ZUBEDA KHANUM Versus DISTRICT JUDGE, KARACHI SOUTH

1. These two Constitution Petitions Nos. S‑90 of 1987 and S‑109 of 1987, have been filed against the same Judgment dated 1‑8‑1987, of District & Sessions Judge (South), Karachi. This common Judgment will dispose of both the Constitution Petitions.

2. The relevant facts are that Sikander Ali Khan died in an accident on 28‑7‑1984. Mst. Zubeda is wife of deceased Sikander while Mst. Aziz Khatoon is mother. He left behind three minor children namely Faisal born on 25‑8‑1976, Muhammad Saleh alias Khan born on 19‑11‑1981, and daughter namely Paras born on 16‑10‑1983. After the death of Sikander, there arose a dispute in the family. Mst. Aziz Khatoon the mother of deceased Sikander filed an application under section 10 of the Guardians and Wards Act for appointment of the guardian of person and property of minors in the Court of 1st Senior Civil Judge, Nawabshah whereas Mst. Zubeda wife of the deceased filed an application under section 25 of the Guardians and Wards Act, 1819, for restoration of the custody of three minors in the Court of IVth Senior Civil Judge, Karachi (East).

3. Both the applications were pending at Nawabshah and Karachi respectively. Mst. Zubeda Khanam filed a transfer application No. 3 of' 1985, in the High Court of Sind, Karachi, that the application filed by Mst. Aziz Khatoon under section 10 of the Guardians and Wards Act at Nawabshah be transferred to Karachi. On the other hand, Mst. Aziz Khatoon also filed a counter application No. 5 of 1985, in the High Court for the transfer of Guardians and Wards Act application No. 2011 of 1984, filed by Mst. Zubeda Khanam from Karachi to Nawabshah.

4. This Court disposed of both the transfer applications by an order dated 28‑5‑1985, and transferred application No. 16 of 1984, from Nawabshah to Karachi. The IVth Senior Civil Judge, Karachi (East) by his judgment dated 19‑2‑1986, decided both the Guardianship Applications of the parties by a single Judgment. He ordered that two minors, Muhammad Saleh alias Khan and Baby Paras are within the age limits which entitled Mst. Zubeda Khanam, mother, to have their custody. He directed Mst. Aziz Khatoon and Haji Noorullah to hand over the custody of the above minors to their mother, Mst. Zubeda Khanam but third minor Faisal being above 7 years was allowed to remain with Mst. Aziz Khatoon, the father's mother. This judgment was challenged and appeal was filed in the Court of District Judge (East) Karachi, who by an order dated 18‑5‑1986, remanded the case back to IVth Senior Civil Judge, Karachi (East). In the same judgment, it was observed that trial Court has not given the findings for the appointment of a guardian of property and person of the minors, therefore, Court should also decide this issue. Following additional issues were also directed to be framed:‑‑

(1) Whether minors namely Faisal, Muhammad Saleh alias Khan and Baby Paras were removed from the lawful custody of Mst. Zubeda Khanam from Karachi?

(2) Whether Mst. Zubeda Khanam being the mother is entitled to the right of Hizanat?

(3) Whether Mst. Aziz Khatoon is a fit person to act as a guardian of persons and property of the minors.

5. IVth Senior Civil Judge, Karachi, has disposed of the application under section 10 and application under section 25 of the Guardians and Wards Act of the parties by a judgment dated 28‑10‑1986, whereby he dismissed the application of Mst. Zubeda Khanam filed under section 25 of the Guardians and Wards Act and allowed the application of Mst. Aziz Khatoon filed under section 10 of the Guardianship Act. Being aggrieved with this judgment, Mst. Zubeda Khanam filed an appeal in the Court of District Judge, Karachi (South) who by his judgment dated 1‑8‑1987, ordered that the custody of Muhammad Saleh alias Khan and Baby Paras be returned to Mst. Zubeda Khanam'Mother' while Faisal who has crossed the age of 7 years and getting education at Abbotabad, should remain in the custody of Mst. Aziz Khatoon. In the same judgment, he maintained the order of IVth Senior Civil Judge, Karachi, for appointment of Mst. Aziz Khatoon as guardian of property of the minors. Mst. Zubeda Khanam filed Constitution Petition No. S‑90 of 1987, on the ground that she is entitled to custody of her son Faisal too and appointment of Mst. Aziz Khatoon as guardian in person and property of the minors has been challenged. On the other hand, Mst. Aziz Khatoon has filed Constitution Petition No. S‑109 of 1987 in which the judgment of the District Judge, has been challenged and she claims the custody of minor Muhammad Saleh alias Khan and Baby Paras.

6. I have heard Mr. K.B. Bhutto appearing for Mst. Zubeda Khanam and M/s. N.A. Farooqui and Niamatullah Qureshi for Mst. Aziz Khatoon.

7. Mr. K.B. Bhutto has argued that Sikander died suddenly in an accident when Mst. Zubeda Khanam, his wife was under treatment at Karachi, where she was informed and she went Nawabshah and all the three children who were with the mother at that time were forcibly removed from her custody by Mst. Aziz Khatoon and her father‑in‑law, Noorullah Khan. It is contended that the custody of minors be restored as Mst. Zubeda Khanam is entitled to the custody of minors under the Muhammadan Law as their case comes under 'Hizanat'. It is argued that Mst. Aziz Khatoon is not entitled to be appointed as guardian of property and the person of the minors as she is a woman who can neither look after the property nor devote to the welfare of the children. He has referred to the cases reported in 1982 C L C 1821, P L D 1953 Lah. 442, P L D 1959 Lah. 509. It is contended that scope in the writ jurisdiction is very limited. He has referred to the cases reported in P L D 1981 S C 246 and 522 and 1987 S C M R 1414.

8. Mr. Niamatullah Qureshi contended that there are two concurrent findings in respect of appointment of a guardianship of property and a person, therefore, the, findings on the application under section 10 of the Guardians and Wards Act, filed by Mst. Aziz Khatoon cannot be disturbed, in the Constitution Petition. He submitted that only question for the consideration is whether Mst. Zubeda Khanam can get the custody back of the children under section 25. His contention is that at the death of Sikander, children were not with the mother; therefore, application under section 25 of the Guardians and Wards Act, is not maintainable.

9. Mr. N.A. Farooqui has argued at length and submitted that at the time of the death of Sikander, Mst. Zubeda Khanam was with her parents at Karachi and she left the minors at Nawabshah; therefore, she has neglected the children during the lifetime of her husband. She is not entitled to custody. It is argued that deceased Sikander and Mst. Zubeda Khanam were not on good terms and this fact has been mentioned by the deceased in his Will which is attested by some witnesses. Mr. Farooqui submitted that Mst. Zubeda left the house from Nawabshah, 21 months before the death of Sikander..It is argued by the learned counsel that scope of the Constitution jurisdiction in these matters is very wide. He has referred to the cases reported in P L D 1974 (SC) 139, P L D 1967 (S C) 402 and PLD 1987 (S C) 447. It is contended that Mst. Zubeda will not be in a position to look after the children. He has referred to the cases reported in 1981 S C M R 744, 1976 S C M R 305, N L R 1984 SC 182 and A I R 1941 Bom. 344.

10. In the first round, IVth Senior Civil Judge, Karachi (East) in his judgment dated 19‑2 1986, allowed the application of Mst. Zubeda Khanam, mother of children, filed under section 25 of the Guardians and Wards Act. By the same judgment, he dismissed the application of Mst. Aziz Khatoon, filed under section 10 of the Guardians and Wards Act, on the ground that Mst. Aziz Khatoon cannot be appointed as guardian of person and property of minors. He allowed the custody of two minors namely Muhammad Saleh alias Khan and Baby Paras to Zubeda Khanam. After the remand, the same Judge, by judgment dated 28‑9‑1986, dismissed the application of Mst. Zubeda Khanam for custody of children and appointed Mst. Aziz Khatoon as guardian of person and property of minors. Though, in earlier decision, he had an evidence of most important witnesses of the parties before him. But in the second round, additional oral evidence was adduced and he changed his decision to which appeal was filed and the learned District Judge (South) in his judgment dated 1‑8‑1987, maintained the findings of the learned Civil Judge in respect of appointment of Mst. Aziz Khatoon as guardian of person and property of the minors. He also allowed the custody of Faisal to be retained by Mst. Aziz Khatoon as the boy has crossed the age of 7 years but the learned District Judge ordered that the custody of minors namely Muhammad Saleh alias Khan and Baby Paras is the right of the mother, namely, Mst. Zubeda Khanam.

11. There are some points which are admitted that Sikander Ali met with an accident and died on 28‑7‑1984, while he was coming from Karachi to Nawabshah. It is on the record that Sikander had a Bungalow in Karachi, near the house of the parents of his wife, Mst. Zubeda Khanam. The ages of the minors are not disputed. It is also on record that Mst. Zubeda K.hanam was admitted in Rajputana Hospital, Hyderabad, from 2‑6‑1984 to 25‑6‑1984, and such documents have been produced and her operation was done on 4‑6‑1984, and these documents have not been controverted by Mst. Aziz Khatoon. It is relevant note that operation of Mst. Zubeda Khanam was about more than 11 months before the death of Sikander. Mst. Zubeda Khanam in her evidence stated that relations between her and her late husband were very cordial as before his death he purchased one Flat in Karachi to which he in writing made her nominee of the Flat but her relations with the parents of the husband were not cordial. She has explained that on knowing about the death of her husband, she rushed to Nawabshah and could see his face at graveyard. This fact has also not been denied by the witnesses of Mst. Aziz Khatoon. After the death of Sikander, his father Noorullah Khan filed a civil suit for Declaration and Specific Performance in respect of the Bungalow of Karachi in which he impleaded Mst. Zubeda, Aziz Khatoon his wife and three minors as parties. Without going into the merits of the Suit which is still pending, it is clear that this Suit against the minors and their mother and even against his wife clearly indicate that there was illwill between their daughter‑in‑law. The learned District Judge by a detailed judgment discussed the entire evidence of the parties and allowed the custody of only two minor children the mother, Mst. Zubeda Khanam. Under Article 353 of Muhammadan Law by Mulla, the mother is entitled to custody 'HIZANAT' of her male child until he crossed the age of 7 years and her female child until she has attained puperty. This right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father. The female looses the right of custody if she marries a person not related to the child within the prohibited degree, a stranger and if she is leading an immoral life, neglects to take proper care of the child and goes and resides during the substance of the marriage at a distance from the child's place of residence.

12. During the course of argument, Mr. Niamatullah Qureshi frankly submitted that he does not press the alieZation of immoral life of Mst. Zubeda Khanam though some averments were made in his pleading. Mst. Zubeda Khanam has not remarried after the death of her husband. The age of Mst. Paras at the time of death of her father Sikander was hardly 11 months while Muhammad Saleh alias Khan was 3J years. The age of Faisal was 8 years at that time. From the above circumstances, it is clear that Mst. Zubeda Khanam had not neglected her children. The only allegation from the other side is that Mst. Zubeda Khanam left the children 21 months before the death of Sikander which amount that she neglected the children. This is hardly believable when Mst. Zubeda Khanam was operated upon in the month of June in Rajputana Hospital. In exercise of the constitutional jurisdiction, we cannot enter into the details of the evidence which is not the duty of this Court but I have referred to the certain facts which are on record. The learned Counsel for Mst. Aziz Khatoon have mainly argued that children were not taken from the custody of Mst. Zubeda Khanam, therefore, provisions of section 25 of the Guardians and Wards Act do not attract. There is an evidence that Sikander had a house in Karachi and Mst. Zubeda Khanam at the relevant time admittedly was in Karachi as she was sick and in these circumstances, it is but natural that Saleh and Baby Paras, an eleven months baby were at least with the mother and there is no reason to disbelieve her version. Not only this but section 25 of the Guardians and Wards Act is to be read and considered alongwith Muhammadan Law applicable to the parties. In case of Allah Yar Khan v. Mst. Nasim Akhter and another reported in 1985 C L C 1277, a reference has been made of a case reported in P L D 1953 Lah. 442, where it has been held as under:‑‑

13. "It is to be remembered that Muhammadan Law gives the mother a right to custody. If the child be removed from the custody of the mother, even if the person who takes away the child be the father, who is the guardian himself, section 25 is applicable. Any other interpretation leaves the mother entirely without a remedy so far as the Guardians and Wards Act is concerned, removal from custody would take place even if the mother voluntarily left and was prevented from taking the children with her, just as it would occur if she was turned out of the house and the children remained where they were. The application under section 25 is maintainable.

14. Moreover in Mst. Ulfat Bibi v . Jafati A I R 1927 All. 581, it was held that custody referred to in section 25 includes both constructive as well as actual custody. This judgment was cited with approval by a Division Bench of our own Court in Mst. Nazir Begum v. Ghulam Qadir Khan and others A I R 1938 Lah. 313, wherein it was held that so long as the custody of a minor is not actually made over to the guardian, the proceedings do not terminate and the applicability of section 12 is not barred. In this authority a contention similar to the one raised in the present case was repelled with the following observations."

15. Mr. Nasim Farooqui appearing for Mst. Aziz Khatoon has referred to the cases reported in A I R 1941 Bomb. 344. In that case the facts were different and the jurisdiction of the court was invoked. Not only this but as it appears from the above case the parties were not Muslims, therefore, the provisions of 'Hizanat' of Muhammadan Law was not the issue in that case. Another case of Shagufta Bano and Musarrat Hanif reported in 1982 C L C 1821, was on the point of jurisdiction and welfare of the minors, was considered.

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