Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE / 691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents.
Writ Petition No.3228 of 2020
Nosheeba Nazeer Vs. Sajjad Ahmed and 2 others
ORDER SHEET
IN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
Writ Petition No.3228 of 2020
Nosheeba Nazeer Vs. Sajjad Ahmed and 2 others
11.01.2021
Raja Muhammad Faraz Khan, Advocate fo the applicant/respondent No.1.
Mr. Shabbir Ahmed Mirza, Advocate with the petitioner.
Mr. Saleem Murtaza Mughal, Additional Advocate General with Muhammad Zaheer Inspector/SHO P.S. Chountra, District Rawalpindi.
In compliance of the order dated 28.12.2020 the minor detenu namely Ali Raza, aged about 7 years, has been produced before the Court by Sajjad Ahmed (respondent No.1), his father.
2. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor son namely Ali Raza by Sajjad Ahmed (respondent No.1). As per contents of this petition, the minor was removed from the custody of the petitioner by Sajjad Ahmed (respondent No.1) on 18.11.2020. The petitioner has also appended her affidavit alongwith the present petition regarding the correctness of the contents of this petition. No counter affidavit has been filed by Sajjad Ahmed (respondent No.1 and the father of the alleged detenue) so as to challenge the contents of the affidavit. The minor Ali Raza had been living with his mother since his birth and had joined his father only recently i.e. on 18.11.2020. Learned counsel for the respondent No.1 has presented an alleged sworn affidavit of the petitioner dated 18.11.2020 executed on a stamp paper, to the effect that in compliance with the decision of the Jirga the petitioner had surrendered custody of the minor Ali Raza of her own accord and with her own consent to respondent No. l namely Sajjad Ahmed on 18.11.2020. It is further stated in the alleged affidavit that the petitioner shall not approach any forum or Court to seek the return of her minor son namely Ali Raza. The petitioner when confronted with the said affidavit, has repudiated the same. She denies under oath that she had executed this document. She states that the minor was taken from her on the pretext of visiting the father and was not returned to her. I have examined the document, which purports to be executed in compliance of some decision of Jirga. The circumstances of handing over of the minor to his father namely Sajjad Ahmad (respondent No.1) are mired in controversy as the respondent No.1 is claiming that the minor was handed over to him in consequence of the agreement effected between him and the petitioner on the intervention of the Jirga whereas the petitioner is claiming that the minor was removed from her custody on the pretext of visiting the father. It is not disputed by both the parties that the child was born when already the parties were living separately from each other and it is also not disputed that divorce was effected between the parties in the year 2018.It is also not disputed that prior to 18.11.2020 the minor had been living with the petitioner. The child has also been questioned by this Court who stated that he had been living with his mother since his birth and had only recently been handed over to his father (respondent No.1). On Court query, the minor namely Ali Raza has stated that he wanted to live with his mother, the petitioner. Prima facie no bond of love and affection exists between the minor and his father as he had not lived with his father ever prior to his handing over to him only recently. Any agreement, though disputed by the petitioner, even if executed with regard to the handing over the custody of the minor, has no value in the eyes of law and cannot be relied upon. There can be no dispute that questions concerning the custody and guardianship of minors cannot be settled by a private compromise or even by arbitration. An agreement of this nature, therefore, cannot be enforced. If an agreement is entered into by a female which appears unconscionable on the face of it, there is a rebuttable presumption that the agreement was entered into by coercion and undue influence. No effective rebuttal is forthcoming to show as to why the petitioner would voluntarily part with her minor son. Hence the purported agreement to hand over the custody of the minor to the respondent No.1 has no value in the eyes of the law. Reliance is placed on the cases of “Mst. SHEHNAZ BIBI Versus MUHAMMAD AKRAM and others” (1995 PCrLJ 307),. “Mst. RIFFAT BIBI versus AMANAT ALI”(1997 M L D 1562), “AFSHAN NAUREEN Versus NADEEM ABBAS SHAH” (1997 M L D 197) and “Mst. TAHERA BEGUM Versus SALEEM AHMED SIDDIQUI” (P L D 1970 Karachi 619). It would only be the learned Guardian Judge who would be in a position to determine the welfare of the child in proceedings if initiated before the same. At present this Court finds it proper and in the interest and for the welfare of the minor to hand over the custody of the minor Ali Raza to his mother, the petitioner, with whom he had lived since his birth and the bond of love and affection exists between the mother and the child and at present there does exist no reason to break the same. It is true that a Guardian court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody. In Arabic language, guardianship is termed as wilayat and custody as hidhanat. Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE / 691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents. Reliance is placed on the case of “Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others” (2018 SCMR 427). Reliance is also placed on the case of “Mst. MADIHA YOUNUS Vs. IMRAN AHMED” (2018 SCMR 1991).
3. In view of the above discussion, this petition is allowed and the custody of the minor namely Ali Raza is ordered to be handed over to the petitioner. It has been brought to the notice of the Court that respondent No.1 intends to file an application under section 25 of the Guardian & Wards Act, 1890. It is, therefore, directed that if and when such an application is filed by the respondent No.1, the learned Guardian Judge shall decide the same strictly in accordance with the law and expeditiously, preferably within a period of two months of the filing of the same. It is also directed that the petitioner shall produce the minor before the learned Guardian Judge if, as and when directed by the said court so as to allow Sajjad Ahmad, the father of the minor, to meet with the minor. However, Sajjad Ahmad shall not be allowed to take the minor out of the premises of the court of learned Guardian Judge. It is also made clear that any such petition filed before the court of the learned Judge Guardian Court shall be decided on its own merits, without being influenced in any manner by any observation made in this order. (SADIQ MAHMUD KHURRAM)JUDGE
Approved for reporting.
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