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First Appeal No. 33 of 1952, decided on 10th December 1952, from order of Shaikh Iqbal Ahmad, Senior Civil Judge, Rawalpindi, dated the 19th July 1952.
Ss. 19 and 25---- Application of father for appointment as guardian may be treated as one under S. 25 for custody of minor.
The general principle is that the Courts should avoid technicalities and try to do real and substantial justice between the parties. In the absence of a statutory bar there is nothing improper in treating one form of proceedings as another.
The father of a minor had applied for appointment of himself as guardian of the minor. The father's application, however, was not competent by virtue of section 19.
Held, that the application may be treated as one under section 25.
S. 25‑---"Leaves or is removed" from custody of‑Minor though in actual custody of mother may be deemed to be in constructive custody also of farther.
Where the minor girl had remained with her mother after the latter's divorce from the minor's father and the father, on the girl's reaching puberty, applied for the custody of the minor girl, it was objected that the minor had neither left nor had been removed from the custody of the father and that therefore the application was incompetent.
Held, that the father should be deemed in law to be in constructive custody of the minor.
The custody mentioned in section 25 is actual as well as constructive custody and that the legal guardian should be deemed to be in constructive custody of the minor.
Mst. Nazir Begum v. Ghulam Qadir Khan and others A I R 1938 Lah. 313 and Ulf‑it Bibi v. Bafati A I R 1927 All. 581 rel.
Mst. Siddiqunnisa Bibi v. Niza,muddin Khan and others A I R 1932 All. 215; Manoo Ali v. Nawabi A I R 1936 Rang. 63 and Shivawwa Baloppa Rampur v. Chenbasoppagowda Sanga gowda Gowdar A I R 1941 Bom. 344 ref.
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Guardianship‑Custody of minor girl by widowed or divorced mother‑--Forfeiture of right to, on mother's remarriage to stranger not within prohibited degrees of minor girl.
The second husband of the mother should be within the prohibited degrees of the minor by consanguinity. The original saying of the Holy prophet, on which this rule is based, is that n woman loses her right when she marries a stranger.
To say that the second husband comes within prohibited degrees as soon as marriage between him and the mother is consummated will not avail to save the mother's right‑
S. 25‑--"Welfare of minor"‑--To be presumed to lie in custody by person entitle to it under personal law of minor unless facts leading to contrary inference are proved.
All rules of Muhammadan Law relating to the guardianship and custody of the minor are merely the application of the principle of benefit of the minor to diverse circumstances, Welfare of the minor remains the dominant consideration and the rules only try to give effect to what is minor's welfare from the Muslim point of view.
There is a presumption that the welfare of a Muhammedan minor girl lies in her being restored to the father unless facts leading to a contrary inference are proved.
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Guardianship‑‑‑Divorced mother remov ing minor to place where father cannot exercise control over ‑child‑--Forfeiture of mother's right to custody of minor.
Though the mother has a right to hizanat, the father is the natural guardian and entitled to exercise control and supervision over the child and if the mother removes the child to a place where father is unable to exercise his control the mother loses her right to custody.
Fazal Din for Appellant.
Ghulam Abbas Jafri for Respondent.
Muhammad Bashir, appellant in F. A. O. No. 33 of 1952, is the father and Mst. Ghulam Fatima, respondent i the same appeal, is the mother of Mst, Nasim Akhtar, aged about 12. The contest between the father and the mother is for her custody, About six years ago, Muhammad Bashir divorced Mst. Ghulam Fatima, At that time Mst. Nasim Akhtar would be about six years old. About two years ago Mst. Ghulam Fatima remarried and shortly afterwards, i.e., on the 11th October 1950, Muhammad Bashir put in an application for appointment as guardian of the person of the minor. Mst. Ghulam Fatima submitted a counter application on the 11th May 1951. The learned Senior Civil Judge, Rawalpindi, tried both the applications together. On a consideration of section 19 of the Guardians and Wards Act he came to the conclusion that the father being alive and not unfit to be a guardian, the application for appointment as guardian did not lie. He regarded the dispute, however; as one for the custody of the child and considering both the proceedings as applications under section 25, made an order that the ward should remain with the mother till the 20th November 1953, after which date slue should be handed over to the father. Both parties appealed.
Before proceeding to the merits I have to deal with a preliminary matter. The copy of the judgment which is attached to the appeal of Mst. Ghulam Fatima, is one obtained from the Ode of beg own application, When I enquired from the learned counsel for Mst. Ghufam Fatima whether he had filed an appeal against the under on his own application or against the order on the application filed by Muhammad Bashir, he relied that the appeal was filed against the first mentioned order. Now if I regard this appeal as directed only against the order of his own application the result would be that his appeal would have to be dismissed. In view of section 19, the mother could not apply tar guardianship and so far as section 25 it concerned she was, not in a position to apply because the custody was with her. However, there is something else which the learned counsel for Mst. Ghulam Fatima said when I made the above mentioned enquiry from him, and that is that his appeal is in faced against the order passed against Mst. Ghulam Fatima. The only order passed against. Mst. Ghulam Fatima is that after the 26th November 1953 the minor should be handed over to Muhammad Bashir. This order could only have been passed in the application. Held by Muhammad Bashir. On a reference to the judgment I find the learned Senior Civil Judge saying that he accepts the application of Muhammad Bashir and orders that the minor be handed over to him after the 26th November 1953. In the circumstances I consider that the appeal of Mst. Ghulam Fatima should be treated as filed against the order on the application of Muhammad Bashir and it is on that basis that I proceed to determine these two appeals, i.e., F. A. O. No. 33 of 1952 and F. A. O. No. 44 of 1952.
Facts are not very much in dispute. As stated above it is about six years ago that the marriage of the father and mother was terminated by divorce. It is about two years ago that Mst. Ghulam Fatima remarried. Muhammad Bashir remarried too. The husband of Mst. Ghulam Fatima has got another wife and from her he has got two sons, one aged about six and the other about sixteen or seventeen. Mst. Ghulam Fatima is a teacher in a school at Rawalpindi. Mst. Nasim Akhtar is her only child and there is no gainsaying the fact that the child is being brought up and educated properly. She is in the sixth standard class There is nothing against the character of the mother, the only objection being that she has remarried a person not within the prohibited degrees of the minor. The minor has been examined and shows a preference for the mother's society. The mother is getting about ids. 60 per mensem as pay. Muhammad Bashir. it is stated, has not taken any interest in the minor since the divorce. He made no offer to support her till he filed this application. The second husband of Mst. Ghulam Fatima does not seem to be interested in the minor and it is not shown that he possesses the means to offer any financial help.
Before the learned Senior Civil Judge ft was pleaded that as Mst. Ghulam Fatima had remarried a person who was not within prohibited degrees of the minor, she had lost her right to custody. An objection was also raised on the ground that Mst. Nasim Akhtar should not be allowed to live in a house where there were hoes not related to her in any way by blood, the reference being to the sons of the second husband of Mst. Ghulam Fatima. The learned Judge came to the conclusion that although under Muslim Law the mother might lose hex right to custody he was only concerned with the minor's welfare in an application under section 25. He was impressed with the fact that the father had not taken much interest in the minor and was of opinion that upto the age of thirteen she should not be separated from her mother. Upto this age he regarded it not unsafe that the minor should live with the sons of Mst. Ghulam Fatima's husband under the same roof. After that, however, he was of opinion that Mst. Nasim Akhtar should not be allowed to remain in the company of young boys. That is how he explained his order that after the 20th November 1953, the minor should be handed over to her father. On behalf of list. Ghulam Fatima it has been argued before me:‑
1. That the application fur guardianship should not have been converted into an application under section 25.
2. That the application under section 25 did not lie at: all as the minor never had been in the custody of her father.
3. That Mst. Ghulam Fatima does not lose her right to custody by remarriage, in any case this matter is irrelevant in an application under section 25.
4. That on the merits, in particular in view of the conduct of the father, this order is unjustified.
As regards the first objection the general principle is that the Courts should avoid technicalities and try to do real and substantial justice between the parties. In the absence of a statutory bar there is nothing improper in treating one form of proceedings as another. The question is only one of prejudice. Learned counsel for Mst. Ghulam Fatima argues that there is prejudice because evidence which his client would have led if the application were one under section 25 has not been led. I do no not agree. Had the application been under section 25, the issue would have been whether it was in the interest of the minor that she be restored to the father. I find that the same is the subject‑matter of issue No. 1 in this case. I, therefore, overrule this objection.
The second objection of learned counsel for Mst. Ghulam Fatima is based on the wording of section 25, which allows an application only when the ward 'leaves or is removed from' the custody of the guardian. The contention is that Mst. Nasim Akhtar never having been in the custody of the father, this application under section 25 did not lie. The custody under section 25, he argues, is not constructive but actual custody and he relies and Mst. Siddiqunnisa Bibi v. Nizamuddin Khan and others (A I R 1932 All. 215), Manoo Ali v. Nawabi (A I R 1936 Rang. 63) and Shivawwa Balappa Rampur v. Chenbasappagowda Sangawda Gowdar (A I R 1941 Bom. 344). The last two cases do support him. On the other hand there are a number of authorities saying that in circumstance as exist in the present case the father should be deemed in law to be in constructive custody. Muhammadan Law recognises a distinction between hizanat and guardianship and while the minor is in the custody of the mother the control remains that of the father. Even on this principle of Muhammadan Law I would have decided that in this case there was a removal from custody but I do not stand in need of relying upon this principle as there is a Division Bench authority of our own Court, reported as Mst. Nazi" Begum v. Ghulam Qadir Khan and others (A I R 1938 Lah. 313) laying down that the custody mentioned in section 25 is actual as well as constructive custody and that the legal guardian should be deemed to be In constructive custody of the minor. In that case the learned Judges agreed with the views expressed in Ulfat Bibi v. Bajati (A I R 1927 All. 581) wherein it has been laid down:
"The judicial interpretation has taken a merciful view of the matter so as to prevent the Courts being rendered powerless and has treated the custody mentioned in section 25 as con structive custody."
The learned Judges held In A I R 1938 Lah. 313, that the above is the only reasonable construction of section 25 otherwise there would be a lacuna in the Act which would render useless and ineffective all the provisions of the Guardians and Wards Act relating to the person of the minor. If a wards is not present at the time of the order appointing the guardian and not physically handed over to the guardian at the time of his appointment, there would be no provision of law to enable the Court to do so after wards. There is thus no force in this objection too.
The contention put forward by learned counsel for Mst. Ghulam Fatima in respect of the forfeiture of her right to custody is an interesting one. According to him the provision of Muhammadan Law that if the mother of the minor girl marries a person not within the prohibited degrees of the minor she loses her right to custody has no application to the present case, because by the very marriage of the mother with the present husband the husband is within the prohibited degrees of the minor as stated in Para. 261 of Mulla's Muhammadan Law. When asked whether such an interpretation would not make this rule wholly infructuous he replies that till there is consummation of marriage the second husband is not within prohibited degrees as stated in the same section. According to him this rule was only intended to cover a period from the time when the mother remarries till the consummation of her marriage takes place. I have no hesitation in rejecting this argument. It is clarified at page 265 of Muhammadan Law by Ameer Ali (Volume II, 1929 Edition) that the second husband of the mother should within the prohibited degrees of the minor by consanguinity. The original saying of the Holy Prophet, on which this rule is based, is that a woman loses her right when she marries a stranger. Bailey's Muhammadan Law, (page 432) also mentions a stranger, and Rad‑dul‑Mukhtar says the person should be Mahram'. The contention does not need further consideration.
It has been argued further that the question of losing the right to custody does not arise in this case as the application is under section 25, under which only the benefit of the minor is to be considered. It is pointed out by the learned counsel that while under section 17, which relates to the appointment of a guardian, the Court is to be guided by what, consistently with the law to which the minor is subject, appears in the circum stances to be for the welfare of the minor', in section 25 reference to law to which the minor is subject, is omitted and the welfare of the minor is the sole consideration. It is contended that the question of welfare should be decided without reference to the rules of Muhammadan Law.
This argument is based on a misconception of the provisions of Muhammadan Law. All rules of Muhammadan Law relating to the guardianship and custody of the minor are merely the application of the principle of benefit of the minor to diverse circumstances. Welfare of the minor remains the dominant consideration and the rules only try to give effect to what is minor's welfare from the Muslim point of view. A consideration of the provisions of Muhammadan Law amply supports the above proposition. Ameer Ali (Muhammadan Law Page 252, Volume II, 1929 Edition) after stating the different periods of hizanat by the female relations provided by different schools of Muhammadan Law says:‑
"It will be seen that, though the period of hizanat varies among the different schools, the general principle, which governs its duration; is founded essentially on the interests of the child. "At the age of nine", says D'Ohsson, "a boy passes from the care of his female relations into the hands of his father, in order to receive from the father, a masculine education analogous to the paternal status, condition, and fortune."
and further on the same page
"It may be stated, as a general rule, that as the right of hizanat has in view the exclusive benefit of the infant each particular case would be governed by the doctrine in force among the sect to which the child is supposed to belong; or, if that cannot be ascertained, by a consideration of what would be best for the child as a Moslem child. This rule has been adopted by the Court of Algiers, and no difficulty has been found in its application to individual cases."
After stating the preferential order of persons entitled to custody he makes it clear that the whole of this order of preference is subject to the dominating consideration of the minor's interests. He says at page 255:‑
"Although the right to the guardianship of the minor passes in the order mentioned above, in the case of a contest between two persons ore preferentially entitled as against the other, the Judge has to consider not only the respective qualifications of the claimant, but also the interest and well‑being of the minor as a Musalman child."
After stating the circumstances which cause forfeiture of the right of the mother to hizanat, the learned author appends the invariable qualification (page 257):‑
"Although ordinarily the woman entitled to the custody of a child forfeits her right on contracting a marriage with a stranger, special considerations regarding the interest of the child may require that its custody should be retained by her. For example if a woman separated from her first husband, were to marry a second time in order to secure for her infant child better and more comfortable living, she would not forfeit her right of hizanat.
The Courts would preserve to the mother the custody of the child if it be in its interest that it should remain with her."
The learned author when explaining what conduct of the mother would forfeit her right to custody quotes Fatawa‑i‑Alamgiri as saying "such wickedness as would prove injurious to the child". While dealing with the question whether a mother being a Kitabla will make any difference he says (page 258):‑
"Some jurists have stated that the distinction between a Moslemah and a Kitabfa is beside the point, for what must be considered in each mg is what is good for the child, and its proper bringing up: Mufti Abu Saud has laid down that all cases of misconduct do not necessarily destroy the right of hizanat; what must be considered is the detriment to the child, the question being, is the woman's misconduct likely to injure the child So also it is stated in Hashiat‑ul‑Madani. The injury to be considered may be either physical or moral."
After stating the rule that by removing the child to a place where the father would not be able to exercise supervision, the mother will forfeit her right to custody, the learned author hastens to add "when the change of residence' has been made for the benefit of the child, the right of hizanat is not lost", and further "If a woman were to attempt to remove with her child from the usual place of residence, and the husband were to apply to the Judge to obtain the person of the infant upon the ground of its removal, he would be bound to inquire into the facts of the case, and, on being satisfied that the removal is only temporary or undertaken in the interests of the child, to allow it to remain in the mother's custody." After stating that according to Maliki doctrine the father has a right to removal, the learned author states. "This power also is strictly subordinate to the interests of the child." After referring to a decision of Court of Algiers he says (page 262):‑
This decision shows plainly the governing principle in all questions of hizanat. The right is founded primarily for the benefit of the child and is to be exercised by those relations who are most likely to bestow care and kindness on it."
Tayabji Muhammadan Law (1940 Edition) deals directly with the question whether there is any inconsistency between Muhammadan Law and the benefit of a minor, though he deals with it not in connection which section 25 but section 17 of the Guardians and Wards Act, which directs a decision according to the welfare of the minor but 'consistently with the law to which the minor is subject'. Courts having differed as to whether the welfare of the minor or personal law should have preference, it is thus that he expresses his views (page 291):‑
"The terms of the Act (Guardians and Wards Act), its history, and the decisions of the Courts, support the view that the law governing the minor is the paramount consideration. But on examination it will be found that to contrast the welfare of the minor with the law by which the minor is governed, is to overlook certain fundamental notions underlying the law and its administration. As the Judges are themselves required to follow the law, not to give decision in accordance with their own views of expedience, it is almost a contradiction in terms to say that the paramount consideration should be, not the law, but any other matter. e.g. the opinion of the Court as to the welfare of the minor. Moreover, the law is professedly based on a regard for the welfare of the minor. Assuming that it fails in its purpose, it is not the function of the judicial tribunals to set right the shortcoming of legislators," and further on:‑‑
"Similarly legal principles show who is entitled to the custody, because the law places the right to custody where it deems that it will be exercised most for the welfare of the minor : and it is not for the Court to say that it is against the minor's welfare that custody should be taken away from the person (if any such there be) who is by law entitled to the custody, as of right; since, when the law lays down that the custody shall be with a specified person, the law presumes (to adopt Coleridge, J.'s words) that where the legal custody is, there it is the greatest welfare of the minor to be placed. The Court is bound by the provisions of the law in forming its opinion as to whose custody is most for the welfare of the minor. The occasional dicta, therefore, that the minor's welfare is the paramount considera tion must be understood (it is submitted) in the sense, that the principle on which the Legislature proceeds, is that the welfare of the minor shall be the paramount consideration, and that this fact may be borne in mind in interpreting the words of the enactments. Sometimes the welfare of the minor clearly points who should be selected as the guardian and in the confidence that the ultimate object of the law is the minor's welfare, it is a short cut to consider the law from this aspect other than through the portals of technicality and over scrupulous inter pretation. The dicta must consequently be read with the reservation that Judges cannot set their own views above those of the legislator, and if the law does lay down that a certain person is entitled to the custody of a child without any reserva tion (which, it may be stated, it rarely does) the Courts are bound to give manner in which the law requires it to be safeguarded: for the Courts cannot put their own ideas of what is to be deemed to be the welfare of the minor, above the behests of the Legislature. Where the law leaves a discretion to the Judge, that discretion will of course be exercised primarily with the object of promoting the welfare of the minor in accordance with the Judge's understanding; but in doing so the Judge acts in accordance with the law by which the minor is governed, which requires the Judge to exercise his own discretion.
Even the father may lose the right to custody. The law recognizes his prima facia claim; which must be borne in mind, before turning to particular considerations about the welfare of the child in question: for as already stated by giving a prima facie right to custody, it is indicated that the welfare of the minor will prima facie be best safe‑guarded if he is in the guardianship of that person."
It may be objected that if every rule of Muhammadan Law is subordinate to the interests of the child, how do the rules affect a case under section 25 at all. The answer is simple. We will regard the rules as raising a presumption of welfare till exceptional circumstances are proved. The above quotation from Tayabji's Muhammadan Law is substantially to the same effect. If I were dealing with an application under section 17, I would have to apply Muhammadan Law because of the words consistently with the law to which the minor is subject' in that section. But the Act recognises the father as natural guardian and the only application he can file is under section 25. If I do not apply Muhammadan Law in this case it would create an anamoly in that if a relative other than the father applies under section 17 he can have all the rights which personal law gives him, whereas the father, because he has to apply under section 25, would not get the benefit. The Muslim Law of pre‑emption has been applied in the Allahabad Courts between Muslims merely as a principle of equity, justice and good conscience. I see no reason why I should not apply the principles of Muhammadan Law as to the welfare of the minor particularly when in matters of guardianship and minority, the Muslims in the Punjab are governed, on account of the Muslim Personal Law (Application) Act, by the rules of Muhammadan Law. I would, therefore under the circumstances, presume that the welfare of the minor would be in being restored to the father unless facts leading to contrary inference are proved.
It may be stated that there is an additional reason for the forfeiture of her right to the custody which occurred even while the mother had not yet contracted the second marriage. Though the mother has a right to hizanat, the father is the natural guardian and entitled to exercise control and supervision over the child and if the mother removes the child to a place where father is unable to exercise his control the mother loses her right to custody. (Muhammadan Law by Ameer Ali, Page 260 and 261, Hidaya, Volume 1, Pages 390 and 391, and Muhammadan Law by Wilson, (1930 Edition), para 108). In Mullas' Muhammadan Law, paragraph 354, no doubt the rule is stated in these terms, "if she goes and resides, during the subsistence of the marriage, at a distance from the fathers' place of residence". The words during the subsistence of the marriage' are not justified. Hidaya, pages 390 and 391, deals exclusively with the case of a divorced woman and prohibits the removal of the child by her from the place of the father except to her own native place, or where the marriage was celebrated. Ameer Ali states the rule thus, while quoting fatawa‑i‑Alamgiri, (page 261, Volume II):‑
"When a separation has taken place between the parents, the mother is entitled to return with her infant child to her native city (if the marriage took place there), however distant it may be from the residence of the father. "But", adds the Fatawa‑i‑Alamgiri, "she cannot do so if the marriage did not take place there, unless it is so near the place of separation that if the husband should leave his own residence fn the morning to visit the child he can return home before night;" nor can she "remove to any other city on any other condition."
In this case the father belongs to Lyallpur. As far as it appears on the record, Mst. Ghulam Fatima does not belong originally to Rawalpindi, arid applying the above mentioned rule she would forfeit her right even on this account.
I now come to the question of the father's conduct and the general consideration of the child's welfare. It has been urged against the father that he took no interest in the child till he put in the present application. The father replies that as far as he knew the right of custody belonged to the mother till she remarri ed and that as soon as she remarried he put in this application. It does seem that he was only waiting for an opportunity. No doubt he has not been paying any maintenance bat none was asked for, and the child was only six years old when the divorce took place. It is not a case which calls for an exhaustive discussion of the question as to when a father by his conduct loses his right to custody. It is sufficient to point out that even by a deliberate agreement a guardian cannot make an irrevocable transfer of his authority over his children to another. His authority is in the nature of trust and should the minor's welfare require that he be restored to the parent, no agreement can stand in the way. The only exception to this rule, recognized by Their Lordships of the Privy Council in Annie Besant v. Narayaniah (I L R 38 Mad. 807) is, where "the authority (transferred authority) has been acted upon in such a way as, in the opinion of the Court exercising the jurisdic tion of the Crown over infants, to create association or give rise to expectations on the part of the infants which it would be undesirable in their interests to disturb or disappoint". There is no doubt that it is hard for the mother to part company with the daughter, she probably being her strongest interest in life, but sooner or later the girl is to be married and she is not always to live with the mother. The mother gets only about Rs. 60 as pay and this income would be hardly sufficient to meet the expenses of both if the girl is to be properly educated. The father seem to be possessed of some means. He has paid about Rs. 400 as income tax. He has offered to deposit Rs. 10,000 at once in the name of the girl to meet the expenses of her marriage, an undertaking by which I am going to bind him. He has also offered to educate her properly and is even prepared to put her in a hostel of some girls' school at Lahore. If the minor lives with her father there is a far better chance of her getting a suitable husband than if she stays with her mother. At the same time as the mother is entitled to see the child it would be the duty of Muhammad Bashir to afford all reasonable opportuni ties and facilities to the mother for meeting the child. This is necessary not only on account of the right of the mother but in the minor's interest for she should not be absolutely deprived of the company of her mother. The learned Judge had ordered that the custody of the girl be handed over to the father after the 20th November 1953 when she will be thirteen years of age. But the minor is studying at a school and if she is taken away from Rawalpindi in the middle of the school year this will interfere with her studies. The proper time for her being handed over to the father would be the first of April when the school year' begins. In view of what is stated above I pass an order for the restoration of the minor Nasim Akhtar to her father Muhammad Bashir from the Ist April 1953. The father shall, in accordance with his undertaking, deposit Rs. 10,000 in the name of the minor and show the receipt to the Guardian Judge before the 1st April 1953. At the same time he will allow all reasonable facilities to the mother for seeing the child. If he does not abide by the conditions or acts in any other way to the detriment of the child it is always open to the mother to move in the matter. No order as to costs.
A. H. Order accordingly.
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