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F. A. O. No. 5 of 1953, decided on 26th May 1953, from order of Iqbal Ahmad, Senior Civil Judge, Rawalpindi, dated 20th December 1952.

S. 4 (2) "Guardian"‑---Includes person having custody of child.

Under section 4 (2) of the Guardians and Wards Act, a guardian' is defined as any person who has the care of the person of a minor and in this sense even a mother who has only the custody of the child is its guardian.

The word guardian' is used in the Act in the sense which includes a person who has the custody of the child.

A I R 1932 All. 215 ref.

S. 25‑Children in custody of mother removed by father‑Mother can apply under S. 25‑Removal‑Nature of.

It is to be remembered that Muhammadan Law gives the mother a right to custody, even though the father is a person who is entirely fit to be the guardian of his child.

If the child be removed from the custody of the mother, even though the person who takes away the child be the father, who is the guardian himself, section 25 is applicable. Any other interpretation leaves the mother entirely without a remedy so far as the Guardians and Wards Act is concerned.

A removal from custody would take place even if the mother voluntarily left and was prevented from taking the children with her, just as it would occur if she was turned out of the house and the children remained where they were. The application under section 25 is maintainable.

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Female's right to custody of minor---- Ordinarily not to be defeated on ground of her inability to main tain child,

Ordinarily a female's right to custody cannot be defeated on the ground of want of funds to maintain the child. The Muhammadan Law does not regard it as a disqualifica tion for a female. We are to presume that the benefit of the minor is in that custody which Muhammadan Law enjoins till the contrary is proved.

Muhammad Bashir v. Ghulam Fatima P L D 1953 Lah. 73 ref.

Said Akbar for Appellant.

S. A. Kareem for Respondent.

This first appeal from order arises out of an application under section 25 of the Guardians and Wards Act filed by Mst. Niaz Bi appellant against Fazal Elahi respon dent for the custody of her three daughters aged 13, 10 and 6, respectively. This application was filed on the 10th of January 1952 and the allegations were that Fazal Elahi respondent, who was her husband, had divorced her about six months before the application, that she had taken her daughter along with her when she was turned out and had since been living with her elder married daughters, and that on 31st of December 1951, the res pondent had forcibly taken away the minor girls. The respondent rejoined that Mst. Niaz Bi was yet his wife that she had in fact been abducted by Jamal Din, who was the father‑in‑law of their two married daughters, and that since her abduction the girls had been living with him. The learned Senior Civil Judge, who heard this application, considered two questions. The first was whether the application lay and this he found in favour of the petitioner. The second was whether it was for the benefit of the minors that the custody be granted to the petitioner‑appellant. This question he answered against the petitioner on two grounds. The first was that the petitioner was without funds and, there fore, would not be able to maintain the children; the second was that her health was failing and therefore, she would not be able properly to look after the children.

Learned counsel for the respondent has contended that although the question of the maintainability of the application was decided against him by the learned Senior Civil Judge, in fact the application does not lie at the instance of Mst. Niaz Bi. He urges that section 25 of the Guardian and Wards Act applies only in case a ward leaves or is removed from the custody of a guar dian and Mst. Niaz Bi is not a guardian but only a person who may under Muhammadan Law be entitled to hizanat, the cus tody of the child. The natural guardian, he says, is the father. He argues further that the children did not in this case leave the custody of the mother nor were they removed from custody and for that reason too section 25 does not apply. With regard to leis first objection, it is correct that guardianship is different from the right to custody. Although a mother has the right to custody of the children, the guardian even of the person is the father. It. is only under his supervision and subject to his control that the mother or other female relative retains the custody of the minor children. But the word guardian' as used in section 25 has, a wider import. Under section 4 (2) of the Guardians and Wards Act, a 'guardian' is defined as any person who has the care of the person of a minor and in this sense even a mother who has only the custody, of the child is its guardian. If, therefore, the child be removed from the custody of the mother, even though the person who takes away the child be the father, who is the guar dian himself, section 25 is applicable. Any other interpretation .B leaves the mother entirely without a remedy so far as the Guar dians and Wards Act is concerned. She cannot apply for guar dianship in the presence of the father who is not unfit to be a guardian of his minor child. It is to be remembered that Muhammadan Law gives the mother a right to custody, even though the father is a person who is entirely fit to be the guardian of his child. Section 19 of the Guardians and Wards Act would be a bar to any application for appointment of guardian in a case where the father is fit to be the guardian of the person of his child, and in such a case it is obvious that if the mother be not entitled to apply under section 25, she would not be able to get the custody of the child at least under the Guardians and Wards Act. In any case, it is obvious that the word 'guardian' is, used in the Act in the sense which includes a person who has the D custody of the child. Learned counsel, for the respondent has himself referred to A I R 1932 All. 215 which goes against his conten tion and points out that the word guardian' is used in the Guar dian and Wards Act in a wide sense.

The other objection of the learned counsel for the respon dent, namely; that the child was at least not removed from custody or did not leave custody, is equally untenable. It is admitted by two of the minor children, who were produced in Court as witnesses on behalf of their father that they had been, about six months before the application; living at Ghik Budhal, i.e., the village of Jamal Din, the father‑in‑law of the daughter of the petitioner, for about three months. It may be stated that Dhok and Ghik Budhal refer to the same village. As stated by Mst. Sardaran both the father and the mother of the children were living at Ghik Budhal with Jamal Din and the allegation is that the father was turned out by Jamal Din. On the other hand, the story of the respondent himself is that Mst. Niaz Bi had left him of her own accord having been enticed away by Jamal Din. The story that she had been abducted does not seem to have been ac cepted by the learned Senior Civil Judge who does not even refer to it in his judgment. On going through the record I am of opinion that no case of abduction is made out and in fact no such case has been pleaded before me. Whether Mst. Niaz Bi left the res pondent or whether she was turned out after enticement, the fact remains that the children were living with both the mother and the father some time previous to the application presume that at that time what was happening was in accordance with the personal law of the parties, i.e., the mother had the custody of the children under the control of the father. The father and the mother were living peacefully and ordinarily the inference in the case of minor children would be that they were in the custody of the mother. It is obvious, therefore, that the another has lost custody and whether she lost it because she could not take away the children with her when she left or whether she lost it because the respondent turned her out or whether as she alleges the facts are that the respondent had brought the girls from Ghik Budhal, the result would be the same for she would be losing custody of the children and it can be said that the children either left her custody or were removed from her custody. A removal from cus tody would take place even if the mother voluntarily left and was prevented from taking the children with her, just as it would occur E if she was turned out of the house and the children remained where they were. The application under section 25 is maintainable.

Ill‑health could not, in the circumstances of this case, be a ground for dismissal of the application. There is nothing on the record to show that the health of the mother is such that either her ill‑health would itself be a danger for the children or that she is, on account of her ill‑heath, disabled from properly looking after the children. That her head shakes or that she was at some time in the hospital are not by themselves sufficient grounds to defeat her. In the written statement filed on behalf of the father no plea had been taken that Mst. Niaz Bi was not in good health. In his statement as a witness too the father said nothing about the health of the petitioner. No question with respect to her health was put to the petitioner when she entered the wit ness‑box. I am unable to find from the record from what evidence the learned Senior Civil Judge came to the conclusion that she was subject to occasional fits. The whole basis of the decision as to the question of health seems to be two or three questions put to A. W. 4 and the personal observations of the learned Judge. Considering that no plea was taken and no evidence offered on behalf of the father with respect to it and no question put to Mst. Niaz Bi when she was in the witness‑box. I do not think it was proper to base the judgment on this fact without giving Mst. Niaz Bi an opportunity to properly contest it. While I concede that on account of the duty which all Courts, and particularly the Guardian Courts, owe minors who are all Wards of Court, it is always open to a Court to take notice of a matter affecting the minors' interest though there be no plea with respect to it by any party to the proceeding, it should be apparent that decision cannot be based on the assumption of a fact, which is capable of being contested, without giving the party interested in deny ing its existence an opportunity of proof. While learned counsel for the appellant concedes that the "appellant is not in good health, he does not admit that her health is such as to prevent her from properly looking after the children and even the absence of good health he attributes to the strain on her nerves by separation from the children".

The objection as to the inability of the mother to maintain the children is, however, in the circumstances of this case, more serious, I do not doubt that the right of custody cannot ordi narily be defeated on this ground. The maintenance is to be pro vided by the father. It does not at all lie in his mouth to say, when an application is made for custody by a female, that if the children go to the female they will be left entirely without maintenance. Does he imply that if they are handed over to a person who in fact has the right to custody he will not maintain them If that be really his intention that is a consideration against him. It is his duty to abide by the law and to maintain the children if they are in the custody of one who is in law entitled to such custody. If there be any prospect of the children being maintained till the female is able to obtain an order for maintenance against the father, I would not allow the inability of the female to stand in the way of her getting custody. In the present case, however, the mother when asked as to how she will maintain the children says she will work and earn. There is little chance of her earning any appreciable amount particularly in the present state of her health. I am constrained, therefore, though much against my will, to give effect to this objection. It appears to me that I am almost giving the respondent the advantage of his own default. While I refuse custody in the present case I do so because of the exceptional circumstances and I would lay down a rule that ordinarily a female's right to custody cannot be defeated on the ground of wart of funds to maintain the child. The Muhammadan Law does not regard it as a disqualification for a female. I have already held in Muhammad Bashir v. Ghulam Fatima (P L D 1953 Lah. 73) that we are to presume that the benefit of the minor is in that custody which Muhammadan Law enjoins till the contrary is proved.

It is a pity that children should be deprived of the loving care of their mother. While I am unable to grant custody to the mother, I order that the father should afford reasonable facilities to the mother for seeing the children once in every fifteen days, i.e., twice a month. This order will take effect from the beginning of June 1953. The appeal is to this extent accept ed and parties are left to bear their own costs throughout.

K. M. A. Order accordingly.

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