Find a Lawyer

F. A. O. No. 75 of 1973, decided on 26th July 1974.

S. 25-Welfare of minor-Custody of minor child from his divorced_ wife (respondent) sought by plaintiff former husband (appellant) Husband taking two wives by subsequent marriages while respondent also marrying another person-Litigation between parties including maintenance application by divorced wife-Order on maintenance application becoming final yet ex-husband trying to avoid obedience, thereto resulting in attachment of his salary-Second wife of appellant reacting violently to a proposal for admission of minor to a school, res ponsible for failure of negotiations for compromise, and also threaten ing to leave husband's house in case of fulfilling commitment made by him to , get minor admitted for schooling-Held : Minor boy though attained age above 7 years and normally in such eventuality custody had to go with father yet past conduct of appellant exhibited his lack of concern for boy with regard to his illness as well as maintenance ' Welfare of minor, in circumstances, did not be in forcing him to live with appellant and his step mother who exhibited hatred for minor-Minor being well maintained by respondent and her second husband and getting good schooling, custody ordered to remain with respondent subject to affording opportunity to appellant to meet minor at respondents' house and not to take minor out of Pakistan without consent of appellant and Guardian Judge.

Amjad Hussain Syed for Appellant.

Haji Muhammad Fazal-ur-Rehman Khan for Respondent.

Date of hearing : 23rd May 1975.

In this first appeal filed under section 47 of the Guardians and Wards Act, a father has called in question the order dated 28-2-1973 passed by a learned Guardian Judge whereby his application filed against the respondent (mother) for the custody of their minor son,, namely, Muhammad Tahir Mirza was dismissed.

2. According to the facts stated by the learned counsel for the appellant, the parties were married in 1964. On 21-10-1965 the minor boy was born out of this wedlock and the divorce took place in 1968. The appellant moved the application under section 25 of the Guardians and Wards Act for the custody of the minor in March, 1968. It appears. from para. 6 of the application that the appellant had unsuccessfully made two earlier petitions for the same purpose. During the pendency of this and other litigation between the parties the appellant married for the second time in 1969. There are two daughters from this second marriage. The respondent also in 1971 remarried a person who is not related to the minor. She has a child from the second marriage. Both the second marriages of the parties, it is not denied, are intact at present. The main ground urged in the application under section 25 was that the atmosphere in the respondent's house was not to the welfare of the minor and further that the respondent had deprived the appellant of opportunity of meeting the child. It was also averred that the respondent had entered into litigation which was not conducive to the welfare of the minor. In the written statement, the respondent, made a grievance that the appellant tried to harass her by filing a suit asserting therein that the divorce granted through the Chairman was subsequently revoked by him. This matter reached the appellate stage where it was decided in favour of the respondent. He filed a second suit for restitution of conjugal rights which was dismissed. The appeal filed by the appellant was also dismissed. The. respondent further asserted that she was looking after the welfare of the minor to the best of her ability. She was looking after the needs of the minor by providing him the maintenance through her own labour or through borrowing from her relations. In this context, she accused the appellant of having neglected the minor to such an extent that when she filed an application for maintenance of the child under section 488, Cr. P. C.. the same was resisted by the appellant. Thereafter, he filed a revision against the order of the Magistrate whereby the appellant had been directed to pay the maintenance. He refused to obey this order whereupon the respondent was constrained to get his (appellant's) pay attached and thus through this attachment she was able to recover the maintenance for the child. She also asserted that apart from the attachment referred to above, the appellant had never paid any amount or offered any gift to the minor. She asserted that the atmosphere of the respondent's house was purely Islamic and good for the minor while on the other hand it was against the welfare of the minor to send him to the appellant's house where he (the minor) will have to live a lonely life. The respondent did not accept the right of the appellant to file the third application for the custody of the minor and at the same time she controverted the allegation that he was not allowed by her to see the child. On the other hand, she asserted that the appellant was not desirous of seeing the child. His main purpose in this litigation was to harass the respondent so that she might give up her decree for payment of dower the litigation with regard to which was pending in appeal. In para. 7 of the written statement, a list of all those matters was provided in which, according to the respondent, she was dragged into litigation by the appellant. In the detailed replication the appellant tried to controvert the assertion made in the written statement.

3. Parties led evidence on the issue with regard to the welfare of the minor. I have gone through the evidence and have heard the learned counsel.

4. As during the arguments it transpired that there was some possibility of a compromise/solution with regard to the welfare and custody of the minor, I asked the learned counsel for both the parties to explore all possibilities in this behalf. Several adjournments were granted but ultimately the efforts genuinely made by both the learned counsel failed. It is necessary to reproduce the proceedings and impressions noted by the Court, during the compromise effort. They are as follows :-

" 17-4-1974.-Mr. Amjad Hussain Syed, Advocate, for Petitioner.

Haji Muhammad Fazalur Rahman Khan, Advocate for Respondent.

I have partly heard this matter. Some developments have taken place since the separation/divorce between the parties. The minor involved is now grown up. No satisfactory answer has been given by the maternal grandfather of the minor, who is present to assist the learned counsel for the respondent, with regard to the minor's present whereabouts/education. Ultimately, the question would arise as to the welfare of the minor (at the present stage). I have asked both the learned counsel to explore all possibilities for finding an agreed solution. One possible solution might be to get the minor admitted in a residential school where both the parties should have right to meet him. The learned counsel have agreed to explore these possibilities. They seek initially one week's time. Adjourned to 24-4-1974, as requested, on which date both the parties should appear in person.

25-4-1974.-Mr. Amjad Hussain Syed, Advocate for Appellant.

Haji Muhammad Fazlur Rehman Khan, Advocate for Respondent.

Both the learned counsel state that the parties are present today, and that they do want to reach an amicable settlement with regard to the future of the boy. Want more time. Adjourned to 17-5-1974.

17-5-1974.-Mr. Amjad Hussain Syed, Advocate for Appellant.

Haji Khan Fazalur Rehman Khan, Advocate for Respondent.

Learned counsel for both the parties agree that the child may be admitted in any good residential school and then necessary adjustment might be made with regard to his meeting/visiting the parents and vice versa.

2. Learned counsel for the respondent has suggested the name of Adbistan Sofia. Learned counsel for the appellant has no objection to mak ing an attempt for the admission of the child in that school. Both the parties have also agreed that if the school accepts the boy he should be admitted in that school. Adjourned to 20-5-1974.

23-5-1974.-Mr. Amjad Hussain Syed, Advocate, for Appellant.

Haji Khan Fazalur Rahman Khan, Advocate for Respondent. Parties also present.

Learned counsel for the appellant states that it is not possible for the appellant to abide by the commitment made by him through the learned counsel which was recorded in my order dated 17-5-1974. The reason advanced by the learned counsel is that the second wife of the appellant has seriously objected rather violently reacted to the commitment made by the appellant that he would get his son from the previous wife, namely the respondent herein, admitted in a good school as a resident student. Her objection is that if the appellant is ready to get him admitted as a resident student in some good school why her children should not be given the same treatment and further that if the appellant goes any further in the prosecution of the fulfilment of the commitment made before this Court she would leave his house and on account of this crisis in his house the appellant is now, according to the learned counsel, constrained to withdraw from the commit ment made before this Court during the earlier proceedings. He also states that it will not be possible for the appellant to bear expenses of all the children including those from the second wife if they are admitted in a resi dential school. He states, that the appellant has two daughters from the second wife. They are aged four and a half years. Learned counsel states that the second wife of the appellant is present and that she may be examined.

2. 1t is not necessary is these proceedings to examine the second wife of the appellant. She has been brought voluntarily by him in the Court room. He was never asked or directed to do so.

3. In answer to the statement made by the learned counsel for the appellant, learned counsel for the respondent, after consulting his client, has offered that she, i.e, the respondent shall contribute Rs. 50 per mensem towards the expenses of the minor if he is admitted in the school indicated in the last order passed by this Court. Learned counsel for the appellant, after consulting his client, states that this offer will not be of any help to him (the appellant) because he would still have to pay Rs. 200 per mensem for the stay and education of the minor in that school and further that the step-mother of the minor would not agree to this arrangement.

"(Note.-The step-mother is sitting in the Court room. The appellant instructed his counsel on the above subject without consulting his second wife)."

5. The learned trial Judge took note of the evidence and came to the following conclusion :-

"It is well proved by the R. W/s. that the minor is being looked after properly by her mother. He is being tutored by a lady Professor and living in a religious family. It is well established fact that there is no substitute for the mother and therefore under the above-stated circumstances I see no reason to deprive the minor of his mother's affection and subject him to rigours of step motherly treatment of the petitioner's second wife. It also appears from the circumstances of this case that the petitioner is interested to get rid of burden of main tenance which has been imposed on him under section 488, Cr. P. C.

6. During the arguments the learned counsel for the appellant contended-

(i) that both the parties having remarried, while the respondent loses as he put it, her right to Hizanat the appellant being the husband there is no such bar against him. He has referred to Mst. Basani Kaur v. Gian Singh and others (A I R 1939 Lah. 359). Mst. Zadda Begum alias Zarda Begum etc. v. Muhammad Nazir Khan (P L D 1966 Azad J & K 1) and Mst. Bharai v. Wazir Muhammad (P L D 1967 Lah. 333);

(ii) that the boy has crossed the age of seven years, therefore, the pre sumption with regard to his welfare should be raised in favour of the appellant ;

(iii) that the financial position of the appellant, is better than that of the respondent. In this behalf, learned counsel tried to explain that the circumstances that the appellant filed a revision against the order of maintenance for the minor or that the recovery was made through attachment are not such (circumstances) as to deprive him of the custody of the minor;

(iv) that the respondent has not taken due care of the minor because he has not so far been admitted in any school. The only circumstance that he was being educated by a lady Prosessor is not a better substitute for regular education and in any case the respondent wanted to go abroad, therefore, it is not in the welfare of the minor to remain in her custody; and lastly,

(v) that withdrawal of the appellant from the earlier commitment made in this Court that he would get the boy admitted in a residential school was explainable on account of the conduct of his second wife for which he cannot be blamed.

7. Learned counsel for the respondent on the other hand contended, that there is absolutely no allegation against the step-father of the minor, therefore, the fact that the respondent has remarried is not of much signifi cance in this case, that the conduct of the appellant throughout is indicative of the fact that he has no love for the minor. On the other hand, his effort throughout has been to avoid the liability of maintenance. He in this behalf made reference to the documents (Exhs. R/1 and P/2) to show that even during the sickness of the child, no concern, what to talk of love, was shown by the appellant, that the appellant and his second wife through their conduct in this Court have shown that they would not be able to take care of the minor in such a manner as to avoid subsequent complications; and lastly that the education imparted to the minor was such that even at this age, the school where the parties at one stage agreed to get him admitted has promised to take him in Clause IV.

8. It goes without saying that none of the parties is a destitute. On the other hand, both appear to be well-off. It is, however, clear from the evidence and I agree with the learned trial Judge in this behalf that the appellant tried his best to avoid the burden of maintenance of the minor. There is nothing wrong in pursuing all legal remedies including tiling of a revision petition against an order under section 488, Cr. P. C. But it is in evidence that even when this order became final the appellant tried to avoid obedience thereto and his pay had to be attached. Initially, the maintenance was ordered to be Rs. 40 per mensem but it was subsequently increased to Rs. 50 per mensem. It is interesting to note that the respondent offered to contribute Rs. 50 per mensem in case the minor was admitted in a residential school under an assumption that the admission would be through the father (the appellant). This, in other words, means that if the appellant would have accepted the suggestion she would have lost the right to recover Rs. 50 from the appellant for maintenance of the minor and over and above this, she would have paid Rs. 50 per mensem from her own pocket. This, leads to another important inference. Indeed, there is force in the argument of the learned counsel for the respondent that there is not even an iota of suggestion against the second husband of the respondent with regard to his treatment so far meted out to the minor, but the offer of the respondent that she would pay Rs. 50 per mensem even when the minor goes to a resi dential school under the supervision of the appellant further shows that her husband is liberal enough to permit her to pay this amount towards the expenses of her son from the previous husband. On the contrary, the conduct if genuine (I had doubts about the conduct and intentions of the appellant in this behalf) exhibited by the second wife of the appellant and noted in the statement made by his learned counsel at the bar shows that despite his claim that she is related to him, she as the learned counsel put it reacted violently and became responsible for failure of the negotiations for compro mise. She is also stated to have threatened to leave the house of her husband (the appellant) in case he fulfilled the commitment earlier made by him with regard to the admission of the minor in the school named Adbistan Sofia. The pretext that she also wanted her daughters, aged 4 and 2j years, to be admitted in a similar school appears to me to be a hoax. Firstly, they (the daughters) have not yet attained such an age to be admitted in a residential school and secondly it would not be a requirement for these children to he admitted in a residential school as it is in the case of the minor, because there is no dispute between this couple with regard to the welfare of their daughters which might need resolution through admission Lin a residential school. And if they are not admitted in a residential school, it is not at all the case of the appellant that he has no intention of giving good education in a good school, to the daughters from his second wife. It is interesting to note that he spurned the offer of the respondent to con tribute Rs 50 per mensem on the ground that despite that he would be -paying Rs. 200 per mensem to the school. While giving this explanation he forgot that he would be saving Rs. 50 per mensem on account of the maintenance order which would have become infructuous on such an arrange ment having been reached and secondly it was definitely a better arrangement (Rs. 50 being contributed by his divorced wife) than the offer and commitment made by him on 17-5-1974. In the light of the above discussion and in the circumstance of this case, I am of the view that even on the consideration of the question of second marriage of both the' parties it will not be in the welfare of the minor to force him to live with the appellant in the house with his step-mother who is shown to have and/or at least -appears to have exhibited hatred for the minor and his welfare.

9. No doubt in normal circumstances the presumption is in the welfare of a minor boy above the age of seven to live with his father (as compared to his mother). In this case, however, the past conduct of the appellant shows that he did not show any concern for the boy even when he was sick .and with regard to maintenance it need not be repeated that he exhibited definite disinclination to maintain him. On the other hand, the boy has been well-maintained by the respondent and her second husband. It appear that the minor bas been getting good education of standard and he w as .acceptable to a school which it was agreed by both the parties is a good institution. If he had not been properly educated the school would not have agreed to accept him as a student of Class IV or even of Class III. The argument that the appellant is in a better financial position does not help him, in that despite his resources he has tried to avoid his liability towards the minor. It is not certain whether if the minor is forced to live with him, his second wife would permit him to maintain the minor in a befitting manner. This observation has been made in the context of the proceedings recorded on the last date of hearing, namely 23.3-1974. If the second wife has such a forceful influence on the appellant, it is doubtful whether he would be able to look after the minor well if she (his second wife) desired otherwise. Some argument was raised that the respondent is fond of films. There is no cogent evidence to support the assertion made by the appellant to the effect that the respondent is an addict in this behalf, if, however, on the other hand she goes occasionally to see a movie, which fact (also) has been repudiated by her, this by itself is not a sufficient ground for ignoring all the above discussed circumstances which go against the appellant in so far as the welfare of the minor is concerned. It is necessary in this behalf to note that even according to the evidence produced by the appellant, ever member of the respondent's family is strict observant of Roza and Nimaz It is doubtful whether in such an atmosphere the respondent would afford going to the movies as often as has been asserted on behalf of the appellant.

10. After devoting careful thought to all the circumstances of the case, I am constrained to hold that it will not be in the welfare of the minor in this case to force him to stay with the appellant. At the same time, it would not be fair to deprive him opportunity of meeting the minor at reasonable intervals and on important occasions. Therefore, while dismissing this appeal, I direct as follows : -

(i) that the respondent shall afford opportunity to the appellant to meet the minor at her house after every two months as also on Eid' days. She shall not refuse any gift (cash or kind) which might be offered by the appellant to the minor at these meetings;

(it) that the respondent would absolve herself of the responsibility with regard to opportunity of meeting, by sending a registered acknowledgement due letter well in time informing the appellant at his normal address with regard to the place and time of meeting;

(iii) that the respondent shall not take the child out of Pakistan without the consent in writing of the appellant and seeking permission from the Guardian Judge.

This appeal, with the above directions, is dismissed but there shall be no, order as to costs.

s. A. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.