Mst. SHAHEEN BIBI (NUSRAT SHAHEEN) vs ZULFIQAR ALI SHAH KAZMI and 2
This matter arises from a constitutional petition filed by the mother challenging the concurrent orders of the Family Court and the appellate court whereby the custody of her minor daughter was granted to the father and paternal grandmother under the Guardians and Wards Act. The core legal question was whether the lower courts erred in awarding custody and whether the mother's remarriage to a stranger extinguished her right of hizanat. The Lahore High Court held that the mother, by contracting a marriage with a person not related to the minor within the prohibited degree, forfeited her right of custody under Muhammadan Law, and that the welfare of the minor dictated that custody remain with the father and paternal grandmother. Furthermore, the Court laid down the principle that a plea not raised before the lower forums cannot be agitated for the first time in constitutional jurisdiction, and that a petition involving child custody is hit by the doctrine of laches if filed with an inordinate delay of over eight months without prompt recourse.
- Does the remarriage of a mother to a stranger extinguish her right to the custody of her minor daughter under Muhammadan Law?
- Can a plea or objection that was not raised before the lower forums be allowed to be raised for the first time in the constitutional jurisdiction of the High Court?
- Is a constitutional petition relating to the custody of a minor liable to be dismissed on the ground of laches if filed after an inordinate delay without prompt recourse?
- Who is entitled to the custody of a female minor when the mother has contracted a marriage with a stranger not within the prohibited degree?
- Section 25, Guardians and Wards Act 1890
ORDER
' Mst. Shaheen Bibi was married to Zulfiqar All Kazmi on 5-10-1973. Out of the said wedlock a daughter--Maimoona Kazmi was born on 18-1-1978. Relations between the spouses became strained and they ultimately separated. Mst. Shaheen later married another person, Maqsoom Ali.
2. Zulfiqar Ali Kazmi submitted an application under section 25, Guardians and Wards Act on 23-12- 1989. Before the Judge, Family Court, Rawalpindi for custody of the minor on the ground that Mst.
Shaheen Bibi had married a stranger who was not related to the girl within prohibited degree and as such the father was entitled to custody of the minor. Written statement was filed on 3-2-1990 controverting the stand of the father. The pleadings of the parties gave rise to the following issues:
(1) Whether the petitioner is entitled to custody of the minor. If so, whether the same will be in the welfare of the minor?
(2) Relief.
3. After trial of the case, the learned Family Judge concluded that as the minor was living with her maternal grandfather, and the mother`(petitioner) was living in Karachi with her husband, therefore, under section 353 (MulIa's) Muhammadan Law, the grandmother of the minor was entitled to her custody. The learned Judge also held that the girl was nearing the age of puberty and she needed guidance of an elderly lady and such a guidance the maternal grandfather could not provide, and accordingly paternal grandmother was declared to be entitled to the custody of the girl. By order dated 7-3-1993, the learned Judge Family Court allowed the application under section 25, Guardians and Wards Act. The petitioner-mother was also allowed to see the girl whenever she (mother) would come from Karachi.
4. The petitioner appealed to the District Judge, Rawalpindi and the Additional District Judge, Rawalpindi who heard the appeal, dismissed the same vide order dated 8-2-1994. The learned appellate Court held that the mother by marrying a stranger had forfeited the right of custody of the girl. The mother has submitted this petition in the Constitutional jurisdiction of this Court.
5. Only one ground has been urged before me for setting aside the order dated 8-2-1994 of the Additional District Judge and order dated 7-3-1993 of the Judge Family Court, and that is: that Mst.
Maimoona Kazmi had attained puberty at the age of 15 years according to Muhammadan Law and the lower Courts had no jurisdiction to adjudicate upon the matter in issue, the girl having become an adult.
6. The learned appellate Court dismissed the appeal with following observations: "It is one of the ground for obtaining custody of the minor daughter as alleged in para. No, 2 of the petition, that Mst. Shaheen Bibi respondent had contracted marriage with one Maqsoom Ali Shah and she is residing with him. It is itself a sufficient ground to forfeit right of custody within purview of Islamic Law and also in the welfare of the minor herself. Islam does not allow such custody after remarriage of the mother. Under the given circumstances, when the appellant's right for custody had already been forfeited in accordance with provision of Muhammadan Law, therefore, the fording of the trial Court that welfare of the minor lies in handing over the custody to her father is well within ambit of Islamic Law. The objection that the special attorney has no locus standi to retain her custody is of no avai as the right of custody of the minor has already died due to forfeiture of the custody upon her marriage, therefore, under the given circumstances the findings of the trial Court is confirmed and appeal is dismissed accordingly without any order as to costs."
' The perusal of this order as well as order of the Judge Family Court does not reveal that such an objection was raised by the petitioner before those forums. If a particular plea or objection was available to a party to any litigation, and the same was not raised before appropriate lower forums, the same cannot be allowed to be raised in the Constitutional jurisdiction of this Court. It may be pointed out that "Hizanat" is right of a child and not of the parents and the Courts have to see only the welfare and well-being of the minor concerned. A girl in our society needs protection not only during minority but thereafter also, at least till marriage. In the given facts and circumstances of the case, when the mother is remarried to a stranger, the paternal grandmother and the real father are the most suitable persons to take care of the girl Mst. Maimoona Kazim. The orders of learned lower Courts are legally and factually correct and are upheld.
7. The appellate Court passed the order on 8-2-1994 whereas the petition has been filed on 16-10- 1994 with a delay of over eight months. The question involved custody of a child and needed prompt recourse to legal remedies c which was not done. Therefore, the petition is hit by doctrine of laches also and deserves dismissal on this score alone.
8. Resultantly for the foregoing reasons, the petition is dismissed in limine.
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