Captain S.M. ASLAM vs Mst. RUBI AKHTAR

1. ' By this common judgment I intend to dispose of two Constitutional Petitions bearing Nos. 17/1995 and 41 of 1994.

2. ' Controversy between the petitioner and respondent No,1 has chequered history involving serious allegations of molested character against each other. The respondent in this case was third wife of the petitioner. He has one daughter namely Sarwat Ambreen from his first wife, another daughter namely Arshia from the second wife and two children from the respondent who are subject-matter of these petitions. The petitioner, after partnering with three wives in the past is stated by the respondent to have contracted fourth marriage but Syed Ansar Hussain, the learned counsel for the petitioner denied the said assertion with an interesting averment that he was not barred to do so as the same is permitted by Islam. Perhaps the learned counsel did not go through the petitioner's cross-examination wherein he stated, "I have contracted my fourth marriage."

3. ' On the other hand respondent has also contracted her second marriage with one Adam Jokhio, after she was divorced by the petitioner, who has already one wife and eight children from that wife. The respondent added two more offspring in the family of Jokhio after her marriage with him.

2. A number of criminal and civil litigations started between them and present two Constitutional petitions are the outcome of only one case arising out of proceedings under section 25 of the Guardians and Wards Act (hereinafter referred to as the Act) concerning the custody of two children. These proceedings were initiated by the petitioner (father of the children) by moving an application in the Court of Guardian Judge (Central), Karachi in 1988 but the said application was disposed of on December 15, 1993 i,e, after about 5 years and, that too after the learned Guardian Judge was called and directed by the Hon'ble Chief Justice for its expeditious disposal. The learned Guardian Judge (III Senior Civil Judge, Karachi) allowed the application and the respondent was directed to hand over the custody of minor children namely Mehwish Aslam and Moazzam Aslam to the applicant/petitioner. It is important to note that at the time of filing application under section 25 of the Act, the two children, Mehwish and Moazzam, were 10 and 8 years old respectively. Order of the learned Guardian Judge (Mian Mohsin Raza) was challenged in Family Appeal No,35/93 by the respondent which was set aside by the learned Iltrd Additional District Judge (Central), Karachi (Mrs. Yasmin Abbasi) and the matter was remanded back vide order dated 25-1-1994. The petitioner challenged the Order of learned IIIrd Additional District Judge by presenting Constitutional Petition No,41 of 1994 on 18-4-1994 which is one of the two petitions being disposed of by this common judgment.

3. It appears that this Constitutional petition was kept dormant for the reason best known to the learned advocates. However, proceedings after the. Remand of case continued, this time, in the Court of learned 2nd Senior Civil Judge (Mrs. Naseem Mansoor), Karachi who, in capacity of Guardian Judge, finally disposed of the matter on 22.12-1994 by allowing the said application. On appeal under section 14 of the Family Court Act, 1964 by the respondent, the judgment of the learned Senior Civil Judge was reversed within 38 days by 1st Additional District Judge, Karachi (Central) (Muhammad Saghir Rana) vide order dated 29-1-1995. This order of the learned Additional District Judge has been challenged in the second Constitutional Petition bearing No,17 of 1995.

4. From the above summary it is evident that C.P. No,41 of 1994 had become infructuous on 22nd day of December 1994, when the II Sr, Civil Judge, Karachi (Mrs. Naseem Mansoor) pronounced the judgment finally but the same was kept pending without any reasonable ground. With all my respects for the learned advocates, I would be failing in my duty if I do not express my concern over this trend of keeping infructuous petitions pending in spite of this knowledge that it not only increases the burden of Courts for nothing but also wastes the most valuable time of the Courts without any useful purpose.

4. Before touching the meritorious aspects of the petitions it seems necessary to bring into light the summary of facts related to the controversy which radiates by the rays of evidence adduced by the parties as under:- The petitioner, S.M. Aslam, was previously a captain in Merchant Navy while respondent (Mat. Ruby Akhtar) appears to be well-educated lady and belongs to a respectable family with one member of her family who served as Deputy Commissioner. She was married with the petitioner on 14th August 1976 and out of that\ wedlock Baby Mehwish and Master Moazzam were born on 28-6.1977 and 4-11-1980 respectively. After their dispute and litigations in different Courts it was alleged by the respondent that petitioner, on account of being jobless or without permanent income, forced her to earn her livelihood by adopting immoral vivacity. One of the consequences of their disputes first appeared in the shape of divorce in 1987.

5. ' The respondent then married with one Haji Adam Jokhio in 1988 who already lapped 8 children with their mother. The respondent, after her marriage with Adam Jokhio, added two more offspring in his herd. The petitioner, therefore, filed application under section 25 of the Act for custody of his children on the plea that from Islamic point of view, Haji Adam Jokhio was stranger of the prohibited degree and, therefore, the respondent has lost her right of Hizanat.

6. ' The ultimate fate of the application under section 25 of the Act has been detailed in the foregoing paragraphs, The children whose custody is in dispute are now about 18 years and 15 years old respectively.

7. ' At the time of the final hearing of these petitions on 28.6-1995 the learned advocates of the parties were asked to satisfy the Court whether the petitions at this stage were maintainable or not, as the children for whose custody the parties has been fighting for the last so many years, had attained puberty.

8. ' However the learned advocates were found least concerned with this question but they extemporized the contents of conflicting decisions of the Guardian Judge and the Appellate Court with their full force.

5. Before touching the averments of the learned advocates it may be advantageous to reproduce relevant parts of sections 17 and 25 of the Act because they appear to be supplementary to each other:-- "S.17. Matters to be considered by the Court in appointing guardian.----

(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor the Court shall have regard to the age sex and religion of the minor the Character and capacity of the proposed guardian and his nearness of kin to the minor , the wishes ,if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor, or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4)

(5) ..

9. S.25. Title of guardian to custody of ward.--(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

(2) ..

(3) .

10. These provisions of law encircle the rights regarding custody of minors by their parents which rights are usually termed as "Hizanat"{{URDU TEXT}}()and "Willayat" {{URDU TEXT}}. The word "Hizanat" or "Hidanat" (as pronounced by the Asians and the Arabs respectively) is used for custody of minors by mother and the term "Willayat" is used for custody of minors by father. It is, however, necessary to point out that the word "Hizanat" in its literal sense means "upbringing". Therefore it covers the concept of "Wallayat" too. It is also important to point out that in legal terminology the word "Hizanat" or "Willayat" cannot be limited to the extent of mother or father of minors because the duty of upbringing can be performed by any person who has legal right to do so such as maternal or paternal aunts or grandmothers. On account of this reason most of the text-books particularly written in Arabic titled the relevant chapter with the word "al-Hizanat"{{URDU TEXT}}.

6. While dealing with the issue of custody it was observed in a good number of judgments of the superior Courts that mother loses the right of Hizanat after expiry of seven years in case of male minors and on attainment of puberty in case of female minors. This view could not persuade several Judges of the superior Courts. Similarly, there are conflicting judgments of the superior Courts about the right of Hizanat in case the divorced or widowed mother of minors contracted her second marriage. Perusal of conflicting decisions of the subordinate Courts leaves no doubt that the learned Guardian Judge embraced one set of judgments while the Appellate Court relied upon the set which contained contrary views. None of the learned Judges took any pain to harmonize or differentiate between the judgments containing contrary views with reference to different facts of each case. By relying upon one set of the judgments, the learned Guardian Judge in the present case reached the following conclusion: "The mother therefore is not entitled to retain the custody of the minors for more than one reason firstly, that she has married a stranger and secondly that the minor daughter has attained the, age of puberty and son attained the age of seven years."

11. ' On the basis of this conclusion, the learned Guardian Judge opined that welfare of minors was lying in favour of the petitioner. It was, therefore, ordered by the Court that mother (means the respondent) should hand over their custody to the petitioner within 30 days.

12. ' In support of the issue related to age factor, the learned Guardian Judge referred cases reported in 1981 SCMR 635, 1980 CLC 785, 1980 CLC 785, PLD 1963 Lahore 534, PLD 1956 Lahore 484 and PLD 1965 Lahore 695. The judgments reported in 1980 CLC 785 and 1980 CLC 785 were authored by the same Judge. Regarding issue of remarrying with a stranger reliance was placed on 1980 CLC 1989, PLD 1985 Pesh. 156, PLD 1953 Lah. 73, 1980 CLC 1989 1984 CLC 1895, PLD 1965 (W.P.) Karachi 416 and PLD 1972 Pesh.

1. The judgment reported in 1980 CLC 1989 is titled as Faiz Bakhsh v. Mst. Sakina and it was authored by Khalil-ur-Rahman, J. (as he then was) but this judgment appears to have been relied upon the cases written by B.Z. Kaikaus (as he then was) which would be discussed in the forthcoming paragraphs. It was, however, not astonishing for this Court when the learned counsel for the respondent placed reliance on the cases reported in 1988 SCMR 608, 1987 MLD 3311, PLD 1981 Lah.

13. 393, PLD 1968 Lah. 1112 and 1981 CLC 78 containing contrary views on the issue of ages of minors and on the case reported in PLD 1965 (W.P.) Karachi 695, 1985 SCMR 1367 and 1980 CLC 1802 (A J and K) having contrary views regarding the issue of remarrying by a divorced wife.

7. It may or may not be appreciable to disclose that at the time of final hearing of these petitions by this Bench the learned advocates for the controversies added nothing new and even took the least pain to differentiate between the conflicting views expressed in the judgments of the superior Courts. For instance, Syed Ansar Hussain, the learned counsel for the petitioner contended that respondent has lost her right of custody of the children after her marriage with a stranger and moreover the female child has attained puberty while the male child is now more than 7 years old, therefore, custody of the children has to be restored to the petitioner who is natural guardian of those children. Regarding question raised by this Bench, the learned counsel drew my attention to section 4(1) of the Act which defines the word "minor" to be "a person who under the provision of Majority Act, 1875 is to be deemed not to have attained majority and under section 3 of the Majority Act" a minor is deemed to have attained majority at the age of eighteen years. It was contended by the learned counsel that both children have to be treated minors no matter they might have attained puberty. He, therefore, stressed that respective provisions of law must be construed in the light of these aspects. Reliance, in support of these contentions, was placed on the cases of Muhammad Sadiq v. Mrs. Sadiq Safoora PLD 1963 (W.P.) Lahore 534 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies reported in PLD 1964 SC 97.

14. ' Reference to Muhammad Swaleh's case (supra) by the learned advocate was astonishing for me because it had nothing to do with the Act or the issues involved in the Constitutional petition. The said case is mostly remembered due to the observations of the Hon'ble Supreme Court that "a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. It may also be interesting to point out that case of Muhammad Sadiq (supra) referred by the learned advocate as well as by the Guardian Judge was authored by Anwarul Haq J. (as he then was) who decided the same on civil original side as is clear from the judgment which starts with the words: "This is an application under section 25 of the Guardians and Wards Act, 1890........ "

15. ' It is thus evident that the Hon'able Judge had exercised his powers at that time in capacity of a Guardian Judge and those powers are now exercised by Senior Civil Judges. That judgment may be binding upon the Senior Civil Judges but not upon the Judges of High Court at the time of exercising their powers in Constitutional Jurisdiction, as in the present cases with expectations that the same be treated binding upon this Court too. At least, such arguments could not be expected from Syed Ansar Hussain, Advocate who is one of the senior advocates of our Judiciary.

16. Notwithstanding to the above, it may not be out of place to mention that the said judgment was authored by a Single Bench, therefore, it can never be authoritative for any other Judge of any High Court even sitting on original side muchless to consider it applicable to an Appellate Court or a Court exercising Constitutional jurisdictions.

17. ' The views expressed in Muhammad Sadiq case (supra) clearly show that the learned Judge was fully influenced by a specific School of Jurisprudence. This fact can be easily realized from the following words of the referred Judgment: "It seems to me that in the present context this stipulation mean that the Sunni or the Hanfi Law, by which the minor is governed, has to be applied subject to the provisions of two enactments, namely, the Majority Act of 1875 and the Guardians and Wards Act, 1890."

8. The learned advocate for the petitioner, however, avoided to say anything about the question whether the Shariat Laws would prevail over the Majority Act or vice versa particularly after the promulgation of "Enforcement of Shariat Act, 1991" (PLD 1991 Central Statutes 373) and he limited himself D to certain textbooks which certainly cannot override the main sources of Islamic Laws i,e,, the Holy Qur'an, the Ahadith of the Holy Prophet (peace be (upon him) and Ijma.

18. ' It may be interesting to point out that most of the textbooks such as Muhammadan Law by F.B.

19. Tyabji, Muhammadan Jurisprudence by Abdul Rahim and Muhammadan Law by Mulla, Hedaya by Charles Hamilton, Muhammadan Law by Amir Ali, Digest of Muhammadan Law by Baillie, Fatawa-i- Alamgiri, Radd-ul-Muhtar etc. Also contain such views which are not supported by any specific School of Jurisprudence.

20. ' I am fully aware of this reality that a good number of textbooks on Muslim Laws contain expressly conflicting views about the ages of minors at which mothers were treated to have lost their right of custody. The views expressed by jurists of famous schools of the Sunnis and the Shias can be summarised as under--{{TABLE}} School For male child For female child The Hanfi 7/8 years till attainment of puberty The Maliki till he attains till she contracts marriage powers of speaking The Shafi's seven years seven years The Hambli The Shias two years seven years {{TABLE}} ' It is notable that above views regarding ages of minor for the purpose of custody were expressed by the majorities of each school. Hence the abovementioned ages may not be treated the only or the final or uncontroverted views. For example, in certain books, views of the Malikis and the Shias were mentioned to be similar. The question arises whether these conflicting views are sacrosanct to be followed by Courts? Although answer to this question appears to be simple yet the same may be touchy for certain corners. Majority of believers in Islam considers that sacrosanctity of views expressed by any Imam or Faqeeh can be binding only if those views are supported by the Holy Qur'an, the Ahadith of the Holy Prophet Muhammad (peace be upon him) or ijma which are the main sources of Islamic Laws. According to this class of believers all such views which are not supported by rain sources of Islam are liable to be ignored and if there be, a difference of opinion among the Imams, Faqeehs or jurists then Courts would be free to form their own opinion on the basis of Qiyas or Ijtehad. But there is another class of people who is alleged to be blind followers of some specific Imam. These people are generally named as Muqalid ( A ) and their conduct is termed as "Taqleed"{{URDU TEXT}} () . They treat the views of their respective Imams to be "sacrosanct". According to this class of people, doors of Ijtehad have been closed and "Taqleed" is the only path left to be followed because, in the present age, religious scholars do not possess those qualifications which are necessary to do Ijtehad. Another class of jurists tried their best to reduce the extremities of the two classes by expressing their opinion that views expressed by Imams, Faqeehs or great religious scholars are the best sources of further research, thinking and/or for future legislation but any struggle or impression to, give them shape of permanencies or finality for promoting specific schools of jurisprudence by their establishmentarians may create complications for legislature to meet newly-created problems. Instead of following any conflicting view, we can follow the Qur'an and the Sunnah because so far as the Holy Qur'an is concerned, no believer and/or any member of any sect claiming to be a Muslim has any difference of opinion about its supremacy over all other laws and its being the main source of Islamic Laws and so far as the position of the Holy Prophet (peace be upon him) is concerned, the Holy Qur'an itself explains the position of the Holy Prophet (peace be upon him) by speaking that:-- {{URDU TEXT}} But no, by the Lord, they can have no (real) Faith until they make thee Judge in all disputes between them and find in their souls no resistance against the decision but accept them with the fullest conviction (4:65)

9. Regarding the issue of Hizanat, there is undoubtedly difference of opinion among the jurists.

21. Therefore, in accordance to the principle laid down in the above verse of the Holy Qur'an, the Holy Prophet (peace be upon him) can be the only undisputed Judge for all those who are true believers. If the sayings or the decisions of the Holy Prophet (peace be upon him) are evident and in spite of that if the followers of any Imam, Faqeeh, Pir or Faqeer prefer to follow the views expressed by specific schools of Jurisprudence named after those jurists such as Hanafi, Maliki, Shafi `i', Hambli (collectively known as the Sunnis) or Agha Khani, Asna-Ashri, Jafri, Zaidi etc. (collectively known as the Shias) then such an attitude is sufficient to hold that their Faith in Holy Prophet (peace be upon him) is merely lip profession for Islam. The above verse of the Holy Qur'an, which contains the words "By thy Lord" (as an Oath of Allah) leaves no doubt for the believers that decisions of Holy Prophet Muhammad (peace be upon him) have to be accepted by them in all kinds of disputes as a part of their Faith with the fullest conviction. On the strength of this Faith, it can be said with certainty that if bundles of textbooks written by well known scholar have unanimous view about any issue, the same can be struck down if it is found against any saying of Holy Prophet Muhammad (peace be upon him) or controverted by any verse of the Holy Qur'an: ' The reason is obvious from the following verse of the Holy Qur'an which speaks: {{URDU TEXT}} "O, ye who believe! Obey Allah and obey the Apostle and those charged with authority among you.

22. If ye differ in anything among yourselves, refer it to Allah and His Apostle, If ye do believe in Allah and the Last Day. That is the best and the most suitable of determination."

23. ' This verse of the Holy Qur'an possesses the following most important points for consideration of every one:

(i) The verse uses the word "believers" in its address instead of "Muslims."

(ii) The word{{URDU TEXT}} (means obey) has been used with "Allah" and the Apostle (the (Messenger of Allah) and not with those who are "charged with Authority".

(iii) In case of disputes in anything, the disputes has to be referred to Allah and His Apostle which shows that "to obey Allah and His Apostle" is unconditional while to obey the persons charged with authority (means {{URDU TEXT}}) is not unconditional.

(iv) These principles are the basis to judge whether any person is a believer in its true sense to believe in Allah and the Last Day.

(v) The word "Ahsan" (used in the verse is the superlative form of "Husn" (URDU TEXT) and it means the most beautiful or the most suitable or most attractive the word Hasanah ( wt.Ya ) is used as "noun" which is used for every such gift which can provide happiness to body or soul. Thus importance of the principles laid down in the verse regarding Obedience of Allah and His Prophet (p.b.u.h) in this world as well as on the "Last Day" can be easily ascertained by every believer and it needs no further commentary.

24. The term "Olil-Amr {{URDU TEXT}} is a very wide term, which includes, according to certain commentators, not only the rulers but religious scholars, Imams and jurists too. But they are undoubtedly; non-prophets and it can be said with certainty that the verse of the Holy Qur'an does not stress to follow the non-prophets unconditionally.

10. History is witness to this reality that Caliphs of the Holy Prophet (peace be upon him) never proclaimed to be "monarchs". In the light of the above verse it can be said that Islam has excluded the superiority of one human being over the other because the term "Olil-Amr" is in plural form which includes all those who are charged with authority. On account of this reason, the jurists are unanimous in their views that Islamic system supports collectivism in thinking, actions and decisions instead of following any individual ruler, priest, Pir Imam, Faqeeh, jurist or religious scholar. This reality can be explained with the help of several historical incidents but for the sake of brevity only one incident is referred hereinbelow: After victory of Iraq and Syria difference of opinion arose among the followers of Holy Prophet (peace be upon him) about distribution of captured land among the soldiers of Islam. Hazrat Umer (who was serving as 2nd Caliph) was of the view that the land captured as a result of victories be not divided among the soldiers because such an act would create complications. According to his views such an act was damaging with reference to the defence of country and moreover the widows and orphans who were getting benefits from those pieces of land prior to those victories would be deprived from their benefits with the result that they might face economical crisis. Hazrat Ali, Hazrat Maaz, Hazrat Talha and Hazrat Usman supported the views expressed by Hazrat Umer on the ground that if the land is divided among the soldiers then it would be cut in to smaller pieces.

25. After the death of those soldiers, these divided pieces would be further sub-divided among their legal heirs. On account of this division, agricultural production might be badly affected.

26. ' The views of all these great companions of the Holy Prophet (peace by upon him) were strongly opposed by other group of companions who were represented by Hazrat Bilal and Hazrat Abdul Rehman who contended that victories were the gifts of Allah and therefore all what has been captured be divided among the soldiers as had been done by the Holy Prophet (peace be upon him) after victory in "Khyber". It was further contended that apprehension of disputes among their legal heirs was baseless and it was not proper to deprive the people of the present on apprehension of disputes among our still unborn legal heirs in the future.

27. ' This dispute could not be solved in the first meeting and the matter was adjourned to be considered in the next meeting of "Majlis Shoora" (which was resembling to the upper houses of the States in the present age). It also included ten members from "Ansar" (means people originally belonging to Madina or had not migrated from Makkah or other places to Madina).

28. ' In this second meeting, Hazrat Umer addressed the members of Majlis Shoora as under: "My status in this meeting is not of a Caliph but only a member. Every person has a right to express his view. We have discussed this matter prior to this meeting. Some of you supported me while others opposed. I would be the last one to ask you to follow me blindly or leave to say what is considered by you to be right.....Allah is witness to this reality that I have never deprived anyone... I am of the view that immovable property be kept with their original owners who would pay tax and from that income several steps for collective welfare be taken for the future including the salaries of soldiers. We need such income to establish Cantonments of Forces to protect our borders. If the land is divided among the soldiers, we would not be able to carry on these works."

29. ' Hazrat Umer sought strength from verses 7-10 of Surah 59 of the Holy Qur'an (known as Surah Hashr) in support of his contention. This contention was, thus, accepted by the members of Majlis Shoora on the ground that it was in the interest of the country and in welfare of the State. In this connection, it may not be out of place to refer few sentences of Hazrat AbuBakr, who after his becoming the first Caliph said to the people: (in Saqifa-binSaada on Rabiul Awwal 13, 11 A.H. i,e, 28- 5-632: {{URDU TEXT}} Li "O, People, you made me Ameer (means Head of the Muslims) although I am not better than you. If I do something good then help me. If I do something wrong then put me on straight (path)...--- Obey me till I obey Allah and the Messenger of Allah. You are not bound to obey If I violate (the Law of) Allah and His Messenger." (Al-Badayawal-Nahaya, Vol. V, page 248).

30. The principle which can be deduced from the above is that if the Holy Qur'an and the Ahadith of the Holy Prophet (peace be upon him) are silent on any issue then sayings, even of the Caliphs of the Holy Prophet, cannot be followed blindly in respect of any issue in case there is no Ijma (collective and undisputed decision) or if the same has no support from the Holy Qur'an and/or Ahadith by way of deduction. Therefore it can be easily deprived that if sayings of the companions of the Prophet (peace be upon him) cannot be embraced blindly then the views of Imams, Faqeehs, Pirs or Faqeers who are muchless than those companions of the Prophet cannot be followed blindly in respect of any issue unless there is unanimous decision of recognized Imams or jurists over that issue or the said views were deduced on the basis of Ijtehad, Qiyas or Ijma on the strength of some verse of the Holy Qur'an or the Ahadith of the Holy Prophet (peace be upon him).

31. ' In this connection, the views of different Imams found in different books are also of worthmentioning. I think that "Al-Meezanul-Kubra {{URDU TEXT}} (Of 0)41) by Abdul Wahab bin Ahmed known as "Shorani {{URDU TEXT}} with marginal notes of Mohammad bib Abdul Rehman under the title "Rehmatul-Ummah-fi-Ikhtelaphil-Aiama {{URDU TEXT}}contains the best discussion on this issue. But, this book is available in Arabic. Instead of referring all the books the purpose can be served by reproducing the relevant paras. With their pages from 4,-11-4P " Iqdul-Jeed by Hazrat Shah Waliullah because, this book is easily available with its Urdu Translation published by "Qur'an Mahal, Karachi".

(1) Views expressed by Imam Abu Hanifa: {{URDU TEXT}} "Give up my view or what I said if it is found against the Holy Qur'an. The people asked, "If it is contrary to the saying of the Holy Prophet (peace be upon him), then?

32. (The Imam) replied "Give up (my view) The people then asked, "If it is found contrary to the saying of his companions, then?

33. (The Imam) replied, "Even then give up my view." (page 95)

(2) Views expressed by Imam Malik {{URDU TEXT}} "Except the Holy Prophet (peace be upon him) there is no one in the world whose views be accepted with none to be rejected." (page 122)

(3) Views expressed by Imam Shafi'i {{URDU TEXT}} "If I expressed my view about any matter and the same is found contrary to the traditions of the Holy Prophet (peace be upon him), then the best path is not to follow me (blindly)." (page 95)

(4) Views expressed by Imam Ahmed Bin Hembal {{URDU TEXT}} "Neither follow me blindly nor follow Malik nor others and get (the issue decided or deduced) from where they got i,e, from the Holy Qur'an and Sunnah." (page 123)

34. ' I consider it necessary to point out that the jurists have defined the word Taqleed ( A:5 ) as:)

35. "To follow the sayings of non-prophets without knowing the reasoning." (Jama-ul-Jawameh)

36. (Note.-Here the word "Ghair" stands for non-prophets)

37. An impression is sometimes given that believers have to follow the Holy Prophet (peace be upon him) without knowing the reasoning, therefore, it would also amount to "Taqleed". This impression is totally misconceived--firstly because "sayings of the Holy Prophet (peace be upon him) need no reasoning as they are reasoning themselves. Hence to follow the Holy Prophet (peace be upon him) is not a "Taqleed' but obedience and secondly the word Taqleed is used for non-prophets. On account of these ingredients I have translated the word "Taqleed" as "to follow blindly." Means .To follow non-prophets without reasoning.

38. ' In the light of this discussion several questions agitated my mind which can be summarized as under:

(1) Whether the Courts have to follow any specific Imam when the Qur'an and the Ahadith are available to decide any question?

(2) Whether Majority Act, 1857 would prevail over Shariat with reference to age factor of minors in cases of Hizanat?

(3) Is there any difference between Islam embodied in the Textbooks and the Islam radiating from the Holy Qur'an?

39. ' I must concede that I was never convinced to embrace the debatable views about "Taqleed" which are usually expressed by traditional religion Mullas because I smelt extremities in their views.

40. In the present age, I found all such persons, in their practical life to be follower of their ancestors and teachers who have no match with any of the recognized Imam or Faqeeh. For the purpose of debate, these persons may be having strong and convincible arguments but, in their practical life, they are not found different from each other no matter they may call themselves Maqalid (URDU TEXT) or/be called Ghair-Muqalid (URDU TEXT). These were the reasons which forced me to seek guidance from the Holy Qur'an which speaks: {{URDU TEXT}} "Ask of those who possess knowledge (of books), if you do not know." (16:43 & 21:7)

41. ' I have translated the word {{URDU TEXT}} "knowledge of books" on the basis of different verses of the Holy Qur'an including verse 105 of Surah XXI because, in the present context, these meanings appear to be the most suitable. In the said verse "Taurat" was named as (URDU TEXT). Similarly the Holy Qur'an was also stated to be (URDU TEXT) as is clear from the following: ' The (Qur'an) is indeed the Message {{URDU TEXT}} for thee and for the people. (42:44) {{URDU TEXT}} "Before this we wrote in the Psalma after the Message (given to Moses in the shape of Taurat)."

42. (Surah Al-Anmbia, verse 105 i,e, 21:105)

43. The verse quoted above from Surah Nahal (J. ) and Anmbia (URDU TEXT) leaves no doubt that if a person has no knowledge regarding any issue then he has no alternative but to follow those who are considered to be knowledgeable, recognized religious scholars or jurists or those who are well conversant with the real concept of those issue. Therefore I am of the view that views of Imams or such great jurists cannot he ignored easily because they spent their lives in service of Islam day and night and therefore they know much more than those who are self-styled jurists in the modern world. So far as "difference of opinion" among them is concerned, the educated persons are at liberty to follow any view of any Imam which is considered by them to be closer to the Holy Qur'an and the Ahadith. But this right cannot be possessed by every and/or illiterate persons. According to my point of view this sensitive issue was most beautifully dealt in Iqdul-Jeed {{URDU TEXT}} () authored by Hazrat Shah Waliullah and I am of the opinion that views expressed in that book show a true picture of Islamic approach on that issue.

11. Notwithstanding to the difference of opinions among jurists on the point of Hizanat as stated in para. 8 above no believer differs from the binding force of this faith that principles laid down by the Holy Qur'an or Ahadith of the Holy Prophet (peace be upon him) are the Supreme Laws for all Muslims and those principles cannot be ridden over by the views expressed by any specific Imam.

44. ' Unfortunately an impression was germinated in certain judgments that neither there is any verse of the Holy Qur'an nor any tradition of the Holy Prophet (peace be upon him) on the issue of Hizanat, hence the superior Courts were not let with any other alternative but to follow the textbooks particularly written in English. In this connection, I was attracted by a case reported as Mst. Zohra Begum v. Sheikh Latif Ahmed Munawar PLD 1965 (W.P) Lahore 695 authored by Muhammad Yaqoob Ali, J. (as he then was) wherein it was observed by the Hon'ble Judge that: ' On this views, it would be permissible for Court to differ from the Rule of Hizanat stated in the Text- books on Muslim Law for there is no Qur'anic or Traditional Text on the point."

45. ' With utmost regard, respect and praises for Mr. Justice Muhammad Yaqub Ali, J. Whose judgments are the "Beacons of Light" (particularly with reference to Asma Jilani Case PLD 1972 SC 139), if from the underlined words i,e, "Traditional Text", the Hon'ble Judge meant "traditions of the Holy Prophet (peace be upon him) then I may venture to say that there are several books of Ahadith containing Traditions of the Holy Prophet (peace be upon him) on the point of Hizanat.

46. Similarly in the present era a good number of religious scholars have discussed the views of Imams or Faqeehs in their scholarly work on the basis of those Ahadith. Reference in this connection can be made to several books such as "Rozatul Qaza-Wa-Tariqul-Naja {{URDU TEXT}}by Allama Abu- ul-Qasim Ali Bin Ahmed, AulaulSunnan {{URDU TEXT}} by Allama Zafar Ahmed Usmani, Al-Fiqah-ul- Islami-waadalla-Tuhu {{URDU TEXT}} by Dr. Wahbat etc. Unfortunately translations of most of these books were neither available at the time when these judgments were written nor the same are available today (exceptions may be there). For example the famous book "Al-Sunnan-ul-Kubra" by Imam Abi-Bakr Ahmad-Bin-Hussain Bin All Al-Bahqai published by Darul Kitab AlIlmia, Beirut, Labanon, in ten volumes is available in Arabic but its Urdu or English Translation is not available.

47. Perhaps this famous book has not been translated into English or Urdu and if it was translated then the same is out of print today.

12. To demolish such impressions, that there is no Qur'anic or Traditional Text of the Holy Prophet (p.b.u.h.) I would prefer to deal with the question of custody of minors firstly in the light of main sources of Islamic Laws i,e, the Holy Qur'an, the Ahadith of the Holy Prophet Muhammad (peace be upon him) and Ijma. Although Qiyas is also considered to be one of the sources to derive Islamic Laws yet it does not have the status of Ijma. Different Schools of Jurisprudence have their own views regarding Qiyas but the Hanfi School of Jurisprudence has given much more importance to it as compared to any other School. I think that the School of Jurisprudence generally known as Zahiriya {{URDU TEXT}} has not followed the path of the Hanfi School and preferred to act upon the Ahadith of the Holy Prophet (peace be upon him) even if they were found to be weak in their sources as compared to Qiyas.

"HIZANAT"

48. "From the Holy Qur'an"

49. According to my feeble knowledge, most of the jurists have derived from verse 233 of Surah 2 that mother has right of Hizanat at the first instance at least for 24 months. I have used the word "derived" because apparently it N appears from the verse that it is the right of minors that their mothers should give them suck or breast-feeding for 24 months.

50. ' However I could not find any dispute among the jurists regarding this period of Hizanat. It can, therefore, be treated as "Ijma"J on account of uniformity among Imams or Faqeehs that mother has right of Hizanat of her male as well as female offspring in the first instance and during that period of fathers of minors should maintain them too. The referred verse speaks as under: {{URDU TEXT}} "The mothers shall give suck to their offspring for two whole years if the fathers desire to complete the term. But he shall bear the cost of their food and clothing on equitable terms." (2:233) , ' Difference of opinion among jurists starts after the period of two years particularly regarding the following questions: ' Whether the period of Hizanat automatically comes to an end after expiry of breast feeding period?

51. ' What is maximum period of Hizanat?

52. ' Whether the period of Hizanat is indefinite or fixed?

53. The jurists have not referred any Qur'anic Commandment to deduce answers to these questions except the verse relating to fosterage which is limited to two years only.

"HIZANAT"

54. ' From Ahadith of Holy Prophet Muhammad (peace be upon him).

55. ' Several Ahadith of the Holy Prophet Muhammad (peace be upon him) on the issue of Hizanat have been narrated in famous books containing collections of Traditions but I think that "Al- Sunnan-ul-Kubra by Imam Abi-Bakr Ahmad Bin-al-Hussain Bin-Ali al-Bayhaqi (generally referred to and to be referred hereinafter too as al-Bayhaqi) contains all those traditions. Darul-Kitab AlIlmia, Beirut, Labanon published Al-Bayhaqi in ten volumes and all those traditions are mentioned in Volume VIII. Several points regarding issue of custody of minors can be derived from those traditions. Relevant portion of few Ahadith are reproduced herein under:

(a) Narrated by Amr Bin Shuaib from his father that: {{URDU TEXT}} "A woman said to the Messenger of Allah,' this is my son for whom my abdomen was a vessel (means a resting place for him), my breast was a water carrier (means a drinking place for him) and my lap was the refuge (means a soothing place for him). His father divorced me and is determined to take him away from me. The Prophet (Messenger of Allah) (peace be upon him) said to her, 'you have better right (to have your son) till you are not remarried'."

56. ' The tradition is numbered 3231 in Mishkat in Chapter Balughul Saghir Wa-Hizanathe-fi-Saghir {{URDU TEXT}} published by Deeni Kutab Khana, Lahore with reference to Ahmed, Abu-Daud while in Al-Bayhaqi referred above, the same tradition was numbered as 15763 on page 7 of Vol. VIII.

57. ' It can be derived from this tradition that:

(i) Mother has more right than father over the minors till her new marriage after divorce from her previous husband.

(ii) In other words if the mother does not marry then the right would continue.

(iii) Even if she marries, the right does not come to an end because the tradition does not say that the right seizes after remarriage.

(iv) It is evident that this Hadith does not support the concept that right of Hizanat seizes as soon as the minors attain specified age as expressed by different School of Jurisprudence.

(b) The "better right of mother" as compared to that of father regarding issue of custody of minors can also be derived from another Hadith numbered as 15755 on page 2, Vol. VIII of Al-Bayhaqi narrated by Abu Hurrairah as under: {{URDU TEXT}} ' A man came to the Holy Prophet (peace be upon him) and asked "0 Messenger of Allah, who has better right and suitable for me regarding {{URDU TEXT}} means I have to live with)'. The Holy Prophet said, "Your mother". The man asked, "After that?" The prophet said, "After that your mother".

58. The man asked (for the third time), After that?" The Prophet said, "After that your mother." The man asked (for the fourth time), "After that?" The Prophet said, 'After that your father'."

59. ' In certain books the word ( ) means "after that", as used and underlined above with the words "Your mother", has not been used (Tradition No, 15756- Al-Bayhaqi). This tradition cannot be limited to 'the concept of Hizanat on account of two reasons. Firstly the concept of "serving the parents also arises from the said tradition and secondly intelligibility secreted in the questions asked by the person in the above tradition leaves no doubt that he was not a small child but intelligent enough to exercise his discretion. If there had been any law that a male baby, after attaining the age of seven years had to be handed over to father and mother would automatically lose the right of Hizanat after that age, then Holy Prophet's answers (peace be upon him) must have been according to that law.

(c) Stated by Abi-Maimonah with reference to Abu Hurairah: {{URDU TEXT}} "A woman came to the messenger of Allah and said, "My husband wants to take away my son, although he means son) gives me comfort and brings water for me from Abu Enubah (or Abu Inmbah) well (thereon) her husband appeared and insisted that he had (right) over his son. (The Prophet then said), "0' Child! Here is your father and here is your mother, catch hold of hand (means make a choice between the two) whomsoever you want." The (son) caught hold of the hand of his mother and she went away with her(son)."

60. (Hadith No, 15758 in Al-Bayhaqi. The same or similar incident is mentioned in Hadith No, 3233 and 3234 with reference to Abu-Daud, Al-Nissai and Darmi in the Mishkat (referred above). This Hadith was related to a son but the following Hadith relates to a daughter: {{URDU TEXT}} "(d) Narrated by Rafe-bin Sanan that he had embraced Islamic faith but his wife refused to do so.

61. Their daughter became subject-matter of their dispute regarding her custody. Mother approached the Holy Prophet (peace be upon him) and said "My daughter's feeding by me has been stopped (by her father). Rafe said, "She is my daughter". The Prophet asked Rafe to take his seat at one side and the woman was asked to sit on the other side. The daughter in dispute was made to sit between them. Thereafter he asked both of them to call the daughter to them. The daughter seemed to be inclined towards mother. The Holy Prophet prayed, "May Allah guide her (means the daughter). The daughter then got inclined towards her father who picked her."

62. (Hadith No, 15760 in Al-Bayhaqi).

63. ' Several points can be derived from the two traditions, mentioned above as (c) and (d), such as:

(i) Choice of the minors can be given preference to minor sons as well as daughters. I am of the opinion that this choice cannot be presumed "discretion" but I think that it was only mental affiliation of minors with any of their parents. The reason is obvious. The minors were too young to discrete between their welfare and mental affiliation.

64. (ii)The reason of giving choice to minors by the Holy Prophet (peace be upon him) appears to be based upon the expected consequences of adversative psychological effects on mental growth of innocent minors as a result of their separation from such guardian with whom the minors have developed love and affection. Medically it has been observed in several cases that forced separation of minors from mentally affiliated guardian has been detrimental to their health, education and future growth.

(iii) Thus choice can be given to a minor to go to a mother even if she is non-Muslim provided the same is in the interest of minor.

(iv) It can be easily realised from the above incident that a son who used to bring water from a well for his mother must be at least more than 7 years old and healthy enough to carry weight of water from a well to a house.

65. "HIZANAT "From Caliphs of the Holy Prophet (peace be upon him)"

66. ' Case of Asim bin Umer is the most famous case which was decided by (Hazrat) Abu Bakr RA. (the first Caliph) in favour of Asim's mother against (Hazrat) Umer-bin-al-Khitab RA. (the second Caliph). This case can be summarised as under: "Hazrat Umer bin al-Khattab divorced his wife who had given birth to a son known as Asim bin Umer. One day when Umer was going on horseback towards Quba, he found his son playing in front of the mosque. He caught hold of him and placed him on the horse back. The quarrel arose between Hazrat Umer and the lady in whose custody that child was (according to one version she was divorced wife and according to another version, she was maternal grandmother of the minor).

67. The dispute was put before Hazrat Abu Bakr who was Caliph at that time. Hazrat Umer's claim was based upon his being the father of the minor. After hearing the parties Hazrat Abu Bakr pronounced his decision by asking Hazrat Umer to leave the woman with the minor. It has been quoted in one of the versions that Hazrat Abu Bakr said to Hazrat Umer, "I have heard the Prophet saying "Do not separate mother from her child". In another version the saying of Hazrat Abu Bakr was "0' Umer!

68. Saliva of child's mother shall be sweeter to the child than your honey". This incident was narrated in two traditions in Al-Bayhaqi at Serial No, 15764 and 15765.

69. ' In presence of all these traditions if any-one stresses upon the factor of age of minors for the purpose of their custody only on the strength of views expressed by different schools of jurisprudence and without any research work then it would mean nothing but to promote sectarianism which is hateable in Islam because the same is strictly prohibitive on account of the Qur'anic commandment that "be not divided among yourselves" {{URDU TEXT}}

13. Regarding Majority Act, 1875, I am of the view that strict compliance of its provisions in each and every proceedings under the Act may render its several provisions redundant. For example section 17(3) of the Act contemplates that if the minor is old enough to form an intelligent preference, the Court may consider that preference. Similarly the factors of religion, if taken into consideration with reference to age and sex as embodied in section 17(2) of the Act; have their own importance because the words "shall have regard" used in the said section make it compulsory for the Court not to ignore these aspects in any manner whatsoever. Similarly this reality cannot be denied by anyone that from Islamic point of view application of Majority Act in each and every case can create several complications particularly in the cases of marriage, dower or divorce of those who have touched the age of pubescency but have not attained the age of majority according to the Majority Act. The pubertal age in cold region of the world may be more than 18 years but it can be less than 12 years in the hot zones of the globe. However, in most of the cases, age of puberty is fixed at fourteen for the male and twelve for the female but whatever may be the age of puberty, a Muslim girl has right to marry as soon as she attains puberty no matter she has or has not attained majority according to the Majority Act. As marriage involves the question of dower, maintenance, custody of children, divorce etc., therefore, if section 3 of the Majority Act 1875, is read with Order XXXII, Rules 1 and 3 of Civil Procedure Code, then a woman below the age of 18 years can neither sue nor to be sued in respect of her rights related to her marriage, dower, maintenance, or divorce.

70. Thus complications, arising in implementation of Majority Act, gave birth to conflicting views expressed by different Courts. The Madras High Court (AIR 1952 Madras 754), in the case of Abdul Azeez v. Fathumma Bi observed that Mohammadan woman, minor according to Majority Act but major according to personal law, cannot file suit for dissolution of her marriage without next friend.

71. Same views were expressed in the case of G.E.G.R. v. E.M.R. (AIR 1925 Sindh 95), Contrary view was expressed in the case of Ahmed Suleman Vohra v. Mst. Bai Fatima (AIR 1931 Bombay 76) wherein the Division Bench held that: "Mohammadan Law entitles a woman of 16 and over to sue for a divorce. Under section 2(a), Majority Act, nothing in that Act shall affect the capacity of any person to act in marriage, dower, divorce and adoption. The wife suing for a divorce acts in the matter of divorce. Therefore, she is entitled to sue without a guardian."

72. ' The Court in that case thus did not agree with the contention that wife being 16 years old, and not 18, was not competent to sue without a guardian. This view was adopted by judiciary in Pakistan.

73. Reference can be made to the case of Mst. Sat Bharai v. Nur Elahi reported in PLD 1951 Lahore 408 (DB). In the light of this discussion, there remains no doubt that Muslims who have attained majority on account of attaining puberty but are minors according to the Majority Act, being the persons below the age of 18 years, can sue and be sued to protect their rights themselves.

74. ' I think that section 21 of "the Act" appears to have reduced the strictness related to the issue of majority. This section runs as under: "S.21. Capacity of minors to act as guardians.-A minor is incompetent to act as guardian of any minor except his wife or child, or, where he is the managing member of an undivided Hindu Family, the wife or child of another minor member of that family."

75. If this section is read with the age of puberty then it is evident that a married male can serve as guardian of his own wife even if he is treated to be minor on account of not having attained the age of eighteen years according to the Majority Act.

14. By keeping all these points in view alongwith the application of "Enforcement of Shariat Act, 1991", I am. Of the opinion that controversy arising out of the conflicting views with reference to Order XXXII, Rule 1 and 3, C.P.C. And the Majority Act, 1875 regarding Muslim Personal Laws as embodied in the Religion of Islam has come to end.

76. It is, therefore, my considered view that if any woman has right to marry, can claim maintenance after marriage, ask for dower before or after marriage, seek divorce (in case of right of Tafweez-e- Talaq) or be divorced or/and enter into second marriage or contract any such other agreement regarding her rights in accordance to the Muslim Personal Law then she can sue and be sued in all such disputes independently of a next friend or through guardian ad litem. In this regard the Muslim Personal Law may be treated as Special Law while the provisions of Order XXXII, Rules 1 and 3, C.P.C. Read with section 3 of the Majority Act can be treated as general provisions of law. This view gets further support from section 19(a) of "the Act" according to which the Guardian Court is not authorised to appoint or declare a guardian of the property or of the person of a minor who is married female and whose husband is not, in the opinion of the Court unfit to be guardian of her person. If this section is read with section 21 of "the Act," then it can be said with certainty that application of Majority Act with reference to the age factor is not possible in each and every case especially in a Muslim society. Hence age of puberty has to be excluded from the age of majority as given in section 3 of the Majority Act, 1875 in matters of the Muslim Personal Laws particularly when the same confronts or is contrarious to the Laws of Islam.

15. Out of 53 sections of the Guardians and Wards Act, 1890, there is not a single section which could support the factor of specific age, as stated in para. 8 above, for the removal of minors from custody of mothers. Similarly factors of re-marriage of a woman and custody of minors have not been made reciprocal in any of these sections. These factors were taken into consideration by the Hon'ble Judges of the superior Courts in the past on the strength of particular school of Jurisprudence and the same were followed by subordinate Courts on account of Constitutional binding force. With reference to the case of Muhammad Swaleh and another (PLD 1964 SC 97) if "a 3rd Class Civil Judge can hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity" then question arises whether the High Courts, while exercising their Constitutional Jurisdiction, in the cases of Muslim Personal Laws would not be justified to declare any such decision to be nullity if the same is neither based on any section of the Act nor is supported by any of the three main sources of Islamic Laws i,e, The Holy Qur'an, the Ahadith of the Holy Prophet and Ijma? Although my answer to this question returns in the positive, yet instead of discussing this question in detail, I would like to encircle this judgment with true import of section 25 read with section 17 of "the Act' because both these sections are supplementary to each other.

77. The use of words "welfare of the minor" or "welfare of the word" in sections 17 and 25 of the Act respectively leave no ambiguity that while dealing with applications under section 25 or 17 of "the Act", it is not the duty of Guardian Judge to fad out the right of mothers or fathers regarding custody of minors but the real duty of the concerned Court is to search out in whose custody the welfare of minors lies. Large number of factors has to be taken into consideration with reference to the real concept of "welfare" of minors such as factors of health, education, mental affiliation of minors with custodians, religion, sex, age, expected effects of remarrying by the divorcee or divorcee upon minors etc. It may not be feasible to discuss all these factors in this judgment in detail but I consider it proper to explain this aspect to some extent with reference to the sex of minors in the light of our prevailing society. This fact may not be denied by any sensible person that male minor and female minors have different psychologies. The female minor requires longer association of her mother till her puberty on account of several reasons. For example, in our society, the female child is usually bashful, mostly tender hearted any symbol of delicacy in her nature.

78. Such female child is not expected to disclose the signs of awakening of her sex to her father. On account of this reason, I have no hesitation to hold that a female minor must remain with her mother provided she does not lose her right of Hizanat on account of certain established rules and principles. On the other hand, the male minor requires virility physically as well as temperamentally to adjust himself in today's complicated society of human-beings. Therefore it is believed that a male child can be better brought up by father after specific age as viewed by different scholars.

79. ' No doubt these psychological realities have their own importance but paramount consideration would be the welfare of minors. At the same time, in my opinion, growing trend of modern educated urbanized families towards social advancement influenced by foreign culture directly or through foreign media is diminishing this difference between male and female minors in such families but the said difference is still a distinctive and conventional character of reality or of ruralists. Therefore the Guardian Courts are also expected to keep in view the sociological difference between urbanism and ruralism at the time of deciding application under section 25 or 17 of "the Act" regarding custody of minors under this Act instead of clinching with the time-barred trend of passing orders on the basis of only few factors particularly the factors of age and remarriage of divorced mother. It may be interesting to point out that, in our rural society marriages, divorces and polygamy are significant features of feudalism, as in society of the Arabs, but such factors are not liked by majority of famalies in urbanized society. On account of this reason remarrying of a divorcee and her right of Hizanat from Islamic point of view is no doubt inter-related but at the same time in our Pakistani society which is socially influenced by Indianized brand of culture in all fields of our life, remarrying of divorcer and conduct of step-mother with minors (generally expressed in Seraki as {{URDU TEXT}} means step-mother converts real father into butcher) cannot be ignored while deciding an application regarding custody and welfare of minors. (Reliance in this regard can be placed on the case of Ghulam Ullah Memon v. Mst. Rashid Begum reported in 1983 SCMR 793.

16. This reality may not be denied by any realist that unpopular and hated rulers, particularly the usurpers of State-Power on the strength of guns by imposing Martial Law always use the name of Islam and Shriah with hope to get support of public. Their disciples always adopted the same path but history of Pakistan is witness to this reality that such people were always condemned. Prior to Zia's Martial Law Regime, General Muhammad Ayub Khan, after imprisoning the whole nation in the chains of his Martial Law, adopted the same path by introducing "West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Same thing was done by General Zia's disciples after the elected Government of Pakistan People's Party was sacked. Those disciples promulgated "Enforcement of Shariat Act" in 1991 only to divert the attention of common people from their nefarious role of sabotaging the democratic process in the country. How much Shariat and its laws were introduced by such Acts decorated on papers? It needs no comments as reality is known to everyone. However, if section 2 of the Shariat Act, 1962 is analysed with sections 3 and 4 of the Enforcement of Shariat Act, 1991 in the light of judgments reported in PLD 1981 FSC 278 and PLD 1983 SC 273 then there remains no doubt that all questions regarding guardianship, custody of minors and their welfare have to be decided on the strength of Islamic Law (Shariah) which has been defined as "the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah" in section 2 of the said Act of 1991 with the following explanation:-- "Explanation.---While interpreting and explaining the Shariah the recognised principles of interpretation and explanation of the Holy Qur'an and Sunnah shall be followed and the expositions and opinions of recognized jurists of Islam belonging to prevalent Islamic Schools of jurisprudence may be taken into consideration."

80. It is thus evident that views of jurists may be taken into consideration but they are not binding upon the believers. The binding force only relates to the Holy Qur'an and Sunnah. This definition as well as explanation has to be read with section 3 and section 4 of the Shariat Act, 1991 with reference to the supremacy of Shariah and interpretation of different provisions of law.

17. In the light of traditions quoted in foregoing paragraphs I have no hesitation to hold that the Holy Prophet (peace be upon him) decided every case of Hizanat or Willayat in accordance to the facts of each case by keeping in view the welfare of minors. The factor of remarriage of divorcee and age of minors have secondary and only social importance but these factors cannot ever ride the welfare of minors. It may not be out of place to mention that when (Hazrat) Ume Selma married with the Holy Prophet (peace be upon him), she had children from her previous husband. It is historical fact that those children were not taken away by any member of their paternal family.

81. They remained with their mother even after her marriage with the Holy Prophet (peace be upon him). Therefore, remarriage of any woman does not necessarily mean the end of right of Hizanat.

82. These are the reasons due to which our superior Courts decided cases even against' the real parents of minors whenever they realised that custody of minor would be detrimental to their welfare. For example in the case of Sh. Abdus Salam v. Additional District Judge, Jhang reported in 1988 SCMR 608, the petitioner had adopted the son of his brother-in-law because his wife namely Mumtaz Begum was issueless. The father of the minor namely Sh. Ahmed Nawaz has many children, therefore he gave one of his son to his sister Mumtaz Begum when the said minor was only one year old. After about 9 years, father of the child moved an application before the Guardian Judge on different grounds but his application under section 25 of the Act was dismissed for the reason that the parents of the minor has themselves handed over the child to the petitioner.

83. This order was challenged in appeal which was heard by the Additional District Judge, Jhang. The minor was presented in the Court. Lie was asked as to with whom he would prefer to stay. The child categorically stated that he would prefer to live with petitioner instead of living with his parents but despite this, the Additional District Judge reversed the judgment ad decree passed by the Guardian Judge and directed to hand over the custody of minor to the real parents. The said order was also upheld by Lahore High Court. Matter came before the Supreme Court and the Hon'ble Bench of the Supreme Court comprising of Aslam Riaz Hussain and Javid Iqbal, JJ. (as they then were) observed as under:- "We have carefully heard learned counsel for the parties. The parties were also present and were heard. The disputed minor was likewise present and he showed before us his preference to live with the appellants. The appellants are providing him with education. Mst. Mumtaz Begum appellant is herself a Headmistress. The appellants are socially and economically of a status to bring up the child properly. It is also in the welfare of the child that he should live with the appellants who have looked after him for 9 years and brought him up as their son."

84. This judgment of the Hon'able Supreme Court leave no doubt that paramount consideration is the welfare of minor and not the custody with mother or father or both.

18. I have, therefore, no hesitation to hold that even a natural guardian can be deprived to have custody of minor if the Guardian Judge or any Superior Court dealing with such matters is of the opinion that he is undesirable and/or unfit for the welfare of minors in dispute because section 25 of the Act does not deal with the right of guardians over innocent minors like their rights over movable properties but it undoubtedly, relates to the duties of Guardian Judge and the rights of minors. These duties demand the concerned Courts to exercise their powers only and only in welfare of the minors which is their fundamental right to be protected by those Courts on account of having parental jurisdiction in such proceedings.

85. ' It is necessary to point out that several learned advocates appearing on behalf of fathers of minors generally refer the case of Ali Akbar v. Mst. Kaniz Mariam reported in PLD 1956 Lah. 484 or the case of Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi reported in PLD 1956 Kar. 150 which contain contrary views.

86. ' So far as the case of All Akbar (supra) is concerned it is not authoritative on account of being decided by a Single Bench of Lahore High Court but is only persuasive in nature. In that case it was observed by the Hon'ble Judge that:-- ". If by Muhammadan Law a particular relation is entitled to the custody of a minor we should presume, in the absence of proof to the contrary, that the welfare of the minor is being delivered to that person. The minor being over 7 years of age, the right of custody under Muhammadan Law belongs to the father. Not only is there the ordinary presumption of the welfare of the minor, but we have also to keep in mind the strong position of the father with respect to guardianship of the person as well as the property of the child.............................................. "

87. ' Thus the Hon'able Judge of the Lahore High Court decided the case in favour of father against mother of the minor on the basis of presumption by relying upon textbooks on Mohammadan Law.

88. I have no hesitation in my mind to hold that textbooks can neither override the statutes nor the main sources of Islamic Laws. If any view is expressed in any textbook without any support from the main sources of law, then they may be taken into consideration but cannot be treated binding upon anyone. Similarly presumptions cannot be treated certainties. Welfare of minors is a question of fact which can never be resolved on the basis of presumptions, as supposed by the Hon'ble Judges of Lahore High Court. This was the reason that the said judgment was not approved by the Supreme Court.

89. ' The case of Mahmooda Khatoon (supra D.B.) was also decided on the same footing as of All Akbar's case. It was observed by the Hon'ble Division Bench that:-- " As there is no material on the record for coming to any conclusion in this regard, it cannot be said that the father's conduct was such as to show that he was not fit to have the custody of the children or that he was disentitled to get their custody ' Under Shia Law, the mother has the right to the custody of a male child until he attains the age of 2 years and that of the female child until she attains the age of 7 years. After these ages the lawful custody of the children belongs to their father."

90. ' Unfortunately, the question of welfare of minors was neither raised by the learned advocates in that case nor the same was taken into consideration by the Hon'ble Division Bench. In spite of these aspects, this judgment was binding upon me on account of being the decision of Division Bench provided the same had been upheld by Supreme Court. Fortunately this judgment of the Division Bench and the case of Ali Akbar (supra) were looked into by strong Bench of the Hon'ble Supreme Court comprising of SA. Rahman, Hamoodur Rahman and Muhammad Yaqoob Ali, JJ. (as they then were) in the case of Rahimullah Choudhry v. Mrs. Sayeda Helali Begum reported in 1974 SCMR 305 but none of the two was approved. On account of these reasons, these judgments cannot be made the foundation of any decision on the point of Hizanat.

91. ' Similarly all those judgments which are based and relied upon the same footing are not to be followed blindly particularly by any High Court because they contain outdated concepts of deciding application under section 25 of "the Act" only to the extent of rights of father or mother on the basis of different textbooks of different school of Jurisprudence and not the rights of minors with reference to their welfare. Main reason for adopting such an attitude by the Courts may be the non-availability of translations of several important Arabic Books into English or Urdu which are the Court's languages. Most of the Islamic books are available in Arabic which is not a common language in the Courts in Pakistan. Therefore the Hon'ble Judges of the superior Courts were left with no other alternative but to follow the textbooks usually written in English. This bitter reality cannot be denied by anyone that most of these scholars, who wrote textbooks in English, belonged to specific schools of jurisprudence. Therefore it was natural that judgments of the superior Courts were influenced by the views expressed in those textbooks. At the same time this reality can also be not denied that liberal thinking of certain Hon'ble Judges of the superior Courts kept this view always alive that the Holy Qur'an and the Sunnah of the Holy Prophet (peace be upon him) would ever prevail over the views of Imams and Faqeehs. In this regard I would refer the example of Mr. Justice Muhammad Shafi, J., who never hesitated in expressing his views against traditional trend of following the textbooks as is evident from the case of Mst. Rashida Begum v. Shahab Din and others reported in PLD 1960 (W.P.) Lahore 1142. Reproduction of few sentences hereinunder may be sufficient to support this averment: ' In Islam, relationship between God and a man is direct and simple. No priest, Imam, Pir or anybody else belonging to this or that category of people (dead or alive, in grave or out of grave) is required to intervene....Unfortunately since several centuries the doors of interpretation of the Holy Qur'an in the light of new circumstances have been completely shut out with the result that Muslims have succumbed to religious coma, cultural deterioration, political paralysis and economic decline. The inertia which has caught the Muslims nation socially, economically and politically has to be shaken off Etihad by a single individual or by a few individuals was considered even by the Muslim jurists as dangerous undertaking of the Qur'an and the application of its general principles is not the privilege of one or two persons but a right and a duty of all Muslims which should be exercised by the person chosen by them, for this purpose."

19. Now come to the merits of the petitions in hand. The statement of petitioner recorded as "Examination-in-Chief does not contain a single sentence to show any relation with the issue of "Hizanat" or Willayat or any detail according to which the Guardian Court could reach a definite conclusion that welfare of the minors was lying with the petitioner. The Guardian Court presumed the welfare of minor with their father in the same manners as was presumed in the judgments of Lahore High Court on the basis of ages of minors and remarrying of divorcee. The Guardian Court was perhaps unaware that all these presumptions were not approved by the supreme Court.

92. ' Similarly it was astonishingly enough for me to note that even the learned counsel for the respondent did not ask any question from the petitioner in cross-examination to shatter his right of Willayat. The only important point radiating from the cross-examination of the petitioner appears as under:-- "I (means petitioner) allowed her (means respondent) to take the children as she was my wife. It is correct that right from 1985, till today the minors are with respondent."

93. ' It is therefore, evident that the wards in dispute had not left the house of their father nor they had been removed from his custody. They remained with their mother with the consent of petitioner till the litigations started in the Courts. Same is the nature of statement of respondent because not a single question was put by the petitioner to shatter the custody of minors with their mother with reference to the "welfare of minors". The respondent appears to have been cross-examined by the petitioner himself and in the cross-examination, her attitude towards the petitioner can be easily realized from her following replies: "I have alleged `Bharwat' against you in my case of Guardian and Ward because you used to supply me to the other man.

94. ' It is correct you have used filthy language against me and has stated the words `Randi and Tawaif."

95. ' Hence I have no hesitation to hold that not only the petitioner but the respondent, too, did ask only what could satisfy their egos to molest each other regarding their sexy characters without realising their consequences and effects on the minds of innocent minors. Hence both the parties remained at daggers drawn for their prestige at the cost of their minors' welfare. But the most shocking factor for this Court was the attitude of the Guardian Court which appears from the record as was recorded by the Court in the following words:-- "At this stage the attitude of the applicant (means petitioner) is not proper as he is demanding questions in evasive manners and in spite the direction and warning of the Court he is continuing the same attitude."

96. The Courts are bound to protect their decorum at any cost whatsoever. If the petitioner was not paying any attention to the warnings of the Courts then adjourning the matter under some apprehensions was not its solution. It needed some strict action.

97. ' Therefore, I could not appreciate such leniency shown to the parties by the Court at the cost of decorum of the Court.

98. ' A bare perusal of the evidence, adduced by the parties in the Guardian Courts and the judgments of both the sub-ordinates Courts forced me to hold that both the Courts below have acted illegally and with material irregularity in exercising their jurisdiction.

99. The Courts working as Guardian Courts or the Appellate Courts while dealing with such matters have to exercise parental jurisdiction in its true sense and in that capacity, it is not proper for the Courts only to believe assertions of the contesting parties particularly when it is open to the Courts that the parties are warring with intention to molest each other. Therefore, I am of the view that Guardian Courts, in all such circumstances, on account of having parental jurisdiction, must ask from the spouses at war as many as necessary Court questions to ascertain authenticity of their versions with reference to the welfare of minors in case the children in dispute are not presented in the Court and they are to young to understand the real concept of their welfare. However, if the minors are intelligent enough, then Guardian Courts should not ignore this important factor that their statements would be the most important factor for deciding application under section 25 or 17 of "the Act". It my not be out of place to mention that in the present age, religious fanatics alw ys prefer to sacrifice the welfare of their minors in their furnace of fanaticism but the Courts are required not to fall in the clutches of specific schools of jurisprudence such as Sunnis or Shias. The Court must treat the minors only Muslims when they are offspring of a couple claiming to be follower of Holy Prophet Muhammad (peace be upon him) particularly when the minors are too young to understand and differentiate between views of different sects. The Courts in all such cases must keep in view only the welfare of minors instead of putting a seal of legalization on sectarianism.

100. In the present case both minors have attained puberty. Therefore, from Islamic point of view, I have no hesitation to hold that question of Hizanat or Willayat has become time-barred because age of puberty is the age of discretion according to which they can exercise their discretion to enter into any contract of marriage, divorce, maintenance, business besides showing their willingness to stay or refuse to stay with any of their relative, may be a father or mother.

20. However, the matter does not end here. The age of majority as mentioned in the Majority Act, 1875 has always hurdled in several matters. Although I have touched this aspect in detail in para. 13 above but I consider it necessary to touch this aspect from petitioner's point of view too by considering the children to be still minors according to the Majority Act.

101. Section 25(1) of the Guardians and Wards Act can be bifurcated into two parts for determining its scope and application i,e,:

(i) If the Ward leaves or is removed from the custody of guardian of his person, ' The Court, if it is of opinion that it will be for the welfare of the Ward to return the custody of his guardian, may make an order for his return.

102. In the present case it is an admitted position that neither the minors left the petitioner of their own nor they were removed from the custody of petitioner. Hence first part of the section does not appear to be applicable. So far as the second part of the section is concerned, no matter the same is read conjunctively or not with the first part, it does not permit any Court to ignore other relevant sections of the same Act. Therefore, if section 25 is read with section 17(3) of "the Act", then the Guardian Courts have to keep into consideration the preference of minors too at the time of making an opinion regarding custody of minors and their welfare. I have no hesitation to hold that both the subordinate Courts have failed to exercise their parent jurisdiction in their true sense as they have not taken into consideration the wishes of the minors in terms of section 17(3) of "the Act" particularly after their attaining puberty. Therefore, the opinions drawn by the subordinate Courts on the basis of textbooks or judgments of High Courts not approved by the Supreme Court are not sustainable in the eyes of law. In my view this legal defect radiating from the judgments of the subordinate Courts with reference to section 17(3) of "the Act" is more than sufficient to declare that the impugned orders of the Courts below were passed without any lawful authority.

21. In the last but not the least, I would like to point out that section 25 of "the Act" does not say anywhere that custody of minors be decided on the basis of views expressed by different schools of Jurisprudence with reference to minors' ages or remarriages of divorcees. It has become a trend to seek support of the statutes if the same favours any party and in such case the party never hesitates to ignore the law of Shariat if the same appears to be contrary to his/her views. Similarly if the law of statutes does not support any party on any issue and the Islamic Law favours the party concerned then Islamic Law is embraced with slogans that being a Muslim, we have to follow Islamic Law. This attitude is nothing but only exploitation of Islam which is an insult to an Islamic System. If anyone considers that any Act and its provisions be interpreted and be applied strictly in accordance to the intention of the legislation, then such person should not use Islam by keeping it under the provision of Statutes. Same attitude of the parties was observed in the present case.

103. When I asked Syed Ansar Hussain, the learned counsel for the petitioner, about the present ages of minors and their effect on the rights of Hizanat or Willayat, the learned counsel stressed that age factor be decided according to the Majority Act of 1875. If this contention is embraced then the result is obvious i,e,, Islam has to be kept under the thumb of more than 120 years old Majority Act.

104. At the same time the learned advocate advanced his arguments on the basis of Islamic Laws as mentioned in textbooks particularly the issue of custody of minors from mother to father after the expiry of specific ages of minors which provision is not endorsed by any provision of the Guardians and Wards Act. If provisions of Islamic Laws on any issue have to be applied then they must be applied fully. It is not proper that some percentage of the Islamic Law be amalgamated with the remaining percentage of un-Islamic Laws of the British Rules to prepare a compound of "Infidelity in Islam" to apply the same with a hope that it would bring to end the disputes or cure the miseries of Muslims. Disputes among the Muslims and their miseries can be brought to end if the Muslims stick to the "Islam of Holy Qur'an" and reject the brand of Islam germinated from the seeds of textbooks written by scholars believing in specific schools, of Jurisprudence. Those scholars never hesitated to title the provisions of un-Islamic Laws as "Muhammadan Law". In this connection I refer section 348 of "Principles of Mahomedan Law by Mulla" of its Chapter XVIII related to Guardianship of Person and Property which speaks that:-- "In this chapter minor means a person who has not completed the age of eighteen years."

105. ' Undoubtedly this provision is un-Islamic. Treating some one minor under the age of 18 has been embodied in the Majority Act but the impression which appears from "Principles of Mahomedan Law by Mulla" is that it is the part and parcel of Muhammaden Law. The said chapter consists of 20 Sections excluding its first section 348. Can a Court consider all these sections to be Islamic when their foundation has been laid down on an un-Islamic concept ? At least my answer to this question returns in the negative. On account of this reason I am of the view that the Courts must not only be very careful while depending upon the textbooks written by jurists of the British Rule but should also not hesitate in differerentiating between the "Islam of Textbooks and "Islam of Holy Qur'an."

106. ' The learned advocate for the petitioner was of the view that provisions of textbooks on Islam as well as the provisions of Islamic Laws radiating from the main sources of Islam regarding remarriage of divorcee can be taken together as there appears no difference between the two.

107. Therefore I consider it necessary to deal with the question of remarrying of the present respondent and its effects on the issue in dispute to some extent in detail.

22. It was contended by the learned counsel for the petitioner on the basis of textbooks, particularly on the strength of clause (1) of section 354 of "Principles of Mahomedan Law" by Mullah (in certain editions this section is numbered as 350) that the respondent had lost right of Hizanat over the minors in dispute soon after she married a person not related to the minors within the prohibited degrees. There is no such provision in the Guardians and Wards Act, 1890 to support this contention hence the petitioner has no case if only the Act is taken into consideration. However, if this contention is judged on the basis of one Hadith of the Holy Prophet (peace be upon him) referred in para. 12 (a) above then it has force in it. The relevant portion of the Hadith, as spoken by the Holy Prophet (p.b.u.h) is as under. "You have got better right to take him till you are married." {{URDU TEXT}} ' Mr. Justice Muhammad Shafi, J. (as he then was) had shown certain doubts about the authenticity of this Hadith in the case of Mst. Rashida Begum PLD 1960 (W.P.) Lahore 1142 on two grounds firstly it would amount to putting a premium on remarriage of widows which is against Islam and secondly it runs contrary to other traditions reported from Prophet Muhammad (peace by upon him) comparatively by better authority. In this regard the learned Judge had relied upon a tradition mentioned in Mishkat with reference to Tirmazi which contained the saying of the Holy Prophet (peace be upon him) as narrated by Hazrat Abu Ayub Ansari in the following words:-- {{URDU TEXT}} "Who so creates separation between the mother and her child, Allah will create separation between him and those dearest to him on the Resurrection Day."

108. ' With utmost regards for such a learned Judge (who had worked with Mr. Justice M.R. Kiyani the then Chief Justice of West Pakistan and who had announced the said order of the learned Judge), I found myself unable to embrace the views of the Hon'ble Judge regarding his doubts about the said Hadith. The learned Judge has referred the traditions of the Holy Prophet (peace be upon him) only from Mishat-ul-Masabih which contains Ahasdith mentioned in different books such as Bokhari, Muslim, Nissai, Tirmazi, Ibn Maja, Ahmed, Abu-Daud etc., therefore, the views expressed by the Hon'ble Judge by the use of words "comparatively better authority" for one book of Ahadith (Tirmazi) in comparison to the other books by referring the same from Mishkat may not be acceptable to any other Judge of a High Court and I consider myself to be one of those Judges.

109. Moreover the tradition referred from Tirmizi refers a general rule according to which separation between a "mother" and a "child" was not appreciated but this tradition does not speak anything about the effect of remarriage of divorcee. If the impression given by the Hon'ble Judge is treated to be acceptable then minors must always remain with their mothers without any right of fathers. It is thus obvious that interpretation of the Hadith narrated by Abu Ayub Ansari in Tirmazi cannot be the same as was presumed by the Hon'ble Judge. Hence in my view, the said Hadith does not appear to be contrary to the Hadith narrated by Amr-bin Shoaib as quoted in para. 12(a) above. I am, therefore, of the view that divorcee does not possess the same right of Hizanat of a minor after her remarriage which she possessed before her remarriage.

110. ' But the question arises whose right prevails after remarriage of a J divorcee? Whether it would be the right of (i) father, (ii) or minors to decide themselves, or (iii) of the Court.

111. ' I am of the considered opinion that in all such cases, right of minors shall prevail over the rights of all others provided they are intelligent enough to consider their welfare and if minors are too young to exercise their discretion then Right of the Courts (Qazis in Islam) would be dominative in deciding the issue in favour of the matter or the father. On the basis of these propositions I have no hesitation to hold that both the Subordinate Courts were bound to take into consideration the choice of the children in dispute who has attained puberty. Ignoring such an important factor by the Courts below would always be fatal to such impugned orders.

23. It may be necessary to point out that word Willayat has been derived from the word Wali {{URDU TEXT}} which has its own import in its religious sense and the same can be easily deduced from the following verses of the Holy Qur'an? {{URDU TEXT}}

(i) "Allah is the Protector of those who have faith" (2 : 257) {{URDU TEXT}}

(ii) "Undoubtedly, my Protector is Allah" (7 : 196) {{URDU TEXT}}

(iii) "0 ye who believe, take not you fathers and your brothers (as) your friends; if they love infidelity above faith" (9:23) {{URDU TEXT}}

(iv) "We made the evils ones friends (only) to those without faith" (7:27)

112. ' The word "Protector" (English translation of Arabic word Wali) means one who defends, shields or protects from injury, evil or oppression as a guardian. Thus the word "Wali" has totally different concept from the concept of "owner" in its real and legal sense although people having mentality of feudalism always treated themselves owner of every living soul under their control to be their movable property. It may be most interesting to note that in English History, the word "Protector" was used for a person who has the care of kingdom during the minority, absence or incapacity of the sovereign and it was also used as the title such as "Lord Protector Oliver Cromwell (1655-1658) or "Lord Protector Richard (1658-1659) during the British Commonwealth. Richard was son of Oliver Cromwell. Such kind of title were also common in the sub-continent during Mughal Empire such as Zil-e-Elahi {{URDU TEXT}} means "Shadow of God" (over the people) but in practical life these kings treated the people as their movable property. It is thus evident that a "Wall" in its real sense means a friend, a defender, a protector or a guardian who protects the right of minors regarding their welfare. The Guardian Courts as well as the Appellate or Superior Courts dealing with the cases of minors under section 17 or 25 of the Act are, according to my view, duty bound to decide the question of custody of minors in accordance to the concept of Wall as discussed above. So that it should be clear that the minors, whose custody is going to be delivered to anybody or is being kept as it is, consider that person to be their friend or hate him/her. Any other concept of "Wali" or "Willayat" as possessed by the Lord Protectors of British Commonwealth or the so-called Zil-e- Elahis of the subcontinent, as quoted above, or by those in whose souls the spirit of those Lord Protectors is supposed to have been transmigrated in accordance to the belief of the Hindus is certainly not sustainable in any Islamic society. The Supreme Court of Pakistan has, therefore, struck down all such outdated concepts in its different judgments as referred in the foregoing paragraphs.

24. Resultantly on the strength of detailed reasoning as discussed in the above paragraphs petition No,17/1995 is allowed and the impugned order of the Appellate Court is declared as an order passed without any lawful authority. But I consider it necessary to remand the case to the District Judge Karachi (Central) who would take all steps to make presence of the children in dispute certain in the Court to find out their choice because they have attained puberty. The Court would ask all possible questions to ascertain whether they are expressing their willingness with their free will or under pressure, inducement or fear, by giving them full liberty to go with the petitioner or the respondent. The learned District Judge would also take all possible steps to provide privacy and safety to the children if they desire to meet their parents separately. The DJ. Is required to take all these steps in one month.

113. ' Miscellaneous Applications Nos.33/95 and 71/95 also stand disposed of with this judgment.

114. Constitution Petition No,41 of 1994 is dismissed as having become infructuous.

25. Before parting with this judgment, I would be failing in my duty if I do not place on record my feelings of thanks for Mr. Khalid M. Ishaque who was good enough to provide Original Arabic texts of all those books which have been referred in this judgment.

115. ' Similarly the following appendix is also considered necessary to bring to an end any misconception regarding certain factors. APPENDIX

(1) With reference to one tradition narrated by Abu Maimonah from Abu-Hurrairah mentioned in para. 8(c) above as Tradition No,15758 in Al Bayhaqi and Tradition No,3234 in Mishkat, the name of well as written in this judgment as {{URDU TEXT}}Inmbah (or Inubah) Dr Tanzil-ur-Rehman, in his book. "A Code of Muslim Personal Law" has used the Arabic word as{{URDU TEXT}} with English word "Uyanah" on page 721 in Chapter XXIV (Law of Custody of Children--Hidanat). With due regards for Dr. Tanzil-ur-Rehman, I venture to say that the name of the well is either) Abu-Anubah (which may be pronounced as Abu-Inmbah) or "Utbah" {{URDU TEXT}}. In Al-Bayhaqi it appears as {{URDU TEXT}} while in Mishkat, it appears {{URDU TEXT}} but I am sure that it is not {{URDU TEXT}} (Uyanah) as written by Dr. Tanzil-ur-Rehman. The name {{URDU TEXT}} Uyanah is the name of one person and not of well and his son Sufyan has narrated Ahadith of the Holy Prophet (peace be upon him).

116. (Reference may be made to Traditions Nos.15761 and 15762 in Al-Bayhaqi). According to the Jurists, this well is at a distance of one mile from Medinah Munawarah and the Holy Prophet (peace be upon him) had met his companion there while going to Badr. With reference to Umdatul- Akhbar{{URDU TEXT}} JI:3111 it was stated that "perhaps this is the well which is now known as Beruodi {{URDU TEXT}}.

117. 'If it is the same well, then age of minor must be much more than 7 years because a minor of less than seven years may not be able to bring water from a distance of one mile.

(2) With reference to another tradition narrated by Rafe Bin-Saunas mentioned in para. 8(d) as Tradition No,15760 in Al-Bayhaqi regarding minor and non-Muslim mother, there is difference of opinion. Incident referred by Nissai, Hakim fil Mustadrek and Abu Daud narrated by Abdul Hamid bin Jaffer from his father and from his grandfather with reference to Rafe Sannan was related to a male minor who was very young while according to Daruqtani the dispute was about a female minor.

118. ' The same or similar incident was narrated by Abdul Hameed Bin Salma in Nissai, Ibn-e-Maja, Ahmed, Ishaque and Al-Bazaz. Perhaps, it may not be one but two different incidents. In one incident, it may be female minor and in the other it may be a male minor. Accordint, to Shafil, when there is any dispute over the custody of minor between spouses out of which one is Muslim and the other is non-Muslim then preference would be given to the Muslim spouse but majority of jurists believed that there is no such difference of rights between the spouses.

(3) In para. 9 above only few sentences were referred from the speech of Hazrat Abu-Bakr in this judgment while dealing with the issue of "Obedience" {{URDU TEXT}} and blind following {{URDU TEXT}} the background of the speech is as under:-- "After the Holy Prophet (peace be upon him) departed from this mortal world to the eternal world on 12th Rabi-ul-Awwal, 11 A.H. (27th May, 632 A.D), the Ansars (locals of medinah) gathered in "Saqifa Bani Saadah (URDU TEXT) which was their place of consultation and discussion. They were of the opinion that Saad Bin Ebadeh {{URDU TEXT}} be selected as Caliph of the Holy Prophet (peace be upon him). On the other hand, there was a group from Muhajirs (migrated people) attached with Abu-Sufyan who always considered themselves to be superiors as compared to others. When Hazrat Abu Bakr came to know about the dispute, he reached the place of discussion alongwith Hazrat Umer and Aub Abaidah bin al Jarah and suggested that either of the two, means Hazrat Umer or Hazrat Abu-Abaidah, be selected as Caliph. This suggestion was strongly opposed by Habab bin Manzar {{URDU TEXT}} . Ultimately Hazrat Abu Bakr was selected as Caliph. On the next day i,e, 13th Rabi-ul-Awwal 11 A.H. (28th May 632, A.D.) general public took the oath of allegiance and Hazrat Abu Bakr became the first Caliph. His first speech as given in different books was as follows:- {{URDU TEXT}} "O' People you made me Ameer (means Head of the Muslims although I am not better than you. If I do something good then help me. If I do something wrong then put me on straight (path). Truth is a trust and lie is perfidy. Anyone who (considers himself) weak among you is strong in my eyes unless I remove his complaint. And anyone who (considers himself) strong among you, is weak in my eyes unless I get what has to be taken from him. If any nation gives up holy war (against evils), then disgrace becomes its fate from Allah. When a nation adopts evils as (ordinary) common (factor) then miseries prevail over it from Allah. Obey me till I obey Allah and the Messenger of Allah. You are not bound to obey if I violate (the Law of) Allah and His Messenger. (Al-Badaya-Wal Nahaya, Vol. V. Page 248)"

119. ' In para. 9 of this judgment only the underlined portion was referred. It appears from different books that Hazrat All (who became 4th Caliph after assassination of Hazrat Usman, the third Caliph) did not take the oath of allegiance for several months. It was after the death of Hazrat Fatimah RA. (his wife and daughter of the Holy Prophet (peace be upon him) when he took oath.

120. The details in this respect are given in several books including the Bokhari ( (.5A ) and Al Badaya- Wal-Nahaya {{URDU TEXT}}.