Mst. ZAINAB Versus UROOJ AHMED

MUHAMMAD SALEEM JESSAR, J.--- Through this Constitutional Petition the petitioner has challenged the Judgment dated 15.01.2018 passed by learned XI-Additional District Judge, Karachi South, whereby he dismissed G & W Appeal No.77/2017 filed by the petitioner and upheld the orders both dated 05.10.2017 passed by learned XVII-Civil and Family Judge/Judicial Magistrate, Karachi South, whereby he decreed G & W Suit No.1401/2015 filed by respondent No.1, thereby directing the petitioner Mst. Zainab to handover the custody of minor Master Ayan Ahmed to respondent No.1, father of the minor.

2. Precisely, the facts giving rise to the filing of instant Constitutional Petition are that respondent No.1 Urooj Ahmed filed G&W Petition, stating therein that he contracted marriage with the petitioner Mst. Zainab at Karachi on 13.12.2008. Out of this wedlock, one male child namely Ayan Ahmed was born on 05.05.2010 and all delivery expenses were borne by the respondent. In the year 2011, the respondent along with the petitioner, minor and his parents shifted to Islamabad and minor was brought up under the care and custody of his family. Due to lack of experience of the petitioner to meet the requirement of child, the respondent appointed one maid for taking care of the minor and maid remained accompanied with minor everywhere and minor was admitted in the best nursery school of Islamabad at the age of 02 years. On the other hand, the petitioner proved herself to be careless and could not provide proper love and affection to the minor and remained busy in her gatherings and travelling with friends and relatives of film industry. In the month of November 2012, the petitioner went to Karachi for celebrating Eid-ul-Azha with her parents along with the respondent and his family and entire expenses were borne by the respondent. After celebrating Eid, they decided to go back to Islamabad but the petitioner without any cogent reason refused to accompany the respondent and stated that she could not leave her parents alone and insisted to get the minor admitted in a school at Karachi. Efforts were made to make her understand that half academic year had already passed, therefore, it was not possible to get the minor enrolled or start his education at Karachi but she was adamant on her demand, therefore, after a considerable time minor was got enrolled at Bay View Academy in their new academic session. At the time of coming to Karachi, the petitioner took away all the gold, precious ornaments and clothes with her. After her refusal to go back to Islamabad, the respondent was left with no other option but to leave for Islamabad, however, he constantly remained in touch with the petitioner to persuade her to rejoin him at his house at Islamabad but instead of doing so, she in order to pressurize him filed Family Suit No. 1219/2012 for dissolution of marriage by way of Khula. However, the said suit was withdrawn by her after the negotiations amongst the elders of the parties. Thereafter, the petitioner showed her willingness that she will not create any hindrance in the family life as well as the education of minor. It was further averred that all the educational expenses were/are being borne by the respondent. During the proceedings of suit for Khula, the respondent also filed G & W application at Islamabad, however, same remained unattended due to compromise between the parties. Thereafter, the minor was taken to Dubai and Islamabad off and on by the petitioner by not complying with the terms of compromise and started creating hindrances. She then filed application before the Honourable District and Sessions Judge, Islamabad for alleged kidnapping of minor and also lodged FIR No.395/2015 against the respondent. Thereafter, Family Suit No.737/2014 filed by her for grant of Khula was decreed ex parte on 29.05.2014. The respondent was acquitted in the criminal case filed by the petitioner. He used to pick and drop the minor from school, whereas the petitioner used to sleep till late hours of the day after having late night parties. He prayed for handing over custody of the minor child to him as he was natural guardian of the minor.

3. After service of the summons, the petitioner filed written statement wherein she denied all the allegations being false, fabricated and concocted. She submitted that she was married with the respondent on 13.12.2008 and after marriage they shifted to Islamabad at his brother's house and she never remained careless towards her only son. She denied to have taken away all the gold and other precious belongings and submitted that jewelry remained in the safe custody of her mother-in-law. All school expenses were borne by her. She further submitted that the minor was never restricted to meet with the respondent. She further stated that once the respondent along with minor went to Islamabad and disappeared therefore she filed an application under section 491, Cr.P.C., wherein the police found exact location of the minor, where the whole family was hiding along with the kidnapped child and police arrested them and recovered the minor but she showed her grace and told the police that she does not want to pursue the matter. Thereafter, the respondent was acquitted under section 249-A, Cr.P.C. She further stated that it is the responsibility of father to maintain his child and in case wife has no means, it is incumbent upon the father to pay the maintenance of the minor according to his own living standard. She further stated that she is providing extra care to the minor and being mother she has the right of Hizanat since birth till minor grows up.

4. After formulating the points for determination, recording of evidence and hearing the arguments of advocates for the parties, the learned Family Judge decreed the suit with the directions as stated above. The opponent/petitioner challenged the order passed by the Family Judge by filing Family Appeal, which was also dismissed vide impugned judgment, hence, this Constitutional Petition.

5. I have heard the learned counsel for the parties and have gone through the material available on the record.

6. Learned counsel for the petitioner contended that the two courts below erred in passing the impugned Order/Judgment, which are not sustainable in law and on facts. He further contended that the two courts below have not appreciated properly the evidence adduced by the parties and have passed the impugned orders in a hasty manner. He further contended that the minor child has been living with the petitioner/mother since his birth and she has been paying his school fees, while the respondent/father has failed to pay even a single penny towards his maintenance except on a few occasions when insisted by the petitioner/mother. He further submitted that the petitioner is residing in posh locality of Karachi and the minor child is studying in a best school of Karachi where his performance in the studies was very well and he is healthy and intelligent child, whose behavior is excellent towards the family members as well as his teachers. He further contended that although the petitioner has remarried but even then she is not debarred from her right to retain the custody of minor son as held by the Superior Courts. He further contended that the impugned orders are partial and one-sided and the learned Guardian Judge has failed to properly appreciate the evidence of the parties, hence, the case requires reappraisal of the evidence. According to him, welfare of the minor child is paramount consideration and nobody can better look after the child than his real mother, thus, the impugned order/judgment are not sustainable in law and are liable to be set aside. He further contended that the learned Appellate Court has totally ignored the practice/arrangement of meeting of the child with his parents, which continued for several months during the pendency of the appeal. He prayed for setting aside the impugned order/judgment and restoration of custody of the minor child to the petitioner mother, however, in the alternate he prayed for continuation of sharing of custody of minor between both the parties in the same manner as was being done during the pendency of the appeal and in addition sharing of summer and winter vacations, sharing of passport of the child for visiting abroad and participation of both the parents in school activities of the child with direction that the minor should not be taken away outside the jurisdiction of Guardianship Court at Karachi without permission of the Court. In support of his contentions he relied upon the case-law reported as Mst. Rabia Bibi v. Abdul Qadir and others (2016 CLC 1460).

7. Conversely, the learned counsel for respondent No.1/father, while supporting the impugned order/judgment, contended that the petition is not maintainable against the concurrent findings of two Courts below. He further contended that the two courts below have delivered the impugned judgments in accordance with the law after taking into consideration each and every point involved in the case, as such, the same do not call for any interference by this Court in exercise of its constitutional jurisdiction. He further contended that the minor child has crossed the age of Hizanat and furthermore, the petitioner/mother has also contracted second marriage with stranger, therefore, under the provisions of Mohammadan Law, she has lost the right of Hizanat. He further contended that the petitioner has always been showing negligence in taking care of her minor son and she is fond of attending late night parties, hence, on this score also she is not entitled to the custody of minor child under the Mohammadan Law. According to him, in these circumstances, welfare of minor child lies in living with the respondent/father. He prayed for dismissal of the instant petition and upholding the impugned order/judgment. In support of his contentions, he relied upon the case-law reported as Alamgir Khan through L.Rs. and others v. Haji Abdul Sittar Khan and others (2009 SCMR 54), Sh. Fateh Muhammad v. Muhammad Adil and others (PLD 2007 Supreme Court 460), Muhammad Habib v. Mst. Safia Bibi and others (2008 SCMR 1584), Haji Ibrahim and others v. Habib Bank Ltd. and others (PLD 2008 Karachi 361), Abdul Ghafoor v. Allah Maafi and others (2017 CLC 1328) and Shabana Naz v. Muhammad Saleem (2014 SCMR 343).

8. In the first instance, I would like to deal with the issue of Hizanat of the minor. According to the Islamic principles, the right of Hizanat of a male child lies with the mother till the age of seven years. The logic and basic concept behind this is obvious i.e. until he becomes independent and being capable of shifting, eating, drinking and performing other natural functions without any assistance, he requires the assistance of mother. However, after he crosses such age he deserves to be educated and groomed by his father because it would be extremely difficult and inconvenient for a female to have a strict watch on the activities of a growing up son and channelize his energies in the right direction especially in the present era when juvenile delinquency is rampant and young boys require strict supervision, day and night, both inside as well as outside the home. This arduous duty can be discharged by the father in a better way than the mother. In this view of the matter, minor's association with the father after crossing the age of seven years, besides being divine ordain, is also logically understandable.

9. However, there are certain exceptions to the said principle. Para 354 of "Principles of Mohammadan Law" by MULLA provides as under:

"A female including the mother, who is otherwise entitled to the custody of a child, loses the right of custody:-

1. If she marries a person not related to the child within the prohibited degree; or

2. If she goes and resides during the subsistence of the marriage, at a distance from the father's place of residence; or

3. If she is leading immoral life, as where she is a prostitute; or.

4. If she neglects to take care of her child."

10. Now, let us examine the instant case in the light of aforesaid principles. In para 1 of the Guardian and Wards Case filed by the respondent, he has stated that the minor was born on 5th May, 2010. which fact has not been denied by the petitioner in her written statement, meaning thereby that at present minor Ayan has crossed the age of eight years. In this view of the matter, according to the aforesaid Islamic principle of Hizanat, the custody is now to be retained by the father. However, the paramount consideration in respect of the custody of a minor is the 'welfare of the child'. Even if a male minor has crossed the age of seven years, but in view of the peculiar circumstances of that particular case, if it is found that the welfare of the child lies with the mother, then the custody of such male minor could be handed over to the mother. In the case reported as Mst. Nafeesa v. Mir Bahadur (2013 CLC 1784) a Division Bench of Peshawar High Court has held as under:-

"It is true that father has preferential right under personal law to get custody of male child after period of Hizanat is over. But, it is also accepted and being persistently followed on basis of numerous findings of superior courts that welfare of minor is always of paramount consideration while determining question of custody. Personal Law is not to be allowed blindly or in automatic fashion, but has to be decided objectively."

11. On the other hand, even during the period of Hizanat, the custody of a minor could be handed over to the father in case welfare of the minor so demands.

12. As stated above, the minor has crossed the age of eight years, therefore, according to the principles of Muslim Law, it is the father, who is now entitled to retain the custody of the minor. For the sake of arguments, if age of the minor is ignored for a moment, even then in view of the restriction and bar as contained/imposed under Rule 354 of "Principles of Mohammadan Law" by MULLA, the petitioner/mother has lost his right of Hizanat as admittedly she has contracted second marriage with a person, who is alleged to be not related to the minor child and thus a stepfather cannot be expected to provide such love, affection and care, which could be provided by a real father. It is also of worth-importance that although the petitioner, who is real mother of minor Ayan Ahmed has contracted second marriage but the respondent/father has not yet contracted second marriage and he has devoted his motivations, enthusiasms and sentimentalities for the sake of welfare of the child, hence, the petitioner/mother has lost right of custody of her minor child. The petitioner has also not succeeded in producing any tangible and cogent evidence/material in order to establish her plea that the welfare of minor lies in his living with her vis- -vis. the respondent/father. It is also not the case of the petitioner that the respondent/father would be living alone with the minor child, thus, during the period when he will go outside the home for attending the activities of earnings, the child would be left alone in the house, because like the petitioner/mother, the respondent has also his old parents in his home, who can look-after the minor child in his absence.

13. Apart from above, the petitioner during her cross-examination admitted that she used to travel abroad and during that period the minor remained with her parents. She also admitted that during her visit of UK, the minor became sick in the custody of her parents. She also admitted that the respondent/father has paid School fees vide receipts dated 06-04-2015, 22-01-2015, 27-10 -2014, 18-08-2014, 11-04-2014, 04-11-2013 and 26-08-2013. She admitted that Bay View Academy, where the minor Ayan was studying, issued a Certificate showing withholding tax in the name of the respondent for the School fee paid by him. She also could not produce any documentary proof regarding her monthly income rather she herself admitted that her parents bear all the expenses of the minor. She further admitted that the respondent is running his own family construction business and that he is in sound position to bear all expenses of the minor. Besides, she also admitted that she keeps travelling and during her travel the minor remains with her parents. In this view of the matter, it is obvious that she does not remain at home all the times and the minor would be exposed to the onslaughts of the stepfather and is compelled to face his step fatherly treatment.

14. Even otherwise, concurrent findings of the two courts below cannot be interfered with by this Court in exercise of its constitutional jurisdiction. In the case of Messrs Shamim Akhtar v. State Life Insurance Corporation of Pakistan Karachi and 2 others reported in PLD 2005 Karachi 554, while discussing the scope of the constitutional petition, it was held that the jurisdiction of this court under Article 199 of the Constitution is extra-ordinary in nature, which is aimed at proper dispensation of justice and to avoid abuse of the process of law. Therefore, normally such jurisdiction is not to be exercised by the High Court to interfere with the discretionary orders of the subordinate Courts, where jurisdiction has been conferred upon it by some special statutes.

15. The upshot of the above discussion is that the instant petition being devoid of merits is hereby dismissed along with all pending Misc. Applications, with no order as to costs. It may be clarified that the arrangement for meeting/visitation with the minor as mentioned in para 13 of the judgment dated 15th January, 2018 passed by learned XI-Additional District and Sessions Judge, Karachi South would continue.

ZC/Z-9/Sindh Petition dismissed.