' MALIK MUHAMMAD QAYYUM, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 491, Cr.P.C. Has been filed by Miss Hina Jilani, an Advocate of this Court, who is also Director of A.G.H.S. Legal Aid Cell, a Human Rights Organization praying for a direction in the nature of habeas corpus for recovery of Rukhsar, as minor girl aged about one year and her production before this Court so as to be dealt with in accordance with law.
2. The facts as gathered from the pleadings of the parties and the arguments addressed at the Bar are that Sohail Butt, respondent herein, who is a Pakistani National went to Tashkent, Uzbakistan for setting up business there. On 12-3-1993 he married Goulbakhor, a citizen of Tashkent. They lived there as husband and wife where a child was conceived. Later on in November, 1993, the respondent and his wife came to Pakistan where a daughter was born in November, 1993 who was named as Rukhsar. On 10-1-1994 Goulbakhar went to Taskhent from where she returned on 26-5- 1994. It appears that some disputes and differences had unfortunately developed between the spouses which resulted in dissolution of marriage by the respondent who served Goulbakhor with a notice of Talaq while she was residing Tashkent. It is alleged that on her return to Pakistan she was forcibly detained by the respondent and was maltreated by him. Ultimately she was taken to Islamabad and told to board a flight to Tashkent under the threat of death. She raised hue and cry which attracted the attention of the Air-port security staff who handed her over to Uzbekistan Embassy which brought these facts to the notice of the Human Rights Organisation of which the petitioner is a Director through Fax message on 14-11-1994 whereafter this petition was filed in which it was asserted that the minor child was being illegally detained by her father.
3. When this petition came up for hearing before one of us (A.H. Cheema, J.) notice was issued to the respondent to produce the minor. In compliance with that order, the minor was produced on 29-11-1994 when arguments were heard by the learned Single Judge who keeping in view the importance and sensitive nature of the matter referred it to the learned Chief Justice for considering the desirability of constituting a Division Bench. The learned Chief Justice on the reference made by the learned Single Judge has constituted this Division Bench to hear the case. It may also be mentioned that on 29-11-1994, it was directed that the minor shall remain in the custody of the father who shall furnish two surety bonds and produce the minor on each date of hearing.
4. When the matter came up before the Division Bench on 6-12-1994, an adjournment was prayed for by the respondent which was granted. However, the mother was allowed to meet the minor everyday in Court from 11-00 a.m. To 4-00 p.m. Later on, after Court hours, it was brought to the notice of one of us that the mother after acquiring the temporary custody of the minor for the purpose of meeting her had refused to hand back the custody to the father and attempted to create law and order situation. In these circumstances, it was directed that the mother i,e, Guolbakhor be lodged in Darulaman from where she was produced on every date of hearing.
5. The Constitutional petition has been contested by the respondent by filing a reply in which various preliminary objections like lack of locus standi of the petitioner to file the petition and its non-maintainability have been raised. On merits, the claim of the mother for restoration of the custody has been disputed by pointing cut that a suit was filed by the mother for recovery of Rs,20,000 in which a compromise was arrived at between the parties in terms whereof the mother gave up her right to the custody of the minor. It was further stated that the minor was being properly looked after by the respondent and his mother i,e, paternal grandmother of the minor and as there is no forcible removal from custody, this petition was not maintainable.
6. The petitioner who has appeared herself has argued that the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 491 of the Cr.P.C. Can be invoked by any person and not necessarily by an aggrieved person and, therefore, the objection as to locus standi raised by the respondent has no force. She stated that the mother by swearing an affidavit has categorically denied having entered into any compromise or even filing the suit or appointing somebody as her attorney. It has been reiterated that deprivation of custody of the minor of tender age and that too of a girl renders the custody of the father as being illegal and this Court is possessed of jurisdiction both under Article 199 of the Constitution and section 491 of the Cr.P.C. To restore the custody to the mother. Reliance has been placed by the petitioner on the pronouncement of the Supreme Court in Muhammad Rafique v. Muhammad Ghafoor (PLD 1972 SC 6), Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) and the judgments of this Court in Mst. Zubaida Khatoon alias Aqleema Khatoon alias Parveen v. Saadullah A. Siddiqui and 4 others (1992 PCr.Lf 690), Shagufta Andleep v. Abdul Razzaq and another (1992 PCr.LJ 2168), Mst. Zenia v.
Ahmed Jawad Sarwar (PLD 1994 Lah. 577), Mst. Shabana Niazi v. Muhammad Khalilur Rehman (1994 PCr.LJ 715), Mst. Farrukh Naheed Hashmi v. Syed Shah Ibrar Qadri (1994 PCr.LJ. 1361). The petitioner has also placed a copy of unreported judgment of the Supreme Court of Pakistan in Criminal Appeal No,156 of 1994 which was decided on 3-7-1994.
7. It has been argued with great vehemence that under the Muslim Personal Law, custody of the minor girl lies with the mother as age of the minor was such that she needed utmost care and attention of the mother for which there was no substitute.
8. On behalf of the respondent, Mr. S.M. Masood, Advocate objected to the maintainability of the petition that a petition in the nature of a Habeas Corpus cannot be filed by a stranger moreso if the dispute is essentially between a husband and a wife or a parent of a child regarding his custody. In support of this submission, the learned counsel heavily relied upon Imdad Hussain v. Noor Hassan and 5 others (PLD 1974 Karachi 485).
9. As regards the merits, it was argued that it has been admitted by the mother herself that she intended to take the minor out of Pakistan to Tashkent which she could not, both under the Constitution and the law, be allowed to do so. It was emphasized that the minor having been born in Pakistan was a citizen of Pakistan by birth and as such cannot be removed from Pakistan in violation of Article 15 of the Constitution of Islamic Republic of Pakistan, 1973. He urged that the mother loses her right of Hizanat when the minor is removed to such a place where the father cannot exercise his right of supervision of custody. He reiterated that the father was, in law, the natural guardian of the minor and the mother can at the most claim to be custodian. In that behalf, the learned counsel cited Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lah. 73), Mrs. Mosselle Gubbey v. Kh. Ahmad Said and others (PLD 1957 Karachi 50), Miss Christine Brass v. Dr. Javed Iqbal (PLD 1981 Peshawar 110), Mst. Musarrat Parveen v. Muhammad Akram (1991 PCr.LJ 878) and Mst Maria Khan v. Muhammad Zubair Khan (1993 PCr.LJ 1097). Reference was also made to section 39 of the Guardians and Wards Act, 1890 to show that the guardian who removes the minor to a place outside the jurisdiction of the Guardian Judge can be removed from guardianship. The learned counsel argued that there has been no forcible removal or illegal confinement of the minor who was living with the father after she was abandoned by the mother and in these circumstances, the jurisdiction under section 491 of the Cr.P.C. Cannot be invoked.
10. In reply, the petitioner has maintained that the restraint on a mother to take away the minor to a place where the father cannot supervise the custody, is not absolute but is subject to the exception that if the mother is forced by the circumstances to leave the father and to live separately and to return to the original place of her residence or to a place where the marriage itself had taken place; she cannot be prevented from doing so. The petitioner pointed out that the mother who is a young girl cannot be forced to live in Pakistan where she has no permanent place of residence/abode nor any relative to take care of her. Reference was made by the petitioner to the judgement in Marggarate Maria Puplarampil Nee Feldman v. Dr. Chacko Pulparampil and others (AIR 1970 Kerala 1).
11. We have given our anxious consideration to the facts of the case and the law on the subject.
There cannot be any dispute and indeed both the petitioner and the learned counsel for the respondent are agreed that the jurisdiction exercised by this Court in respect of matters relating to custody of minor is more parental in nature than anything else. This dispute cannot be resolved on the basis of any technicality nor on any principle of law without completely divorced from the realities of the situation. In all matters relating to custody of minors the Courts Act in loco parentis.
It is painful but nevertheless a legal duty which a Court must perform to regulate the custody of the minor in order to ensure his well being and welfare which is paramount dominant consideration.
12. In the present case the facts which cannot be disputed are that the respondent who is a Pakistani citizen had gone to Tashkent, Uzbekistan for the purpose of setting up his business.
According to the learned counsel for the respondent, he had also purchased a house at Tashkent in the name of the mother as no foreign national is allowed to buy property in Uzbekistan. During the course of that stay in Tashkent which lasted for about one year and six months, he married Goulbakhor on 12-3-1993 who had at the relevant time was a student of a University, as stated before us by the petitioner. The parties lived together for some time at Tashkent as husband and wife and even the child was conceived there. The respondent has explained that unfortunately his business could not prosper and it was on account of compelling circumstances that he decided to come back to Pakistan alongwith his wife who at the time was pregnant. She gave birth to a daughter on 4-11-1993 though the date of birth according to the learned counsel for the respondent, is 19-11-1993. It is a common ground between the parties that the mother went back to Tashkent in January, 1994, though the reasons for doing so are disputed. The mother has sworn an affidavit that she was forced to go to Tashkent in order to bring some money to be paid to the respondent in order to secure the custody of the minor. The respondent, on the other hand, stated that she left of her own accord leaving the minor at Gujranwala. The next relevant fact is that in April, 1994 the marriage was dissolved by the respondent by sending Talaq to the mother at Tashkent. She obtained a Visa from the Pakistan Consulate on 26-5-1994 and returned to Pakistan on 29-6-1994. According to the petitioner, the mother was maltreated and physically tortured and was ultimately taken to Islamabad Airport by force and asked to board a plane for Tashkent where she raised hue and cry and was rescued by the Airport Security Staff and was handed over to the Uzbekistan Embassy which in turn approached the Human Rights Organisation's Director i,e, the petitioner who has filed this petition.
13. Without going deep into the matter, prima facie we find that the version putforth by the petitioner which is supported by the affidavit of the mother as also the Fax message received from Uzbekistan Embassy is entitled to greater credence than the version of the respondent. In the reply filed by the respondent no reasons as to why a mother had chosen to forsake her only child has been stated and we are, therefore, presently not in a position to accept the plea that she had abandoned the child of her own accord. We, however, purposely refrained from giving any positive finding on this aspect of the matter lest it may prejudice the case of either of the parties before the Family Court, if they so choose to go before it, which in law is the ultimate authority to regulate the custody of the minor.
14. While we appreciate the valuable assistance rendered to us by the petitioner and the learned counsel for the respondent who have also referred to almost entire law on the subject, it is not necessary to deal with each and every precedent cited by them as we feel that by now it is well- settled that the jurisdiction exercised by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and section 491 of the Cr.P.C. Is different and distinct from the jurisdiction of the Family Court under the Family Laws and that notwithstanding that a person may have a right to move the Guardian Court for the custody of the minor, but he can in appropriate cases also approach this Court for restoration of the custody of minor to the person to whom it rightly belongs.
However, any arrangement made by this Court will be interlocutory and subject to final decision, if any, of the Guardian Court. We may in this behalf, refer to the pronouncement of the Supreme Court in the case of Muhammad Javed Umrao v. Miss Uzma Vahid (1988 SCMR 1891) as also the judgment of the Supreme Court in Muhammad Latif v. Hiroku Muhammad (Criminal Appeal No,156/94, decided on 3-7-1994) wherein the following observations made by this Court in the judgment under appeal before the Supreme Court in that case which is reported as Hiroku Muhammad v. Muhammad Latif (1994 MLD 1682) were approved:-- "The law on the subject is now well settled. Although proceedings under section 491, Cr.P.C. Are summary in nature and no final decision can be rendered by the Court on the question of custody of the minor which has ultimately to be decided by the Guardian Judge/Family Court but nevertheless in exceptional cases where the removal of the minor from the custody of the petitioner is either through fraud, deceipt or by force and the welfare of the minor so requires, the Court can in appropriate matters interfere in the exercise of its jurisdiction under section 491, Cr.P.C.
Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891, Mst. Tauqir Fatima v. Iqbal Mehdi Shah and another 1990 PCr.LJ 342, .Musarrat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686, Mst. Farzana v. Syed Muhammad Afzal and another 1991 PCr.LJ 758, Sara Palmer v. Muhammad Aslam 1992 MLD 520, Shaireen Abdullah v. Mahmood Akhtar PLD 1993 Lah. 466 and Mst. Nusrat Jehan v. Muhammad Siddique Khan and another 1993 PCr.LJ 522 refers. Reliance of the respondents learned counsel on Major Zafar v. Mst. Rehmat Jan and another 1994 SCMR 399 is of no avail as that decision was rendered in the proceedings which had arisen under the Guardians and Wards Act, 1890. Similarly, the case of Begaan v. Abdul Hamid 1983 PCr.LJ 1470 is distinguishable on facts as in that case it was found that the mother had remarried and had herself handed over the custody of the minor to the paternal uncle. Furthermore this decision was rendered at a time prior to the dictum of the Supreme Court in Muhammad Jailed Umrao's case (supra). So far as the cases of Mst. Mariam Rozina v. Robert Ashraf 1985 PCr.LJ 1469 and Lady Dr. Capt. Lubna Bokhari v. Syed Sabtain Raza 1992 MLD 1929 are concerned, they are not of much help as no detailed discussion on the subject was made and it was in the facts and circumstances of those cases that the learned Judges had declined to exercise their discretion in favour of the petitioners in those cases. These two decisions do not lay down that petition under section 491, 'Cr.P.C. Would not lie."
14. Mr. S.M. Masood, learned counsel for the respondent however, submitted that the above principle would not have any applicability to the present case as it has not been shown that the minor was removed by force from the custody of the mother by the respondent and that the only remedy available to her, if any, was to invoke the jurisdiction of the Family Court under the Guardians and Wards Act, 1890.
15. We are unable to agree with the learned counsel in this behalf for many reasons. Firstly, as observed by us, prima facie, the stand taken by the mother that she was forcibly deprived of the child appears to have greater weight than the contention on behalf of the respondent that she had voluntarily abandoned her. Furthermore, in cases relating to custody of minor it is not essential that forcible removal or detention must be proved by the mother. If the Court keeping in view the tender age of the minor and the principles of Muslim Personal Law come to the conclusion that the custody has been wrongly or illegally withheld from the parent, it can order the restoration of custody to her. This question was considered by Zia Mahmood Mirza, J. (as he then was) in Iffat Mir v. Mobeen Qasim Mir (1991 PCr.LJ 2372) in which it was observed that though father is a natural guardian of the minor but he cannot retain the custody forcibly and against the wishes of the mother who in law was entitled to the custody of the minor without obtaining proper orders of custody of the minor from a Court of competent jurisdiction. A Division Bench of this Court in Shabbir Hussain v. Mst. Shahnaz Parveen and another (1989 PCr.LJ 1689) has laid down that the remedy provided by section 491, Cr.P.C. Was more efficacious, speedy and appropriate as compared to the proceedings before the Guardian Judge and as the minor was a suckling baby, her welfare demanded that she should be restored to her mother who was entitled to get her custody under the Islamic Law unless she is debarred from doing so leaving the parties to have their rights decided from the Guardian Courts. Similar view was expressed by another Division Bench in Mst. Farrukh Naheed Hashmi, v. Syed Shah Ibrar Qadri 1994 PCr.LJ 1361 and also by the Sindh High. Court in Mst. Tayyaba Khan v. Syeda Begum and another PLD 1994 Karachi 204.
16. There is another way of looking at things. Under section 491 of the Cr.P.C. The High Court exercises two-fold jurisdiction; firstly, to direct the production of a person who is illegally detained to be brought before the Court so as to set him at liberty and secondly, to direct the production of a person so that he can be dealt with in accordance with law. In the latter case, it is not essential that the detention must be by use of force. If a person has been confined in a manner not warranted by law in that event also the Court can issue appropriate direction under section 491, Cr.P.C. This question was considered by the Supreme Court of Pakistan in Muhammad Rafique v.
Muhammad Ghafoor (PLD 1972 SC 6) wherein it was ruled as under:-- "The High Court has two-fold jurisdiction under this section : (i) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him at liberty if he is illegally or improperly detained. The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person."
' The Supreme Court further went on to observe that if a person was a minor, the Court may make over his custody to the Guardian which will be dealt with him in accordance with law.
17. In Mst. Shabana Niazi v. Muhammad Khalilur Rehman and 2 others (1994 PCr.LJ 715) it was observed that if a minor is brought to the Court under section 491(1)(A), Cr.P.C. She has to be dealt with in accordance with law restoring her custody to the mother as the law presumes it to be in her interest. In Mst. Zubaida Khatoon alias Aqleema Khatoon alias Pal veen v. Saadullah A. Siddiqui and 4 others (1992 PCr.LJ 690) it was laid down that even if the minor was not illegally or improperly confined or detained yet the Court may make over the custody to the guardian which will be dealing with him in accordance with law. To the same effect is the judgment of this Court in Mst.
Zenia v. Ahmad Jawad Sarwar (PLD 1994 Lah. 577). In this view of the matter the objection of the learned counsel for the respondent that this Constitutional petition was not maintainable has no force.
18. Before parting with this aspect of the matter, we may also state that the law does not appear to be different even in countries like United States of America and England where writ in the nature of habeas corpus has always been considered to be appropriate remedy for restoring the custody of the minor to a parent to whom it rightfully belong. Reference in this connection may be made to a statement of law appearing in Halsbury's Laws of England, Volume 1, paragraph 1469 which reads as follows:-- "Custody of minors.--A parent, guardian, or other person who is legally entitled to the custody of a minor can regain that custody when wrongfully deprived of it by means of the writ of habeas corpus. For the purpose of the writ, the unlawful detention of a minor from the person who is legally entitled to his custody is regarded as equivalent to an unlawful imprisonment of the minor. In applying for the writ it is, therefore, unnecessary to allege that any restraint or force is being used towards the minor by the person in whose custody and control he is for the time being."
19. In American Juriprudence, Volume 25, para. 78 it is stated that:-- "Determination of right to custody.--Habeas corpus is a proper remedy to obtain the discharge of an infant from a detention which is illegal and to determine controversies concerning the right to the custody of the infant, at least under the conditions requisite to the issuance of the writ generally. Where the writ is availed of for the latter purpose, the proceeding partakes of the incidents of a suit in equity and is considered to be one in rem, the child being the res. The right to invoke the remedy of habeas corpus to determine the right to the custody of a child in the Federal Courts depends, of course, upon whether the case comes within one of the recognised grounds of Federal jurisdiction. A Court without jurisdiction to make an order designating a permanent custody for a child may have jurisdiction to make a temporary order of custody as incidental to its power to administer the summary remedy of habeas corpus."
20. Reverting now to the merits of the case, it is to be seen that even Mr. S.M. Masood, learned counsel for the respondent was not in a position to dispute that ordinarily under Muslim Law, the mother has a right to retain the custody of a minor girl till she attains the age of puberty and a strong presumption arise that it is in the welfare of the minor girl to hand over the custody to the mother under the Muslim Personal Law. Indeed as has been often remarked by the Courts a lap of mother is God's own cradle and Almighty Allah has any created any substitute for it. It needs no gain saying that a minor girl and that too of tender age of one year requires care, attention, love and affection which a mother can alone bestow on her daughter. We are fully recognised that under the Islamic law the father is a guardian of both of the person as also the property of the minor but the fact remains that the custody of a minor of tender age and moreso, of a female vests in the mother and on the maternal side. It is only where the mother is found to be disqualified for any reason to retain the custody of the minor that she can be deprived of the right of Hizanat. Of course, the paramount consideration is always welfare of the minor but there is a strong presumption arising under the Muslim Laws that it is in the welfare of the minor daughter that she should remain in the custody of the mother. In the present case, the child is one year old and no reason whatsoever has been disclosed by the respondent either in the written statement or even during the course of argument which would persuade us to deny the mother of the right which vests in her under the Muslim Personal Law. We may also at this stage venture to refer to the dictates of Almighty Allah contained in Chapters 31-14, 15 (Surah Luqman) of the Holy Qur'an in which the right of the mother finds full recognition.
21. Learned counsel for the respondent has, however, opposed restoration of the custody of the minor to the mother on two grounds. Firstly, that the mother herself has foregone her right of custody by entering into a compromise which was recorded by the Civil Court at Sialkot and secondly that as the mother has expressed her intention to take away the child to Tashkent she has become disqualified to hold or obtain the custody of the minor for it would amount to permanently depriving the father of the child.
22. Having given our careful consideration to these aspects, we find ourselves unable to sustain any of the two contentions. So far as the first is concerned, a bare look at the proceedings before the Civil Court, copies of which have been filed alongwith the written statement, would clearly show that the proceedings, prima facie speaking, were collusive and it is highly doubtful that the mother who is not conversant either with English or with Urdu had ever appointed an Attorney for filing a suit at Sialkot for the recovery of Rs,20,000. The power of attorney which has been allegedly executed by her in this behalf makes an interesting reading for, it recites that the parties had agreed to mutual separation on the payment of Rs,20,000 by the husband to the wife at which time it has also been agreed that the mother would give up her right to the custody of the minor. On the basis of this power of attorney, a suit was filed at Sialkot though admittedly neither the mother (Goulbakhor) nor the respondent have ever resided there. On the very first date of hearing a statement was made that the parties had arrived at a compromise which resulted in the dismissal of the suit. We are of the view that no sanctity can be attached to such proceedings nor can any plea that the mother had foregone her right to the custody of the minor succeed on such like documents. To us it appears that an attempt was made by the respondent to create some evidence in order to deprive the mother of her custody. We may, however, not understand to have decided this aspect of the matter finally nor shall these observations be construed in any manner as being binding on any other Court of competent jurisdiction where the matter of custody of the minor may be agitated.
23. Mr. S.M. Masood, learned counsel for the respondent has in support of this contention that a mother becomes disqualified to the custody of the minor if she removes her to a distinct place where the father cannot exercise his right of supervision of custody has relied upon the statement of law appearing in paragraph 343 at page 439 of Mulla's Mahomedan Law which is as under:-- "343. Females when disqualified for custody.--A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody:
(1) ..
(2) If she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence; or
(3) .
(4) .
' The learned counsel also placed reliance on the cases of Muhammad Bashir v. Mst. Ghulam Fatima (PLD 1953 Lah. 73), Mrs. Moselle Gubbay v. Kh. Ahmad Said and others (PLD 1957 Kar. 50) and Miss Christine Brass v. Dr. Javed Iqbal (PLD 1981 Peshawar 110).
24. There cannot be any cavil with the general principle of law as laid down in these precedents but the rule is, however, not absolute and is open to certain exceptions, one of being is that as stated by Mulla in the aforesaid paragraph itself, it applies to removal of the minor by the mother during the subsistence of her marriage with the father. The position, however, is different after the marriage stands dissolved. In such an event, the right of the mother to take away the minor to the place of her original abode is well-recognised provided the marriage between the spouses had also taken place there.
25. The law on the subject has been stated by Syed Amir Ali in his Mahommedan Law, Volume II, at page 234 in the following words:-- "When a separation has taken place between the parents, the mother is entitled to return with her infant child to her native city (if the marriage took place there), however, distant it may be from the residence of the father. But adds the Fatawai-i-Alamgiri, 'she cannot do so if the marriage did not take place there, unless it is so near the place of separation that if the husband should leave his own residence in the morning to visit the child he can return home before night', nor can she remove to another city on any other condition."
26. In Digest of Mohummudan Law by Neil B.E. Baillie (2nd Edition) at page 439, it is stated that:- "When a separation has taken place between a husband and wife, and her Iddat has expired, she may take the child with her to her own city, if the marriage took place there. But she cannot do so if the marriage did not take place in her own city, unless the city be so near the place of separation that if the husband should leave the latter in the morning to visit the child, he can return to his own house before night."
27. In Hedaya by Charles Hamilton (2nd Edition) at page 138 under the heading A mother cannot remove with her child to a strange place, the rule has been stated in the following words:-- "If a divorced woman be desirous of removing with her child out of a city, she is not at liberty to do it; but yet if she removes with her child out of a city, and go to her native place, where the contract of her marriage, was executed, in this case her removal is lawful, because the father is considered as having also undertaken to reside in that place, both in the eye of the law, and according to common usage, for the Prophet has said, 'Whoever marries a woman of any city is thereby rendered a denizen of that city'."
28. The rationale behind the above-quoted passage is not difficult to understand. If a girl has been brought in marriage from one place to another and later on the marriage is dissolved will it not be cruel to deny her the right to go back to her original abode alongwith her child and to force her to live at a place with which the only connection which she had, since been severed and broken by the dissolution of marriage. There is no reason as to why this rule of Islamic Law which is based upon reasons and logic which was laid down as far back as 1400 years by the Holy Prophet and has everlasting applicability, should not be given effect to in the present case. To us this is clearly manifestation of the fact that Islam is not only a religion but a complete Code governing all aspects of life making provisions even for complex problems arising in human relations.
29. Applying this principle to the present case, it is admitted fact that the respondent had married Mst. Goulbakhor at Tashkent and, therefore, no possible exception can be raised by him if after the dissolution of marriage she wishes to take the child to that place. The argument of the learned counsel for the respondent that it will not be in the welfare of the minor that she be allowed to leave Pakistan so as to reside at Tashkent, has not impressed us. Uzbekistan is an Islamic Country having friendly relations with Pakistan and there is no reason to believe that the minor shall not be brought up in accordance with the Islamic traditions there. If indeed the respondent has chosen a girl brought-up at that place as his wife, it does not lie in his mouth that his daughter should not be brought up there especially so when the country has not only brotherly relations with Pakistan but also share common heritage and culture with it.
30. The main thrust of the argument of the learned counsel for the respondent, however, was that if the minor is taken away to Tashkent by the mother, the child shall be lost for all times to the father.
We must express that this aspect of the matter was very much present in our mind and, therefore, in order to allay any such fear, we directed the mother to give an undertaking that she would allow full access to the father to the child while at Tashkent and no hurdle will be created by her in that behalf. Her undertaking has been placed on record. Not only that, the Consular of Uzbekistan who had appeared before us has also given a solemn undertaking that any order passed by any Court in Pakistan for production of child shall be duly implemented in Uzbekistan and all possible help shall be afforded to the father to go to Uzbekistan and meeting the child, if he so desires. The two undertakings executed by the Consular on behalf of the Embassy of Uzbekistan as also by the mother have been placed on record. It is useful to reproduce the undertaking dated 14-12-1994 which reads as under:-- "I, Mr. Khamurzaeu Tasmirza Counsellor, Embassy of Uzbekistan, Islamabad hereby undertake on behalf of Embassy of Uzbekistan aforementioned that in the event that Mst. Gul Bahar is allowed to proceed to Tashkent with her minor daughter Rukhsar under orders of this Honourable Court, the minor will be produced before any Court of competent jurisdiction in Pakistan if the said Court so directs.
' It is further undertaken in this respect that Sohail Butt, father of minor Rukhsar, wishes to travel to Tashkent for the purpose of meeting his daughter, visa to enter Uzbekistan will be issued to him for this purpose.
' It is also undertaken that access of the father Sohail Butt to the minor Rukhsar in Tashkent will be facilitated by the Ministry of Foreign Affairs, Uzbekistan if approached by the said father."
31. Mr. S.M. Masood, Advocate has his own reservations about the undertaking being fulfilled. We have, however, no reason to doubt that this undertaking given by a duly created representative of a brotherly State on behalf of his Government shall not be honoured in letter and spirit.
32. We may also notice that the right of a mother to take away the minor to the place of her original abode has also been recognised in other countries. For example from the statement of facts appearing in Re Kernot (1964 Vol.3 All England Law Reports 339 at page 340), it is to be seen that Plowman, J. Had on May, 29 ordered that the mother shall be at liberty to take the child out of jurisdiction of the Court to Brescia in Italy, and she did so. Later on, however, as the mother was found unfit to retain the custody even by Italian Court, the English Courts granted the custody to the father. In the case of Marggarate Maris Pulparampil Nee Feldman v. Dr. Chacko Pulparampil and others (AIR 1970 Kerala 1), the Full Bench allowed the mother to go to Germany with her minors.
33. While on this subject, notice may also be taken of an argument raised by Mr. S.M. Masood, Advocate on the strength of Article 15 of the Constitution i,e, that as the minor is from a Pakistani father and was born in Pakistan, she is a citizen of Pakistan and cannot, therefore, be removed forcibly from Pakistan.
34. We are afraid, Article 15 of the Constitution of Islamic Republic of Pakistan has no applicability.
Although the minor is a citizen of Pakistan yet the mother by taking her away to the place of her native origin cannot be said to be removing her forcibly or in violation of Article 15 of the Constitution. As has been explained by the Kerala High Court in Marggarate Maris Pulparampil Nee Feldman case supra, that if the Court comes to the conclusion that it would be in the welfare of the minor that she he allowed to live with her mother, even though in a foreign country, it would not tantamount to forcible removal of the minor. In such an event the choice exercised by the Court is on behalf of the minor and considered to be for her benefit. It may also be pointed out that in the aforesaid precedent, reference has been made to various textbooks on the subject including Law of Infants by Simpson (4th Edition) and Joseph H. Beale on Conflict of Laws at page 720 as also to Eversley on Domestic Relations (6th Edition), wherein it has been opined that a child can be taken away by the parent to another country. We are also attempted to reproduce the following portion from Joseph H. Beale on Conflict of Laws, Volume 2, page 720:-- "The fact that the parent to whom the award of custody would otherwise be made is likely to take the child into another State is not usually a ground for refusing to take the award. Even if the child is to be taken into another country the award will be made, at least if it is a friendly country with a similar civilisation, like England, though it might be different if it were a harbarous country, or one with an alien civilisation or religion, and clearly a child's custody will not be awarded to a parent who is alien enemy. Nevertheless, the Court in awarding custody may order the parent not to remove the child from the State, though the case would have to be 'a very extreme one indeed' to justify such interference with the natural and legal rights of a parent. If the Court allows a child to be taken out of the State, it may require the parent to give a bond to return the child at the end of a fixed time, or on order of the Court; but this will not usually be required."
35. Furthermore, it cannot be disputed that in matters relating to custody of minor, the law applicable is the Muslim personal law especially when the parties are Muslims. If, as already held, the Islamic Law itself recognises the right of the mother to take the child to the place of her original abode from where she was brought in marriage, it cannot be contended that such a right would be against the mandate of Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 which has to be interpreted keeping in view the Islamic injunctions especially after the enactment of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973.
36. A brief mention may be made of the judgments relied upon by the learned counsel for the respondent. The important factor to be noticed in this behalf is that the permission to take away the minor was generally declined on the ground that the mother was not a Muslim and that a child has a right to be brought up in the religion of his father. No such question arises in the present case as both the parties are Muslims.
' In the case of Mrs. Mosselle Gubbay v. Kh. Ahmad Said and others (PLD 1957 Karachi 50), the mother was a Jewess and that appears to have been the main ground which prevailed with the Court. So far as the case in Mst. Maria Khan v. Muhammad Zubair Khan 1993 PCr.LJ 1097 the mother was a Christian. In the case of Mst. Musarrat Parveen v. Muhammad Akram 1991 PCr.LJ 878, the mother was living with a paramour. The cases in Mst. Shamim Akhtar v. Syed Irshad Hussain Abidi and 2 others (1992 ALD 591) and Amtal Sarosh v. Khalid Saleem 1989 MLD 4756 arose out of Guardians and Wards Act, 1890 and have no relevancy.
37. There is nothing on the record on the basis of which presumption that it would be in the welfare of the minor especially when she is of tender age and a suckling baby that she should remain with her mother has been rebutted. We are, therefore, of the view that the minor having been produced before us pursuant to direction under section 491, Cr.P.C. Her custody has to be given to the mother who is entitled to it under the Muslim Personal Law leaving the parties to have their rights determined by appropriate forum.
38. We are aware that in the case of Muhammad Latif v. Hiroku Muhammad (CrA.No,156/1994) the Supreme Court had modified the order passed by this Court and imposed the condition that the minor shall not be removed out of Lahore but that order was passed keeping in view that there were pending proceedings before the Guardian Court for the custody of the minor and the Supreme Court in that context directed that during the pendency of those proceedings the minor shall not be removed from the jurisdiction of that Court. We, may, however, clarify that this order shall not be a bar in the way of the Guardian Judge in passing such an appropriate order if his jurisdiction is invoked in this behalf by either of the parties. We ourselves have not been able to find out anything in the Constitution or elsewhere to deprive the mother of the custody of the minor only on the ground that she would return to the country of her native origin where the marriage had also taken place.
39. The last objection raised by the learned counsel for the respondent as to the locus standi of the petitioner may also be dealt with. From the plain wording of section 491, Cr.P.C. It is evident that there is no requirement that the exercise of jurisdiction is dependent upon the filing of an application by an aggrieved person. If the Court receives information from any source it may well in its discretion proceeds suo motu. So far as the Constitutional jurisdiction is concerned, Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, itself draws distinction between cases where direction in the nature of certiorari, mandamus and prohibition are prayed for and those in which directions sought are in the nature of quo warranto and habeas corpus. While in the former cases, the person invoking jurisdiction of the Court must be an aggrieved person but it is not so in the latter. An application in that behalf can be filed by any person not necessarily aggrieved.
40. Mr. S.M. Masood, learned counsel for the respondent has, however, drawn our attention to the judgement of Division Bench in Imdad Hussain v. Noor Hassan and 5 others (PLD 1974 Karachi 485) wherein it has been observed that the Court should not allow a stranger to interfere especially in the matters relating to custody of minors or female. The principle laid down in the aforementioned case is salutary but is not a principle in bar of jurisdiction. It is rather a factor which the Court has to take into account in considering whether or not the discretion vesting under section 491, Cr.P.C.
Should be exercised. If the Court feels that the applicant has no interest whatsoever in the matter or that the application filed is not bona fide and has not been moved for the benefit of the detenu, it must refuse to exercise its discretion. In the present case, however, the position is totally different as the application has been moved by an Advocate of this Court who is also Director of a well- recognized Human Rights Organisation which in turn was moved in the matter by none else an Authority than Uzbekistan Embassy itself. From the facts and circumstances of the case we are clearly of the view that to allow this technical objection to prevail would tantamount to perpetuation of injustice.
41. Be that as it may as the mother of the minor had appeared before us on every date of hearing and had owned the contents of the complaint made in the present petition by filing an affidavit in support thereof. For all intents and purposes, therefore, this petition can be treated to have been filed by the mother herself and there would have been no possible exception even to formally implead her as a petitioner. We have, however, thought it unnecessary to do so in view of the peculiar circumstances of the case. Keeping in view the tender age of the minor and the circumstances in which the mother has been placed we cannot decline the exercise of jurisdiction on such a ground.
42. In view of what has been stated above, this petition is allowed and it is directed that the custody of the minor be handed over to her mother. She shall be bound by the undertaking given to us by her and the Embassy of Uzbekistan which has been placed on record. This arrangement shall, however, be subject to orders, if any, passed by the Family Court of competent jurisdiction to which parties or any one of them may have recourse, if they so desire.
43. The learned counsel for the respondent has requested that the operation of this order may be suspended for the time being so as to enable him to file an appeal before the Supreme Court of Pakistan. We are, however, not inclined to grant this request as a whole but in order to ensure that the minor i, not removed out of Pakistan, in the meanwhile, we would direct that the minor and the mother shall remain in Darulaman for a period of 7 days from today. The Superintendent Darulaman shall make adequate arrangement for their boarding and lodging. The respondent shall deposit Rs,3,000 with the Darulaman as expenses. During this period of time, the father as also the grandmother shall be allowed to meet the minor for a period of 1 to 2 hours everyday by the Superintendent Darulaman.
' No order as to costs.
' ABDUL HAFEEZ CHEEMA, J.---I have gone through the judgment of my learned brother, Malik Muhammad Qayyum, J. And am in perfect agreement with the views expressed by him. I would, however, like to add a few words of my own on account of the sensitive and complex nature of the matter.
2. According to the consensus among the Muslim Jurists, ordinarily, mother is responsible for Hizanat (custody) of the child whereas the Kifalat (maintenance) is the duty of the father. The problem, however, arises in case of estrangement of the spouses or by dissolution of the marriage.
3. In this case the following facts are not disputed:
(i) Both the spouses are Muslims.
(ii) The marriage had taken place in Tashkent (Uzbekistan) in March, 1993.
(iii) The baby girl named Rukhsar was born to them at Gujranwala (Pakistan) in November, 1993.
(iv) The parties have been separated through Talaq.
(v) The baby is only a year old.
(vi) The mother is resident of Tashkent and a National of Muslim country, Uzbekistan with which Pakistan has fraternal ties.
(vii) The mother has no residence or abode in Pakistan.
4. The question that now falls for determination in the peculiar circumstances, is whether the provisional custody of the minor, Rukhsar should be with the mother or with the father? The custodial question ostensibly appears to have three faces viz:--
(i) psychological,
(ii) qua duties and obligations, and lastly
(iii) the administrative problems.
' Keeping in view all these aspects of the matter, the Jurists have given preference to the mother in the normal course of events and reliance is invariably placed on the following Ayaats of the Holy Qur'an: ' S.31.14: ' And We have enjoined on man (to be good) to his parents; In travail upon travail. Did his mother bear him, And in years twain. Was his weaning:(hear the Command), "Show gratitude to me and to thy parents: To Me is (the final) Goal.
' S.46.14: ' We have enjoined on man kindness to his parents: In pain did his mother bear him, and in pain Did she give him birth. The carrying of the (child) to his weaning is (a period of) thirty months. At length, when he reaches the age of full strength and attains forty years. He says( '0 my Lord! Grant me that I may be grateful for Thy favour which thou has bestowed upon me, and upon both my parents, and that I may work righteousness such as thou mayest approve; and be gracious to me in my issue. Truly have I turned to thee and truly do I bow (To Thee) in Islam."
' S.58.2: ' None can be their mothers except those who gave them birth.
5. According to the dictum of the Holy Prophet (peace be upon him), recorded by Bokhari, the most authentic Book of Hadith, after the mother, her sister proves that real replacement of the mother and as such she should be given preference to the relatives of the father's side.
"....So, the Prophet went out of Mecca. The daughter of Hamza ran after them (i,e, the Prophet and this companions), calling, '0 Uncle! 0 Uncle! Ali received her and led her by the hand and said to Fatima, `Take your uncle's daughter'. Zaid and Ja'far quarrelled about her (custody). Ali said, 'I have preferential right to her as she is my uncle's daughter". Jafar said "She is my uncle's daughter and her aunt is my wife'. Zaid said, 'She is my (foster) brother's daughter'. The Prophet judged that she should be given to her Khala (aunt) and said that aunt was the best replacement of the mother."
(Bokhari 537-38, Vol. III, Kazi Publications, Lhr.)
6. Although Islam had planned to eliminate and eventually did eliminate the slavery yet in early days it was being practised and a case came before Hazrat Umar wherein a slave woman with a child (Umme Walad) was sold by her owner. The Caliph ordered on the basis of Qur'anic Commandment that the mother should not be separated from her child and the sale was disallowed to protect and preserve the custody of the mother although the seller was the father and the girl had to remain with him.
' S.47.22.
' Then, is it To be expected of you. If ye were put in authority, That ye will do mischief. In the land, and break Your ties of kith and kin?
Consequently a directive was issued to all States and Provinces under Madina Government that henceforth the sale of Umme Walad was prohibited.
(Alsunan Alkubra Bahqhi 344-Vo1.1)
7. The word `Hizanat' is derived from the word `Hizan' which in Arabic means "lap of the mother" and the word `Hizanat' denotes giving child to the mothers's lap for carrying and rearing.
8. All the Juristic Schools of thought among Muslims are unanimous that the right of Hizanat primarily and substantially vests in the mother up to a certain age. This age limit, of course, varies according to the different schools. Some maintain that the boy is to remain with the mother up to 7 years whereas the girl up to 9 years. In Egypt and other Middle Eastern countries, the matter has been left to the discretion of the Courts to further extend this period in case of a girl if the welfare and interest of the minor so requires. In Indo-Pak Sub-Continent this period is 7 years in case of a boy and in case of a girl up to the attainment of puberty.
9. The mother who is otherwise entitled to the custody of the child, loses her right of custody--
(i) if she marries a person not related to the chid within the prohibited degree but the right revives on the dissolution of marriage by death or divorce;
(ii) if she is leading immoral life;
(iii) if she neglects to take proper care of the child; and
(iv) if her place of residence is not within the accessible reach of the father.
' If the mother happens to be disqualified on account of these factors, the custody would pass to other female relations in accordance with the strict scheme of priority which prefers mother's mother and in her absence, the mother's sister, failing that the custody may revert to the father's side. The following commandment will also render great assistance in understanding the nature of the problem in its proper perspective: "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 her 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 God and know that God sees well what ye do."
(Sura Baqra, 2.233).
10. In this case the child is only a year old and requires utmost care and attention as well as affection of the mother which can ensure proper upbringing and this is in the best interest of the minor that she should be fed and reared by her mother who indeed is a Muslim like her father. The mother, according to the Qur'anic commandant reproduced above, ought not to be deprived of the custody of the minor child on account of his sentimental attachment which nature (Fitrat) has ensured between the two. There is nothing on the record that the mother was of blotted character or otherwise in her company the child is likely to be reared in an immoral atmosphere.
11. As for the objection that she is likely to take the minor to Tashkent, which according to the information imparted to this Court has direct link with Islamabad and the journey from Islamabad to Tashkent can be covered within a period of two hours or so. It is equally on the record that the respondent had lived in Tashkent to set-up his business and seems to be a wealthy man. The Embassy of Uzbekistan in Islamabad has furnished a written undertaking that they will never obstruct or hinder the father's travel to Tashkent and shall readily give visa and other facilities and their foreign office shall equally be helpful in arranging the meeting between the minor and the father, thus, there appears to be no reason to doubt their undertaking and to obstruct the way of the mother to go back to her home.
12. It is a well-known maxim of Muslim Jurisprudence that "the law changes with the change of circumstances and with the-change of situations". In earlier days there was a concept of Muslim Umma and a Muslim was free to settle anywhere in the Islamic World and to do business or any other lawful calling. Instances are not lacking when great scholars and others came from one country and settled in the far-flung areas of the Muslim World. We have the instance of Ibne Batuta who was a Morrocan citizen and had been a judge in India and Maldives. So, the Jurists have expressed they opinion that if the mother belongs to a territory which is accessible to the father and the distance can be covered within nine hours, the mother may be allowed to take away the child to her native place and moreso if the marriage had taken place there.
13. In this case the marriage took place in Tashkent and the parties had to leave that place on account of the provisional failure of the business of the respondent. The distance as pointed out above, can be covered within two hours, as such, it does not appear to be appropriate and in keeping with the dictates of Muslim Law to deprive the mother of the custody of a year's old child.
Even otherwise, prima facie, the conduct of the respondent of procuring visibly fake evidence to show that the mother had abandoned the child in lieu of sum of Rs,20,000 and the suit for the recovery of this amount having been filed at Sialkot, shows on the face of it, that the father had not come to this Court with clean hands. The mother, on the other hand, has conceded that she had left for Tashkent on the asking of her husband and the ticket etc. Were provided by him, of course for a purpose, which is not agreed to between the parties. The contention of the mother is that she was sent to collect 2,000 U.S. Dollars if she wanted the custody of the baby but the husband on the other hand, contends that she had left on her own accord. It, therefore, appears that the respondent has ostensibly tried to suppress certain material facts and has given a twist to the events to suit his stand.
14. The assertion that in Tashkent the system is secular and the mother is likely to rear the child in secular atmosphere, is merely based on supposition and is hypothetical. These assertions have been forcefully refuted by the Counsellor of the Embassy of Uzbekistan who remained present in the Court throughout the proceedings. Even otherwise, Samarkand, Bokhara and Tashkent have been the cradle of Islamic Culture and Civilization, as such, there appears to be no weight in the statement that the child would spoil if she lives in Tashkent.
15. It is a recognized principle that the question of custody cannot be determined solely by deduction from a rule of law. It requires an exercise of judicial discretion dependant upon the relevant circumstances. Even the foreign Courts are cautious enough not to deprive even an unmarried mother of the custody of an infant. The Supreme Court of Canada (as reported at page 78, Vol.19 of 1990 Edition of Encyclopaedia Britannica) supported the principle that the natural parent may be even an unwed mother, ought not be denied the custody of her child: "The case can be cited to show the difficulty of reaching agreement among judges and others as to what constitutes the 'best interest' and `welfare' of a child. The Supreme Court of Canada has supported the principle that a natural parent, such as an unmarried mother, should not be denied the custody of her child merely because the applicants wishing to adopt the child offer better material prospects or a two parents instead of one parent household."
' This would, therefore show that even in a secular country even an unmarried mother has preferential right of custody of the minor over others who can offer better prospects of upbringing to the child.
16. It is contended by the learned counsel for the respondent that in the commentary under section 352 of Mohammadan Law by Mulla it has been observed that the father is primary and natural guardian of his children with a right of supervision as such no order can be passed by the Court which can obstruct his such right. This right of supervision is indeed acknowledged by the Jurists but it is not to be pushed too far to restrain the mother from carrying the baby to her own abode.
The rule as to the Hizanat of the minor is based on desirability of close supervision of the custodial parent to ensure minor's welfare. The mother who is in the best position to assist him/her in the performance of the natural functions, eating, drinking and the like, and after the child becomes capable of shifting for himself, there arises the necessity of education, then the question of transfer of the custody from the mother to the father arises. In case of a girl this inter alia, means the teaching of female accomplishment; it is, therefore, necessary that she should be under female supervision for a longer period than a boy and it is equally desirable that this supervision should extend till the attainment of puberty. The father is, no doubt, liable to provide maintenance, but none of the original authorities vests in him any control of the child. The control of the mother is so highly regarded that even infidel woman is, on principle, not deprived of the Hizanat though the welfare of the minor may deprive her of the charge.
17. There are instances where the Holy Prophet (peace be upon him) allowed the continuance of the custody of the minor with the mother even after her remarriage. Hazrat Umme Salma, one of the venerated wives of the Holy Prophet (peace be upon him) had a son from her earlier marriage and on her remarriage with the Holy Prophet, the minor continued to be reared with her and did not remain with his father i,e, former husband of Umme Salma.
18. It is well-known Hadith reported in Ibne Majja, one of the celebrated Books of Hadith, that Moawiya bin Maida (God be pleased with him) asked the Holy Prophet that with whom he should do good. The Holy Prophet (peace be upon him) answered, "Be kind to your mother." The question was repeated and the answer was "To your mother." For the third time the same question was put by the Sahabi and the Holy Prophet said "Do good to your mother." When the fourth time this question was repeated, the Holy Prophet replied, "To your father and afterwards to your other relatives." This shows the degree of preference accorded to the mother over the father and others.
Viewed from all angles, it is obvious that deprivation of the mother of the custody of the infant is neither lawful nor proper nor is in the best interest of the minor or the mother. With these observations I endorse and support the views expressed by my learned brother.