IFTIKHAR HUSSAIN CHAUDHRY, J.- Tariq Mehmood was married to Mst. Imtiaz Begum in the year 1983.
Out of this wedlock two sons namely Adeel Tariq and Aneel Tariq were born on 16.11.1984 and 27.5.1988 respectively. In 1989 the marriage was dissolved on the application of Mst. Imtiaz Begum by a Family Court.
2. Tariq Mehmood applied on 28.2.1990 for the custody of his two sons, Adeel Tariq and Aneel Tariq.
By order dated 28.1.1993, the learned Guardian Judge, Sohawa District Jhelum dismissed the application by saying that welfare of the minors lay in their living with the mother. Tariq Mehmood appealed to the District Judge, Jhelum and an AddhDistrict Judge by order dated 1.11.1993 partly accepted the same and custody of Adeel Tariq, minor, was given to father-Tariq Mehmood while Aneel Tariq was left to remain with the mother. This order dated1.11.1993 has been challenged by the mother, Mst. Imtiaz Begum through this Constitution Petition.
3. Learned counsel for the petitioner has submitted that the learned Addl. District Judge handed over the minor to the father on the ground that he was 7 years old. The learned counsel submitted that this principle that when a boy becomes 7 years he is to be handed over to father is based upon Fiqh only and not on any Injunctions of Islam. He argued that in view of provisions of Article 227 of Constitution, the Injunctions of Islam as contained in the Holy Quran and the Sunnah of the Holy Prophet (PBUH) are binding upon the Muslim alone and Fiqh cannot be considered as an Injunction of Islam. He has also pointed out that the learned Addl: District Judge did not attend to the question of the welfare of the minor and other factors relating to education of children or how they were being brought up were also not considered. He has relied upon Islamic Republic of Pakistan through Secretary Vs Qazi Karim. Deputy Acountant. NWFP. Peshawar and Another (1978 SCM R 289) and It.Col/RetdVIjaz Ali Khan vs Mrt.Shaheen and 2 others (1993 CLC 2088).
4. Learned counsel for the respondent on the other hand has submitted that Mst. Imtiaz Begum was living with his brothers, had no means of living and as such the learned Addl:District Judge was justified in giving minor in the custody of the father particularly when he had become 7 years old.
He has relied on Mst. Zahida and another vs. Capt. fRtdl Shahid Ali Khan (1993 CLC 2116), and Mst.
Saiida Parveen vs. The Addl: District Judge. Rawalpindi and 2 others (1991 M LD 745).
5. I have heard the learned counsel for the parties and considered the arguments raised at the bar.
No doubt under Article 227 of the Constitution as well as under Chapter 3-A of the Constitution, by Injunctions of Islam is meant those injunctions as contained in the Holy Quran and the Sunnah of the Holy Prophet (PBUH) but 'Ahmaal-e-Sahaba' and 'Ijmah of Ummah' are equally binding on Muslims. This principle has been recognized in Enforcement of Shariah Act X of 1991,Section 4 whereof reads as under:-
(a) While interpreting the statute-law, if more than one interpretation is possible, the one consistent \yith the Islamic principles and jurisprudence shall be adopted by the Court; and
(b) where two or more interpretations are equally possible the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.
According to this provision Islamic Principles and jurisprudence namely Fiqh shall be adopted by the Court where interpretation of any statute-law is involved. Accordingly the provisions of Guardian and Wards Act, 1894 particularly those relating to custody of minors have to be examined and determined in accordance with the Islamic injunctions, and principles of Islamic jurisprudence as propounded or laid by eminent Imams and Jurists.
6. The Law of Rizaat and Hizanat is not wholly Fiqh-based. The Holy Quran as well as Sunnah of Holy Prophet (PBUH) provide guidance and basis for several principles relating to Rizaat and Hizanat.
Opinions of Imams and eminent jurists in this regard also are based on Injunctions of Islam and as such deserve to be respected and followed.
7. A child has three basic rights over his parents: the right of Rizaat or being suckled; the right of fosterage and being brought up; and the right of being trained and educated. The right of a child for being fed or suckled by mother and conversely the right of mother to suckle her child has been ordained by the Holy Book. Al-Baqra: 233 and Al-Talaq:6"
Al-Bggra-233: The mothers shall give suck to their offspring for two whole years, if the father desires, to complete the term.But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it Greater than it can bear. No mother shall be treated unfairly on account of Inr child,nor father on account of his child. An heir shall be chargeable in the same way if they both decide on weaning, by mutual consent, and after due consultation, There is no blame on them. If ye decide on a foster-mother For your offspring, There is no blame on you, Provided ye pay (the mother) What ye offered,On equitable terms. But fear Allah and know That Allah sees well what ye do.
"Al-Talaq:6 "Let the women live (In 'iddat,) in the same Style as ye live According' to your means: Annoy them not, so as to restrict them. And if they carry (life in their wombs), then Spend (your substance) on them Until they deliver Their burden: and if They suckle your (offspring),Give them their recompense: And take mutual counsel Together, according to What is just and reasonable. And if ye find yourselves In difficulties, let another Woman suckle (the child On the (father's) behalf."
The verses have been interpreted as meaning that no mother would be inconvenienced for her child and also that no father would be burdened for his offspring, meaning thereby that a mother cannot abandon her child or refuse to suckle or feed the child. Similarly a father, cannot refuse the feeding of the child by a willing mother. It follows that during this period of 'Rizaat' a mother has preferential right to have the custody of the child provided that she is otherwise not disqualified, in case the mother refuses to or is not willing to suckle or feed a child she will not be entitled to the custody of the child.
8. Hizanat or Hazanat literally means attaching to one's side or keepingin one's lap. This right of Hizanat is to be exercised by the females at one time and at another, this vests in the males. The conditions attached with the exercise of this right by females and males are different. The primary condition for a female to have custody of a child is that she should be a Mahram of the child and those females who are not Mahram of the child, that is, daughters of the paternal/materaal uncles or paternal or maternial aunts, are not entitled to Hizanat of the Mahram females. The propinquity of relationship would determine order of preference. The mother gets preference over all other females, than comes the mother's mother followed by father's mother. After grandmother come the real sisters,stepsister through mother and stepsister through father.Mother's sister gets preference over the step sisters. There is difference of authorities over the preferential rights of mother's sister and father's sister. Two views on the subject are ascribed to Hazrat Imam Abu Hanifa. One view supported by Imam Muhammad and Imam Zuffar is that mother, sister has preferential right of Hizanat as against father's, sister. In support of this proposition a tradition of Holy Prophet (PBUH) is narrated by Hazrat Baraa Bin Aazib which is to the effect that after the liberation of Mecca, a daughter of Syed-ud-Shuhada Hazrat Amir Hamza saw Hazrat Ali (Allah be pleased with him) and embraced him who took her home. A dispute arose as to who would keep her. Hazrat Ali claimed the custody on the ground she was his uncles' daughter. Hazrat Jaafar Bin Tayyaar argued that the child was daughter of his uncle and besides that child's aunt was his wife.
The Holy Prophet favoured view of Hazrat Jaffar saying (Sic) "aunt is like a mother". The argument in favour of second opinion of Inam Abu Hanifa is that father' sister being daughter of paternal grand father is closer in relationship to child than mother's sister and preference in Hizanat is based on closeness of relationship.
9. Second condition for a female to have custody of a minor is that she should not be married to persons who is stranger to the minor, that is,who is not closely related to the minor. The principle is based on a hadith of the Holy Prophet (PBUH). Umro Bin Shoaib narrated on the authority of his forefathers that a woman, carrying a child, came to Holy Prophet(PBUH) and complained that child's father wanted to snatch the minor from her whereas she had given birth to him and suckled him. The Holy Prophet (PBUH) said: (your right to keep the child is superior than the father until you re-marry There is another tradition.
Hazrat Saeed Bin Myssayib narrated that Hazrat Omar had divorced mother of his son. Aasim. She was seen in the bazaar carrying the child when Hazrat Omar tried to take away Aasim from his mother. The matter went to Hazrat Abu Bakar who decided the matter in favour of the mother by saying " (Sic) (Her company and bed are better for him until he grows up or she remarries) Imam Muhammad when asked about right of Hizanat of various women who were related to minors in various degrees but were married to strangers to the minors had replied that in that case the Judge was competent to give minor in custody of anyone he liked.
10. Irtidaad and slavery are other disqualifications for a female to havecustody of the minor. A Kitabiyya mother can have the custody of a muslim minor till they reach the age of discretion.
Professional dancing-girls are said to be not entitled to custody of a minor. Same is the case of the women who stay away from their houses for long period. However a working woman, whether she works for her own living or for sustenance of the child is not disqualified to keep the minor with her.Where a mother charges father for keeping custody of a minor and an aunt such has father's sister offers to bring up the child freely, in thit case also mother's right of Hizanat would be forfeited.
11. Being sane, adult and free from mental or bodily diseases and uprighteousness or being of good moral character are essential requisites for a person (male or female) to have the custody of a minor. A permanently incapacitated person such a blind or invalid or deaf and dumb or mentally abnormal or sub-normal persons are disqualified to have the custody of minors. It is also essential that a female child be kept in a house where she is safe from evil and in case of danger of exposure to evil the child can not be kept in such a place.
12. The period during which a minor can remain in the custody of his mother or grandmother is stated to be that during which he is dependant upon the woman for performance of daily chores Imam Muhammad according to Abu Dawood Bin Rashid bad not fixed any particular period of Hizanat of a male child but had simply laid the test that the child should be able to dress up independently, take his meals without assistance and be in a position to wash his back of his own.
Imam Khasaf had prescribed attainment of age of seven or eight years till when the child can remain in the custody of his mother. "Shafia" do not prescribe any period, for Hizanat and say that when a child becomes sufficiently mature as to recognize his parents. He may choose to live with either of the parents. However generally accepted age for a child to remain in the Hizanat of his mother is 7 years.'Hanaabala" Gx a period of seven years for both male and female child to remain with mother. This crossing line has been prscribed on the ground that when a child becomes seven, he is ready to be educated and the father is better positioned to educate his child. Another argument is that at the age of seven, the child is bound to learn daily prayers and hence the age of learning starts from this age. Since in today's world, the age at which the child is supposed to be schooled is five years,hence it would be fair and logical to prescribe the age of 5. Years at which a male child should be given in the custody of his father.
13. As far as female child is concerned she can remain with her mother till she attains puberty or till she reaches the age where arousal of sexual desire is possible. There is almost unanimity of opinion in this regard that the period of Hizanat of a mother of her female child ends when she is nine years old (according to Hanbalis seven years). If a female child is in the custody of woman other than her own mother, then her Case is considered at par with the male child that is if she become sufficiently mature to attend to her daily needs independently,she will be given in the custody of her father. The. Period of Hizanat of father extends to the time when the children become adult and in case of unmarried female, it can extend even beyond that.
14. The right of males other than father to have custody of minor is restricted to 'Asabah' only.
Father's father how high-soever, real brother, stepbrother, real brother's son, step-brother's son, real uncle, step-uncle and first cousin- in that order are entitled to the custody of a minor. However a female child canapt be given in the custody of her cousins. Another pre-requisites for male to have the custody of a minor is that he should not be a 'Fasiq' or 'Khaayan'. Fasiq is reverse of 'Adil'(man of probity) and' Khaayan' is reverse of 'Amin'. 'Khaynah' is unequivocably prohibited in the Holy Quran. See Q.4: 105- 109; Q.8: 161) Fasiq and Khaynah include all the evils and violations of the Injunctions of Allah. Notoriety of a person shown by evidence in this regard would constitute sufficient disqualification and a conviction by a court of law would not be required.
15. If the matter of custody of a minor is disputed by the parents, 'Ahnaf do not envisage allowing the minor to choose between either of the parents. However, Imam Shafi says that if the boy possesses sufficient understanding he does possess this right. The view is based on Hadith of the Holy Prophet (PBUH) narrated by Hazrat Abu Hurraira that a woman came to Holy Prophet (PBUH) and said that her husband wanted to take away his son from her though she gave birth to him and he had so far benefit .Ed her and had supplied water to her from the well of Atiba. The Holy Prophet
(PBUH) asked his parents to decide between themselves. The father said: "who can separate my son from the?" The Holy Prophet (PBUH) allowed the boy to choose between the two and the boy opted for his mother. 'Ahnaaf do not dispute this hadith but the exegeses put on words' ARBI " is that the boy was a grown-up adult capable of earning his livelihood and hence grown up or adult boys would have the permission to make a conscious choice by young immature children would not be permitted to choose between the parents.
16. During the period of 'Riza'at', the minor is to be kept at the place where both the parents live. If during subsistence of marriage the woman desires to leave that place, she can be restrained from doing so. In case of separation the woman can take the minor to the place where Nikah between the spouses was performed and that was also permanent domicile of the woman. The minor cannot be taken to any place other than the above. However if the place where the father lives is not for away from where the minor is to be kept, then the above restraint would not apply. The minor also cannot be kept in less civilized atmosphere.
(Badi-us-Sanai-Kitab-ul-Hizanah by Allama Kasani- Vol.IV.
Kitab-ul-Fiqh by Abdul Rehman Algeziri Vol. IV.
Fatawa Alamgiri- Vol.II. Kitab-ul-Talaq.
Darr-ul-Mukhtar, Kitabul-Talaq, Bab-ul-Hizanat Urdu Edition by Maulvi Khurram Ali-Vol.1.
Bahar-i-Shariat Part VIU. By Maulvi Muhammad Amjad Azmi.
Kitab-ul-Hizanat by Allama Rashid Raza).
17. The position may be summed up thus:
(i) A willing mother would have the right to keep the child with her during period of Rizaat i.e. For two years. This right will be forfeited if she refuses to feed or suckle the child.
(ii) After the period of Rizaat, the mother who otherwise is not disqualified, can keep the minor (both male and female) in her custody till they attain the age at which they are capable or ready to receive formal education according to customary practice of the area in which the parents reside. Waiting for a child to become 7 or 9 years old is not the requirement or policy of Shariah.
(iii) Right of mother to keep the minor with her would stand forfeited in case of her marriage to a stranger.
(iv) The mother is required to keep the minor at a place where the father is in a position to see that his child is being brought up properly. The minor is also to be brought up in a more enlightened atmosphere where he can be schooled or trained more adequately where a father lives in a backward area, or is incapable of supporting or educating the minor, the mother can keep the custody but shall not charge the father for such services.
(v) The character of the father or the mother who desires to keep the minor with him or her, is also a very important factor to determine the right of custody.
(vi) The incapacity (physical or mental) of a person would disentitle him/her to keep the minor.
(vii) If a minor is in the custody of any person other than mother, the minor shall be restored to the father as soon as he/she is capable of looking after her/him.
(viii) The minor of tender age would not be given the right to choose between either of the parents.
18. It must be remembered that Hizanat is a right of the child and not of either of parents or any other person claiming through them. The basic consideration always is to provide to the child the most natural, the most considerate, and the most benign atmosphere to grow up as a better member of the society. Islam keeps the institution of family in high regard and tries to preserve it.
Rights and duties of the spouses have been prescribed in a manner to keep an ideal balance.
While it is a man's job to earn livelihood and provide sustenance to the family, the wife's duty is to give birth to the children, to bring them up, and to groom them and beyond that she is supposed to do nothing. She need not work for her family or earn anything. Law of Hizanat in Shariah has been framed keeping in view the roles of either of the . Parents. That is why amother's duty to take care of the children ends when they are ready to enter the world to face its challenges. Then comes the responsibility of the father to educate' and train the children to bear the burden of future life. The father is also betterplaced to protect the life and honour of his children. Shariah does not place this onerous duty on the mother. It is responsibility of the father and not of the mother, to provide sustenance and protection to his progeny.
19. The general principles relating to Hizanat reproduced above are not difficult to apply to any given case. The dispute regarding custody of a child generally arises when the spouses are separated or relations between them are extremely sour and then the parties try to use the minor as a tool of vengeance on the other side. The children are not chattels or moveable property of either of the parents and they should not be allowed to be put to such a use. The separation of minor from the parents or anyone of them is a traumatic experience for the all concerned, as such the question of custody should be decided expeditiously. In Shariah, the father has pivotal position in the family and the minor should be restored to him as soon as practicable. Attainment of age of seven years for a male child or nine years for a female child is not an absolute requirement of law.
Keeping the principles noted above in view, the attainment of age required for customary education or training, of a child should be considered adequate [ threshold for determining the question of custody. It is accepted principle of Shariah that Fatwa changes with times and any principle of law of ShariahLdeclared at one time would be interpreted and applied according to needs and requirements of times. This is. Ethos of a dynamic, progressive and living idealogy. The welfare of a minor is no doubt an important consideration but the question cannot be determined in derogation of principles of Shariah. It may not be out of place here to point out that though the burden of bringing up a minor is squarely placed on the father, yet a father does not have the authority to sever all connections between a minor and the mother. Either of the parents has an unqualified right of access to the minor and the courts should endeavour to see I that such a right is not frustrated.
20. The learned Addl: District Judge in this case had handed over custodyof minor. Adeel Tariq to the father essentially on the ground that he was more than seven years old. This-ground done was sufficient for pring Adeel Tariq in the custody of the father. Learned counsel for the parties have also apprised the court regarding the conditions in which the mother and the father live. Mst. Imtiaz Begum is living in the ancestral house with her brothers and has no independent source of income.
The father on the other hand is stated to be employed as a clerk and also owns agricultural land and he has been providing maintenance allowance to the minors which shows that he cared for the children. The order of the learned Addl: District Judge whereby, the minor Adeel Tariq has been given in the custody of father is a valid and lawful order and the same is, therefore, upheld. - Since that part of the order of Addl: District Judge whereby minor Aneel Tariq has been allowed to remain with the mother has not been assailed by the father, the same, therefore, is not being adverted to. It would have been advisable to keepboth the minors together as separation between minors can result into estrangement which must be avoided.
21. Resultantly, the writ petition is dismissed without any order as to costs.