Wednesday, 3 October 2018

Leave to Appeal in a Guardian Case

PLJ 2014 SC 157
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Ijaz Ahmed Chaudhry & Gulzar Ahmed, JJ.
SHABANA NAZ--Appellant
versus
MUHAMMAD SALEEM and others--Respondents
C.A. No. 738 of 2009, decided on 10.6.2013.
(On appeal from the judgment dated 26.2.2009, passed by the High Court of BalochistanQuetta in C.P. No. 541 of 2003).
Constitution of Pakistan, 1973--
----Art. 185(3)--Guardians and Wards Act, 1890, Ss. 7 & 25--Leave to appeal--Custody of minor--Leave to appeal was granted to consider that father was not entitled to custody of minor for not providing her maintenance and that rule of Hizanat is not an absolute right.           [P. 159] A
Guardians and Wards, Act, 1890 (VIII of 1890)--
----S. 7--Appointment of guardian of minor--Although it is an established law that father is a natural guardian of his minor child but indeed the Court has to be satisfied while appointing the father as a guardian that welfare of minor lies in fact that he be appointed as a guardian and custody of minor be delivered accordingly.     [P. 160] B
Custody of Minor--
----Father was not entitled to custody of minor--Where father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child, does not have a capacity or means to maintain and provide for healthy bringing up of his child or where the father deliberately omits and fails in meeting his obligation to maintain his child--Each case has to be decided on its own merit in keeping with only and only paramount consideration of welfare of minor.         [P. 160] C
Guardians and Wards, Act, 1890 (VIII of 1890)--
----S. 7--Appointment of guardian of minor--Second marriage with another woman by father--Custody of minor daughter--Such fact alone will not disentitle from obtaining custody of his minor daughter--When it is admitted that mother too has remarried another person with whom the minor has no relationship.   [P. 160] D
Muhammadan Law--
----Custody of minor--Disqualification of female--Prohibited degree--Right revives on dissolution of marriage by death or divorce--Though mother is entitled to custody of her minor child but such right discontinues when mother takes second husband, who is not related to child within prohibited degree and is a stranger in which case custody of minor child belongs to father--Where welfare of minor lies and there may be situation where despite second marriage of the mother, welfare of minor may still lies in her custody--Mother has contracted is a total stranger to minor and is not within a prohibited degree and no exceptional circumstances whatsoever, which may entitled appellant to have custody of the minor.    [P. 161] E, F & G
1981 SCMR 200, ref.
Mr. Tariq Mehmood, ASC for Appellant.
Ex-parte, for Respondents.
Date of hearing: 10.06.2013
Judgment
Gulzar Ahmed, J.--By this appeal, the appellant has challenged the judgment dated 26.02.2009 of the learned Division Bench of the High Court of Balochistan, Quetta, by which constitutional petition filed by the appellant was dismissed and the judgment/decree dated 28.06.2003 of the learned Senior Civil Judge-I, Family Court, Quetta allowing Respondent No. 1's application under Sections 7/25 of the Guardian & Wards Act, upheld in Family Appeal No. 35/2003 vide judgment dated 1.10.2003, by the learned Additional District Judge-I, Quetta, was maintained.
2.  Leave to appeal was granted vide order dated 10.6.2009 to consider the contention of the learned counsel for the appellant that the father was not entitled to the custody of the minor for not providing her maintenance and that the rule of Hizanat is not an absolute right.
3.  The matter relates to the custody of minor Najla Bugti. The appellant and Respondent were married and they were graced with the birth of baby girl Najla Bugti on 25.07.1998. The appellant and Respondent No. 1 started having differences and ultimately divorce took place between them in the month of August, 2000. At the time of divorce, the appellant took the minor Najla Bugtiwith her. Respondent No. 1 filed an application under Sections 7/25 of the Guardian and Wards Act against the appellant for appointing him as guardian of the minor Najla Bugti. The appellant contested such application and ultimately after full trial of the matter, the application was dismissed. Respondent No. 1 filed an appeal, which was allowed and the matter was remanded to the Family Court for deciding the case afresh. On remand, the Family Court allowed the application and directed the appellant to give custody of the minor Najla Bugti to Respondent No. 1. The appellant filed an appeal, which was dismissed and the same was also maintained by the learned High Court in the Constitutional Petition vide impugned judgment.
4.  It may be noted as admitted fact that after divorce with Respondent No. 1, the appellant contracted another marriage with Haji Syed Wali and changed her residence from Quetta to Rawalpindi, where she took with her the minor Najla Bughti. The Respondent No. 1 also got married by taking another wife from whom it is stated that he has three children. Inter alia the ground asserted in the application for appointing as a guardian by Respondent No. 1 was that the appellant has married Haji Syed Wali, who is not related to the minor Najla Bugti and on this account she has lost the right of Hizanat of the minor.
5.  Mr. Tariq Mehmood, learned counsel for the appellant has contended that Respondent No. 1 has never bothered to provide maintenance of the minor and that he too having contracted a second marriage, therefore, the appellant has the right of custody and that the custody of the minor is presently with her maternal-grand-mother and that the appellant has not lost the right of the custody of minor and the welfare of the minor also lies being in custody of the appellant. He has referred to paras 352, 355 and 357 of the Muhammadan Law to support his contention.
6.  No one has appeared from the side of Respondent No. 1.
7.  We have considered the submissions of the learned counsel and have gone through the record.
8.  It may be noted that in terms of Section 7 of the Guardians and Wards Act, 1890 (the Act), the paramount consideration for the Court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children but indeed the Court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could be, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor.
9.  We have examined the evidence of Respondent No. 1 and find that he has specifically stated that after divorce, he has been continuously providing to the appellant maintenance of the minor and there was a bare suggestion to him in his cross-examination of his not providing maintenance, which was denied by him. He has even stated in his cross-examination that he has paid Rs.500/- as maintenance of the minor about four months back, which aspect was not specifically challenged in his cross-examination. The evidence of Respondent No. 1 does show that he has been providing maintenance to the minor, which was not specifically disputed by the appellant. Thus the argument of the learned counsel for the appellant on this aspect of the matter does not seem to be supported by evidence.
10.  As regard the second marriage with another woman by Respondent No. 1, it may be noted that this fact alone will not disentitle Respondent No. 1 from obtaining custody of his minor daughter. More so, when it is an admitted fact that the appellant too has remarried another person, namely, Haji Syed Wali with whom the minor has no relationship.
11.  Para 352 of the Muhammadan Law provides the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child until she has attained puberty and the right continues though she is divorced by the father of his child unless she marries a second husband in which case the custody belongs to the father.
12.  Para 354 provides for disqualification of female from custody of the minor, which includes the mother and one of the instance laid down is that if she marries a person not related to the child within the prohibited degree e.g. a stranger but the right revives on the dissolution of marriage by death or divorce.
13.  Thus, it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.
14.  In the present case nothing has been shown to us nor any fact cited, which may disentitle Respondent No. 1 from custody of his minor daughter Najla Bugti in the wake of the fact that the mother has contracted second marriage with a person, who admittedly is a total stranger to the minor and is not within a prohibited degree and no exceptional circumstances whatsoever have been argued before us, which may entitle the appellant to have custody of the minor Najla Bugti. In this regard reference is made to the case of MstNazir vs. Hafiz Ghulam Mustafa etc. (1981 SCMR 200).
15.  For all what has been discussed above, we find no illegality or perversity or impropriety in the impugned judgment, which seems to be based upon the evidence available on record and the applicable law and we have no reason to interfere with the same. Thus, the present appeal fails and the same is, therefore, dismissed with no order as to costs.
(R.A.)  Appeal dismissed

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