RANI BEGUM Versus IIIRD ADDITIONAL DISTRICT JUDGE (EAST), KARACHI

This Constitutional Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed by the petitioner against the order dated 26‑3‑1987 passed by the learned 3rd Additional District Judge, East, Karachi, in appeal maintaining the order dated 20th December, 1986 passed by the learned 6th Senior Civil Judge and Family Court, East, Karachi, on an application under section 12 of the Guardians and Wards Act, 1890, ordering that the custody of minor daughters of the petitioner be given to their father, respondent No.3.

2. The facts stated in the petitioner are that the petitioner is the mother of two minor girls, Shahina and Rozina and respondent No.3 is their father. Respondent No.3 divorced the petitioner in or about 1975 and according to the allegation in the petition, respondent No.3 never maintained or looked after the minors ever since then. In or about 1980 the petitioner took an employment with respondent No.4 as a domestic servant who also provided accommodation to the petitioner with her minor daughters. The petitioner's son Mohammad Saleem was employed in another house as a domestic servant and was residing with his employer. In 1983, when the petitoner's son grew up and his financial condition improved, he was able to arrange for independent accommodation for himself and for the petitioner, and the two minor daughters, she left her employment with respondent No.4. At the time of leaving the employment, respondent No.4 asked the petitioner to leave her daughters there, who were aged about 10 and 8 years respectively, stating that the minor children of respondent No.4 had become extremely attached to her girls and that the petitioner could take them away after some time. In or about 1986, when the financial position of the petitioner's son was further improved and he was able to maintain her sisters as well, the petitioner requested respondent No.4 to allow the said two minor daughters to go with her. Upon refusal by respondent No.4 a criminal miscellaneous application, being Cr. Misc. Appln. No.1444 of 1986 under section 491, Cr.P.C. was filed in this Court against respondent No.4. At this stage, respondent No.3 father of the two minor girls appeared on the scene and made an application for being joined as an intervenor. Respondent No.3 also expressed his no objection to the minors residing with respondent No.4, who was admittedly a stranger. A learned Single Judge of this Court, however, by his order dated 8‑10‑1986 directed that the custody of the minors be given to the mother, the petitioner herein. It was further ordered, by consent of the petitioner and respondent No.3 that the girls will not be taken out from Karachi for six months and the parties will get their matter decided from the Family Court according to law. Mr. Sabihuddin learned counsel for the petitioner in that case, too stated, as incorporated in the said order, that the mother (petitioner herein) will allow the father to visit the girls twice in a month in her house.

3. It appears that respondent No.3 filed Guardians and Wards Application No.797 of 1986 in the Court of respondent No.2 and also moved an application under section 12 of the Guardians and Wards Act, praying for interim custody of the minor to him. The learned Family. Judge by his order dated 20th December, 1986 allowed the said application, ordering the interim custody of the two minor girls to be delivered to the father, respondent No.3 pending final hearing of the main case. The petitioner filed an appeal under section 14 of the Family Courts Act being Family Appeal No.l of 1987 before the learned 3rd Additional District Judge, East, Karachi, who by his judgment dated 26‑3‑1987 dismissed the same and also passed a decree in terms thereof. The petitioner, then, filed the above petition.

4. This matter was fixed for 26th February, 1989 for regular hearing but was adjourned to 19‑3‑1989. On both these two dates of hearing respondents Nos.3 and 4 and their counsel remained absent and so is the position today. I waited for the respondents up to 11‑30 but as none has turned up on their behalf, I am constrained to hear the petition in the absence of the respondents.

5. Mr. Sabihuddin, learned counsel for the petitioner submits that the learned two Courts below have failed to take into consideration the element of urgency, which according to him is a precondition for exercising the power under section 12 of the Guardians and Wards Act. He further submits that the impugned orders are passed on consideration that are irrelevant for the purpose of section 12 of the Guardians and Wards Act. Reliance is placed by him on the case of Muhammad Sadiq Butt v. Mst. Khalida Parveen PLD 1967 Kar. 645 and the case of Mirza Muhammad Yusuf v. Razia Sultana.

(i) In the first case PLD 1967 Kar. 645 a learned Single Judge of the erstwhile High Court West Pakistan observed that:‑

"That fact that no particular conditions are laid down in subsection (1) of section 12 does not dispense with the fundamental requirement of passing an interim order. I have not the slightest doubt that when such an order a sought the party seeking the order has to show a certain element of urgency. Nothing of the kind was done here nor was any evidence recorded nor was any allegation of the kind made as would be necessary to justify the passing of an interim order. The learned Judge had dealt with the matter as if he was deciding the question of custody under section 25 of the Guardians and Wards Act. But that application, I am informed, is still pending .....

(ii) In the second case PLD 1974 Note 80 at p.125 learned Single Judge of the Lahore High Court observed that:‑

"The words used in the last line of subsection (1) of section 12 of the Act, "and protection of the person or property of the minor as it thinks proper" cannot be read separately from the words, "may make such order for temporary custody". The order for temporary custody is to be made in context of the protection of the person or property of the minor. If the interest or life of the minor is not found to be immediately adversely affected in continuing his custody with any of the parties, then no order under section 12 of the Act, may be warranted‑"

6. There is yet another authority reported as Khushi Muhammad v. Mst. Arshad Bibi and others 1988 SCMR 1234, wherein the observations made in a Writ Petition by a learned Single Judge of the Lahore High Court allowing the Writ Petition of the respondent (mother) for the reason "that the matter of the custody of the children was already pending before the Guardian Judge and it would not be in the interest of the children to shuttle them between one party or the other until the final decision of the case respecting custody of the children by the Guardian Judge under section 25 of the Guardians and Wards Act" were approved by the Supreme Court and petition for leave was rejected.

7. The petitioner and her two daughters are present. I enquired from the said two girls whether they would be willing to reside with the mother or leave her to join their father, respondent No.3. Their reply was that they would like to continue staying with their mother and do not want to go to their father. In this context I may also refer to the following tradition of the Holy Prophet (PBUH) stated in Al‑Sunan A,1‑Kubra by Al‑Bayhaqi, td. 458 AH) Hyderabad Dakan, India, Vol. III page 3 and Al‑Sunnan by Abu Da'ud, Karachi, Vol, 1, p.305, and Al Sunnan by A. Nasir Karachi Vol. III, p.93:

Translation:

Rafi 'b. Sanan narrated a tradition to me. He said that he accepted the faith of Islam but his wife refused to accept it. She went to the presence of the Prophet and said, "My daughter's feeding by me has been stopped (by the father)". Rafi said, "She is my daughter". The Prophet asked Rafi' to take his seat at one side and the woman on the other side and directed them to make the daughter sit between them. Thereafter he asked both of them to call their daughter to them; (call being made) the daughter (seemed) inclined towards her mother. Thereupon, the Prophet prayed, "May God guide her (the child)". Then she got inclined towards her father. Consequently Rafi' picked up his daughter.

Translation‑

It is stated by‑Abi Maimuna that he was (sitting) with Abu Hurairah who said that a woman came to the Prophet and said, "My husband wants to take away my son, although he (my son) gives me comfort and brings me drinking water from the well of Abu "Uyanah". Thereon, her husband appeared denying her claim over his son. The Prophet then said "O' child ! Here is your father and here is your mother, make a choice between the two whomsoever you want." The son caught hold of the hand of his mother and she went away with the son.

T ranslation:

It is stated by 'Amarat Al‑Jarmi that 'Ali gave him the authority (to choose) between the mother and the uncle and then he said about his (Amarah's) brother who was younger than him, "It is (proper to do) so; I shall give him the same powers when he comes up to your age".

Translat ion:

It has been reported by Qasim b. Muhammad. He has stated that 'Umar b. Al‑Khattab had married a woman from the Ansar. She gave birth to a son whose name was 'Asim b. Umar. 'Umar divorced the woman. One day when 'Umar was proceeding on his horseback towards Quba he found his son playing in front of the mosque. He caught hold of him and placed him on the horseback. His (Asim's) maternal‑grandmother caught up (with them). A quarrel arose between the maternal grandmother and 'Umar about (the custody of) that boy. Both of them came to Abu Bakr who was the Caliph. Umar said, "He is my son." Abu Bakr said, "O, Umar leave this woman and the child". 'Umar said nothing in reply (raised no objection to this decision).

Translation:

It is narrated by Masruq that "Umar divorced Umm Asim. Asim was under the custody of his maternal grand‑mother. The maternal‑, grandmother took the case before the Caliph Abu Bakr. Abu Bakr decided that the child would remain with his maternal grand‑mother and 'Umar would have to provide for his maintenance. He maintained that the maternal grand‑mother was better entitled to the custody of the child.

8. It appears that both the Courts below did not apply their mind to the aspect of "urgency" as required under the law. Admittedly, the petitioner has been divorced as long back as 1975 by respondent No.3 who appears to have taken no interest in the welfare of the minors the two minor daughters and the son. In fact, as per order dated 8‑10‑1986 passed in Criminal Miscellaneous Application by a learned Single Judge of this Court, respondent No.3 appears to have signified no objection to the custody of the minor daughters remaining with respondent No.4, who was completely a stranger not only to the minors as well as the said respondent No.3 and with whom the petitioner was serving for earning livelihood for herself and for her two daughters.

9. The application under section 25 of the Guardians and Wards Act is still pending before the learned Senior Civil Judge and Family Court and there seems to be no urgency in removing the minors from custody of the mother during pendency of the said application, which will be decided on merits, nor it seems to be in the interest of the minors to remove them from the custody of their mother with whom they have been living since their birth, which may emotionally upset them, at this interval during the pendency of the main case particularly in the face of their refusal to go to their father.

10. For the above discussion I accept this petition and declare the impugned orders dated 26‑3‑1987 and 20‑12‑1986 of respondent Nos.l and 2, respectively as passed illegally and of no legal effect. The custody of the minors, will, therefore, remain with the petitioner subject to the final decision in the Guardian Application. The petitioner will also not take away the minors from Karachi or give them in marriage without prior permission of the trial Court. The father, respondent No.3 will however, be entitled to visit the minors twice a month at her residence.

11. Before parting with the above case I would like to add that the observations made hereinabove are merely tentative and will not be taken into consideration by the learned Family Court while deciding main application for Guardianship, after recording evidence led by the parties. The learned Family Judge may proceed with the trial of the case expeditiously.

12. The parties will bear their own costs.

AA./R‑84/K. Petition accepted