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First Appeal from Order No. 45 of 1962, decided on 19th October 1967.

S. 25- Muhammadan Law‑Right of mother to custody of minors Departure from rule permissible in a given case if its application is against welfare of minors‑Welfare of minors dominant consideration under S. 2S‑Minors remaining in custody of mother for a number of years and maintained and brought up by her without support from father, who married a second wife and having several children by his second wife‑Statement of minors before Court showing their willingness to continue living with their mother‑Held, welfare of minors lay in allowing the minors to remain in custody of their mother.

Ali Akbar v. Mst. Kaniz Maryam P L D 1956 Lah. 484; Muhammad Bushir v. Mst. Ghulam Fatima P L D 1953 Lah. 73; Munawar Jan v. Mohd. Afsar P L D 1962 Lah. 142; Mst. Chand Bibi v. Mst. Bulbullah P L D 1958 Pesh. 26; Mst. Zohra Begum v. Sh. Latif Ahmed Munawwar P L D 1965 Lah. 695; Mst. Aishan v. Jodha Ram and others A I R 1938 Lah. 719; Muhammad Bakhsh v. Crown P L D 1950 Lah. 203 and Mst. Muni v. Habib Khan P L D 1956 Lah. 403 ref.

M. B. Hussain for Appellant.

Nemo for Respondent.

Date of hearing : 19th October 1967.

This appeal is directed against the order dated 11‑5‑1962 of Mr. Ishaq Rahimbux, Guardian Judge, Lahore, in respect of an application under section 25 of the Guardians and Wards Act made by the respondent Habib Ahmad in regard to the custody of his three children, a girl Saeeda Akhtar alias Taslim and two boys Zafar Iqbal aged 13 and Tanweer Ahmed aged 10 born of the wedlock between the parties.

2. The case of the respondent was that the appellant with three children was residing with him in Pindi and that she had never returned to him after she had gone on a visit to her parents in June 1961 and that on 18‑7‑61 she brought her children from Rawalpindi to Lahore in his absence from Pindi. The case of the appellant was that the respondent had taken a second wife in 1954 and that the respondent had driven her out from the house in 1952, that she had come to Lahore initially with her two boys and was later followed by her daughter, that she had not been divorced by the respondent‑husband and that he had neither maintained her nor her children. It appears to be admitted from the statements filed by the respective parties that the respondent‑husband had not maintained the appellant nor the children for a number of years and that the appellant had been supporting herself and her children by serving as a school mistress and her brother was also supporting her.

3. It also appears from the record and proceedings of the case that except what have been described as "better statements" on record no evidence was recorded and no issues were framed. Indeed the children were not called by the learned Guardian Judge nor questioned by him as to their preference in this matter. At the time the petition was made the girl Mst. Saeed Akhtar was 14 years and 6 months old, she is now 20 years and 6 months, and Zafar Iqbal was 13 at the time but is now 19 years of age and Tanweer Ahmad was 9 years at the time and is now 15 years of age.

4. When this matter was called up for hearing today Mr. M. B. Husain appeared for the appellant. Respondent husband Habib Ahmed though served and called out remained absent with nobody appearing for him.

5. In the interest of justice I have also sent for the three children concerned and recorded their statements. Two of the children namely the girl and the elder by Zafar Iqbal are now major aged about 20 and 19. They are both intelligent children and have stated, genuinely and with one voice, that they have lived and been maintained by the appellant‑mother since their childhood and have seldom seen their father who has never maintained them nor has shown any affection to them and that they do not wish to return to their father. The second boy who is not major but nevertheless an intelligent child has made similar statement. This boy Tanweer Ahmad like his two elder brother and sister has been well‑educated. Tanweer besides being a student is a Hafiz‑e‑Quran. Prima facie, therefore, the interest of the minors during the time they have been with their mother has been well looked after. They appear to be in good state of health and well cared for. The statements made before me are also undoubtedly voluntary.

6. The primary point in this case is what order should be made for the welfare of the minors for that is the dominating consideration in such cases. The impugned order which is otherwise a well‑reasoned order is based on the Personal Law which the learned Guardian Judge was of the view governs the parties namely the right of Hizanat of a mother in respect of a girl until she attains puberty. It was held that at the time the impugned order was made the said Saeeda Akhtar had attained puberty and, therefore, the right of the appellant mother had come to an end. Both the minor boys also at the time of the impugned order were over seven years of age and the learned Guardian Judge was, therefore, of the view that the preferential right of the appellant to the custody of these boys had also ceased. He also, concluded that a very strong case had to be made out to deprive the father‑respondent of his natural right recognised by Personal Law which, according to him, was the very lifeblood of the Community but that the welfare of a minor must be presumed when returning him or her to the Guardian under the Mahomedan Law and reference, were made to P L D 1956 Lab. 484, P L D 1953 Lab. 73, P L D 1962 Lab. 142 on the principle that where parents are living apart on account of the father having taken another wife, with children by the second wife and having neglected to maintain the children from the first wife notwithstanding an order under section 488, Cr. P. C. of refusal to grant him relief under section 25 of the Guardians and Wards Act was not justified. The learned Judge also observed that in spite of the allegations leveled against the respondent‑husband by the appellant and even though they may have remained uncorroborated, they did not render the respondent‑father unfit for custody and although the conclusion that he drew and the order that he made was bound to hit hard the appellant. Appellant had to submit to the dictates of her own Personal Law which was that the minors should be handed over possession to the respondent father within 15 days of the order. Support has also been sought in this order on P L D 1958 Pesh. 26 in that an order under the Guardians and Wards Act must be consistent and not inconsistent with the Personal Law of .the minor as demanded by the very statutory words in section 17 of the Act and that the deciding factor in such cases should be the rule of Personal Law proceeded on the basis of the welfare of the minor.

7. Learned counsel for the appellant has referred me to Mst. Zohra Begum v. Sh. Latif Ahmed Munawwar (P L D 1965 Lah. 695) where Yaqub Ali, J. was, considering an order in first appeal made under sections 17 and 25 of the Guardians and Wards Act and examining the phrase "consistently with the law to which the minor is subject" in section 17 of the Act. His Lordship went on to observe that this phrase does not apply to section 25 and that in respect of mother's Hizanat of minor children and the Courts must keep in view the interest of the minors who are competent to come to their own conclusions and that there was conflict of Muslim Law in the rule propounded in different text books of Muslim Law and that when considering further the case of minor son, and daughter who had remained in the custody of mother for nine years and who had been reared and brought up by her without any support from their father, the welfare of the minors lay in allowing the minors to remain in custody of their mother. The question that fell for determination in that case was whether amongst the Muslims the father as against the mother was entitled to the custody of his minor son who had attained the age of 7 years. On page 696 his Lordship referred to the learned counsel for the appellant in that case Mr. A. R. Sheikh taking him through a number of text‑books on Muslim Law in which conflicting views were expressed about the age of a minor son at which mother loses right of his custody in stressing the argument that the views expressed by Imams and other juris‑consults of Islam were not sacrosanct. Reference was also made to observations made in A I R 1938 Lab. 719, P L D 1950 Lab. 203 and P L D 1956 Lah. 403 in which Courts have not followed the views expressed in more than one authentic text books on Muslim Law and that a decree of a Kazi was necessary to effectuate a dissolution of marriage in exercise of option of puberty. His Lordship referred the matter to the Chief Justice to constitute a larger Bench to determine (1) what are the sources of Muslim Law; (2) what are the rules of interpretation of Muslim Law and can Courts differ from the views of Imams and other juris‑consults of Muslim Law on grounds of public policy, justice, equity and good conscience; and (3) in case of conflicting views expressed in text‑books on Muslim Law, such as Hedaya, Fatawa‑i‑Alamgiri, Raddul‑Mukhtar, Muhammadan Law by Sayyed Ameer Ali, etc. how the Courts are to determine which of the views is correct In a final appraisal of the entire law that was placed before the Full Bench the answer given was that where there was no Quranic or Traditional Text or an Ijma on a point of law and if there is a difference of views between A'imma and Faqihs, a Court may form its own opinion on the point of law and in support of this view reliance was placed on questions and answers in Al‑Risala by Imam‑Al Shafei. It was, therefore, held that it is permissible for Courts of law to differ from the rules of Hizanat stated in the text‑books of Muslim Law since there was no Quranic or Traditional Text on the point and Courts which have taken the place of Qazis can, therefore, p come to their own conclusions by process of Ijtihad which according to Imam‑AI‑Shafei is included in the doctrine Qiyas. Therefore, it would be permissible to depart from the rules stated therein if on the facts of a given case its application is against the welfare of the minor. I am fortified in this view, by the instances in which a Kazi finding hardship in the application of a rule of law to which the parties belonged sent the case to the Qazi of another school of law which took a liberal view of the matter". This is as rightly urged by the learned counsel for the appellant is a final view and heretofore undisturbed view on the point of Hizanat in reference to minors being supported by their mother after they had reached the relevant ages.

With these principles in the background we must turn to the merits of the present case and I must similarly as observed in 1965 Lah. 695 state and quite frankly and firmly that there is no difficulty in pronouncing where the welfare of the present minors lie. The case of the appellant as from the very start is that since 1952 when she was turned out by her husband respondent he has never maintained her. She has frankly conceded that she has made no attempt to seek maintenance for herself and her children as according to her she did not wish to take the trouble and waste her time in relevant Courts of law for the purpose. But that does not distract from the dominating consideration that the minors had remained with the appellant from the very outset as from 1952. The minors in their statements before me today have stated that they have remained with their mother the appellant almost since their birth and they have been well looked after, maintained, educated and clothed by her. The minors are still being educated, two of A them have now become majors and all the three have expressed their preference in this matter for their mother. It may be of some consequence to observe that the husband‑respondent is absent from Court today. Apparently, he has no interest in the proceedings and possibly due to the fact that he is a clerk in some Transport Company, has already a second wife and about seven children by her to maintain. This petition which was filed as far back as 20th October 1961, bas presumably been made by the respondent merely as a matter of personal prestige. There is no doubt in my mind that, if the impugned order is given effect to and the minors, two of whom are now majors, are removed from the affection of their mother who has all along given constant attention to them, their emotional and mental growth and future outlook on life will be greatly affected. On the consideration of the aspect of the welfare of these three children, therefore, and for reasons already given the impugned order has to be interfered with and set aside. I order accordingly and set aside the impugned order which was neither justified in law nor on facts nor in the context of the welfare of the children. In consequence, the petition is allowed.

K.B.A. Appeal accepted.

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