Wednesday, 3 October 2018

Custody of Minor Remains with Mother till 7 Years of Age

PLJ 2013 SC (AJ&K) 261
[Appellate Jurisdiction]
Present: Raja Saeed Akram Khan & Sardar Muhammad Sadiq Khan, JJ.
ATTIQUE AHMED--Appellant
versus
ADLA NOREEN--Respondent
C.A. No. 30 of 2012, decided on 23.11.2012.
(On appeal from the judgment of the Shariat Court dated 4.11.2011 in Civil Appeal No. 32 of 2011).
Custody of Minor--
----Welfare of minor--Entitled custody of minor--Minor was 3 ½ years of age--Better way by mother--Validity--Minor was about three years and six month of age and his mother was divorced and minor was living with her mother since date of birth--In such state of affairs, minor can be looked after in a better way by her mother.         [P. 263] A
Custody of Minor--
----According to Muslim Jurists, custody of minor son till age of 7 years may remain with mother.    [P. 263] B
PLD 1981 Lah. 393, ref.
Welfare of Minor--
----Paramount--Since date of birth, was residing with her mother--Age, sex and personal law--Care and attention--Courts while awarding custody of minor had to keep in view welfare of minor coupled with age, sex and personal law--Minor son, since his date of birth, was residing with her mother--He was 3 1/2 years of age and at that stage he needed full time care and attention, which can only be provided by mother who under Muslim Law was a natural guardian--Minor of such age could not be left at mercy of step mother.  [P. 264] C, D & E
Mr. Muhammad Zubair Raja, Advocate for Appellant.
Mr. Nasir Farooq Chaudhry, Advocate for Respondent.
Date of hearing: 20.11.2012.
Judgment
Sardar Muhammad Sadiq Khan, J:--The supra titled appeal, with the leave of the Court, is filed against the judgment of the Shariat Court dated 4.11.2011, whereby the appeal filed by the appellant, herein, has been dismissed.
2.  The summary of facts necessary for disposal of this appeal is that the appellant filed a suit for custody of minor before the Judge Family Court Bhimber on 28.4.2010. The trial Court summoned the respondent. The respondent appeared in the Court and submitted her written statement through which she denied the claim of the plaintiff-appellant. In the light of the pleadings of the parties, the trial Court framed issues and directed the parties to produce evidence in support of their respective claims. The plaintiff-appellant produced three witnesses in support of his version whereas the respondent produced two witnesses and also got recorded her own statement. The trial Court after completion of necessary proceeding, dismissed the suit filed by the plaintiff-appellant for the custody of minor vide judgment and decree dated 9.2.2011. Feeling aggrieved from the judgment of the trial Court, the appellant filed appeal before the learned Shariat Court and the learned Judge in the Shariat Court also dismissed the appeal vide judgment dated 4.11.2011. Feeling dissatisfied, the appellant approached this Court through instant appeal.
3.  Mr. Muhammad Zubair Raja, Advocate, the learned counsel for the appellant, after brief summary of facts strongly opposed the judgment of the Shariat Court and argued that the judgments of the Shariat Court as well as that of the Family Court, are contrary to law, facts of the case and illegal, hence are not maintainable. He further argued that learned Judge in the ShariatCourt has failed to consider the pleadings of the parties in a legal fashion and dismissed the appeal without giving any cogent reason. He further argued that both the Courts below have mis-read and non-read the evidence of the parties in its true perspective. He further argued that the respondent has no source to maintain the minor, therefore, the welfare of the minor lies with the father, hence, the judgment of the Shariat Court being illegal, against the facts of the case, is liable to be set aside.
4.  Conversely, Nasir Farooq Chaudhry, Advocate, the learned counsel for the respondent, forcefully defended the impugned judgment and argued that the learned Judge in the Shariat Court has passed the impugned judgment after due appreciation of law and facts of the case. He further argued that at the time of filing of application, the minor was two years of age and now he is of 3 1/2 years and the minor of such age can only be maintained in a better way by the mother. The appellant has failed to point out any illegality in the impugned judgment, which needs no interference by this Court, therefore, the appeal filed by the appellant having without any substance is liable to be dismissed.
5.  We have considered the respective arguments of the learned counsel for the parties and also perused the record. In this case leave was granted to resolve the point that which of the parties is entitled for the custody of minor keeping in view the welfare of the minor. We have also perused the judgment of the Family Court, Bhimber, which reveals that the trial Court passed the judgment after framing relevant issues and appreciating the evidence brought on record by both the parties. The perusal of record shows that the appellant has been living abroad and has also contracted a second marriage. The minor is about 3 1/2 years of age and his mother has been divorced and he is living with her mother since date of birth. In such state of affairs, in our considered opinion, minor can be looked-after in a better way by her mother. This Court has already in a case titled MstZakia Khatoon vs. Muhammad Hayat Khan and 5 others (1998 SCR 140) held that the welfare of minor would be presumed with the person who is entitled to it under the Muslim Law until and unless otherwise proved. The relevant portion of the judgment is reproduced as under:--
"We have already stated that there is a ring of authorities including that of this Court that the welfare of minors would be presumed with the person who is entitled to it under the Muslim Law until and unless otherwise proved. In the instant case, the appellant has not contracted second marriage and ages of MstTanzeelaMstTanweera and Muhammad Idreesminors, at the time of the application were 8, 7, 4-1/2 and 1-1/2 years, respectively. The Courts below have committed an error in law declining the restoration of the custody of MstTanzeelaMstTanweera and Muhammad Idrees to the appellant because no tangible reasons exist which rebut the presumption arising in favour of the appellant under Muslim Law. The mere fact that the respondents have taken the minors from the custody of the appellant and admitted them in schools at Rawalpindi is not sufficient to deny the custody to her, especially so when the presumption of the welfare of the minors is in her favour."
In this regard, the Lahore High Court, in a case titled MstSughra Begum vs. Ashfaq Ahmed Butt [PLD 1981 Lahore 393], while resolving the point of custody of minor held that according to Muslim Jurists, custody of minor son till the age of 7 years may remain with the mother. The relevant portion of the judgment is reproduced herein below:--
"There is no doubt that according to certain Muslim jurists, custody of a minor son till the age of 7 years may remain with the  mother  while  that  of  a  minor daughter till she attains the age of puberty and thereafter normally their custody should be restored to the father. It is however, established principle of law that paramount consideration in all such cases is the welfare of the minor. Even a mother may be deprived of the custody of a minor daughter if circumstances of the case so warrant and in the case of a son his custody may not be handed over to the father even after 7 years if is found by the Court that his welfare doesn't warrant so."
From the above, it is clear that while awarding the custody of a minor the paramount consideration is the welfare of the minor. The . Courts while awarding the custody of minor have to keep in view the welfare of minor coupled with the age, sex and personal law. Admittedly, the minor son, since his date of birth, is residing with her mother. He is 3 1/2 years of age and at this stage he needs full time care and attention, which can only be provided by the mother, who under the Muslim Law is a natural guardian. Thus, both the Courts below have rightly concluded that a minor of such age couldn't be left at the mercy of a step mother. Therefore, the learned Judge Family Court rightly passed the judgment and the learned Shariat Court concurred with the inference drawn by the Judge Family Court. The appellant has failed to point out any illegality in the impugned judgment, which doesn't suffer from any illegality or irregularity.
In view of what has been stated above, finding no force in this appeal, the same is hereby dismissed.
(R.A.)  Appeal dismissed

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