MUHAMMAD BASHIR JEHANGIRI, J.-- Mst. Firdous Iqbal petitioner seeks leave to appeal against the judgment of a leaned Judge in chambers of the High Court whereby Writ Petition filed by Shifaat A.I respondent was accepted and the custody of minor Muhammad Muddassar was handed over to his father Shifaat A.I respondent.
2. The facts relevant to this order which we have been able to gather from the record are these. The petitioner and respondent No. 1 were married' and out of the wed-lock a son Muhammad Muddassar was born to them on 13.11.1989. He is thus aged more than 10 years now. It appears that the petitioner was divorced somewhere in 1990 and the minor was left to her. Custody. The petitioner then contracted second marriage on 24.11.1994. Similarly the respondent No. 1 had also taken another wife and has been blessed with a child. The petitioner tiled a suit against respondent No. 1 for providing the maintenance allowance to her son. Respondent No. 1 filed an application for the custody of his son under section 25 of the Guardians and Wards Act (VIII of 1890) in the Court of Guardian Judge, Chakwal. The claim in the petition apparently proceeded on the ground that pursuant to the Muslim Law the petitioner was not entitled to retain the custody of the minor who had attained the age of more than 7 years and that being the father, the respondent has attained the status of the minor's natural guardian. The application was opposed by the petitioner in the written statement, and inter alia, it was urged that the respondent's claim had been belatedly made by way of a counter-blast to petitioner's suit for the maintenance of the minor.
3. The learned Trial Judge settled the following solitary issue:-
(1) Whether the applicant is entitled to the custody of the minor?
(2) Relief.
4. Main evidence in the case was provided by the respondent and the petitioner each side giving its own version of their claim. The learned Trial Judge, after appraising the evidence led by the parties, observed that the minor was studying in the school as per certificate Ex. R-I; that the parties were separated in the year 1990 and since then the minor was living with the respondent (the petitioner herein) and finally; that it was "in the welfare of the minor that he should continue living with the respondent" (the petitioner herein) and dismissed the application.
5. Dissatisfied with the order of the Trial Judge, the respondent filed an appeal before the learned Additional District Judge, Chakwal, which was also dismissed.
6. Feeling still aggrieved, the respondent challenged the orders of the two Courts below in Writ Petition No. 110 of 1999.
7. In finding that the petitioner had forfeited her right of Hizanat' of the minor, the learned Single Judge of the High Court principally relied on the rule, without explicitly referring thereto, enunciated in para 354 of the "Principles of Muhammadan Law" by Mulla to which we shall refer presently. It was observed by the learned Judge that:- . The Law on the subject is explicit that where a mother contracts second marriage, she is disqualified to keep the minor born out of the earlier wedlock, in her custody. This disqualification is almost automatic and is unqualified. It is well-settled that where a male child reaches the age of seven years and has enough sense to attend to his daily needs of his own, he does not need protection of his mother and then the father is considered to be more suited to bring up the child.
In this case, the minor was.Born on 13.11.1989 and by the time the decision was rendered by Guardian Judge on 27.4.1998, he was almost 9 years old. The Guardian Judge did not evaluate the respective stands of the parties and simply declared that welfare of the minor demanded that he should stay in the custody of his mother,.... Further that the judgments passed by the learned lower Courts are against the law on the subject- and the question of welfare of the minor was not determined by the lower Courts adequately."
8. In consequence of these findings the petition was allowed and the orders of the two Courts below were annulled.
9. In support of this petition, Syed Misbah-ul-Hassan Abdi, learned ASC, relied on the case-law and reiterated before us the quotation from the text of 354 of. The Principles of Muhammadan Law by Mullah on the subject of forfeiture of 'Hizanat' referred to above.
10. The petitioner in essence raises the question whether under Muslim Law a mother absolutely loses the right of Hizanat of her MALE minor children who are aged more than 7 years or there are some exceptions to this general rule as well.
11. In the treatise entitled "Principles of Muhammadan Law" by Mulla, the rule is tabulated in paragraph 354 as follows:- #TBS (1) #TBE "A female including the mother, who is otherwise entitled to the custody of a child, loses the right of custody; If she marries a person not related to the child within the prohibited degree; or
(2) If she goes and resides during the subsistence of the marriage,at a distance from the father's place of residence; or
(3) If she is leading an immoral life, as where she is a prostitute; or
(4) If she neglects to take care of the child".
12. The rule enunciated in para 354 of Principles of Muhammadan Law by Mulla suffers from over simplification. Similarly the statement of law from textbooks on Muslim Law made by the learned Single Judge is not comprehensive. Similarly he has ignored many relevant portions of the textbooks on the subject of Hizanat.
13. In the other text hooks including Hedayat (Grady's Edition); digest of Muhammadan Law by Baillies, Fatawa-i-Alamgiri (Bangali Edition) and commentaries by Syed Ameer A.I and Tayabji to which we shall refer presently, it has been observed:- it was noticed that the mother is, of all persons, the best entitled to the custody of her infant child during marriage, and after separation from her husband unless she be an apostate, or wicked, or unworthy to be trusted and the right to the custody of her infant male-child continues till he is independent of her care, that is till he is seven years of age."
14. In Hedayat (2nd Edition, Vols. I-IV, page 138) in Chapter XIV of Hizanat, or "the care of infant children" and under section "in case of separation, the care of the infant children belongs to the wife" it is followed by the comment that:- A mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child and Siddeek alluded to this, when -he addressed Omar on a similar occasion, saying, 'the spittal of the mother is better for the child then honey, 0 Omar' which was said at a time when separation had taken place between.
Omar and his wife the mother of Assim. The latter being then an infant at the breast Omar desirous of taking him from the mother and these words were spoken in the presence of many of the companions, none of whom contradicted him."
At page 139 under the title "Length of the term of Hizanat" it is said:- "The right of hizanat with respect to a male child, appertains to the mother, until he becomes independent of it himself that is to say, he becomes capable of shifting, eating, drinking and performing other natural functions without assistance after which the charge devolves upon the father, or next paternal relation . The Hizanant with respect to a boy, ceases at the end of seven years, as in general a child at that age is capable of performing all the necessary offices himself, without assistance.. But the right of Hizanat with respect to a girl, appertains to a mother, grand- mother, and so forth, until the first appearance of the menstrual discharge, that is to say, until she attains the age of puberty, because a girl has occasion to learn such manners and accomplishments as are proper to women, to the teaching of which the family relations are most competent, but after that )eriod the charge of her properly belongs to the father, because a girl, after maturity, requires some person to superintend her conduct, and to this the father is most completely qualified."
15. As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of 'Hizanat" of the mate minor child under the Muslim Personal Law vested in the father as he is the natural Guardian under Section 25 of the Guardian and Wards Act (VIII of 1890). The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of 'a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would thus be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record shows that the respondent father who sought custody of the minor, neglected the child since the separation of the spouses inter se and had ,voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage. Even then she had not been negligent in the care of her minor son. She had entrusted that duty to her mother, the father and'he is being properly educated till date in a local school. All along this entire period, the father never bothered even to go to meet the minor much less than providing maintenance to him, when the petitioner-mother sued him for providing maintenance allowance to the minor. It is only then that he had made an application for custody of the minor. Again the respondent-father has also taken another wife who had got one or two children out of the wedlock. The second wife of the respondent is living in the village of the respondent whereas the respondent himself is a Army Personnel in service of the Pakistan Army and remains under posting from one Cartonment to another. Consequently, he would also not he present in the house where he proposed to lodge his son. The minor would be exposed to the on slaughts of the step :motherly treatment of his second wife. There would he no one to stop the step mother from the well-known step-motherly treatment.
It was in these circumstances that the learned Courts below had concurrently found as a fact that the welfare of the minor lay in leaving him to the custody of the real mother through her parents rather than giving him to the respondent who is himself away from his house-hold which had been left to the charge of the step-mother.
16. The learned Single Judge has, therefore, erred to interfere in the concurrent findings of fact that the welfare of the minor lay in leaving him to the custody of the mother through her own parents and that too in the exercise of the Constitutional jurisdiction of the High Court.
17. We are, therefore, constrained to convert this petition into appeal, accept the appeal and while setting aside the impugned order of the learned Judge in Chambers of the High Court, restore those of the two Courts below that the welfare of the minor lies with the appellant-mother and that she is entitled to retain his custody. This judgment shall not, however, disentitle the respondent to see his child subject to such terms and conditions as may be determined by the learned Guardian Judge upon application moved in this behalf by the respondent. There shall he no order as to costs.