Mst. Sobia Shaheen vs Muhammad Riaz etc.

2018 Y L R 1730

[Lahore]

Before Jawad Hassan, J

Mst. SOBIA SHAHEEN---Petitioner

Versus

MUHAMMAD RIAZ and others---Respondents

Writ Petition No.6461 of 2015, heard on 16th March, 2018.

(a)Guardians and Wards Act (VIII of 1890)---

----S.25---Custody of minor---Entitlement of mother--- Scope--- Petitioner was mother of minor girl aged about 3-4 years and dispute was with regard to her custody---Application filed by father was dismissed by Guardian Court but Lower Appellate Court reversed the findings and decided the matter in favour of the father---Validity---Father, under Islamic law, was natural guardian of minors who had preferential right of custody of minor especially in the circumstances when minor was male and above age of 7 years--- In order to challenge such preferential right of father, mother was bound to establish some exceptional circumstances and to prove herself that she had preferential right over father---Minor, in the present case, was female and mother was looking after the minor ever since her birth and was maintaining her in a good environment--- Cogent and confidence inspiring evidence came on record to prove that application for custody of minor was filed after fixation of maintenance allowance against her---Father was least interested in welfare of minor who had filed application for custody of minor in order to frustrate the decree for maintenance allowance---Minor was in custody of mother who was upbringing her properly and getting her educated in a private school--- Lower Appellate Court while passing judgment in question had given much focus on remarriage of mother of minor but had not given paramount consideration to welfare of minor and also ignored the fact rather misread the evidence that minor was getting education in a private school and she was also of such age where she needed much love and affection of her mother as compared to her father--- High Court set aside judgment passed by Lower Appellate Court and restored that of Guardian Court--- Constitutional petition was allowed in circumstances.

Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839; Mst. Rabia Bibi v. Abdul Qadir and others 2016 CLC 1460; Muhammad Ayub v. Mst. Nasim Begum and another 1996 CLC 1534; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200; Shabana Naz v. Muhammad Saleem 2014 SCMR 343 and Sardar Hussain v. Parveen Umar PLD 2004 SC 357 rel.

(b)Guardians and Wards Act (VIII of 1890)---

----S.25---Custody of minor---Mother, right of---Scope---No substitute of mother for a minor and

no one can take care of minor more than his/her mother for being first institution--- Depriving minor of the company of his/her mother creates deprivation in life of minor.

Amiad Masih v. Mst. Bushra Bibi 2010 YLR 1468; Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493; Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839 and Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others 2006 MLD 493 rel.

Rana Muhammad Ayub Tahir Joyya for Petitioner.

Mubeen-ud-Din Qazi for Respondents.

Date of hearing: 16th March, 2018.

JUDGMENT

JAWAD HASSAN, J.---Through this constitutional petition, the Petitioner has called in question judgment and decree dated 25.02.2015 passed by Additional District Judge, Jhang, whereby he allowed the appeal filed by the Respondent No.1 and set aside the judgment and decree dated 27.09.2014 passed by Judge Family Court/Guardian Judge, Jhang.

2.Succinctly, the facts for the disposal of this constitutional petition are that Respondent No.1, filed an application for the custody of minor, namely Sara Bibi, which was dismissed by the learned Guardian Judge, Jhang vide judgment and decree dated 27.09.2014. Feeling aggrieved, the Respondent No.1, preferred an appeal before the learned Additional District Judge, Jhang, who allowed the same vide judgment and decree dated 25.02.2015.

3.The learned counsel for the Petitioner has argued that while passing the judgment and decree, the learned Additional District Judge, Jhang, has not taken into consideration the paramount welfare of the minor who is female child and at the age of 3/4 years, therefore, the Petitioner being mother is much entitled for the custody of minor, but this aspect of the case has been overlooked and ignored by the Respondent No.3. He has further argued that the Petitioner is paying full heed towards the education and well being of the minor who is studying in a private School i.e. Premier School System and spending huge amount on her education which is evident from the receipt of dues paid by the Petitioner; that the Respondent No.1 has contracted a second marriage with a lady who is not related to the minor hence cannot be substituted as a real mother; that there is no substitute of real mother for a minor and the lap of mother is the cradle of God. Further, the Respondent No.1 has not paid a single penny in the shape of maintenance allowance to the minor. The said factum is proved from the examination-in-chief of Respondent No.1, wherein he stated that minor is studying in Premier School and the Petitioner is paying Rs.2500/- as her monthly school fee vis-à-vis other expenses. He has further argued that the learned Additional District Judge has failed to appreciate the dictum laid down by the Apex Court that the welfare of minor lies with the mother. He has placed reliance upon Mehmood Akhtar v. District Judge Attock and 2 others (2004 SCMR 1839), Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460) and Muhammad Ayub v. Mst. Nasim Begum and another (1996 CLC 1534). While relying upon the above said judgments the learned counsel for the

Petitioner has argued and laid much emphasis that there is no substitute to real mother, the lap of mother was cradle of God, remarriage of the mother ipso facto would not disentitle her from retaining the custody of the minor and the poverty of mother was no ground to disentitle her from the custody of the minor and the Islamic law was sub-servient to the welfare of the minor. Lastly, he prayed for acceptance of the writ petition and setting aside of the impugned judgments and decrees.

4.Conversely, the learned counsel for the Respondent No.1 has supported the impugned judgment and decree by contending that the learned Additional District Judge has correctly appreciated as well as evaluated the evidence on record in its true perspective, therefore, no exception can be taken to it in constitutional jurisdiction. He has further argued that the Respondent No.1 is entitled to get the custody of the minor because the Petitioner has contracted second marriage and she has failed to provide conducive atmosphere to the minor, who is living with her step father who is not related to the minor, whereas the Respondent No.1 being natural guardian/father is entitled to get custody of the minor who will provide her better maintenance. In support of his contentions, he has placed reliance upon Mst. Nazir v. Hafiz Ghulam Mustafa and others (1981 SCMR 200) and Shabana Naz v. Muhammad Saleem (2014 SCMR 343). Lastly, he prayed for dismissal of the writ petition.

5.Arguments pro and contra have been heard and record perused.

6.It is reflected from perusal of record that in the matter of custody of minors, the paramount consideration is welfare of the minors and the courts have to adjudge that out of father and mother who is the best suited for the custody of minors. Under Muslim Personal Law, mother is entitled to the custody of daughter even after she has attained the age of puberty and until she is married, whereas the father can claim custody of his male child after seven years. The welfare of the minors is to be determined while keeping in view their mental, intellectual, moral and spiritual well being. The Guardian Court has also to look into qualification of parents, the age, gender, religion of minor, the character and capacity of the purposed guardian and his/her nearness of kin to the minor as provided under Section 17 of the Guardians and Wards Act, 1890 (the "Act"). The welfare of minor in all cases is to be prevailed as the supreme consideration for deciding the issue of her or his custody. It has come on record through cogent and confidence inspiring evidence that the Petitioner has filed suit for maintenance of minor which is pending before Judge Family Court Jhang. The Respondent No.1 during cross-examination himself has admitted that he is an illiterate person and he has no source of income, whereas the husband of the Petitioner namely Saad Saud Jan is M. Com by qualification and serving as Account Manager in some Mill. The Respondent No.1 also admitted in cross-examination that the Petitioner and her husband are religious minded. The learned Additional District Judge has misread and non-read the cogent and confidence inspiring evidence wherein it has come on record that minor studying in a known Premier Private School and atmosphere of the Petitioner's family is congenial and educated where the minor will be brought up in a good atmosphere. Even otherwise, the minor is about 4/5 years of age in such age the attention of mother for capacity building and intellectual building of female minor is much required and in this age if the minor is departed from her mother a flaw would come in her upbringing. Mere contracting of mother's second marriage is no ground to disentitle her from the custody of a female minor when the minor is being brought up in a very good manner in the custody of mother. Reliance in this

respect is placed upon Sardar Hussain v. Parveen Umar (PLD 2004 SC 357), wherein it has been held as under:--

"Father claimed custody on the ground that minors had attained age of 7 years; and their mother after contracting marriage, had children from her second husband. Guardian Judge accepted father's petition, but Appellate Court dismissed the same which judgment was upheld by High Court in Constitutional petition. Minor after staying with father for more than 15 days at the direction of the High Court, had proclaimed that father was alien for them thereby showing attachment with mother. Minors had been admitted in a standard school, getting education, clothes food and were enjoying every facility of life in mother's house. Supreme Court dismissed petition and refused leave to appeal with observation that father might approach proper forum for allowing visiting terms to his children."

In the instant case, the Respondent No.1 has also contracted second marriage and a step mother and grandmother cannot be substitute of real mother. The Respondent No.1 has also offspring from her second marriage. Regarding education of minors, the Petitioner has adduced in evidence the fee receipts of Premier School System, SSP Road Civil Lines, Jhang to demonstrate that the minor is getting education in a known school. So far as the Respondent No.1 is concerned, he himself in his cross-examination admitted that he is an illiterate person and he has no source of income. In this view of the matter, the mother through cogent evidence has proved herself and led the court to come to an irresistible conclusion that the welfare of the minor lies with her. As per general Muslim rule father being natural guardian of minors has preferential right of custody of the minors especially in the circumstances when the minors are male and are above age of 07 years. In order to challenge this preferential right of the father, the mother was bound to establish some exceptional circumstances and to prove herself that she has preferential right over the father.

7.In the instant case, it is reflected from perusal of record that minor is female child and the Petitioner (mother) has been looking-after her minor daughter ever since her birth and maintaining in a good environment. It has come on record through cogent and confidence inspiring evidence that the application for custody of minors was filed after the fixation of maintenance allowance against her. Therefore, it is safely presumed that the Petitioner was least interested in the welfare of the minor and he filed the application for custody of minor in order to frustrate the decree for maintenance allowance. From the perusal of evidence it transpires that minor is in the custody of the Petitioner who is upbringing her properly and getting them education in the private school. In determining welfare of minor the paramount is always the welfare of minor. Reliance in this respect is placed upon Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839), wherein it has been held as under:-- "The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settle principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammad Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject

to the welfare of minor which is the prime consideration in determination of the question of custody."

It also goes without saying that there is no substitute of mother's lap, therefore, an association for female children with their mother is much important, as compared to the father. Further the poverty and poor financial status of mother, does not disentitle her from the custody of the minor. Reliance in this respect is place upon Mst. Rabia Bibi v. Abdul Oadir and others (2016 CLC 1460), wherein it has been held as under:--

"No substitute to real mother. Lap of mother was cradle of God. Remarriage of the mother, ipso facto, would not disentitle her from retaining the custody of minor. Poverty of mother was no ground to disentitle her from the custody of the minor."

8.The Superior Courts in number of judgments have held that there is no substitute of mother and no one could take care of minors more than their real mother for being their first institution and depriving minors of the company of their real mother would create deprivation in their lives, which could not be restored back. Reliance in this respect is placed upon Amiad Masih v. Mst. Bushra Bibi (2010 YLR 1468), Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others (2006 MLD 493), Mehmood Akhtar v. District Judge Attock and 2 others (2004 SCMR 1839) and Mst. Naziran Bibi v. Additional District Judge, Mianwali and 2 others

(2006 MLD 493).

9.The learned Additional District Judge, Jhang while passing the impugned judgment has given much focus on the remarriage of the Petitioner but has not given paramount consideration to the welfare of the minor and has also ignored the fact rather misread the evidence that the minor is getting education in a private school and she is also of such age, where she needs much love and affection of her mother as compared to her father.

In view of the above, this writ petition is allowed and impugned judgment and decree passed by the Respondent No.3 is set aside and that of the Respondent No.2 is upheld. However, to enable the minor to meet her father, a visitation schedule is required to be chalked out therefore, the Respondent No.1 is directed to approach the Guardian Judge, Jhang who after issuing notice to both the parties shall chalk out a visitation schedule accordingly.

MH/S-19/L Petition allowed.