KHAWAJA MUHAMMAD SAEED, J.-- Both these appeals with the leave of the Court are directed against the common order passed on 19.4.2001, by the .Shariat Court, therefore, these cross- appeals shall be disposed of through this single judgment.
2. Facts relevant for the decision of these appeals briefly stated are that the parties were married to each other and out of their wedlock to sons namely Tanees Zafar and Ebtesam Zafar were born.
From the record it transpires that later on the relations between the spouses became strained which resulted in their separation. None of them has contracted second marriage. On 15.2.1999, appellant Azra Bi brought a suit for maintenance of the minor sons against Zafar Iqbal before Judge Family Court, Mirpur. On the same date she filed an application for the custody of the minors before the same Court. Almost after the expiry of eight months period, Zafar Iqbal filed his claim through an application before Family Court for the custody of his minor sons on the ground that they had attained the age of seven years and he being the father of them is their natural guardian, as such, the custody of the minor sons be given to him. He further claimed that he is an educated person whereas the mother of the minor children is illiterate, therefore, if the minor sons remained in the custody of their illiterate mother they will be brought up in an atmosphere which will be opposed to their welfare. The Trial Court in the light of the pleadings of the parties settled issues and thereafter parties led their evidence. At the end of the trial both the minor sons were given by the Trial Court in the custody of Azra Bi, their mother. On appeal before the Shariat Court the judgment of the Family Court was reversed to the extent of Tanees Zafar as he in the meantime had crossed the age of seven years. This judgment of the Shariat Court has been assailed before this Court through cross-appeals by the parties.
3. Mr. Muhammad Reaz Alam, the learned counsel for Azra Bi, argued that in the peculiar circumstances of this case the learned Trial Court rightly resolved that in the interest of the welfare of the minor sons, their mother was entitled to retain their custody. According to him, no doubt under Personal Law, after the age of seven years the father is entitled to obtain the custody of male child but if strong circumstances are brought on record then the mother cannot be divested from the custody of the minor sons. He further argued that in the present case the father admitted in his statement that his sisters have contracted marriages and his father is a blind man and his mother is physically disabled, whereas his brother has also contracted marriage. In these circumstances there is no person in the house of Zafar Iqbal, who could properly look after these minor children. He further argued that even though the mother of the minor children was illiterate despite this fact she got her minor children admitted in a school where they were receiving education like other children. In support of his contention he relied on a case titled Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCM R 838). In this case the dispute between divorced husband and wife was about the custody of a child who had attained the age more than seven years. The custody was given to the mother on the ground that father had contracted second marriage and kept his second wife in a village where no one would save minor child from step-motherly treatment of his second wife if minor was given in the custody of the father and further that the father remained negligent as he had applied for the custody of the child when from him the maintenance of the child was demanded by his divorced wife who had also filed an application for the custody of the child.
4. While opposing the arguments of the learned counsel for Azra Bi, Mr. Muhammad Ayub Sabir, the learned counsel for Zafar Iqbal; submitted that in pursuance of the Personal Law, the mother was not entitled to retain the custody of the male minor children after they had attained the age of seven years. According to him his client being the father of the minor children was their natural guardian. He further argued that the whole of the family of his client consists of educated people, who can look after the welfare of the children more properly. According to him, it is the demand of the time that the minor sons must be provided educated atmosphere which would be conducive to their welfare. In support of his contention he relied upon a case titled Muhammad Ramzan v. Mst.
Rukhsana Bi (1996 SCR 265). In this case it is laid down that after attaining the age of seven years by a male child, the presumption of welfare lies in favour of father unless some strong circumstances are brought on record which disentitled the father from the custody of the minor son. In this authority the judgments of the Family Court as well as Shariat Court recorded in favour of the mother of male minor children were set aside and the custody of minor son was given to the father. However, it was laid down that the father shall send minor son twice in a week to live with his mother under the supervision of Family Court, Mirpur, so that the minor son may not feel any estrangement. In support of his contention the learned counsel further relied upon another case titled Shafique-ur-Rehman v. Mst. Fazeelat Begum (1995 SCR 136). In this authority was held by this Court that the welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The relevant observations are as follows:- "The welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable and if the circumstances are brought on record which tend to show that in fact the welfare of the minor lies with a person other than one. Who is entitled to have the custody of the minor under personal law the Court may refuse the custody to the person who is entitled to it under Muslim Law. The fact that the minors have been previously living with the mother or their preference is in favour of mother do not deprive the appellant from seeking the custody of the minors".
The learned counsel also relied on a case titled Kamalamma v. Laxminarayana Rao (AIR 1971 Mys.
211). In this case the custody of a Hindu minor by was demanded by both mother and father and it was resolved in favour of the father mainly on the ground that in case of a Hindu minor by father is the natural guardian of his person during his minority and if his father is unfit to be the guardian of his person, the Court can remove him from that position and appoint either the mother or somebody else as his guardian. This case is distinguishable and has nothing common with the facts of the present case because the application in this case was filed under Section 13 of the Hindu Minority and Guardianship Act, 1956. He further argued that his client moved an application for bringing on record the copies of Form B submitted by his client Zafar Iqbal for obtaining his Identity Card, in which age of his minor sons stood entered. In the same way he also submitted the birth certificate of his minor sons issued by the Municipal Committee, Islamgarh but these documents were not received in evidence by the trial Court and the same were not considered even by the Shariat Court despite the fact that through a separate application he requested that these documents be received and read in evidence. He supported his request by relying on Order XLI, Rule 22 of Civil Procedure Code.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case.
6. Mst. Azra Bi, moved an application for the custody of her minor sons before Judge Family Court, Mirpur on 15.2.1999. The objections were filed by Zafar Iqbal, husband, on 18.3.1999. In para 2 of his objections he mentioned the dates of birth of his minor sons. The reading of these dates shows that initially some other dates were mentioned which were subsequently corrected by him. No documents in support of their respective stands about the date of birth of the minor children were furnished by the parties in this case. Zafar Iqbal filed his application seeking custody of the minor sons on 7.10.1999. Mst. Azra Bi, filed her objections on 22.10.1999. Alongwith her objections filed on 22.10.1999 she appended the certificate relating to preventive doses/injunctions administered to the minor children of the parties, Birth Certificate issued by Zubair Hospital and attestation of the Government Primary School Chak Haryam about the date of birth of the minor children. According to the certificates relating to preventive doses/injections, Tanees Zafar was born on 26.12.1993 whereas Ebtesam Zafar was born on 4.1.1995. The first B.C.G. Dose was given to Tanees Zafar on 3.3.1994, whereas Polio drops were given to him on 3.3.1994, 21.4.1994 and 26.5.1994 respectively. On the same dates he was also given preventive doses for DPT/DT. Ebtesam Zafar received BCG dose on 6.2.1995 and Polio drops on 23.2.1994, 25.3.1995 and 26.4.1995. On these dates he was also given preventive doses for DPT/DT. The appellant himself has admitted in his evidence that his son, Tanees Zafar was born in Zubair Hospital. Birth Certificate issued by this hospital shows that the said child was born on 26.12.1993. The same date is entered in the record of Government Primary School Chak Haryam where Tanees Zafar stood admitted. These documents, therefore, were rightly allowed to be read in evidence by the Trial Court. As said in preceding paras, these documents were appended by her with her objections on the first date of hearing in the application moved by Zafar Iqbal appellant for the custody of the minor children, whereas Zafar Iqbal moved an application at a belated stage for admission of certain documents in evidence. These documents cannot be read in evidence because these ware the photostat copies which stood attested by some Subject Specialist Teacher of Government High School, Islamgarh. The birth certificate issued by Municipal Committee, Islamgarh, besides above reason that it is also photostat copy, cannot be read in evidence as it has been issued by some person who has not disclosed his name or his designation. These certificates were,, therefore, rightly ignored by the Trial Court as well as by the Shariat Court. The Civil Procedure Code is not applicable in respect of disputes which fall under the provisions of Family Courts Act, 1964. The Shariat Court, therefore, could not invoke its powers under Order XLI, rule 22 to receive in evidence the documents which were filed by Zafar Iqbal at a belated stage in the Trial Court or were filed by him alongwith a separate application before the Shariat Court.
7. Now we revert to the main case. The custody of Tanees Zafar was given to Zafar Iqbal by the Shariat Court on the ground that this child has crossed seven years limit, therefore, under, Muslim Law his father being his natural guardian was held entitled to his custody. We in the light of the previous dictum of this Court in case titled Muhammad Ramzan vide. Mst. Rukhsana Bi (1996 SCR 265) upheld the judgment of the Shariat Court about this child. Consequently, the appeal filed by Mst. Azra Bi to the extent of this child having no force is dismissed.
8. So far as the case of other child, Ebtesam Zafar is concerned, this by in the light of the documentary and oral evidence produced by Azra Bi, has not yet attainted the age of seven years.
He is continuously residing with his mother-up to this time and is also getting education in a school. The learned Trial Court after appraising the evidence led by the parties observed that the welfare of this child lies in the custody of his mother. This order was upheld by the Shariat Court.
Under the Muslim Law the mother can claim the custody of male child up to seven years as of right.
Before attaining the age of seven years she can be deprived from the custody of male child only if some strong circumstances are brought oh record to justify that it would not be in the welfare of such child to keep him in the custody of her mother. In the present case it is proved that both minor children all along remained with their mother. Their father Zafar Iqbal asked for the custody of these children when his divorced wife demanded from him the maintenance allowance for these children and also seek the custody of the children by invoking the jurisdiction of the competent Court. Prima facie it appears that in order to save himself from permanent supply of maintenance allowance to the mother he moved an application for the custody of his minor children. In his application for the custody of the minor children, or objections filed in defence of the application moved by his divorced wife for the same purpose, he never pleaded that his sons were not properly looked after by their mother or she has failed to get them admitted in some school. In the light of these facts there is no justification for us to disturb the findings of the Trial Court as well as that of the Shariat Court in respect of this child who has not so far attained the age of seven years.
In view of above, finding no force in Appeal No. 54 of 2001, filed by Zafar Iqbal, the same is dismissed with no order as to costs.
Appeal No. 53 of 2001 accepted. Appeal No. 542 of 2001 dismissed.