ماں ان چار صورتوں میں بچے کی کسٹڈی سے محروم ہوسکتی ہے ۔
1-اگر وہ دوسری شادی کر لیتی ہے
2-اگر وہ شہر سے دور گاؤں میں رہتی ہے
3 - اگر وہ غیر اخلاقی زندگی گزار رہی ہو
4- اگر وہ بچے کی ٹھیک طرح دیکھ بھال نہ کر رہی ہو
PLD 20I0 LAH 206
ماں ان چار صورتوں میں بچے کی کسٹڈی سے محروم ہوسکتی ہے ۔
1-اگر وہ دوسری شادی کر لیتی ہے
2-اگر وہ شہر سے دور گاؤں میں رہتی ہے
3 - اگر وہ غیر اخلاقی زندگی گزار رہی ہو
4- اگر وہ بچے کی ٹھیک طرح دیکھ بھال نہ کر رہی ہو
PLD 20I0 LAH 206
(a) Guardians and Wards Act (VIII of 1890)---
----S.25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petition for custody of minor son and daughter by mother---Such petition made by father showing both parents of minors to be residing in one house, while father alleging minors to be in his custody---Validity---Such petition was misconceived as custody of minors had never been removed---Such petition was not entertain able, thus, was dismissed in circumstances.
(b) Islamic Law---
----Female childe, custody of---Disentitlement of mother to such custody---Circumstances stated.
A female could only be disentitled to the custody of her minor child, if she remarries or goes and resides at a distant place or if she leads an immoral life or she neglects to take proper care of the child.
Section 354 of the Muhammadan Law rel.
(c) Guardians and Wards Act (VIII of 1890)---
----S. 25---Petition for custody of minor son and daughter by mother---Contest between parents of minors, both being Doctors by profession---Private compromise between parties giving custody of minors to father 'while divorcing their mother---Validity---Court before passing any order would prefer the welfare of minors---Father had not alleged that mother had either remarried or was leading an immoral life or had neglected to take proper care of minors---Father was serving professional doctor and had no female in his house to look after children---Minor so was being looked after by father through a male servant of 14/15 years, while minor daughter was being brought up by his sister residing at another place---Both minors for being of tender age required affection---Mother was a doctor and having sufficient sources---Welfare of minors in circumstances, would be in handing over their custody to mother having preferential right of Hizanat---Private agreement between the parties was neither valid in law nor even enforceable---Application of mother was accepted in circumstances.
Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. and Mehmood Akhtar v. District Judge, Attock and 2 others" 2004 SCMR 1839 ref.
Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Kar. 619, Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306; Mst. Moondan v. Muhammad Amin 1989 MLD 3427; Muhammadan Law S.54; Mst Razia Rehman v. Statin House Officer and others PLD 2006 SC 533; Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246 and Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 rel.
(d) Guardians and Wards Act (VIII of 1890)---
----S.25---Mother's application for custody of minor son and daughter---Denial of mother's right to such custody by father on basis of private agreement reached between the parties---Validity---Mother had preferential right of Hizanat under Islamic Law---Such agreement regarding custody of minor was neither valid in law nor even enforceable---Court, in such circumstances, would prefer welfare of minors before passing any order.
Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Kar. 619; Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306; Mst. Moondan v. Muhammad Amin" 1989 MLD 3427 and Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 rel.
Syed Sajid Ali for Petitioner.
Ch. Muhammad Saleem for Respondent.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, J.---Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the orders dated 25-3-2009 and 2-7-2009, passed by learned Guardian Judge, Lahore and learned Additional District Judge, Lahore (appellate Guardian Court) respectively and as a consequence whereof has sought the custody of her minor children Danyal and Laiba on the basis of her preferential right of Hizanat.
2. Facts of the case, succinctly required for determination of the instant writ petition, are that petitioner and respondent No.1 entered into contract of marriage on 2-11-2002 in accordance with Muslim Rites and customs and this wedlock gave birth to two children namely Danyal 1-8-2003 and Laiba (11-3-2006). The relations between the spouses became strained and the petitioner filed four suits against respondents No.1 in the Court of learned Family Judge Lahore (1) suit for recovery of dower amount, (2) suit for recovery of maintenance allowance, (3) suit for dissolution of marriage, and (4), suit for recovery of dowry articles. That apparently it appears that the parties had entered into an alleged compromise and these suits were withdrawn on the basis of the same compromise, which the petitioner asserts that the compromise had been effected in a deceitful manner and thereafter it is alleged by the petitioner that the respondent had kicked her out of the house in three wearing apparels and respondent had also forcibly retained the minor children of the petitioner. That in order to further deprive the petitioner from the children, it is alleged that by manipulating a compromise the respondent also filed an application under section 25 of the Guardians and Wards Act, 1890, which was accepted on 25-3-2008 on the basis of alleged compromise as well as statement of the petitioner. The case of the petitioner is that she had been doped in entering into a compromise in a deceitful manner by respondent in order to manipulate the custody of the minors.
3. Learned counsel for the petitioner in order to show that the application under section 25 of the Guardians and Wards Act, 1890 was filed by respondent No.1 under deceitful scheme to obtain the custody of the minors find support from the addresses of the parties mentioned on the application filed by respondent No.1 before the learned Guardian Judge and states that as both the parties were residing under the same roof, therefore, there was no need for filing an application for custody of the minors as the minors were already with respondent No.1, hence, such application should not have been entertained and the same merited dismissal under Order VII, Rule 11, C.P.C. It is stated that the entire story narrated in the application/petition is concocted one and the same has been managed in order to deprive the petitioner from the custody of the minor children. It is further stated that petition under section 25 of the Guardians and Wards Act, 1890 was filed on 2nd June, 2008; whereas the application for effecting compromise was filed on 4th June 2008, which speaks mala fide on the part of respondent No.1 especially when such application was not signed by both the parties. It is further stated that thereafter in furtherance to his scheme respondent No.1 got the statement of the petitioner recorded on 5-6-2008 before the Guardian Judge. Learned counsel further argues that the learned Guardian Judge had some reservations at the time of recording of the statement of the petitioner as such instead of passing any order on the basis of compromise, considered it appropriate to adjourn the same for 11-6-2008 and even on that date when none of the parties appeared, the learned Guardian Judge having apprehensions regarding the compromise adjourned the case for 17-6-2008 with the direction to the parties to appear personally. That on 17-6-2008, a counsel was produced before the learned trial Court alleging to be of the petitioner, who got recorded his statement to the effect that the petitioner had handed over the custody of minors to respondent No.1/petitioner and she did not want to appear before the Court, which does not appeal to the prudent mind and as a matter of fact the petitioner did not engage the said counsel to represent her in order to get recorded such statement. Furthermore, in the absence of parties, the order was passed, which has no value in the eyes of law and the same is liable to be set aside. It is also contended that in such a situation the learned lower appellate Court was not justified to observe that truth is attached to the statement of the petitioner and as such orders dated 25-3-2009 and 2-7-2009 are not sustained in the eyes of law and liable to be set aside.
4. It is further contended that both the children are of very tender age and their custody is necessary for their welfare to be handed over to their mother i.e. petitioner having preferential right of Hizanat. It is also contended that there is no female in the house of respondent No.1 to look after the children and minor Danyal is being looked after by a male servant of 14/15 years; whereas minor Laiba is in the custody of sister of respondent No.1 who is residing at Wah and both the children are living in different places separately, which is against their welfare and will definitely create psychological problems; whereas, the petitioner has not contracted second marriage and she is also earning a handsome amount and the welfare of the minors demands that their custody be handed over to the petitioner. It is further alleged that respondent has also contracted second marriage. To strengthen the case further learned counsel for the petitioner has relied upon the dictum of law laid down in the case of.
1.Mst. Tahera Begum v. Saleem Ahmed Siddiqui PLD 1970 Karachi 619.
2.Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267.
3.Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306.
4.Mehmood Akhtar v. District Judge, Attock and 2 others" 2004 SCMR 1839
5.Mst. Moondan v. Muhammad Amin" 1989 MLD 3427.
5. As against above, learned counsel for respondent No.1 has vehemently opposed this petition. It is stated that the petitioner had herself got divorce on the basis of Khula while waiving her right of custody of the minor children on the basis of compromise as well as statement recorded in the Court and as such she is estopped by her act and conduct to file the instant petition. It is further stated that the learned Guardian Court was fully justified in accepting the petition under section 25 of the Guardians and Wards Act, 1890 in light of compromise and statement made by the petitioner and as such no illegality has been committed. It is also stated that learned appellate Court has also rightly held that truth is attached to the statement of the petitioner made before the learned trial Court and as such the assertions made by learned counsel for the petitioner are of no consequence. It is further stated that the petitioner herself made statement in the competent Court of law, which is in the handwriting of the learned Judge and the statement is also signed and thumb-marked as well as CNIC number of the petitioner is also given, she cannot resile from her such statement and principle of estoppel shall come into play. While controverting the assertion of learned counsel for the petitioner that on the day of announcing the order dated 17-6-2008, none of the parties were present, learned counsel for respondent No.1 has contended that when the statements, had already been made on 5-6-2008, the order dated 17-6-2008 was competently passed. Moreover, it has been contended that the application by the petitioner had been filed on 27-11-2008 and as such the petitioner herself remained silent for five months without any justification. It is also submitted that both the learned Courts below while passing concurrent findings of facts have made observations that a compromise was entered into between the parties, hence presumption of truth is attached to the observations made by the learned courts below and this Court cannot interfere into the well-reasoned orders passed by the learned lower Courts. Moreover, concurrent findings of fact cannot be called in question in the writ jurisdiction. It is further submitted that under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the order can be interfered if the order is without jurisdiction, without lawful authority, which is not the case in the instant petition. Regarding the case law cited on behalf of the petitioner, learned counsel for respondent No.1 has contended that as the parties have entered into a valid compromise before the competent Court of law having exclusive jurisdiction to entertain the matter, the case-law can lend no help to the petitioner. Moreover, the petitioner has herself admitted that she got divorce from the petitioner while entering into a compromise. It is further asserted that respondent No.1 has never denied access of the petitioner towards the minor children. In the end, learned counsel for respondent No.1 has urged that the instant writ petition is not maintainable by this Court being incompetent and is liable to be dismissed.
6. I have considered the arguments advanced on behalf of the parties. For proper determination of all the facts, I have also gone through the relevant provisions of The Guardians and Wards Act, 1890, Muhammadan Law and over and above preferential right of Hizanat.
7. Without commenting upon the alleged statement of the petitioner before the learned Guardian Judge, Lahore, I intend to discuss the legality/maintainability of petition under section 25 of the Guardians and Wards Act, 1890 filed by respondent No.1. It would be advantageous to reproduce the supra section, which reads as under:-
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 is of the 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. (underlined by me)
(2) .
(3)
Bare perusal of the petition filed by the petitioner under section 25 of the Guardians and Wards Act especially the prayer made therein reveals that the same is not maintainable as both the parties were residing in the same house and moreso the custody of the minors as alleged in the petition, was also with respondent No.1 as such the petition was misconceived as the custody of the minors was never removed and the petition should not have been entertained on this sole ground as per section 25 of the Guardians and Wards Act, 1890.
8. The laws on the point of custody of minors is very much clear and section 354 of the Muhammadan Law states that a female could only be disentitled to the custody of her minor child if she remarries or goes and resides at a distant place or if she leads an immoral life or she neglects to take proper care of the child. In the instant case much has been emphasized by learned counsel for respondent No.1 regarding compromise between the parties, however, none of the disentitlements as propounded in section 354 of Muhammadan Law have been agitated against the petitioner. Moreover, before passing any order even in the presence of any private agreement, welfare of the minors should be preferred as per ratio decidendi of dictum of law laid down in the case of Mst. Moondan v. Muhammad Amin (1989 MLD 3427); wherein it has been held as under:--
"---S.25---Custody of minor---Welfare---Agreement, between the parties---Duty of court---Decision on question of custody of minor is to be made on sole consideration of welfare of minor and not on basis of agreement reached between the parties---All agreements to this effect should be subject to welfare of minor which was supreme consideration in such matters."
Similar view has been affirmed in the case of Mst. Naseem Kausar v. Muhammad Saleem and 2 others 2003 MLD 1306;
"Ss.17 & 25-Constitution of Pakistan (1973), Art, 199---Constitutional petition---Guardianship---Custody of minor---Welfare of minor---Contention of the father was that at the time of divorce between the spouses, custody of the minor was handed over to him on the basis of a private agreement and now the mother could not assert her right of custody---Validity---Held, neither custody of minor in all cases could be effectively settled by private agreement nor such principle of estoppel was of universal application---Matter depended on case to case basis, and the circumstances in which the agreement between the spouses regarding custody of the minor children could be made basis for the decision."
Similarly in the case of PLD 1970 Karachi 619 "Mst. Tahera Begum v. Saleem Ahmed Siddiqui it has been held as under:
(a) Guardians and Wards Act (VIII of 1890), S.25---Custody and guardianship of minors---Cannot be settled by private compromise or even arbitration---Agreement between parties in this respect---Not enforceable although it could be evidence of abandonment of child by one of the partners---Mother to avoid lengthy litigations of getting divorce, agreeing to let minor girl aged 3-142 years to remain in custody of father---Held, mother, in circumstances, did not abandon child."
9. Admittedly, respondent No.1 is a professional doctor who is also serving and there is no female in his house to look after the children as the mother of respondent No.1 has also passed away. Learned counsel for respondent No.1 has not controverted the position as advanced by learned counsel for the petitioner that minor Danyal is being looked after by a male servant of 14/15 years and minor Laiba is being brought up by sister of respondent No.1, who is residing at Wah and as such both the minors brother and sister are residing in different places separately. Both the minors require affection being of very tender age. In such a situation when the petitioner/mother of the children has not contracted second marriage and she being a lady doctor is also having sufficient sources, it would be in the welfare of the minors that their custody is handed over to the petitioner having preferential right of Hizanat.
10. Moreover, according to Muslim Personal Law, mother has the preferential right to Hizanat and any agreement reached between the two parents, inter alia, regarding the custody of minor children is neither valid in law nor even 'enforceable. Reliance in this regard is placed on the dictum of law laid down in the case of Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533; wherein their Lordships in the august Supreme Court of Pakistan have held as under:
"8. It is not denied that according to the Muslim Personal Law, the mother has the preferential right to Hizanat (temporary custody of the minor) till the minor attains the age of seven in the case of males and the age of puberty in the case of a female minors. It is also not denied that the minors in question have still not reached the said ages. It is also an undeniable fact that according to the law of the land, any agreement reached between the two parents, inter alia, regarding the custody of the minor children is valid neither in law nor even enforceable. Therefore, if it is presumed that the petitioner-lady had, through some alleged compromise which she is however, denying, waived her right of Hizanat, the said compromise or agreement had no binding force in the eyes of law. Nothing could be brought on record e.g. the petitioner having re-married or not being of a good moral character which could have disentitled the petitioner mother to her right of Hizanat vis-a-vis the two minor children."
11. In the above perspective the petitioner has made out a case of interference in the concurrent findings of facts given by the learned Courts below under extraordinary constitutional jurisdiction of Article 199 of the Constitution of Islamic Republic of Pakistan 1973. Respectful reliance in this context is made upon the dictum of law laid down in the cases of Muhammad Sharif and another v. Muhammad Afzal Sohail etc. PLD 1981 SC 246 and Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322.
12. Moreover the case in hand is on fell footing with that of ratio decidendi laid down in the case of Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533, therefore, while humbly relying upon the above case-law, the instant writ petition is accepted. Resultantly, order dated 25-3-2009, passed by the learned Guardian Judge, Lahore and judgment dated 2-7-2009, passed by the learned Additional District Judge are set aside leaving the parties to bear their own expenses.
S.A.K./F-4/LPetition accepted.
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