' Dispute, in this Constitution Petition, relates to the custody of minor girl Kishawar Sultana. Claimant to her custody are Razia 13ibi/mother herein petitioner and Rabia Bibi/paternal-grandmother herein respondent No3.
2. Relevant facts are that petitioner was married to Muhammad Ashraf son of respondent No3. Out of this wedlock Kishwar. Sultana minor was born. As ill-luck would have it, Muhammad Arif passed away when minor was only 1-1/2 year She was brought up by petitioner. It was on 2-4-1989 when respondent filed an application under section 25 of the Guardian and Wards Act against petitioner for the recovery of minor on the ground that petitioner had contracted second marriage with, one Muhammad Arif who was stranger and was not within prohibited degree to minor and secondly that minor was not being properly looked after. It was contended that it was in the welfare of minor that her custody be entrusted to respondent No,3.
3. This application was contested. It was pleaded that respondent (herein petitioner) had brought up the minor with maternal affection and care and was giving her proper training and education. It was pleaded that the custody of the minor was being sought for on the ground that respondent No3 had a covetous look on the agricultural land belonging to minor.
4. On these pleas the learned Guardian Judge settled necessary issue. The evidence was led by both the parties. On the consideration of the same, the Guardian Judge, Bahawalnagar held that Muhammad Arif the second husband of petitioner was a stranger. As such the petitioner had lost her right of Hizanat. On this conclusion the application was accepted and the petitioner was directed to hand over the custody of minor to applicant/respondent No3.
5. Feeling dissatisfied, the petitioner filed appeal which was, also dismissed by the learned District Judge vide impugned order dated 10-1-1990. These orders are called in question in this Constitution petition.
6. The learned counsel for the petitioner, in support of this petition, raised following points:- ' Firstly; It was, contended that the marriage of the petitioner with Muhammad Arif did not cause the forfeiture of her right of Hizanat. . Reliance was placed on Shagufta Bano v. Musarrat rlanif etc (1982 CLC 1821), Mst. Rafiqan and 2 others v. Jalal Din (1983 SCMR 481); Mst. Feroz Begum v. Lt.-Col. Muhammad Hussain (1983 SCMR 606), Mst. Jannat v. Ch. Abdul Hameed, Addl. District Judge and others (1984 CLC 345), Mst. Parveen Akhtar v. Muhammad Ashraf (1986 SCMR 1944), Mst. Zubeda Khanum v. The District Judge, Karachi South and 2 others (1988 CLC 556) and Mst. Ruqayya Yasmin v. Muhammad Riaz and others (1991 MLD 166). On the basis of dicta laid down in the aforenoted authorities, it was canvassed that the Guardian Judge as well as the first appellate Court had committed error of law by accepting the application of respondent No3, on the sole ground of remarriage with Muhammad Arif. Secondly; It was argued that the first appellate Court had almost passed a mechanical order of affirmance without application of independent mind to the facts and circumstances of this case. The first appellate Court failed to assess and weigh the evidence of both the parties on the question of welfare of minor.
' Thirdly-, It was urged that Muhammad Arif the present husband of the petitioner was not stranger to minor. As such the petitioner on this account had not lost her right of Hizanat. Fourthly; It was suggested that minor had been brought up from cradle upto this time by the petitioner. The minor had been looked after with great maternal affection and love for seven years. Mst. Rabi Bibi and his son who are in possession of movable and immovable property left by Muhammad Ashraf. It was stated that not only respondent No3 has not paid any maintenance for the upbringing of minor but has grabbed the legal share of minor as well as the petitioner. On account of this conduct it was suggested that the respondent No3 was not entitled to custody of the minor.
7. On the contrary the learned counsel appearing on behalf of respondent No3 solely relied upon the rule contained in Para 352 of Mahmmadan Law by D.F. Mulla to contend that the petitioner had married Muhammad Ashraf who was stranger and as such she had lost her right of Hizanat.
Reliance was also placed on Bashir Ahmad v. Mst. Rehana Uman (1976 SCMR 28) and Bashir Ahmad v. Mst. Rehana (1978 SCMR 192).
8. From the above, it is quite clear to me that the only question calling for determination in this Constitution petition is whether the custodian mother of a minor female, loses her preferential right of custody by marrying a person who is stranger and is not related to minor within, prohibited degree.
9. This question has never, been free from difficulty. There is no verse in Holy 'Duran specifically dealing with the right of the custody of monor. There is, howeve, consensus among the Muslim jurists on the point that in the first instance the mother is entitled to the custody of her child in preference to other relatives. According to the jurists the following is the order of preference for the custody of minor boy upto seven years of age and of a female upto puberty:- Mother, (2) mother's mother, how high so ever, (3) father's mother, h.h.s., (4) full sister, (5) uternine sister, (6) consanguine sister, (7) full sister's daughter, (8) uterine sister's daughter, (9) consanguine sister's daughter, (10) maternal-aunts, (11) paternal-aunts, (12) father, (13) father's father h.h.s., (14) full brother, (15) consanguine brother, (16) full brother's son, (17) consanguine brother's son, (18) full paternal uncle (19) consanguine paternal uncle, (20) full paternal-uncle's son, (21) consanguine paternal-uncle's son. All famales lose the right of custody if they marry a male not related to the child within the prohibited degree or are otherwise wicked."
10. All the schools of Muslim jurisprudence derive the sanction for this order from the following traditions of the Holy Prophet (may peace be upon him):- "Amr-b-Shuaib reported from his father from his grandfather that a woman asked: 0 Messenger of Allah, my womb was a resting place of this son of mine, my breast a drinking place for him and my lap a soothing place for him, but his father divorced me and wishes to snatch him away from me.
The Messenger of Allah said: You have got better right to take him till you are not remarried." (1403- Ahmad Abu Daud), {{URDU TEXT}}
11. At this stage it will be proper to notice the relevant rule. Of Muslim Law contained in different treatises on Mahomedan Law of a high authority. The rule embodied in monograph 352 of Mahomcdan Law by D.F. Mulla is in following words: "The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and for her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case' the custody belongs to the father."
12. It will be of advantage to quote section 177 in chapter XXIV of Code of Muslim Personal Law by Dr. Tanzil-ur-Rchman (Volume I) First Edition, (published by Islamic Publishers D.13/J, North Nazimabad Karachi-33 (Pakistan). It reads as under:- "The mother's preferential right of custodianship shall lapse by her contracting marriage with a stranger who is not in the prohibited degree to the child except when, in the opinion of the Court, the minor's welfare lies in the custody of the mother."
13. Having noticed the relevant law it will be useful at this stage to - examine the case-law on this subject. This point came up for consideration in High Court of Bagdadul Jadid in the case of MM.
Ghulam Jannat v. Bashir Shah (PLD 19S2 BJ 53) It was observed, it is settled law that under Muhammadan Law a mother who remarries after the death of her first husband, is incompetent to be appointed as guardian of the minor children by her first husband. 1928 Qudh 220 may be referred-to in this connection, where it was held that under Muhammadan Law the mother is disqualified from the guardianship even of her minor daughter if she is married to a man who is not - relatedtothe minor within prohibited degree. It is further observed that where the law definitely lays clown thatan appointment of a certain guardian cannot be made, it is not proper for the Court to disregard the law even in the interests of the minor."
' In the case of Muhammad Bashir v. Ghulam Fatima (PLD 1953 Lahore 73) Mr. Justice Kaikaus held that the second husband of the mother should be within the prohibited degree of the minor by consanguinity. The original saving of the Holy Prophet, on which this rule is based, is that a woman loses her right when she marries a stranger.- TO say that the second. Husband comes within prohibited degree as soon as marriage between him and the mother is consummated will not avail to save the mother's right. It was further held "It may be objected that if every rule of Muhammadan Law is subordinate to the interests of the child, how do the-rules affect a case under section 25 at all. The answer is simple. We will regard the .Rules as raising a presumption of Welfare till exceptional circumstances are proved. The above quotation from Tyabji's Muhammadan Law is substantially to the same effect. If I were dealing with an application under section 17, I would have to apply - Muhammadan Law because of the words consistently with the law to which the minor is subject' in -that. Section. But the Act recognises the father as natural guardian and the only application he can file is under section 25. If I do not apply Muhammadan Law in this case it would create an anomaly in that if a relative' other, than the father applies under section 17. He can have all the rights which personal law gives- him whereas the father, because he has to apply under section 25, would not get the benefit."
' The view taken in Ghtilam Jannat's case (PLD 1952 -B.J. 53) was departed in Amar Elahi. v. Ras.Hida Akhtar (PLD 1955 Lah. 412) by Mr.Justice. Akhlaque Hussain. It was held "that the Muslim Law does not prohibit a mother who has married a person, not related to her minor daughter the prohibited degrees, from being appointed her guardian under all circumstances....By marrying a stranger the right is not lost absolutely. She only loses her preferential right to the custody of the child, which means that if there is another relation of the minor who possesses a right under the Muslim Law to the custody of the person of the minor and to whom the welfare of the minor can be safely and properly entrusted, such a female relation cannot claim the custody of the child as of right." In this case Mr. Justice Akhlaquc Hussain, expressed his opinion that the rule laid down in AIR 1933 Lah. 493 (Mchraj Begum v.\Yar Muhammad), PLD 1952 B.J. 53 (Ghulam Jannat v. Bashir Shah and others) and AIR 1928 Oudh 220 (Ansar Ahmad v. Samidan) was not correct. He held that "it will be noticed that the Court is not required, while dealing with an application under section 25 (of the Guardians and Wards Act, 1925) of the return of the minor to the custody of its guardian, to make an order "consistently with the law to which the minor is subject," as in the case of appointment of Guardian.
All that the Court has to consider is whether it will be for the welfare of the ward to return to the custody of his guardian."
' In Ali Akbar v. Mst. Kaniz Marryam (PLD 1956 Lah. 4845 it was held; "If by Muhammadan Law a particular relation is entitled to the custody of a minor we should presume in the absence of proof to the contrary, that the welfare of the minor is in being delivered to that person.
"The minor being over 7 years of age, the right of custody under Muhammadan Law belongs to the father. Not only is there the ordinary presumption of the welfare of the minor, but we have also to keep in mind the strong position of the father with respect to guardianship of the person as well as the property of the child."
"It has to be presumed that the welfare of the minor lies with the father and there should be strong reasons for depriving the appellant of the custody of his child. I have only to consider whether any such reasons exist. It is impossible to hold that if the father, who has divorced the mother of the minor marries again, he forfeits the right to the custody of the minor. I cannot presume that the second wife will ill-treat the child though if the child was made to live with the stepmother and she in fact ill-treated him that may be a good ground for an order against the father."
' In Rashida Begum v. Shahahudddin (PLD 1960 Lah. 1142), Mr. Justice Muhammad Shall held that "In this case, the contest is between the mother who has remarried a person not related to the minor girls within the prohibited degree and the paternal-uncle of the minors. I have seen the second husband of the mother who is considerably old and very respectable looking fellow. I see no justification whatsoever to snatch the girls from the mother and hand them over to the petitioners whose sons and other relations \yin certainly not be related to the minors within the prohibited degrees. In the case of the girls it is necessary to see if the person who wants their custody has himself not got boys whimsy prove dangerous to them. In the case of the father married to another woman, that woman's relations who must certainly visit his house may be absolutely undesirable persons. It should not be forgotten that mother or mother's mother stands in a better position to protect the minor girl from men if they be their husbands than the father or other male relations."
' In Mst. Nazeer Bcgum v. Abdul Sattar (PLD 1963 Karachi 465), it was observed that "under the Muhammadan Law the mother, of all persons, is best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution (Fatawai Almgiri, Vol.I, p. 728). The right of mother to the custody of her minor children in the case of female, until the children attain puberty, cannot be questioned. As I have already mentioned the mother in the present case has lost her legal right of custody of the minor children under the Muslim Law because of her marriage to a stranger. This, however, does not deprive her, if the Court was of the opinion that it would still be to the welfare of the minors, if they remain in the custody of the mother."
' In Khushi Muhammad v. Muhammad-un-Nisa PLD 1961 Lah. 768, Division Bench of the High Court of West Pakistan, Lahore, held: On the premises the crucial point for determination is whether the custody of the children, which the personal law recognises to be the respondent's right as against the appellant, could be denied to her. The mother under the personal law loses the right to custody of the children if she marries a stranger. She has so married and is, therefore, within the prohibition.
There is no doubt that the personal law favours the custody of the minors in the case of a boy till he reaches the age of seven and of a girl before she attains puberty to remain with the mother. The principle is unexceptionable if it advances the welfare of the minor which in all cases remains the primary consideration. Hadrat Umar (may God be pleased with him) is reported to have divorced his wife who had a minor child. Hazrat Abu Bakr (may God be pleased with him) stated the rule in the presence of several Companions of the Holy Prophet (God be pleased with them all) that the sticky water which flowed from the mouth of the mother was more invigorating for the child than the purest honey which a father could provide. It merely illustrates the anxiety of our law-givers to provide for the physical and emotional development of the child. At the age of seven, a male child is sufficiently advanced in years to be denied the tender care of the mother and entrusted to the father who is more appropriate to give him the proper training. The mother being better qualified in the case of a minor girl, who has not attained puberty, to train her for the responsibilities of her se; takes preference over the father. But these are not the only two considerations which are germane to the issue. The moral and spiritual values constitute the life and soul of every religious system and it is only in cases where the physical and emotional development of a standard level could, be secured only by the sacrifice of moral and spiritual values that the former considerations yield to the latter. In essence, therefore, the welfare of the child remains the paramount consideration. The rules of personal law in the last analysis resolve in the formulation of those, principles which contribute to the maximum welfare of the minor. The normal rules are to be departed from only on the consideration that otherwise it will result in denying the minor a benefit more fundamental in character. And that rule is part and parcel of the personal law itself." It was further observed "In the present case, there is no escape from the, conclusion that the respondent has been leading a life and chosen for herself an environment in which the minors would constantly be under an influence which has the inherent danger of impairing their moral and spiritual values. The Courts are always anxious and, indeed it is their duty to secure the moral and spiritual development of the minor even though in doing so they have to depart from the normal rules governing the custody of minors. We are, therefore, constrained in the present case to allow the appeal and reversing the order passed by the learned Single Judge, restore that of the learned Guardian Judge. The case will go back to the learned Guardian Judge who will summon the parties and take steps to deliver the minors to the appellant, their father."
' In Zohra Begum v. Latif Ahmad Munawwar (PLD 1965 Lah. 695) held: "It would be permissible for Courts to differ from the Rule of Hizanat stated in the text-books on Muslim Law for there is no Qur'anic or tranditional text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which according to Imam Al-Shafi'i is included in the doctrine of qiyas. It has been mentioned earlier that the rule propounded in different Text Books on the subject of Hizanat is not uniform. It would, therefore, be permissible to depart from the rule stated therein if, on the facts of a given case, its applications is against the welfare of the minor."
' In Bevi v. Shah Nawaz Khan (PLD 1961 Lahore 509), it was observed that "Under Muhammadan Law, a mother is entitled to the Hizanat of her daughter till she attained puberty and of her son till he attained the age of seven years. She does not lose her right to the custody of her children merely because she lived separately from her husband. The principle of Muhammadan Law as regards Hizanat is fundamentally based on this fact that it is for the welfare of the minors to live with their guardians as directed under the law....If the relations of husband and wife are strained and as a result of that they live separately, the wife would not lose the Hizanat of her children during the period the law permits her to keep them."
' In case of Muhammad Sadiq v. Mrs. Sadiq Safoora (PLD 1963 Lahore 534, it was held: "A Muslim father is the legal and the natural guardian of his children until they attain the age of majority under the general law of the land, namely, Majority Act, 1875 i,e. 18 years. The mother has the right of custody of Hizanat upto the age of seven years in the case of male child, and upto the age of puberty, i,e. 15 years in the case of a female child. Even during this period, the right of Hizanat or custody is to be exercised under the supervision and control of the father, who is responsible for the maintenance of the children. The father has always to be regarded as having the constructive custody of his children although the actual or physical custody may be with the mother or some other female relative, or some other person nominated by the father."
' In Rahcla Khatun v. Remela Khatun and another (PLD 1971 Dacca) 24). In this case the application of mother for appointment as guardian of person and property of the minor son was contested by the paternal-aunt and a distant paternal-uncle of the minor on the plea that the appliiant mother after the death of the father of the minor had married a stranger not within the prohibited degrees of the minor. The record indicated that the paternal-aunt and the paternal-uncle were enjoying the usufructs of the minor's property but the stranger husband of the applicant mother on the other hand was a person of affluent circumstances and had neither any other wife nor any other issue." It was held that the mother could be appointed a guardian in preference to paternal relations.
' The same rule was followed in Mst. Bharai v. Wazir Muhammad (PLD 1967 Lahore 333), Shagufta Bano v. Musarrat Hanif and others (1982 CLC 1821), Mst. Rafiqan and 2 others v. Jalal Din (1983 SCMR 481), Mst. Jannatan v. Ch. Abdul Hamid and others (1984 CLC 345), Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1983 SCMR 606) and Mst. Ruqayya Yasmin v. Muhammad Riaz and others (1991 MLD 166).
14. From the foregoing discussion, it is quite clear that the normal rule under Muslim Law is that the mother's preferential right of custodianship lapses when she remarries with a stranger who is not in the prohibited degree to the child; that normally the presumption is that welfare of minor lies in giving custody of minor child to person who are entitled to her/his custody in accordance with the order noted above. However, this is not rule of thumb and can be departed by the Courts in exceptional circumstances which demonstrate that welfare of the minor does not lie in handing over her custody to any person else than mother.
15. When looked from this angle, it has become absolutely clear to me that neither the learned Guardian Judge nor the learned first, appellate Court have decided the application in consonance with the law noted above. Both the Courts have treated the statement of law contained in monograph 352 in Muhammadan Law by D.F. Mulla as inflexible rule. This being not the correct legal position the orders of the learned Guardian Judge as well as first appellant Court cannot be sustained. Furthermore, the perusal of the order of the learned first appellate Court in particular shows that he did not appraise the evidence of both the parties on the question of welfare of minor at all. In my humble view he thus, failed to perform his judicial duty of deciding appeal according to the requirement of law. It is settled law where it is found that c fundamental questions have not been decided by inferior authority/tribunal or Courts, it is more appropriate to return the case to such Court/authority/tribunal after quashing the impugned orders. High Court in Constitutional jurisdiction ordinarily should not substitute its own judgment for that of authority/Court/tribunal concerned. See Syed Azmat Ali v. Chief Settlement & Reh. Commissioner (PLD 1964 SC 260), and the Masjid Committee, Tagorc Park v. Rashidul Haq and others (1982 SCMR 65).
' In the light of what has been stated above, this Constitution petition succeeds. The order of the, learned District Judge, Bahawalnagar dated 10-1-1990 and the order of the learned Guardian Judge, Haroonabad/Camp Fortabbas are hereby set aside. The case is remanded to the learned Guardian Judge, who shall decide the case afresh in accordance with material already on the record in consonance with law.
' Since the case had been pending adjudication for a long time, the Guardian Judge is directed to decide the application within six months of the receipt of this order positively. There shall be no order as to costs.