred back to Dacca. During this period he sent the sums of Rs. 200 and Rs. 400 to the respondent No. 1 at Mymensingh, but she did not receive the money orders. In larch 1964, he went to Mymensingh to meet respondent No. 1 and his sons and if possible to bring them back, but he did not succeed in this attempt, because her relations were not agreeable to it. On the 1st of August 1964, the elder boy stayed back with him and did not go to respondent No. 1. However on the 4th August during his absence respondent No. 1 took him away on which he went to the house of respondent No. 3 to protest. The younger boy who was asleep woke up and came to his lap. Apprehending trouble at the hands of the sons of the respondent No. 3 who had by then arrived he hastened out to the house, but was pursued by them calling out "thief", "thief". He ran towards the gate when the respondent No. 1 came chasing him and he handed over the boy to her. Many people had collected there who mistook the appellant for a child-lifter and were about to molest him. He addressed the respondent No. 3 who had come in the meantime to affirm that he was the father of the boy. The latter, however, said that he did not know the appellant. The appellant had thereupon to convince the crowd of his being the father of the boy and thus escaped being "lynched". After the incident of the 4th of August 1964, the respondents Nos. 2 and 3 did not permit him to see his sons and he had no other recourse open, but to apply for restoratition of the custody of the boys under section 25 of the Guardians and Wards Act.
8. The examination-in-chief concluded with the assertion that the appellant loved his two sons very much and wanted to have their custody 01 because it was not in their welfare to stay in the house of the respondents Nos. 2 and 3. He also wanted to make arrangements for the schooling of the elder boy in accordance with his family traditions and lastly he apprehended that the minds of his sons will be poisoned against him if they were allowed to remain in the care of Mrs. Abdul Hakim and Mrs. Sanaul Haq.
9. In cross-examination the appellant denied that he had ever meted out cruel treatment to the respondent No. 1 or subjected her to physical torture. He admitted having written letters Exhs. 'B', 'B'-1 and 'B'-2 to the respondent No. 1 which showed that the relation between the spouses had become strained from the very early days of their marriages and that the appellant was in a large measure responsible for it.
10. The first letter Exh. B-1 was written by the appellant to the respondent No. 1 after she had gone to her elder sister Mrs. Abdul Hakim Khan in Chittangong. It is a lengthy document, but it will be sufficient to refer to the following portion only:- "To day a great calamity has fallen on the entire family because of my fault alone. It seems today I cannot forgive myself. I have no face to beg pardon of you."
The second letter Exh. B-2 was written by the appellant on 18th September 1960, in the train while on his way to Chittagong. Its relevant portion reads thus .- ''I am ashamed and sorry for what had happened in the past. I can only tell you that whatever was done in the past was not willingly done. I can swear that within a few days of the marriage whatever I had, I have given you everything. But you had received so much in your life that the humble that I could offer did not at all attract you."
The reasons which contributed to the early discard between the spouses appear in the following passage:- "Being the youngest you were very dear and fond to each and every member of the family. Perhaps you never received the word "No" from any one on any occasion. When I used to come running to you to enjoy your companionship exclusively you wanted to mix with all others together with me and to enjoy some days after the marriage and to let our relationship grow slowly. What you wanted was realistic, but due to my impatience, ignorance or busy engagements I could not appreciate the same.
And without appreciating this and without getting you fully and exclusively I became almost mad. I opposed you and showed disrespect to those who wanted to show affection for me because of their love for you. Brought up with so much love and affection as you were how could you tolerate this affront. So you lost confidence in me. By self-renunciation and sacrifice you provided for a punishment for me. Now that you are far away I realise this day what a great injustice I did to you.
You can only forgive me if you are convinced that all that I did was meant simply for getting you and for no other purpose."
The third letter Exh. `B' is rather brief and may be reproduced In extenso: "Helan, Should you ever think that it is no longer possible for you and for me to live jointly when you shall be entitled to release yourself by giving me one month's written notice: Provided that you shall live jointly with me at our house for that one month till you so release yourself.
Yours, Rahimullah"
Carbon copies of five other letters, Exhs. 6 series, written by the appellant to respondent No. 1 between 14-1-1964 anal 14-7-1964 during her stay at Mymensingh were also placed on the record by the appellant. These letters recount the ardent treaties made by the appellant during this period to the respondent No. 1 to win back her affection and to induce her to come back and stay with him in Dacca both in the interest of their personal happiness and welfare of their minor sons. In the letter of 14-1-1964 the appellant wrote to the respondent No. 1 a "Helu, for God's sake and in the interest of Misha and Mohi and for their welfare let us forget our past mistakes and errors, if you so desire say before the elders of both the sides what our faults are. Let us take a vow not to repeat the past mistakes. It would be our great sacrifice for the sake of Misha and Mohi."
Again in the letter dated the 3rd March 1964, he said: "So however, agonising it may be I am patently waiting for the day when by the mercy of Allah you regain your good sense; the day when you will be in a position to realize where we committed errors. Your real welfare and perfect peace is my only objective in life. I should be ashamed if there is any obstruction to your welfare and peace because of my mistake or error, and if so, I should certainly rectify the same. My personal grievance, sentiments or sensibility shall not be allowed to interrupt or hinder your welfare and peace."
On the first death anniversary of the mother of the respondent No. 1 the appellant wrote to her on the 28th March 1964: "So I say let us be repentant and sorry on this occasion for your past misdeeds and errors, committed knowingly or through ignorance and let us take a solemn vow to make definite and purposeful attempts not to repeat the same mistake in future. A nice and happy family could only grow on our joint efforts."
"We are naturally prone occasionally to make mistakes or commit errors but we ourselves shall have to correct the same by mutual forgiveness I shall not remember the past, be kind and forget the past, trust me."
Finally in the letter dated the 13th July 1964, the appellant said: "It is our misfortune that being possessed of everything, we are getting nothing, there is no peace for us. On that account the infants are also being deprived of the most valuable sheets of their life.
In these abnormal circumstances, you will give them the best you can afford to give. I shall also try to contribute some--thing. This is so natural and normal. Kindly appreciate I got them because I got you first. They are your offspring. But it is you who is the first and foremost in my life."
The tenor of these letters unmistakably shows that besides being interested in the welfare of his minor sons the appellant was keenly desirous of bringing respondent No. 1 to come back to his house.
11. The testimony of the five witnesses examined by the appellant was to the following effect. Syed Ziaul Ahsan, P. W. 3, husband of another sister of respondent No. 1 deposed that after their marriage the appellant and respondent No. 1 lived peacefully for sometime, but six or seven months later she went away to Chittagong against the wishes of her own mother. On 31st August 1963, he went to the house of the appellant and found respondent No. 1 absent. Later on he met her and she did not make any specific complaint to him regarding "Zulm". He found the appellant suffering from fever who narrated to him the occurrence of the previous night and desired that its unpleasant effects should not prolong further.
12. Wahidur Rahman, P. W. 4, driver of the appellant, deposed that his master was unwell for 2/3 days when respondent No. 1 on 31st August 1963, went to the house of her sister at about 2-30 p.m.
And returned at 10-30 p.m. There was some goalmal (trouble in Bengali parlance) between Saheb and Begum Saheb and Begum Safeb sent for Mr. And Mrs. Sanaul Haq. They came at about midnight and respondent No. 2 abused the appellant. In cross-examination the witness acknowledged that there had been many other goalmals between Saheb and respondent No. 1 before the night of 31st August 1963.
13. The statement of Sujana Rozario, P. W. 7, Aya of the two boys is to the same effect.
14. Abdul Bashar Khan P. W. 5 Proprietor of Green Pharmacy, stated that on 1-9-1963, he had supplied some medicines to the appellant prescribed by Dr. Rub Professor of Medicines.
15. Nurul Amin, P. W. 6 referring to the incident of the 4th of August 1963, stated that at about noon he was going along the Elephant Road and as he reached in front of "Sagarika" he saw the appellant driving in. He then heard noise from that building and saw the appellant reached the lawn in front of the house, a lady came running behind him to whom the appellant made over the boy. Many persons had collected in the meantime. Mr. Abdul Hakim Khan also came there and inquired about the incident. Those who had collected outside the house asked him whether he knew the appellant to which Abdul Hakim Khan replied in the negative. On this appellant caught hold of Mr. Khan and shouted: You do no know me I am father of the boy I will see to it. There was no scuffle between the appellant and the lady to whom he handed over the boy and there was no talk between them.
16. In her statement recorded on commission respondent No. 1 referred to the first marriage of the appellant with his maternal cousin who divorced him after some time and her own marriage with him on 7-2-1960 before which she had on the death of her father lived for 7 years with her elder sister Mrs. Abdul Hakim Khan, respondent No. 3. Within two or three days of the marriage strained feeling `broke out' between her and the appellant. For about four months she lived with the appellant who ill-treated her and talked in an unnatural manner to her. He caused his mother of spoiling his life by this marriage". Often he used to twist her hands and passed her wrists just to inflict physical tortures on her. Because of this misconduct she went to the house of her sister Meherunnessa in Chittagong where the elder son was born. During this period the appellant visited her frequently'; and swore by the Holy Qur'an that he will not ill-treat her any more. After the birth of the son she in his interest returned to the house of the appellant believing that having become a father he would change his behaviour.
17. On 31st August 1963, she had left her house at about 4 p.m. And went to her sister's home wherefrom she returned at 9 p.m. And found her bed room locked. As she knocked at the door the appellant told her that she had no place in that bed room. She accordingly went to the adjoining room for sleeping there when the appellant came there and assaulted her after closing the door.
She then sent her nephew to bring her sister and, brother-in-law Mr. Sanaul Haq. They came at about 10 o'clock and waited to have information about there in the flat of Abdur Rab on the ground floor 222-New Eskaton Road but did not succeed in contacting her and left at midnight. Thereafter she did not take food from her own house and when hungry would sent for meals from the house of her sister Mrs. Sanaul Haq. The appellant threw away that food on certain occasions and she starved herself on those days.' On 9-10-1963, respondent No. 3 and his wife came to Dacca to spend their summer vacation and were staying with respondent No. 2 and one or two days earlier the appellant had assaulted her a d considering that "my stay at this house would endanger my life" she went to the house of respondent No. 2 taking with her the two boys and after staying there for a few days went to Mymensingh along with her sister and respondent No.13 on 13-10-1963.
Respondent No. 3 was then transferred to Dacca as Chairman, Industrial Disputes Court, and along with two boys she returned to Dacca, on 21-7-1964. After his arrival she daily sent the two boys to the appellant and they stayed with him for several hours. On 1-8-1964 he, however, did not allow the elder boy to come back to her and detained him for four days. On the 4th August 1964, the elder boy rang her up and said that he wanted to come but "father does not send him" and "Munshi, driver, falsely states that the car is out of order you come and take me with you". Accordingly she went to the house of the appellant at about 11 a.m. And brought the boy. The appellant came to "Sagarika" and picked up a row with her and Mrs. Abdul Hakim Khan and attempted to run away with the younger boy. She there upon chased him and succeeded in getting back the boy in the lawn outside the house. A number of passersby collected outside the house on hearing the noise.
In conclusion respondent No.1 added that there was no person capable of looking after the minor boys at the house of the appellant, his mother who was more than 70 years old and suffered from blood pressure being unable to even raise her head.
18. In the lengthy cross-examination of respondent No. 1 which spreads over 24 pages it was attempted to make out that she did not appreciate the welfare of her minor children and that the allegations which she had made against the appellant were at the instance of respondents Nos. 2 and 3. Her reply was "I am not a boy. I gave birth to two sons. Being unable to bear cruelty and assault I have given out every thing". It was suggested to her that the boys will be better kept and looked after in the company of the appellant to which she replied. "The sons will die if they live in separation from the mother". She further repudiated the suggestion that she had left the house of the appellant at the behest of her two sisters and respondents Nos. 2 and 3 and added that having been tortured to the extreme I left his house.
19. The trial Judge failed to record any definite finding as to the reasons which had prompted respondent No. 1 to leave the house of the appellant on the 10th October 1964, which was essential to determine whether she had taken away the boys under unavoidable circumstances from the residence of the appellant. About the incident of 31st August 1963, he contented himself by observing that the sole testimony of respondent No. 1 that the appellant was not suffering from fever on that date was disproved by overwhelming evidence. But this did not touch the core of the incident as to whether the appellant had in the presence of the servants and the elder boy physically be laboured respondent No. 1. Similarly after recounting the two contradictory versions of the incident of 4th August 1964, the trial Judge without applying his mind as to which of them was true evaded the issue by remarking It is needless for the purpose of this case to enter into the question as to which of the two versions is correct,
20. In dealing with the second part of issue No. 2 the trial Judge found that on account of removing the boys from the ordinary residence of their father the respondent No. 1 had forfeited her right of hizanit, but by reason of their tender age he considered it for their welfare to remain with their mother subject to the conditions (i) that the minor boys shall not be removed from the jurisdiction of the Court without its permission, and (ii) that the respondent No. 1 shall allow the appellant to have free access to the boys and to let them be with him by allowing him either to visit the boys in the house of respondents Nos. 2 and 3 wherever the boys remain of to call the boys daily for short periods to his own residence or elsewhere within the jurisdiction of this Court so as to enable the appellants to exercise effective supervision and control over them.
21. Dissatisfied with the judgment and order of the trial Judge the appellant filed an appeal in the High Court which was dismissed by a Division Bench in limine on the view: "If it is not found that either the father or the mother is a bad person, the interest of the children of tender age demands that they should be with the mother."
And "On the other hand the father has also a right to see the children and to exercise an overall supervision over their upbringing."
But "this again is to be considered from the point of view of the interest of the children".
Finally the learned Judges found that the Additional District Judge had considered all the points to which his attention was attracted and had not misdirected himself in allowing the mother to have the custody of the minor children and declined to admit the appeal to full bearing.
22. Leave to appeal was granted from the order of the High Court to consider whether a right of hizanat by a Muslim mother is liable to forfeiture if she removes the sons of tender age without the consent of their father to such a place from their usual place of residence as would prevent him from exercising necessary supervision or control over her and the children.
23. At the hearing the question of welfare of the minors within section 25 of the Guardians and Wards Act was also argued at some length. Indeed, without the determination of this issue the appeal could not be properly disposed of.
24. In finding that the respondent No. 1 had forfeited her right of hizanat of the two boys the trial Judge relied on the rule enunciated in para. 354 of the Principles of Muhammadan Law by Mulla and other text hooks including Hedayat (Grady's Edition); Digest of Muhammadan Law by Baillies, Fatawa-i-Alamgri (Bengali Edition) and Commentaries by Syed Ameer Ali and Tayabji to which we shall refer presently. "It was noticed that the mother is, of all persons, the best entitled to the custody of her infant child during marriage, and after separation from her husband unless she be an apostate, or wicked, or unworthy to be trusted and her right to the custody of her infant male child continues till he is independent of her care, that is till he is seven years of age, but it was held that she lost that right as she had gone away from the place of residence of minor's father, along with the minors, on 10-10-1963, and resided till 31st October 1963, in a different place in Dacca, and from 31st October 1963, to 21st July 1964, she had resided at Mymensingh, while the marriage between the parents was still subsisting".
25. The "Ordinary residence of father" was construed by the trial Judge as the house of the appellant 222-New Eskaton Road, Dacca and he relied for this purpose on Baillie page 439 wherein it is said "where the husband and wife are residing in the proper place of hizanat while the marriage subsists, so that the husband cannot leave the city where they are residing and take the child with him out of the custody of the woman to whom it properly belongs, until the child is independent of her care ; and if the wife should desire to leave the city he can prevent her, whether she had the child with her or not". The same view is expressed by Syed Ameer A.I in his textbook on Muhammadan Law, Volume II, 5th Edition, at page 260: "Whilst the marriage subsists the conjugal domicile is the place of hizanat ; thus the home where the parents usually reside and live together as husband and wife is the place where the child should be brought up" and further: "The right of hizanat is also liable to forfeiture in case the hizanat removes the child without the consent of his father or guardian to such a distance from his usual place of residence as would prevent him from exercising the necessary supervision or control over her". In Fatawa-i-Alamgiri (Bengali translation, page 730) the rule is stated as follows :- "When the husband and wife are living together, the child must stay with them and the husband cannot take the child away with him nor can the mother, even during the period that she is entitled to the custody of the child, take it away without the permission of the father when the child is with one of its parents, the father is not to be prevented from seeing and visiting it."
The rule is subject to the qualification that when the change of residence is caused by unavoidable exigencies or when it had been made for the benefit of the children, the right of hizannt is not lost, and if the mother removes the minor against the wishes of the father to a place, where the father cannot exercise supervision an.-1 control, she forfeits her right to the custody of the minor.
26. The appeal preferred by the appellant from the judgment and order of the first Court was dismissed in limine by the High Court so that we did not have the benefit of the considered views of the learned Judges on the questions of fact and law arising in the case. Similarly, the trial Judge did not record definite findings of fact bearing on the question of welfare of the minors and decided this issue on hypothetical basis. It is for this reason that we have felt obliged to refer to the evidence led by the parties at some length in the earlier part of this order.
27. In support of the appeal Mr. A. K. Brohi relied on the two judgments of the High Court of West Pakistan and the quotations from the textbooks on the subject of forfeiture of hizanat referred to above.
28. The rule enunciated in para. 354 of Principles of Muhammadan Law by Mulla suffers from over simplification. Similarly quotations from textbooks on Muslim Law relied upon by the trial Judge are not comprehensive. Similarly the trial Judge-has left out many relevant portions of the textbooks relied upon by him on the subject of hizanat.
29. The rules on hizanat of children of tender age under Muslim law are based on the following tradition of the Holy Prophet (may peace be upon him): "A woman once applied to the Prophet, saying 'O Prophet of God that is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care'; to which the Prophet replied, 'thou hast a right in the child prior to that of thy husband, so long as thou does not marry with a stranger'."
The tradition is quoted in Hedayat (2nd Edition, Vols. I-IV, page 138) in Chapter XIV of hizanat, or the care of infant children" and under section "in case of separation, the care of the infant children belongs to the wife". It is followed by the comment that :.-- "A mother is naturally not only more tender, but alto Letter qualified to cherish a child during infamy, so that committing the cart to her is of advantage to the child and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying, 'the spittal of the mother is better for thy child than honey, O Omar! Which was said at a time when separation had taken place between Omar and his wife the mother of Assim. The latter being then an infant at the breast, Omar desirous of taking him from the mother and these words were spoken in the presence of many of the companions, none of whom contradicted him."
At page 139 under the title "Length of the term of hizanat" it is said :- "The right of hizanat with respect to a male child, paper aims to the mother, until he becomes independent of it himself that is to say, he becomes capable of shifting, eating drinking and performing other natural functions without assistance after which the charge devolves upon the father, or next paternal relation. The hizanat with respect to a boy, ceases at the end of seven years, as in general a child at that age is capable of performing all the necessary offices himself, without assistance. But the right of hizanat with respect to a girl, appertains to a mother, grand-mother, and so forth, until the first appearance of the menstrual discharge, that is to Say, until she attains the age of puberty, because a girl has occasion to learn such manners and accomplishments as are proper to women, to the, teaching of which the family relations are most competent, but after that period the charge of her properly belongs to the father, because a girl, after maturity, requires some person to superintend her conduct, and to this the father is most completely qualified."
30. The parties being agreed that the mother has the right of hizanat of the boys till they attain the age of seven years, the question to be considered is whether that right was lost on account of their removal from the ordinary place of residence of the father. In hedaya the rule on this point is stated as under :- , "If a divorced woman be desirous of removing with her child out of a city, she is not at liberty to do it ; but yet if she removed with her child out of a city and go to her native place, where the contract of her marriage was executed, in this case her removal is lawful, because the father is considered as having also undertaken to reside in that place, both in the eye of the law, the according to common usage for the Prophet has said, "whoever marries a woman of any city is thereby rendered a Denizen of that city" ; and hence it is, that if an alien woman k, ere to come into the Mussulman territory, and there to marry an infidel subject, she also becomes an infidel subject ; it is to be observed, however that this rule does not apply to an alien man, that is to say, if an alien man were to come ii the Mussulman territory, and there to marry a female subject he is not thereby rendered a subject ; for if he choose, he may divorce his wife and return to his own country.
If a divorced woman be desirous of removing with her child to a place which is not the place of her nativity, but in which her marriage contract was executed she is not at liberty to do it. This is demon-- started by Kadooree in his compendium, and also accords with what is related in the Mabsoot. The Jama Sagheer says that she may take her child thither, because where a marriage contract is executed in any place, it occasion all the ordinances thereof to exist and have force in that place. In the same manner as sale amounts to a delivery of the article sold to the place of sale ; and a woman's right to the care to, her children is one of the ordinances of marriage, wherefore she is entitled to keep her child in the place where she was married, although she be not a native of that place . . . . . . . In short, to the property of the woman carrying her child from one place to another, two points are essentially requisite one, that she a native of the place to which she goes ; and the other, that her marriage contract has been there executed ; this, however means only where the places are considerably distant ; but if they be so near that the father may go to see his child and return the same night, there is no objection to the wife going to the other place with the child, and there remaining ; and this, whatever be the size or degree of the places, whether cities or villages ; nor is there any objection to her removing from the village to the city or chief town of a district as this is in no respect injurious to the father and is advantageous to the child, since he will thereby become known and acquainted with the people of the place."
"A female including the mother, who is otherwise entitled to the custody of a child, loses the right of custody ;
(1) if she marries a person not related to the child within the prohibited degrees ; or
(2) if she goes and resides during the subsistence of the marriage, at a distance from the father's place of residence ; or
(3) if she is leading an immoral life, as where she is a prostitute ; or
(4) if she neglects to take care of the child."
Since the respondent No.1 did not remarry and it is not even alleged that she suffered from the defects mentioned in principles 3 and 4, Mr. Brohi relied on her leaving tire residence of the appellant and residing during the subsistence of the marriage at different places. By "place of residence he meant 222-New Eskaton Road, Dacca.
31. The learned counsel did not dispute the proposition that a divorcee could take her minor children to a place outside the city where the father resided, but maintained that so long as the marriage subsists the place of hizanar is the ordinary place of the residence of the father. In other words a premium is placed on a divorced mother as against the mother who may have been driven out from his house by the husband or is otherwise separated from him. There is no logic in this view and we see no reason why the same rule should not apply in either case. The underlying consideration is not the status of the mother, but that "a mother, is naturally not Only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is an advantage to the child".
32. We did not have access to the Arabic text of Hedayat and other text quoted above and, are, therefore, not certain whether the word 'place' is used in the sense of a `house' or includes village, town Or city where the parents last resided together. We are, however, inclined in favour of the later view, because in almost all the texts, the emphasis is on the mother leaving the "city" where the father resoles. Mr. Brohi emphasis that distance to which the minor children are removed should not be measured in mileage, but from a functional point of view, namely, to ascertain whether the father can effectively exercise supervision and control over his children. This however, does not help the appellant, because at the time when he made the application under section 25 of the Guardians and Wards Act, the respondent No. 1 was residing and has continued to reside with the two boys in the city of Dacca, in the same locality where the appellant resides up to the 4th of August 1964 away the when the appellant attempted to take younger boy the respondent No 1 used to send both the boys to him every day and they stayed with him for several hours. Thereafter of course, the relations between the parties became restrained and for some time the appellant had no access to the boys, but this impediment has been effectively removed by the trial Judge in directing that the respondents NOS. 1 to 3 shall allow the appellant to have free access to the boys and to let them be with him by allowing either to visit the boys in the house of the respondents Nos.
2 and 3 wherever the boys remain or call the boys daily "or short period to his own residence or elsewhere within the jurisdiction of his Court so as to enable the appellant to exercise effective supervision and control over the boys.
33. The trial Judge laid emphasis on the removal of the boys from the house of the appellant to the house of the respondent No. 1 on 10.10-1 963 and from there to Mymensingh in the house of the respondent No. 3 where they stayed till 21st July 1964, but it was ignored that during this period the appellant bad not objected to the removal of the boys from iris place of residence. On the contrary, he wrote a number of letters to the respondent No. 1 during this period, expressing great affection and love for her and the two boys and during her stay there he visited Mymensingh on a number of occasions, and stayed with the children for several hours a day. Similarly, on the return of the respondent No. I to Dacca, she used to send the two boys every day to the house of the appellant, where they stayed with him till such time, as he desired. In the circumstances, it could not be said, that the two boys were removed to such distant place, that the appellant had no access to them in order to exercise his right of supervision and control over them. It is also to be borne in mind that the respondent No. 1 having lost her father had stayed with her elder sister wife of respondent No. 2 for 7 years and her marriage with her appellant was arranged during that period like the said respondent. His house was, therefore, almost house of her parents. Her going away from the house of the appellant and staying with her sister in the house of the respondent No.2 would, therefore, be covered by the condition of 'unavoidable circumstances if it be found that the appellant had maltreated her which compelled her to leave his house.
34. The evidence on the point is given by the appellant and she affirmed that on the night of 31st August 1963, the appellant hit her 2/3 times in the presence of the elder boy and thereupon she sent her nephew to call the respondent No. 3 and her sister to rescue her. The appellant, of course, denied it and gave a counter-version of his being an aggrieved party and the trial Judge believed that he was suffering from fever on that day, but this did not amount to finding that he had not physically assaulted respondent No. 1 on that night. If the appellant had only registered a protest as to why she had left him and the children alone and returned home at 10-30 p.m. There was no reason for her to lose temper or to send for her sister and the respondent No. 2.
35. That the husband and wife had fallen out soon after the marriage is evident from the letters Exhs. 'B -'B'-1 and 'B'-2. These letters further reveal that the appellant was initially in the wrong and that it was he who was largely responsible for their estrangement. The appellant maintained that the respondent No. 1 has no income of her own and is living as a dependent of the respondents 2 and 3. There must, therefore, be strong reason for her to deprive herself and the two boys of the affluence of the appellant on which he laid much stress in his own examination. The appellant asserted that respondents Nos. 2 and 3 and their wives were against their living together, but it does not sound convincing. It is his own evidence that the marriage was arranged by respondent No. 2. What possible reason he or the other respondent, could, therefore, have in wrecking that marriage. In the circumstances the reason given by the respondent No. 1 that she had left the house of the appellant because he maltreated her and subjected her to physical torture appears to be more probable- In leaving the ordinary place of residence of the appellant and taking away with her the two boys the respondent, therefore, did not lose her right of hizanat.
36. The above finding, however, is not determinative of the main issue arising in the case, namely, whether it is for the welfare of the minors to return them to the custody of the appellant within section 25 of the Guardians and ;yards Act. Section 25 which falls in Chapter III of the Act under the title "Duties, Rights and Liabilities of Guardians" provides that if a ward leave 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. Mr. Brohi argued that in determining welfare of the minors under section 5 Court will act consistently with the law to which the minor is subject as provided for in section 17. In other words the two sections should be read as supplementary to each other and the question whether it is for the welfare of the minors to return them to the custody of the appellant should be resolved according to Muslim Law which envisages that as a result of the forfeiture of the right of hizanat vesting in the mother there was no alternative, but to return the minors to the custody of the father.
Support for this view was found from the judgment in Mst. Mahmooda Khatun v. Syed Zainul Hasnain Rizvi (PLD 19 ; 8 Kar. 150) and A.I Akbar v. Mst. Kaniz Maryam (PLD 1956 Lah. 484).
37. In Mst. Mahmooda Khatun v. Syed Zafnul Hasnaln Rizvi the parents having fallen out the mother removed her minor children from Karachi to Khanewal, a town situated in the old Province of the Punjab, at a distance of more than 600 miles from the place of residence of father. Both the children were of very tender age, but the learned Judge relying on a number of judgments from the Indian jurisdiction held that the father became entitled to the custody of the children both of whom were less than seven years of age as the mother had by removing them from the ordinary place of residence of their father, incurred the disqualification set out in clause (2) of paragraph 350 of the Principles of Mohammadan Law by Mulla. (It corresponds to pare. 354 in the earlier edition). The question whether it was for the welfare of the minor within section 25 of the Guardians and Wards Act to return them to the custody of the father was neither raised in that case nor decided by the learned Judge. In A.I Akbar v. Mst. Kaniz Maryam it was held that welfare of a ward within section 25 of the Guardians and Wards Act would be presumed in returning him to the custody of his lawful guardian. The parties in that case had two daughters and a boy named Aftab aged 11 years. The mother was divorced whereupon she took the minors from Lahore where the father resided to Karachi where her brother was employed. An application for maintenance of the Children under section 488, Cr. P. C., was later on moved by the mother at Karachi and an order of maintenance of Rs. 100 was obtained. Thereafter the father put in an application under section 25 of the Guardians and Wards Act for the custody of Aftab minor only. In determining the issue whether it was for the welfare of the minor to return to the custody of the father, the learned Judge with reference to an earlier judgment delivered by him in Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lah. 73) observed that "If by Muhammadan Law a particular relation is entitled to the custody of a minor we should presume that the welfare of minor is in being delivered to that person" and "that there is no conflict between Muhammadan Law and section 25 of the Guardians and Wards Act which deals with the welfare of the minors and or rules relating to the welfare of the minors and or in all cases subject to this dominant consideration". The case is distinguishable on facts. The ward in that case was a boy aged more then 11 years. The right of hizanat vested in the mother had thus already ended while in instant case both the boys are below the age of 7 years. The rule then "there is no conflict between Muhammadan Law and section 25 of the Guardians and Ward Act" would in the present case therefore lead to the conclusions that it is not for their welfare to return them into the custody of the appellant if the respondent was found not to have forfeited her right of hizanat.
However, if it was intended to lay down in A.I Akbar v. Mst. Kanaz Maryam that if such a right be forfeited then the minor must be returned into the custody of the father ipso facto as was done in the case of Mst. Mahmooda Khatoan v. Syed Zainul Hasnain Rizvi without determining whether it will be for the welfare of the minor or not to do so we find it difficult to subscribe to this view. The learned Judge observed that it raises a presumption of welfare of the minor, but this does not advance the argument for as against a mere presumption attributed to Muslim Law section 25 recognizes it as a right of the guardian that his ward who leaves or is removed from his custody be returned into his custody, but subject to his welfare. "Welfare" being question of fact will, therefore, have to be resolved on the material placed before the Guardian Judge and not on the basis of any presumption.
38. We are, therefore, unable to accept the construction placed by Mr. Brohi, on section 25 of the Guardians and Wards Act. There are other reasons too. In the case of a certificated guardian the Court has in making his appointment already acted "consistently with the law to which the minor is subject". The question to be decided under section 25 is, however, not the right of the guardian to obtain the custody of the ward as that rights, is given to him by the statute but the welfare of the ward. A natural or certificated guardian may turn out to be an undesirable person or the Court may find it not for the welfare of the minor to deliver him into the custody of the guardian. It is, therefore, provided specifically that although the guardian is entitled to such custody no order will be made to that effect unless the Court is satisfied that it will be for the welfare of the ward. Moreover, while there are rules regarding appointment of guardians their rights and duties and forfeiture of the right of hizanat there are no rules under Mohammadan Law for determining whether it would be for the welfare of a ward to deliver him into the custody of his guardian. Even if there be a presumption that it is for the welfare of the ward to deliver him into the custody of his guardian the Court will have to weight it against the other weighty consideration that "a mother is not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child". A mother may, therefore, be deprived of the custody of the children of tender age only if the paramount consideration of their welfare so demands.
39. In the result we find that the respondent No. 1 did not forfeit her right of custody of the two boys by reason of removing them from the ordinary place of residence of the appellant and further that it was ever otherwise not within section 25 of the Guardians and Wards Act in the welfare of the minors to deliver them into the custody of the appellant while they are of tender age.
40. It remains now to refer to the offer made by the appellant in the Courts below and an application made by him after the close of arguments in the appeal that he is prepared to provide separate accommodation for the residence of respondent No. 1 and the two boys and he would bear all other expenses for maintenance and schooling etc., according to the status of the parties provided that she undertakes not to live with respondents Nos. 2 and 3. Respondent No. 1 expressed her inability to agree to it as being a young lady she could not live by herself. Two counter- suggestions were, however, made during the hearing of the appeal : (i) that the boys may be sent to a public school and may spend their vacation in parts with either parent ; and (ii) that the appellant may take into custody of both the boys on their attaining the age of 7 years. Both the proposals were rejected by the appellant which inclines us to the view that the appellant is indeed more eager to secure return of the respondent No. 1 to his house than the custody of the two boys.
In view of this the possibility that the custody of the minors is being pressed into service as a lever cannot be ruled out. It is agreed by learned counsel for the parties that on the elder son attaining the age of 7, the father would be entitled to his custody.
41. On the above view we find little merit in the appeal and dismiss it, but in the circumstances make no order as to costs.
S. A. RAHMAN, J.-I agree generally and in the order proposed, but would like to add that perhaps the requirement of welfare of the minor mentioned in section 25 of the Guardians and Wards Act is quite consistent with the ultimate objectives of the provisions of Muslim Law as well, for it appears to be the illat (reason) behind the various rules of Muslim Law bearing on the subject of custody of minor children.