Through this appeal, the appellant has called in question the order of the learned District Judge (Guardian Judge), Kotli dated June 9, 1991, whereby the application of the respondent No.2, for the appointment of guardian and Hazanit of minors was accepted.
2. The succinct facts forming the background of this appeal are, that on 12-10-1988, the respondent No.2, Shafiqur Rehman moved an application for the appointment of the guardian and Hazanit of minors namely: Shahkeelur Rehman, Ateequr Rehman and Majeeb-ur-Rehman. It was alleged that the appellant and the respondent No.2, were married and these three children were born out of their wedlock. Now the minors are residing with the mother so the respondent No.2 moved an application for the appointment of guardian and Hazanit. During the pendency of this application, another application for the appointment of guardian and Hazanit was moved by the appellant.
Both the aforesaid applications were consolidated and heard and disposed of by the learned District Judge through the impugned order dated 9-6-1991. The learned District Judge, Kotli, appointed the respondent No.2, guardian and also ordered the appellant to hand over the custody of the minors to the respondent No.2. Now this order has been impugned through the instant appeal.
3. The learned counsel for the appellant Mr. Shahid Ahmed Rathore argued that the learned District Judge has based his judgment on the principle of personal law, that as the minors have crossed the age of 7 years, so the respondent is entitle to the custody of the minors. He contended that the learned District Judge has failed to consider, that paramount consideration for the appointment of guardian and Hazanit is the welfare of the minors and the personal law is subordinate to it. It was further argued by the learned counsel for the appellant, that the learned District Judge had also held that the character of the appellant was doubtful. This findings of the learned District Judge is not based on any admissible evidence. The appellant has a better right of Hazanit than respondent No.2. It was also contended by the learned counsel for the appellant, that neither the mother of the respondent is alive, nor there is any woman in the house of respondent, to look after the minors, thus the judgment of the learned District Judge is not sustainable and is liable to be set aside. He cited the following authorities in support of his contentions: 1980 CLC 1802 and 1984 CLC 78.
4. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondent, Mallick Muhammad Yousuf Khan argued, that as the minors have attained the age of more than 7 years, so according to `Fiqah Hanfia', the respondent was entitled to the custody of the minors. It was next contended by the learned counsel for the respondent that although in sections 17 and 25 of the Guardians and Wards Act it has been provided that the welfare of the minors is to be considered while dealing with the application, but in the light of section 31(5) of the Azad Jammu and Karhmir Interim Constitution Act of 1974, all the laws have to be brought in conformity with the Islam, so the personal law will prevail on the provisions of the Guardians and Wards Act. It was further contended by the learned counsel for the respondent that the welfare of the minors lies with father because he is a School Teacher and Hafiz Qur'an.
5. I have heard the learned counsel for the parties and perused the record of the case.
6. While dealing with the application for the appointment of they guardian and for the restoration of the custody, the Court has to base IN findings on the conditions laid down in sections 17 and 25 of the Guardians and Wards Act. Section 17, provides that while appointing the guardian of the minors, the Court has to keep in consideration the welfare of the minors, and it is of fundamental importance that the preference should be given to the welfare of the minors. While section 25 also suggests that at the time of the restoration of the custody the Court has to look into the welfare of the minors and the application should be decided after considering the welfare of the minors. If the welfare of the minors is found with the mother, then the Hazanit should be given to the mother and if it is found with the father, then the' Hazanit should be given to the father. The basic criteria for the appointment of the guardian and the restoration of the custody is the welfare of the minors.
7. In the instant case, the learned District Judge observed that the minors have attained the age of 7 years, so the respondent No.2 was entitled to the custody of the minors. According to the, personal law, when the minors have attained the age of seven years, then the welfare lies with the father. I cannot agree with the aforesaid view of the learned District Judge. It is not necessary and obligatory, that the minor who has attained the age of seven years, should be given in the custody of father. The paramount consideration to be kept in the mind, while considering the application for the appointment of guardian and Hazanit is the welfare of the minors. Personal law is also subordinate to it. Welfare of the minors is a guiding factor in the matter of delivering of custody.
8: The right of the parents regarding the interest and control of their children is not to be exercised, in the interest and the benefit of the parents; but in the interest and for the welfare of the children themselves. Although the father is a natural guardian but his right is also subordinate to the welfare of the minors. The overriding fundamental and paramount consideration is always the welfare of minors, rather this is the sole criteria which must prevail. The learned District Judge has failed to consider, that the fundamental criteria for deciding the application for the appointment of the guardian and restoration of custody is the welfare of the minors and the personal law is subordinate to it.
9. Now the question emerges, that in the instant case, whether the minors are being looked after in a proper way by the mother and their welfare lies with the mother or with the father. In the instant case, the respondent produced Ch. Rashid Muhammad, Muhammad Zaman as his witnesses and he himself appeared in the witness-box. Ch. Rashid Muhammad only stated that the parties are known to him and they have three sons namely: Shakeelur Rehman, Ateequr Rehman and Mujeebur Rehman. Shakkelur Rehman is 9 years old. Ateequr Rehman is of 8 years old and Mujeebur Rehman is 7 years old. The relations between the parties are strained and the minors are in the custody of the appellant. Apart from this nothing else was stated by this witness of the respondent. Even it has not been stated by this witness that the minors are not being looked after properly by the mother, and they can be looked after in a better way by the father than the mother, their welfare lies with the father, nor he has stated that the appellant is a woman of bad character.
The next witness Muhammad Zaman also stated that the parties are known to him. They have three sons namely Shakeelur Rehman, Ateequr Rehman and Mujeebur Rehman. He also stated about their ages. It was also stated by him that the relations between the parties are strained and the litigation is proceeding between them. It was not stated by him that the minors are not being looked after by mother in a better way and they can be looked after in a better way by the father than the mother. Their welfare lies with the father. Nothing has been stated by him about the character of the appellant. Shafique ur Rehman appeared as a witness and he simply stated that welfare of the minors lies with him and he can bring up them in a better way than the mother. A complaint was filed by the public of the area about the character of the appellant and she was suspended from the service. This complaint was published in a weekly newspaper `Kotli Times'. He has produced the copy of the newspaper as Exh. PD.
10. The perusal of the aforesaid evidence shows, that except the respondent no one stated about the character of the appellant. He has based his statement on an appeal published in the newspaper 'Kotli Times' Exh.PD. The learned District Judge placed the reliance on his statement and on appeal published in the newspaper. While the appeal published in the newspaper was published by the Subedar Abdur Rehman, Vice-President of Azad Jammu Kashmir Muslim Conference. But he did not appear as witness and has not supported the appeal published in the newspaper. As copy of the newspaper is concerned, it is not an admissible piece - of evidence and no reliance can be placed on the newspaper. The learned District Judge had wrongly and while ignoring the provision of the Evidence Act has placed the reliance on the newspaper. The area in which we are living, in it, it has become a routine to publish the false news and appeals against the persons who do not work according to the wishes of political figures. No reliance can be placed on the news or appeal published against a person, unless and until it is supported or corroborated by congent evidence. But here, the person who got appeal published in the newspaper did not appear as a witness and stated that this appeal was published by him, thus no reliance can be placed on this appeal published in the newspaper.
11. It is also pertinent to note, that the respondent moved an application for the appointment of guardian and the restoration of the custody after the decision of application for maintenance under Section 488 of the Cr.P.C. Against the respondent. This application was meant for frustrating and avoiding the maintenance order. It is not bona fide. If the respondent would have any interest in the minors, then he would have moved an application before the decision of the application under section 488 of the Cr.P.C. He never made any effort for the appointment of guardian and restoration of the custody, prior to the decision of the application for maintenance.
12. It is also notable, that the appellant produced Alif Din and Muhammad Khan as a witness, but during the cross-examination, it was not suggested to them that the appellant is a woman of loose character, thus merely on the basis of the statement of the respondent, it cannot be said that she is a woman of the loose character and the learned District Judge has wrongly and without any evidence held that she is a woman of loose character. The respondent No.2, has failed to prove, that it is not in the welfare of the minors to remain in the custody of mother.
13. Another aspect which tilted the balance in favour of mother is that the respondent has no woman in his house, who can look after the children. The respondent who was present in the Court was confronted, that when he has no woman in his house, then how he will look after the children.
The respondent stated, that he has a sister in his house, who will look after the minors. The sister of the respondent cannot be a substitute of mother and she cannot provide the love and affection to the children which a mother can, as the lap of mother is God's own cradle for the child. This view finds support from 1983 CLC 678.
14. It also cannot be ignored that if a child is capable of making an intelligent preference, then along with welfare of the minors that too should be considered. All the three children were present in the Court. Out of them Shakeelur Rehman who is of 15 years old is a Hafiz Qur'an. Ateequr Rehman who is of 13 years old, and Majeebur Rehman is of 11 years old. They are students and reading in the School. They are intelligent enough to form an opinion. All the three children stated that they are not prepared at any cost to live with the father, they want to live with their mother, thus when the minors are intelligent enough to form the opinion, then their opinions also cannot be ignored.
15. The learned District Judge had also held that the appellant has limited sources of income. She cannot bring up the children in a better way then the father. I would like to reproduce this portion of the judgment of the learned District Judge which is as under:---
16. I cannot contribute at all with the aforesaid view expressed by the learned District Judge. Mere inability to maintain the minors or poverty is no ground for depriving the mother from her right of custody over her minor children. Father being a natural guardian is bound and responsible to provide the maintenance to the children even though in the custody of the mother. This view finds support from 1978 SCM R 299.
17. As stated above that the fundamental and paramount consideration is the welfare of the minors and in the instant case as stated above, that the welfare of the minors lies with the mother.
Now particularly when the minors are living with the mother since long ago. They also preferred to live with the mother, then irrespective of the matter that they have attained the age of 7 years or crossed the limits of 7 years, the mother is entitled to the custody of minors and the Hazanit cannot be given to the father merely on the ground that minors have attained the age of 7 years or crossed the aforesaid age. This view finds support from 1983 CLC 678 and 1980 CLC 1802.
18. As this contention of the learned counsel for the respondent is concerned, that in the light of section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act of 1974, all the laws have to be brought in conformity with Qur'an and Sunnah, so the personal law will prevail carries no substance for the following reasons: Through section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act of 1974, a mandate has been given to the legislature to enact the new laws according to the Qur'an and Sunnah and bring all the old laws in conformity with Qur'an and Sunnah by the process of amendment. Section 31(5) is meant for the legislatures, it cast a duty upon them to enact the new laws according to the Qur'an and Sunnah and bring the old laws in conformity with the Qur'an and Sunnah through the process of amendment, unless and until the amendment is made the law on the statute book will apply. The Courts have to decide cases according to the law on the book of statute. This view find support from 1993 PCr.L.J. Page 2124 and PLD 1979 AJ&K 60.
The nutshell of the above discussion is that this appeal is accepted and the order of the learned District Judge (Guardian Judge) Kotli dated June 9, 1991 is hereby set aside and the appellant is declared to be entitled to the custody of the minors and she will retain the custody of aforesaid three minors.
AA.19/H.CA