Mst. IRFANA SHAHEEN Versus ABID WAHEED

ORDER

Criminal Miscellaneous No. 109‑H of 2001 and Criminal Miscellaneous No. 130‑H of 2001 involving the common question of law and facts are proposed to be disposed of through this single judgment.

2. Mst. Irfana Shaheen has moved Criminal'Miscellaneous No. 109‑H of 2001 under section 491, Cr.P.C. against Abid Waheed for recovery of the minor girl namely Arooj from his custody and delivery of the custody of the girl to the petitioner. Abid Waheed was married with the petitioner in the year 1992. The spouses being issueless approached a Social Institution namely Gehwara being run under the control of Social Walfare Department, Government of the Punjab, and adopted a female child aged about one month and twelve days. Subsequently, the relations between the parties became strained and the respondent ousted the petitioner from the house with the minor. The petitioner having taken shelter in the house of her parents filed a suit for dissolution of marriage against the respondent. The suit was decreed by the learned Judge Family Court at Kahuta vide judgment dated 5‑12‑2000 and marriage was dissolved on the ground of Khula'. Mst. Irfana Shaheen through this petition has sought the custody of the minor who was allegedly snatched from her by the respondent forcibly on dissolution of marriage and despite repeated request did not return the custody of the minor to the petitioner.

2. In Criminal Miscellaneous No. 130‑H of 2001, Gul Zareena petitioner has sought similar direction for recovery and production of infant child of the age of about fifteen days from the custody of Incharge Gehwara, tespondent No.2, in this petition for handing over the custody of the child to her. The facts in this petition in the background are that during the night of 18/19 September, 2001, a newly‑born baby was found lying in an open space near a mosque in Taxila and the petitioner being issueless having desired for ‑the child with the consent of the local police and the respectable of the Village, the petitioner obtained the custody of the infant as an adopted child. The local police, however, having entered report at Police Station Taxila registered a case under section 328, P.P.C. vide F.I.R. No.480 dated 19‑9‑2001 ‑ against unknown person. The petitioner with a view to avoid any complication, on the advice of local police moved an application before a Judicial Magistrate at Taxila for regularization of the custody 'of the minor with her. The learned Magistrate instead of permitting the petitioner to retain the custody of the minor directed the Investigating Officer to hand over the infant to Gehwara, an Institution being run under the control of Social Welfare Department, Government of the Punjab. Mst. Gul Zarina approached Incharge Gehwara, respondent No.2, for custody of the child but the said respondent refused to hand over tile custody of the minor to her, and consequently Mst. Gul Zarina having questioned the legality of the order dated 19‑9‑2001 passed by the Judicial Magistrate has moved this application under section 491, Cr.P.C. for the custody of the infant child.

4. The essential question relating to the right of custody of an adopted child involved in these petitions needs determination in the light of the concept of adoption of a child in Islam. The petitioner in Criminal Miscellaneous No. 109‑H of 2001 upon separation claimed the custody of Mst. Arooj, a minor girl, who was jointly adopted by the parties. The petitioner being female in the light of right of Hazanat of mother in Islam has claimed the custody of infant child on the ground that the respondent being not real father of the child would have no special or preferential right over the petitioner to retain the custody of the minor girl. The respondent on the other hand has contended that he having adopted the minor girl as father with the acceptance of responsibility of bringing up the child as his daughter would be entitled to retain the custody of the child and that the welfare of the minor girl would also demand that the respondent should retain her custody.

5. The question in the present petitions under section 491, Cr.P.C. would confine only to the extent of adoption of abandoned and destitute children and the right of their custody in Gehwara, an Institute of Government of Punjab, under a recognized policy discharges the service of giving the custody of such children to the needy people and regulate the custody of adopted children in their welfare with their custodian. The powers, under section 491, Cr.P.C. are exercised only in cases of illegal and p improper custody and not for any other consideration including the social status and financial position of the parties.

6. In the light of the nature of the issue and its public importance, Dr.Zaheer‑ud‑Din Babar Awan, an Advocate of this Court who is well conversant with Islamic Law was requested to assist the Court as amicus curiae. The learned counsel with reference to the Qur'anic Verses and authoritative Books written by Muslim Jurists submitted that the female in the light of concept of Foster Mother would have first right of custody of a female minor and similarly she would be entitled to exercise right of Hazanat in the matter of custody of an adopted child. Learned counsel quoted (a) Surat Al‑Nisa, Verse No.23 which provides as under:‑‑

"Prohibited to you (For marriage) are:‑‑

Your mothers, daughters, Sisters: father's sister, mother's sister, brother's daughters, Sister's daughters; foster‑mothers (Who gave your suck), forster‑sisters, Your wives' mothers, Your step daughters under your guardianship, born of your wives To whom ye have gone in,‑‑(Those who have been) Wives of your sons proceeding From your loins; And two sisters in wedlock At one and the same time, Except for what is past; For All/is Oft‑forgiving, Most Merciful",‑‑

(b) The discussion on the subject in the light of above Ayat is found in a Book published in the name of Holy Qur'an English translation of the meanings and Commentary in Saudi Arabia. The relevant portion is read as under:‑‑

"Foster male played an important part in Islamic Society and count like blood‑relationships: it would, therefore, seen that not only foster‑mothers and foster sisters but foster mother's sister, etc, all come within the prohibited degree."

(c) Ayat No.2 of Surat Al‑Majadla reads as under:‑‑

Urdu

(d) The discussion on the issues relating to the social problem of adopted child from a Book "Anwar‑ul‑Quran" written by Dr.Ghulam Murtaza. The relevant portion at page 538 of the said Book is read as under:‑‑

Urdu

(e) In a Book written by Allama Abu Bakkar Allaw-ud‑Din Kasani under Chapter Kitab‑ul‑Raza, the issue was discussed at page 14 as under:‑‑

Urdu

(f) Similar issue was expressed in "Fatawa Aalam Giri" at page 266 (Second Volume) and the Muslim Jurists in the following manner:‑‑

(i) Hanfite, in the light of the right of Hazanat, mother is entitled to the custody of the minor child notwithstanding the dissolution of marriage or its existence between the parties.

(ii) Malkia: The custody of the child will go to the mother and after mother, the preference will be given to maternal side and not the paternal side.

(iii) Shaafia: In presence of father and mother, the preference shall be given to the mother and in absence of mother, the grandmother shall be entitled to the custody of the female child and in absence of grandmaternal mother, the grand‑paternal mother will be entitled and, thereafter the mother's sister and father's sister respectively. On the male side, the first right goes to the father and in absence of father, the grandfather and brother and step‑brother etc.

(iv) Hambalia: The mother has the first right of custody.

In nutshell, the learned counsel contended that the principle for the custody of an adopted minor should not be different to that of a real child except the certain limitations relating to the inheritance. Learned counsel has, however, submitted that the concerned Ministries and Departments in the Provincial and Federal Governments are under a legal and moral obligation to regulate the matters relating to the custody of destitute child in their welfare and should establish Institutions for orphans, abandoned and destitute children as a State obligation as provided under Chapter 2 of the Constitution (Principle of Policy) and made special allocation for their education, health and marriages etc. from Zakat Funds.

7. Having considered the arguments of the learned counsel for the parties and Dr. Z.13abar Awan, Advocate, who has rendered a very valuable assistance to the Court, I hold as under:‑‑

(a) The parties in Criminal Miscellaneous No.109‑H of 2001, have jointly adopted a minor girl from Gehwara Institution, therefore, respondent would have no exclusive right of custody of the minor son or daughter, as the case may be, being the male partner of the transaction of adoption. The parties willingly adopted the child jointly when they were in marriage tie. The petitioner accepted the duty and responsibility of bringing up the child with motherly love and affection and how after the dissolution of marriage, the said responsibility can be discharged by the respondent or can be shifted to any other woman. The petitioner being the most essential partner of adoption in the light of the concept of right of custody of such H child in Islam would exclusively be entitled to the custody of child. The welfare of the child at this stage would also demand that he/she should remain in the custody of the female partners of adoption. In nutshell, the petitioner having enjoyed the status of mother of the minor would be entitled to retain her custody in exercise of the right of Hazanat and would not be deprived of such right for wordily consideration, I, therefore, allow this application and direct that the I custody of the minor with the petitioner shall not be disturbed except in accordance with law.

(b) In Criminal Miscellaneous No.130‑H of 2001, the petitioner is the sole contestant for the custody of the child, who has willingly adopted the abandoned child with the consent of the people of the area. Undoubtedly, the Institution namely Gehwara is rendering a noble service for the settlement of destitute and abandoned child and regulates the matters relating to the adoption by giving their custody to the needy people but the petitioner having willingly adopted the child would have exclusive right to retain his custody and the institution of Gehwara or any other official Organization or a private person except the real mother and father of the child would have no right to deprive the petitioner from the custody of the child as mother. The petitioner has voluntarily accepted the responsibility of bringing up the child as her son/daughter as the case may be, therefore, under the law, the petitioner shall be entitled to the custody of the child adopted by her without the intervention of Gehwara. However, in the interest of welfare of child and to regulate the matter relating to his custody as an adopted child, the petitioner will give an undertaking to Gehwara for giving motherly love and affectiop, to the child and abide by the Rules andr Regulations of Gehwara relating to the adoption of child and will not further deliver his/her custody to any other person without the permission of Gehwara. It may be observed that with a view to provide shelter to the orphans and destitute children, the Federal and Provincial Governments are under Constitutional obligation to establish such Institutions at large scale to regulate the affairs of such unattended children in the light of mandate of Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) as provided under Chapter 2 of the Constitution of Islamic Republic of Pakistan, 1973.

These petitions are, therefore, allowed in the above terms.

8. The copy of this order shall be sent to the Ministry of Religious Affairs, Government of Pakistan for possible action in the matter.

H.B.T./I‑105/L Petition allowed.