TALAT QAYUM QURESHI, J.---The petitioner, Mst. Gul Naz Bibi and respondent No. l Rafaqat Ali Shah were once husband and wife. Out of their wedlock three children, namely, Saadia Shah daughter now aged 12/1-2 years, Izzah Shah daughter now aged about 8-1/2 years and Saad Ali Shah aged 8-1/2 years were born. The respondent No. l had 'abandoned the petitioner who was constrained to live at Mansehra with her minor children. She started teaching at Fauji Foundation School and was maintaining her minor children at her own expenses. The respondent No. l did not care to provide any maintenance to petitioner or his minor children. The petitioner was, however, divorced on the basis of Khula' on 31-3-1997.
2. The respondent No. l filed petition before the learned Guardian Judge/Senior Civil Judge, Mansehra on 8-7-1996 to be declared .as the guardian of the person and property of minors. This petition was contested. The parties produced their respective evidence and the learned Guardian Judge after hearing the learned counsel for the parties declared the petitioner to be the guardian of the persons and property of minors vide order, dated 31-10-1998. Feeling aggrieved by the said order the respondent No. l filed Revision Petition (No.^-(:R of 1998) in the Court of learned District Judge, Mansehra on 9-12-1998. His revision petition was accepted and respondent No. 1, the father was declared as guardian of minor children vide order dated 30-6-1999. Now the petitioner has filed writ petition in hand challenging the order, dated 30-6-1999 passed by the learned District Judge, Mansehra.
3. Mr. Sardar Moazzam Khan, Advocate, the learned counsel representing the petitioner argued that respondent No. 1 is unemployed person who has no source of income. He is alcoholic and has a record of arrest and convictions. He has never paid a single penny towards the maintenance, schooling, health and other expenses of minors. The minors are being looked after, fed, clothed and educated at the sole expenses of petitioner. The petitioner draws a handsome salary as a teacher and has enhanced her income through private tuitions and as such it would be in the interest and welfare of minors that they remain in the custody of their mother, the petitioner. The learned District Judge did not consider the interest and welfare of the minors and did not act as a Parent Court. He further argued that re-marriage of the mother does not disentitle her to the custody of the minors.
The children can form an intelligent opinion about which of the parents they like to live with but their opinion was never sought by the learned District Judge while passing the impugned order.
4. On the other hand, Mr. Muhammad Ayub Khan, Advocate, the learned counsel representing the respondent No.l argued that the petitioner before marrying respondent No. l was married and she was divorced by her first husband. She contracted second marriage with respondent No. l and on 31-3-1997 she opted for divorce on the basis of 'Khula'. The respondent No. 1, therefore, divorced her.
Now the petitioner has contracted third marriage with the stranger and she wants to keep the minor children with the stranger, as such she cannot be allowed the custody of the minors specially the daughters one of whom is about to attain puberty. He argued that as per section 352 of 'Muhammadan Law' (by D.F. Mulla) father is entitled to custody if the mother re-marries. He stated at bar that the order of the learned District Judge, dated 30-6-1999 is based on cogent reasons and is in accordance with the prevailing law and prayed for dismissal of the writ petition.
5. We have heard the learned counsel for the parties and perused the record of the case.
6. So far as the first argument of the learned counsel for the petitioner that respondent No. l is alcoholic having record of arrests and convictions and has no known source of income is concerned, the same has force in it. The petitioner has annexed a detailed list of the cases which had been registered against respondent No. l and in which he has been convicted also, Detail of the cases in which he was involved, convicted and is undergoing trial is as under:-- FIR No. Dated P.S. Offence Result 156 9-1-1998 Mirpur 8/11 P.O.1 Convicted for 6 months on 28-5-1989 181 1-9-1988 Mirpur 8/11 P.O. Convicted for six Months on 28-5-1989 551 4-8-1995 City Mansehra P.O. Fine of Rs. 350 and convicted for 18 days' S.I. on 6-8-1995 332 20-7-1987 Cantt.
Abbottabad8/11 P.O. Undertrail 764 21-12-1987 -do- 3/4/8/11 P.O. -do- 149 15-2-1987 -do- -do- -do- 187 2-4-1984 -do- 8/11 P.O. -do- 144 15-2-1989 -do- 3/4/8/11 P.O. -do- 117 20-8-1991 Baffa Mansehra P.O. -do- 84 12-2-1993 -do- 3/4/8/11 P.O. -do- 448 25-7-1995 City P.O. -do- Abbottabad 491 18-6-1996 City Abbottabad8/11 P.O. Undertrial 118 25-5-1991 Mirpur 3/4/8/11 P.O. -do- 678 12-12-1996 Mirpur -do- -do- 369 29-5-1997 Mirpur -do- -do-
7. There is no rebuttal on record from the side of respondent No. l that he was not involved, convicted and was not undertrial in the above--mentioned cases. Keeping in view the long list of cases in which he is undergoing trial, it cannot be said that as to how much time he would spend in prison if he is convicted and during the period of his incarseration how the minor children if given to his custody would be looked after and from what source their education expenses, medication and other necessities of life would be provided to them. Moreover, the long list of cases clearly indicates that respondent No. l is alcoholic person. His habit of drinking and involvement in the abovementioned cases shall definitely cast impression upon the life and character-building of the minors. In a case "Mst. Imtiaz Begum v. Tariq Mahmood 1995 CLC 800, it was held: "Another prerequisite for male to have the custody of a minor is that he should not be a 'Fasiq' or 'Khayan'. Fasiq is reverse of 'Adil' (Man of probity) and 'Khayan' is reverse of 'Amin', 'Khayan' is unequivocally prohibited in the Holy Qur'an. See Q.4; 105-109; Q 8 161) Fasiq and Khaynah include all the evils and violation of the injunctions of Allah. Notoriety of a person shown by evidence in this regard would constitute sufficient disqualification and a conviction by a Court of law would not be required. "
So far as the question of his income is concerned, there is nothing on record to prove his source of income. He appeared as P.W.5 in support of his petition in the Court of learned Guardian Judge, Mansehra. He did not speak a word about his income or its source. In the cross-examination in reply to a question he stated:-- "It is incorrect to suggest that we have no property besides the house. Volunteered that we owned tracks of land in Kohat. It is incorrect to suggest that I do not work. Volunteered that I have been working ever since 1971. "
Neither any document regarding the ownership of property was produced nor any other document showing that he has been deriving any income from the said property was produced nor any proof that he was working anywhere was produced before the Court. He even failed to give details of the work he was undertaking since 1971.
8. On the other hand., the petitioner has placed on record certificate, dated 8-5-1990 Exh.D.W.l/1 issued by Qaid-e-Azam Public School, Certificate, dated 23-11-1993 Exh.D.W.I/2 issued by Army Public School, Shinkiari, Certificate, dated 13-8-1997 Exh.D.W.1/3 issued by Fauji Foundation, appointment letter, dated 18-8-1998 Exh.D.W.I/4 issued by Secretary, Executive Committee Army Public School, certificate of tuition fee of minor children being paid by the petitioner Exh.D-W-1/5. certificate, dated 7-9-1997 Exh.D.W.I/6, balance certificate Exh.D W.1/7 and certificate issued by Habib Bank Ltd., dated 21-5-1999 showing balance of Rs.2,07,184 as on 21-5-1999 in her account. As per the statement of petitioner recorded in the Court of learned Guardian Judge, Mansehra she has been maintaining the children since their birth. In addition to her salary she has been giving tuitions to the students and has been earning a sum of Rs.5,000 per month. Their minor children have been admitted in the hest available schools. They are getting their education and are being looked after properly. The respondent No.l in his statement admitted that the petitioner is a graduate and has been serving in Fauji Foundation School Mansehra and children are also studying. in that school.
9.Section 17 of the Guardians and Wards Act provides that while appointing the guardian of the minors, the Court has to keep in consideration the welfare of the minors and it is a fundamental importance that preference should be given to the welfare of the minors. While section 25 also suggests that at the time of restoration of custody the Court has to look into the welfare of the minors and application filed by any of the parties should be decided after considering the welfare of the minors. If the welfare of minor is found with the mother then the Hazanit should be given to the mother and if it is found with the father, then the Hazanit should be given to the father. The basic criteria for the appointment of the guardian and the restoration of the custody is welfare of the minor. While dealing with the application for appointment of the guardian and for restoration of the custody, the Court has to pass its findings on the conditions laid down in sections 17 and 25 of Guardians and Wards Act. The right of parents regarding the interest and control of the children is not to be exercised in the interest and benefits of the parents but in the interest and welfare of children themselves. Although respondent No.1, father, is natural guardian but his right is also subordinate to the welfare of the minors. The overriding fundamental and paramount important consideration is always the welfare of minors rather this is sole criteria which must prevail. The learned District Judge, Mansehra has failed to consider the fundamental criteria mentioned above while dealing the appeal filed hi, respondent No-1.
10. The important question which needs determination in this case is whether the minors are being looked after in proper way by the mother and their welfare lies with the mother or with their father.
In this case in hand the petitioner, mother has produced sufficient evidence which has been discussed above, regarding her source of income. The minors have been admitted in the best schools and they are being looked after properly. There is nothing on record to indicate that she is woman of bad character On the contrary she is a graduate and teacher in a school of good standard and leading a respectable life, the welfare of the minors, therefore, lies with the mother.
11. Another important factor is that respondent No. l has no woman in his house who can look after' the children if given to his custody. The respondent in his statement recorded in the Court of learned Guardian Judge, Mansehra stated that he has a sister in his house to look after the minors.
The sister of the respondent No. l cannot be substitute of mother and she cannot provide the love and affection to the children which the mother can, as the lap of mother is God's own cradle for the children. In a case titled "Shahgufta Bano v. Musarrat Haneef etc." 1982 CLC 1821 it was held:-- "Love and affection which the other can bestow upon him is incomparable to the love and affection of respondents 3 and 4. The petitioner can afford to give him education as is necessary to be acquired under the circumstances. Almost a year and a half has passed by since he is living with the petitioner. Living together of mother and son for so long a time must have created such an affectionate relationship between the two as it looks rather cruel to take him away from the mother. Such a separation at this formative age may leave a permanent psychological adverse mark upon him. h is in the interest of his welfare that he should continue to stay with the mother. In these circumstances the finding of the learned Courts below to the contrary cannot be endorsed. "
Similarly, in case "Mst. Janatan v. Abdul Hameed" 1984 CLC 345 it was held: "There is no female relative like his mother or sister living with him. The minor is aged more than 10 years. It is not safe and convenient for a girl of this age to live in a house where no grown up close female relative is living."
In a case Mst. Nighat Firdous v. Khadim Hussain "1998 SCMR 1593" when the minor was under the care and custody of his maternal aunt from the date of death of his mother, the real father was not entitled for the custody and minor was given in the custody of his aunt keeping in view of the welfare of the minor". It was observed: "It would, thus, be seen that welfare of the minor is the paramount consideration in determining the custody of a minor. The custody of a minor can be delivered by the Court only in the interest and welfare of the minor and not the interest of the parents. It is true. that a Muhammadan 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. The right-of the father to claim custody of a minor is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct, depending upon the facts and circumstances of each case. In this case, the respondent-father, who sought custody of the minor, neglected the child since his birth. The minor had admittedly been under the care of the appellant since the death of his mother. Thus, visualized, the mere fact that the minor has attained the age of seven years, would not ipso facto, entitle the respondent-father to the custody of the minor as of right. Furthermore, the application made- by the appellant claiming maintenance for the minor. This circumstance also cast aspersion on the bona fide of the respondent. We are of the view that the minor, who has been living with the appellant almost since his birth and was being looked after properly, his welfare lies with her and not with his father, who has not taken any interest even in defending this appeal and oppose the interim order, dated 5-4-1994 passed by this Court, whereby status quo in respect of custody of the minor was directed to be maintained.
The preference of the minor, in guardianship cases, is ordinarily, taken into consideration but it is not always relevant because the minor is not the best judge of his/her welfare. It is for the Court to determine as to whom the custody of the minor should be delivered in his/her welfare. In the instant case, we find that the welfare of the minor, who is now about 15 years old, lies in retaining the custody with the appellant."
Likewise in case "Maqsood Ahmad v. Mahmood Khalid" 1995 SCMR 1225 it was held: "After hearing learned counsel for the petitioner and persusing the record, we find no flaw in the impugned judgment of the learned High Court so as to call for interference. Learned counsel for the petitioner did not controvert the factum of the minors receiving education in English Medium School. The petitioner also failed to give satisfactory explanation for moving application for custody of the minors after over seven years from the date of ,the separation of his wife from him "
Similarly, in another case "Mst. Zar Bibi v. Haji Malik Abdul Ghaffar" 1998 MLD 169 7 it was held:-- "It is not the duty of the Guardian Judge to find 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 facts have 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 custodian's religion, sex, age, expected effects of remarrying by the divorcee or divorce upon minors etc. Male minors and female minors have different psychologies. The female minor requires longer association of her mother till for puberty on account of several reasons. For example, in our society, the female child is usually bashful, mostly tender hearted and symbol of delicacy in her nature. Such female child is not expected to disclose the signs of awakening of her sex to her father. On account of this reason, 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."
In case "Captain S.M. Aslam v. Mst. Rubi Akhtar" 1996 CLC 1 it was held: "Welfare of minor is paramount consideration. Real duty of the Court is to search out in whose custody the welfare of minor lies. "
12. The next argument of the learned counsel for the petitioner is that the children are capable of making an intelligent preference about which of the parents they choose to live with but their opinion was never obtained by the learned District Judge, Mansehra. This argument also has a force in it. It cannot be ignored that if a child is capable of making an intelligent C preference then alongwith the welfare of minors that preference should also be considered by the Court. As per section 17, subsection (3) of Guardians and Wards Act which is reproduced hereunder:-- "If the minor is old enough to form an intelligent preference the Court may consider that preference. "
The children are present in Court today. We obtained their opinion and they are intelligent enough to express their opinion as they have been studying in good schools. All of them stated that they would prefer to live with their mother. In this regard wisdom is drawn from two Hadiths stated by Abi-Maimonah with reference to Abu Hurairah:--- "A woman came to the messenger of Allah and said: (My husband wants to take away my son, although he means son) give me comfort and brings water for me from Abu-Enubah (or Abd Inmbah) well (thereon) her husband appeared and insisted that he had (right) over his sons. (The Prophet (peace be upon him) then said): "O' 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). "
Likewise it was narrated by Rafe-bin Sanan that,-- "he had embraced Islamic faith but his wife refused to do so. 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."
In a case "Sh. Abdus Salam v. Additional District Judge" 1998 SCMR 608 it was held:--- "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. So far as the changing of the name of the minor is concerned it makes no difference if his name is changed from Akhtar Nawaz to Qamarul Islam, for even if his name has been changed to Qamarul-Islam by the appellants, his real parents are the respondents and being their real son he will always have the right to inherit from the respondents."
Likewise in case "Ghulam Qadeer etc. v. Mst. Rahat Yasmin etc." PLI 1997 Lahore 407 it was held: "The minor is of the age where he can express an intelligent preference and his preference has to be taken into consideration while deciding where the welfare of the minor lies. I am of the view that the welfare of the minor in the present case is to remain with his real mother and it would be harsh and unjust to the minor to deprive him of his mother's company."
In another case "Zohra Begum v. Sheikh Latif Muhammad Munawar" PLD 1965 Lahore 695, it was observed that: "Where there is no Qur'anic or Traditional Text on a point of law, and if there be a difference of views between A'imma and Faqihs, a Court may form its own opinion on a point of law. It would, therefore, be permissible for Courts to differ from the Rule of Hizanat stated in the textbooks on Islamic Law where is no Qur'anic or Traditional Text on the point."
In the case afore-cited, custody of minor boy and girl was awarded to the mother who had reared them for nine years without any shortcoming, while the father had not bothered to see them or pay any maintenance for them.
13. The learned counsel for the respondent mainly argued that the petitioner has contracted marriage with a stranger after she was divorced by the respondent No. 1. Before marrying the respondent No. l she contracted marriage with another person from whom she obtained divorce in order to marry respondent No. 1. After spending some-time with respondent No. l she opted for divorce on the basis of 'Khula' and filed suit for dissolution of marriage in the Family Court. The respondent No. l on 31-3-1997 divorced her on the basis of 'Khula' and now she has contracted 3rd marriage with a stranger. Hence she is not entitled for the custody of minors. The learned counsel for the petitioner on the other hand, stated that re-marriage of the petitioner would not disentitle her for the custody of minors. In our view the petitioner-mother would not be disentitled and disqualified to retain the p custody of minors -on the ground that she has contracted second marriage with a person who is not related to minors and is stranger. This question came up in a case "Shaghufta Bano v. Musarrat Haneef and others" 1982 CLC 1821 and it was observed: "The learned Guardian Judge as also the learned District Judge have worked under the erroneous impression that the petitioner by re--marriage had lost right of custody of the minor and that respondent No.3 was the person entitled to his custody under Muslim law--as already mentioned the sole consideration for keeping his custody is as to where his welfare lies------------love and affection which the mother can bestow upon the minor child is incomparable to the love and affection of respondents 3 and 4-------------it is in the interest of minor's welfare that he should continue to stay with the mother. In these circumstances, the findings of the learned Courts below to the contrary cannot be endorsed."
Similarly, in case "Mst. Janatan v. Abdul Hameed and others" 1984 CLC 345 it was held: "In the above circumstances, it is concluded that the welfare of the minor lies in living with her mother and the learned Guardian Judge and the Additional District Judge, while arriving at an otherwise conclusion have misread the evidence. Their view that the mother after having contracted second marriage with a person who is not related to the minor has rendered herself disqualified to retain custody of the minor is erroneous and unsupportable.
Likewise in case "Ghulam Qadeer and others v. Mst. Rahat Yasmin and others" PLJ 1996 Lahore 407 it was held: "In the present case it is to be weighed whether it is in the welfare of the minor to face step-mother or to remain with his real mother and face step-father. The minor is deeply attached to his real mother and has also expressed attachment for his step-father, whom he considered to be his real father till it was disclosed to him in Court that petitioner No. l is-his father. The minor is of the age where he can express an intelligent preference and his preference has to be taken into consideration while deciding where the welfare of the minor lies. I am of the view that the welfare of the minor in the present case is to remain with his real mother and it would be harsh and unjust to the minor to deprive him of his mother's company."
In case of "Mst. Shahida Kausar v. Mst. Sardar Begum" 1997 MLD 965 it was held:--- "Minor's mother being employed as teacher in Education Department, in spite of her second marriage could look well after her children as compared to minors' grandpaternal mother, grand-- maternal mother and paternal aunt---welfare of minors was the supreme consideration in cases of guardianship. "
Under Muslim Family Laws, the mother looses the right of custody of her child if she marries a stranger not related to the minor within the prohibited degrees. However, Ameer Ali (Muhammadan Law, Volume, II, 1976 Edn., page 280) has observed: "Although, ordinarily the woman entitled to the custody of a child forfeits her right on contracting a marriage with a stranger, special considerations regarding the interests of the child may require that -its custody should be retained by her. For example, if a woman separated from her first husband, were to marry a second time in order to secure for her infant child better and more comfortable living, she would not forfeit her right of Hizanat. The Courts would preserve to the mother the custody of the child if it be in its interest that it should remain with her. "
14. In the light of the above discussion and peculier circumstances of the case in hand we have no hesitation to hold that re-marriage of petitioner would not disqualify her for the custody of her children specially when factors of remarriage of a woman and custody of minors have not been made reciprocal in any of sections of Guardians and Wads Act, 1890.
15. We, therefore, accept the writ petition set aside the impugned order dated 30-6-1999 passed by learned District Judge, Mansehra and restore the order dated 31-10-1998 of the learned Guardian Judge with the modification that father is allowed to see his children once in a month provided their educational programme is not disturbed. The minor children may stay with him for one day in a month preferably on week ends They may also stay for full day on their birth day and for two days on every Eid.