1. MUHAMMAD AFZAL ZULLAH, CJ.---Leave to appeal has been sought, against the dismissal by the High Court, of a Constitutional Petition in a custody matter relating to a minor female who is now stated to be aged about 15 years and is in the custody of her natural parents, both the father and the mother. The other claimant for her custody is this case in the petitioner who is the widow of the brother of minor's father, respondent No.3.
2. According to learned counsel the minor having been given to the petitioner and her husband when he was alive because they had no child of their own, was brought up by her like her own daughter and affection between the two developed and remained as if they are mother and daughter. It was thus according to him not only unnatural but illegal to change the custody from the petitioner (as foster mother).
2. The learned Joe in the High Court in a detailed judgment examined the case-law and other questions raised in this case at considerable length. In so far as reasoning in the impugned judgment goes no serious legal or other objection can be advanced against it. However, as the learned counsel also touched the question of the welfare of the minor it would be appropriate to reproduce here efforts made by this Court in Chambers to persuade the parties who are of course related to each other to come to an amicable settlement.
3. "C. Miscellaneous Petition No. 126-R of 1989 in "Civil petition No. 190-R of 1989"
4. "Mst. Shaukat Khalid Petitioner "Additional Distt. Judge, etc Respondents.
5. "Prayer:---that meanwhile the operation of the impugned judgment may graciously be suspended and custody of the minor may not be allowed to be disturbed.
6. (Counsel will appear)
7. "19-4-89. Mr. Zamir Hussain, Advocate Supreme Court and Mr.. Manzoor Ilahi, Advocate-on-Record, the petitioner and the minor.
8. Heard at length.
9. "Have also questioned the minor.
10. It is a pity that on account of the estrangement between the parties, she is not even aware of those particulars of her real mother, brother and sister which she should have known, if she would have had their company under the same roof.
11. "I have also heard the petitioner.
12. "Considering all the circumstances of the case it is fair that the parents should have the custody of the minor during the pendency of the matter in this Court. Order accordingly.
13. "Subject to all just exceptions: "(1) In order to reduce the unpleasantness of change, the minor shall be taken to the petitioner's residence on every Friday for mid-day meals together.
(2) The petitioner shall be permitted to meet the minor at parents' residence at least twice during a week, with prior notice of at-least one day by her to them in this behalf.
(3) The parties including minor's mother, shall appear each month before the Court (and the minor shall also be produced) to examine the nature of efforts made by the minor and both the parties to bridge their differences.
14. "Order accordingly.
15. (Sd. )
16. Judge".
17. "19-4-1989. Presence as before.
18. On request of learned counsel, let the parents be summoned for 22-4-1989, for handing over the custody of the minor to avoid police intervention, let it be so.
19. (Sd.)
20. Judge.--- "IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION)
21. "22-4-1989.ORDER Present: Mr. Zamir Hussain, Advocate Supreme Court, Mr. Manzoor Ilahi, Advocate-on-Record for the Petitioner (the petitioner, the minor and the petitioner's sister are present with them).
22. "C.M.P. No.126-R of 1989 in Civil Petition No.190-R of 1989.
23. Mr. M. Bilal, Advocate Supreme Court (the parents of the minor and her grand-mother, Dadee, are present with him).
24. Several other persons are also present.
25. "HEARD "The learned counsel for the respondent raised two objections regarding order passed on 19-4- 1989 (i) that on account of alleged past conduct of the petitioner and the sister it will not be an atmosphere conducive to the welfare of the minor to compel her 'to visit the petitioner for mid-day meal together on every Friday. (ii) that in case the Friday meeting is kept intact as ordered the petitioner's additional meetings twice daily at the parents' house should be curtailed."
26. "After some arguments in support of the objections when petitioner, her sister and her counsel assured the learned counsel for the parents about their good-will and co-operation, he gave up the objections. It so happened particularly at the stage when the parents and the grand-mother of the minor also showed a reasonable attitude of accommodation for the petitioner as their own kith and kin. The father of the minor went to the extent of offering to the petitioner his own house for her residence instead of her staying with her sister. It is a good gesture which should have been made much earlier. If this offer would have been accepted or is accepted now. By the petitioner, no further dispute would remain to be resolved in so far as the present controversy about the custody of the minor is concerned."
27. "It appears from the stand taken by each side that there are some disputes other than the custody of the minor between the parties, which have not yet been resolved. Both the learned counsel have undertaken that if the arrangements now being made with regard to the custody of the minor culminate in a happy ending and atmosphere of cordiality between the parties, the other disputes would also be amicably resolved. In this spirit of accommodation by each side for the other, the parents of the minor have invited the petitioner, her sister and her lawyers to an Iftar dinner today when the petitioner will hand over the custody of the minor at, the house of her parents in pursuance of the order dated 19--4-1989."
28. "In the same spirit the sister of the petitioner has invited the parents of the minor and their lawyers for a similar party together at her house. The learned lawyers and the parties have willingly agreed to these arrangements."
29. "From today's discussion it appears that by giving opportunity the petitioner and the parents of the minor are capable of sorting out their differences. Both the learned counsel are directed to hold periodic meetings of the parties for amicable settlement of their disputes."
30. "The behaviour of the minor in Court today, to say the least, remained very unhelpful. She is stated to be a student of 10th Class. By now she should have learnt enough manners and etiquette vis-a- vis her parents, her elders, lawyers and the Court. She exhibited a conduct of disrespect for which she was snubbed and scolded by the Court."
31. "The reasons are not far to seek. On the one hand the parents are responsible at least to some extent as the child has started feeling extra importance due to the extended litigation on her custody. Secondly, and this seems to be the main reason, that she has not been taught good manners by the petitioner under whose immediate supervision she has spent most of her life. And thirdly, prima facie the school authorities also to some extent, have failed to perform their duty."
32. "The aforementioned failure of the school authorities to properly instruct the child seems due to the reason that the real parents of the child, did not establish their own contact with the school authorities. The explanation of the father in their behalf is that the school is out of bounds, for him and he has no excess to the authorities. His learned counsel has been told to make an application in this behalf."
33. "With the foregoing orders, observations, remarks and directions this Miscellaneous application (C.M. No. 126-R of 1989 in Civil Petition No. 190-R of 1989) stands disposed of, except for the periodical reports and further proceedings on fresh applications which might be moved before the hearing of the main case."
3. The above -resume particularly would show the awkward position in which the minor has been put for all these years that to say the least it is no more in her welfare to stay away from her parents' care and custody even though the petitioner is related to her, namely, that she is her `Chachee'--her uncle having already died. Otherwise too the circumstances of the petitioner noticed in the afore-reproduced orders are not such that a young girl of about 16 should live with her and not with her own parents. '
4. Learned counsel for the respondents made a categorical statement that the minor is now living in a very happy and cordial atmosphere. Be that as it may even if it would have been little indifferent, she sharing with her own parents, their joys and worries, would be more natural than her passing these very important years of adolesence with a foster-mother. And this is in accord with the principles enunciated by Islam and contained in Quran and Sunnah. The adopted parents have never been treated as the same or equal to the real parents. In this context, therefore, we do not accept the contention of the learned counsel that it was "unnatural" to transfer the custody of the minor from her foster-mother to real mother and father. What Islam enjoins and teaches, in our system of law, is natural and not unnatural. Similarly his reliance on a stray case where some exception might have been made on account of extraordinary circumstances of the case for making a departure from the normal rule, is of no avail to the petitioner. As already found in the foregoing discussion in the present case it is in the welfare of the minor to remain in the custody of the natural parents. It is in accord with natural and also with the law. Accordingly, leave to appeal is refused.