MUKHTAR AHMAD Versus AZIZA BEGUM

A father has, by this appeal under section 47 of the Guardians and Wards Act, called in question order dated 21-9-1970 whereby a learned Judge, Family Court, while rejecting his application under section 25 of the Act for custody of Zulfiqar, the minor son of the parties, held that it was in his welfare to stay with his mother (respondent).

2. The parties were married in 1959. There are two sons from this wedlock. The separation took place after a couple of years and ultimately the marriage was dissolved through a Court decree in 1966. In May 1968, the appellant applied before the Guardian Judge for the custody of Zulfiqar (minor) who was then aged 8 years. His other son, it appears, was then less than 7 years and he did not make any prayer for his custody. The question of welfare of the minor was put to issue between the parties who led evidence. With the help of the learned counsel I have gone through it.

3. It does not appear from the record that either of the parties have remarried after the dissolution of their marriage in 1966. Zulfiqar minor is admittedly at present about 13/14 years of age. There is no independent evidence to support the assertion of the appellant that the minor has in any way been neglected by the respondent and/or her family. On the contrary, it appears from the certificates (Exhs. R/1 and R/2) that his educational needs are being properly looked after. But that, by itself, would not show that if the custody of the minor is handed over to the appellant he would not be able to care for him in, if not better, at least comparable manner. The only objection that he is employed in the railway and, therefore, would not be able to devote sufficient time to the minor is untenable. There is no assertion by the respondent in this behalf that during the subsistence of marriage and her stay with the appellant, he was on account of his employment unable to attend to his family needs. The appellant made statement on oath which was not controverted that he goes only once a year on tour and that too only for one day. He was living with his married brother and it is not the case of the respondent that if the custody of the minor is handed over to the appellant he (the minor) would be left alone in the house and there would be nobody to look after him. At present the minor is grown up boy and it cannot be imagined in the above circumstances that if the custody is handed over to the appellant, the minor's education would not continue and/or that he would be rendered a destitute'. With regard to the means of earning there is no difference. While the appellant claimed that he was getting a monthly pay of Rs. 140, the respondent asserted that she earns about Rs. 150 per mensem by "working for other people". In the latter case, the income is dependent on chance and the respondent keeping good health. As to the fact that the respondent's father is working as a Munshi with different shopkeepers and thus is an earning hand and/or one of her brothers is an Army employee and draws Rs. 400 per mensem as pay, suffices it to observe that if she was wholly dependent upon these resources she would not have worked for other people so as to earn for living. This circumstance cannot, therefore, be the deciding factor.

4. Some stress has been laid from the respondent's side that the appellant did not voluntarily pay the maintenance for the children. It appears that there was litigation between the parties on the question of dissolution of marriage. In such like cases it is very difficult for the husband to send maintenance for the children to b is estranged wife without any resistance. However, in this case, it has been admitted by the respondent under cross?-examination that the appellant has been paying maintenance for his children at the rate of Rs. 30 per mensem since the divorce. It is nowhere asserted that during this long period he in any way tried to avoid this pay?ment. Thus, there does not appear to be any desire on the part of the appellant to deprive his children of maintenance ordered by a Court. The only other circumstance which weighed with the learned Guardian Judge in rejecting the appellant's application was that the minor was living away from him since infancy and to entrust its custody to the applicant now would amount to forcing it to live with almost a stranger". This, the learned Judge further observed, would be nothing short of cruelty. No doubt this element in the cases like the present one does present some amount of difficulty but despite that the Courts have to pass proper and legal orders in matters of custody of minors, notwithstanding the fact that the results, temporarily, might be unpalatable to the minor in so far as the emotional attachment at a certain age is concerned. The Muslim law qua presumptions has to a very large extent taken care of this aspect of the matter. Ordinarily, the mother is entitled to the custody of a minor son up to the age of 7 years. This rule of guidance also caters for the emotional needs of a male child at the tender age. Thereafter, the other needs of the child are also to be taken care of. One of the essential needs is the attachment to and love and regard for both the parents. The minor is at present about 13/14 years of age. The appellant in his statement complained that he had not even been allowed to see the minor. This sort of treatment from the respondent side led also to the hardening of attitude. That is why the learned Guardian Judge was constrained to remark that the appellant so far appears to be a stranger to the minor. But it needs to be observed that he (the appellant) in this behalf does not appear to be at fault. It also appears that the minor has not been given balanced training by the respondent and her close relations in so far as his regard for the father is concerned. I also examined the minor. He had come from the respondent's custody and obviously he supported her by expressing the desire that be would like to stay with her. If he had lived for such a long period since his infancy with the appellant, I am certain he would have made a contrary choice. In the background of the above circumstances, therefore, the desire expressed by the minor gets explained and is not sufficient by itself to control the question of his custody.

5. The minor has been deprived of the affection and love of the father for such a long time. He is passing through a formative stage during which he needs to learn about his father and his family. It is in his welfare that if not earlier, at least from now onward he should start living with his father. Apart from this general consideration, in the peculiar circumstances of this case, I am of the view that it would be entirely to the benefit of the minor if he goes out of the present atmosphere. The respondent admitted under cross-examination that her sister Mst. Zubaida had also obtained divorce through Court. She has a daughter from this wrecked marriage. The respondent also admitted that her brother who is employed in the G. H. Q. also divorced his wife. But she tried to put the blame for all these divorces on the appellant. Be that as it may, the fact remains that in the house where the respondent lives, there are remains of three wrecked marriages. The minor has reached the age of environmental consciousness. I consider it in his welfare to direct that his custody should be transferred to the appellant anal while accepting this appeal I order accordingly,

6. The effect of this order would be that one son of the parties who has attained the age of 13/14 years would be residing with the appellant while the other would, subject to any other proceedings and/or orders or adjustment, about which nothing was said during the hearing of this appeal, continue to live with the respondent. It is in the interest of both the minors that they should be afforded reasonable opportunity of meeting each other and at the same time both the parents should have similar opportunity of seeing the minor living with the other party. I, therefore, direct that both the parties would arrange a meeting between the brothers after every three months. The details of this meeting shall be worked out firstly by agreement between the parties and, on their failure to do so, through an application to be made before the learned Guardian Judge. There will be no need to arrange a separate meeting for each party to see the minor living with the other party. They should avail of this opportunity at the time when meeting is arranged between the two minor brothers. There shall be no order as to costs.

K. B. A. ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ?????????? Appeal accepted