2011 C L C 889
Guardians and Wards Act (VIII of 1890)---
----Ss. 17 & 25---Constitution of Pakistan, Art.199---Constitutional petition---Custody of minor---Welfare of minor---Application by mother of minor girl for custody was accepted by the Trial Court---Appeal filed by the father of the minor against judgment of the Trial Court had been dismissed by the Appellate Court---Validity---Marriage between father and mother of the minor had been dissolved on the ground of Khula and mother after dissolution of marriage had contracted second marriage, whereas father had not---Female minor aged 10 years was a `special person' and also had kidney problem---Treatment of minor required huge expenses; and mother of minor neither herself nor her parents, were in a position to provide for medical expenses of the minor---Minor was in the custody of her father, who had been providing her all medical facilities---In appointing the guardian of the minor paramount consideration for the court should be welfare of the minor---Court must see as to who was the most likely to contribute to the well being of the minor and who would be in better position to look after and take care of the minor---In the present case, father had been providing special care to her minor daughter; and he was in a position to bear the expenses as well---Concern which the father had shown, had proved that he loved his daughter and would definitely look after the minor in a much better way than the mother---Mother of the minor who had contracted second marriage with a stranger, would remain dependant upon her second husband, who could not provide maintenance and care to the minor---No reasons existed to disentitle the father for custody of the minor---Judgments of the two courts below were set aside and father who was natural guardian of the minor, was declared as entitled to the custody of minor.
Khurram Mahmood Qureshi for Petitioner.
Ahmad Nawaz Bhatti for Respondent No.3.
Date of hearing: 23rd February, 2011.
2011 C L C 889
[Islamabad]
Before Riaz Ahmad Khan, J
KHALID MEHMOOD----Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, ISLAMABAD and 2 others----Respondents
Writ Petition No.150 of 2011, decided on 9th March, 2011.
JUDGMENT
RIAZ AHMAD KHAN, J.--- Facts constituting the background of the present petition are that petitioner Khalid Mahmood married Mst. Shazia. Mushtaq/respondent No.3 on 30-10-1999. Out of the wedlock a daughter namely Manahil was born on 18-4-2001. Unfortunately, the daughter was special child. To add to the misfortune, differences arose between the spouses. Respondent No.3, Mst. Shazia Mushtaq on her own behalf as well as on behalf of minor daughter namely Manahil filed suit for dissolution of marriage on the basis of Khula, recovery of maintenance and dowry articles. In the said Court, respondent No.3 Mst. Shazia Mushtaq filed affidavit, wherein she stated that her daughter was a special child and she was not in a position to bear the expenses of her treatment and care. She further stated that she wants to give the custody of her minor daughter to the present petitioner, who being her father would be in a better position to pay the expenses and take care of the minor. Father of respondent No.3 also filed an affidavit, wherein he stated that he too was not in a position to bear expenses of the minor daughter of the parties. On 15-2-2008, learned Judge Family Court, Islamabad dissolved marriage on the basis of Khula as reconciliation had failed; regarding the remaining controversy issues were framed. On 3-7-2008, a compromise was effected between the parties. On the basis of compromise, dowry articles as claimed by respondent No.3 were returned to her, Rs.30,000 as past maintenance of minor daughter was paid to respondent No.3 and in return respondent No.3, handed over custody of minor to the present petitioner and also agreed that she in future would not demand custody of the minor, however it was added that she will have the right to visit the minor, whenever she wants. On the basis of said compromise decree was passed. Thereafter, respondent No.3 on 6-9-2008, filed petition for custody of minor namely Manahil under section 25 of the Guardians and Wards Act. It is pertinent to mention that during, this period respondent No.3 also contracted second marriage. After recording evidence and hearing the parties, learned Senior Civil Judge/Guardian Judge, vide order/judgment dated 5-6-2010, accepted the application and ordered that the custody of the minor be handed over to applicant/respondent No.3/Mst. Shazia Mushtaq. The present petitioner feeling aggrieved of the said order/judgment filed appeal before the learned District Judge, Islamabad, which was entrusted to learned Additional District Judge, Islamabad. The appeal however was dismissed vide order/judgment dated 13-12-2010, hence the present writ petition.
2. I have heard the learned counsel for the parties and have also perused the record.
3. Admitted position in the, present case is that the minor namely Manahil is 10 years old, is a special child. In addition to other problems, she is having kidney problem and treatment for the kidney problem is provided by Kidney Centre, which provides specialized treatment in the kidney problems. The minor also requires psychological treatment from National Institute of Rehabilitation Medicines, Islamabad and for other problems she has to get treatment from Bilal Hospital, Rawalpindi, which includes Physio Therapy and other similar treatments. All these treatments require huge expenses. It is also admitted that the respondent No.3 mother of the minor neither herself nor her parents, are in a position to provide for medical expenses of the minor. There is also no denial of the fact that the minor is in custody of the present petitioner since 1-7-2008 and the .petitioner has been providing all above mentioned medical facilities to the minor daughter. Petitioner has not contracted second marriage; whereas respondent No.3 has contracted marriage with stranger who is not related in any way to the minor.
4. The two courts below held that the contract between the spouses regarding custody of minor has no legal value and the minor being a girl requires special care which can be provided only by the mother and therefore, custody was given to mother/respondent No.3.
5. As far as the question of compromise is concerned, 'there is no doubt that such a contract has no value because in case of custody of minor, the prime importance is welfare of the minor and if a compromise is effected between the parties, which is in accordance with the convenience of the parties and not for the welfare of child, then the same would be against law and will have no value. Nevertheless, the same can be taken as a piece of evidence to determine the conduct of the parties. The matters to be considered for giving custody of minor, are given in section 17 of the Guardians and Wards Act. One of the considerations for appointment of guardian is that the Court has to take into consideration the law to which the minor is subject.
6. Since in the present case, the minor is governed by Islamic Law, so for appointment of her guardian principles enunciated in Mahomedan Law have to be taken into consideration.
7. Under section 352 of Mahomedan Law, mother has the first right to the custody of minor but she loses this right if she contracts second marriage and the custody of the minor goes to the father. Under section 354 of the Mahomedun Law, the mother in case of second marriage with stranger, who is not related to the minor in prohibitory degrees is totally disqualified and cannot get the custody of the minor. In the present case, the mother/respondent is disqualified for the custody of her minor daughter.
8. There is no doubt that in appointing the guardian of the minor paramount consideration for the Court should be welfare of the minor and if in the circumstances of a particular case Court comes to the conclusion that a deviation be made from the preference given in the Islamic Law i.e. custody of the minor is required to be given to the mother even if she has contracted second marriage, the same would be possible but in that case the onus would shift to the mother to prove that the father is not a person, entitled to the custody of the minor. The reasons in that case must be sound and convincing e.g. if the father is reputed to be of bad character, of unsound mind, criminal etc. If no such evidence against the father is available then the mother on second marriage would lose the right to the custody of minor. While appointing the guardian, the Court must see as to who is the most likely to contribute to the well being of the minor, who would be in a better position to look after and take care of the minor. In the present case, the minor is a special child and she needs special care. It is on record that the petitioner/father had been providing special care to the minor/daughter and he is in a position to bear the expenses as well. The concern, which the father has shown, proves that the petitioner loves his daughter and would definitely look after the minor in a much better way than the mother/respondent No.3. On the other hand, respondent No.3 has contracted second marriage to a stranger and she would certainly remain dependant upon her second husband, who may not provide maintenance and care to the minor. The petitioner has sisters and other ladies in the house and they can look after the minor while attaining the age of puberty. There are no reasons to disentitle the petitioner/father for the custody of the minor. So, in these circumstances, I accept this writ petition, the judgments of the two courts below are set aside and petitioner who is the natural guardian of the minor is declared as entitled to the custody of the minor.
H.B.T./16/Isl. Petition accepted.
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