Hameed Ali Shah made an application under section 25, Guardians and Wards Act, for having custody of his minor son, Asad Ali Shah, who was with his mother, Shaista Sultana Naqvi. Mr. Akbar Ali Cheema, Senior Civil Judge, Sahiwal, as Guardian Judge dismissed the petition on 18-3-1990; and the order was upheld on 28-7-1990 in appeal by the learned District Judge, Sahiwal, Mr. Lutf Ali Malik. Hameed Ali Shah has assailed both these orders by filing this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. Hameed Ali Shah appeared as his own witness before the Guardian Judge and did not lead any other evidence. Shaista Sultana examined one Jan Muhammad, the Nikahkhawan, and made her own statement. Mostly the facts are admitted. There is difference between the parties as regards their faith. According to Hameed Ali Shah, they belong to Shia sect and Shaista Sultana maintains that they are Sunni. In his statement Hameed Ali says, Aisha is one of his daughters. It is so well known that Shias bear and give vent to optimum spite and resentment against Aisha, one of the pious wives of the Holy Prophet (peace be upon him) and one cannot conceive of a Shia naming his or her daughter as Aisha. Aisha's mother was Parveen, whose parents were described by Hameed Ali first as Sunni, and then as Shia. Nikah however was performed, he has deposed, according to Hanafi tradition. Although right from the beginning Hameed Ali claims to have been a Shia and to have been offering his prayers as a Shia, he says, he does not go to a Shia mosque, and again he has not been able to tell the fundamental principles and practices of Fiqah Jafaria and the manner in which Shias offer their prayers, especially `Vitars' in Isha prayers. Jan Muhammad R.W., who had performed the Nikah between the spouses, says, he had done. it in accordance with Fiqah Hanafia. Actually this issue becomes irrelevant and redundant, in view of the minor being 8/1-2 years old at present. When Hameed Ali Shah had filed the application under section 25, Guardians and Wards Act, on 10-7-1986, before the Guardian Judge, age of Asad Ali Shah minor was 1/1-4 yeras. Under Shia law, a father can claim custody of a male child after he attains two years age, whereas under the Hanafi law it is 7 years. Now that the child is over 7 years of age, what is to be considered by the Court is the welfare of the minor. It is generally said that well-being of a minor lies in his being brought up by the mother or the father in accordance with personal law; but the hands of the Qazi or the Court are not bound there and in fact it is his bounden duty to determine and decide asto who, mother or father, would be best suited and better attuned to look after the minor and safeguard his future. Interests of the minor alone indeed are the determining factors and in adjudging safeguarding the same, the Court exercises parental jurisdiction and must think and act like a kind-hearted parent. According to Hameed Ali petitioner, his son's future will not be secured at the hands of the respondent, whose brothers are his enemies.
This is not believable. Respondent is the real mother and her brothers are the maternal uncles of the minors; and they cannot possibly perform any act of hostility towards the minor, and are supposed to take care of his welfare, in the best possible manner. The child had undeniably remained with the mother throughout, ever since his birth, and with her he must be having maximum attachment or affection.
3. Life style of the petitioner will really demonstrate that he is fond of marriages and cannot have concentration on one home. He is about 46 years old and has married five times so far. One Parveen from Lahore was his first wife, whom he married in 1968, when he was 22 years old and had appeared in his MA. examination and was employed nowhere as yet. He divorced her 3-4 years afterwards, after she gave birth to a daughter, Aisha by name. Then he married Farzana, a girl from Jhang, in 1973. He says, he does not distinctly remember if at that time even he was a Lecturer or not. He divorced Farzana in 1974, without getting any child from her. Mst. Shamshad was his third wife, whom he married a few months after divorcing Mst. Farzana. She gave birth to two children, and was divorced 2/3 years after the marriage. The children, one son and one daughter, are with their mother. In 1980 he married Ruqayya, who too was divorced, and the divorce became effective on 1-4-1984. On 5-4-1984 he married Shaista Sultana respondent. From the wedlock was born Asad Ali Shah minor. There is a criminal case, with charge of polygamy, as has been put to him, pending in the Court of a Magistrate at Lahore. He does not deny it. Probably he had performed certain marriage, during subsistence of the previous one, without obtaining permission of the existing wife.
Ruqayya's suit for maintenance is pending against him in a Court at Lahore. These are the admitted facts, which have been narrated by Hameed Ali in his own statement. He claims to have filed a suit for custody of the minors, born out of his marriage with Ruqayya.
4. It appears that he is generally not interested in having his children with him, and the idea of getting custody of a child occurs to him only when he is sued for maintenance of the minor. He has with him only one child, out of so many, born out of the aforesaid five marriages. She is Aisha, who was aged about 16/18 years, when he made a statement in the Court, on 9-6-1987. Her mother Parveen had herself delivered the minor daughter to him, in lieu of divorce, as is deposed by the petitioner himself. Probably Parveen was fed up with his behaviour, or else with his way of life that he was leading as a free lancer. The other children are all with their mothers. Respondent had admittedly also sued the petitioner for maintenance; and it was afterwards that the petitioner claimed custody of the child, by launching proceedings under the Guardians and Wards Act.
5. The respondent is a Senior Headmistress, posted at Sahiwal, and her salary is almost equal to that of the petitioner, it is so conceded by him. Her brothers, 3-4 in number, are highly placed officers. She thus belongs to a respectable family and has no liability. There are however available in her house her parents and a servant, who are there to look after. the child, during the hours, the respondent is in her office or school. Wives of her brothers are also available for the purpose. On the contrary, Aisha, is step-sister of Asad Ali Shah, and the latter may not get real sister's love and affection, if he is sent to the house of his father for living there. Again, Aisha, who is 23/24 years old at present, must have been married by now.
6. Although the petitioner is a Professor and is highly paid, he says he can spare hardly Rs.100/150 for maintaining the child, since he has to spend heavily on maintaining his younger brothers.
Rs.300 per mensum was the amount awarded as maintenance of the minor against the petitioner, who says it is excessive.
7. At the time when the petitioner had launched the proceedings, his daughter Aisha was college- going, and the only female member in his house permanently available to look after the child was the petitioner's mother, an old lady, aged about 65 years then (six years back). The minor will obviously get no proper attention and care, if he is restored to the father. Actually he might have developed aversion for the father, with whom he has never lived. He was born in the house of his mother's parents, and is presently studying in the Young Scholars Academy at Sahiwal, stated to be a prestigious institution. Mother, an educationist herself, is also there to coach him. Considered from any angle, the minor's future will be safe in the hands of his mother and not his father. The mother is very well-educated and has the means to maintain her son, until such time that he completes his education and is established in life. It will be a cruel act, if in the circumstances of the case, the boy is forced to go to the house of his father, where he has not spent even a day. It is not known how many more marriages Hameed Ali Shah has celebrated, after having divorced the respondent, regardless of the requirements of Muslim Personal Law. Therefore, even when the boy is now about 8/1-2 years old he is not to be sent to his father, who was rightly held disentitled to his custody by the two Courts below. The judgments are upheld, and finding the writ petition to-be without any merit, it is hereby dismissed with costs.