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Miscellaneous Appeal No. 23 of 1956, decided on 19th November 1957. from the order dated 6th February 1956, of Muhammad Bachal, J.
, S. 25 Wife refusing to live with husband and living in other town without consent of husband‑-- Wife also taking away minor children with her‑Father not maintaining children‑Whether father entitled to custody of minors.
, S. 25 LV---and not removed from custody of father‑Section 25 not applicable.
Achratlal Jakisendas v. Chimanlal Parbhudas A I R 1916 Bom. 129 and Manoo Alt v. Hawabi A I R 1936 Rang. 63 ref.
, Ss. 4 (5) of 9‑Residence of minors‑Depends on will of those who look after them‑Actual residence at time of application under Act is immaterial‑Place of residence of guardian should be taken to be place of residence of ward.
Mulla's Muhammadan Law S. 350 (2) ref.
, S. 25 Shia law‑Mother has right to custody of male minor child until he attains age of 2 years and that of female child until she attains age of 7 years‑After these ages lawful custody of minor children belongs to father‑Children not in actual custody of father‑Father has constructive custody in such a case.
Sm. Vimalabai widow of Baburao Kshirsagar v. Baurao Shamrao Kshirsagar A I R 1951 Nag. 179 rel.
, Ss. 25 & 4 (5)‑Minor children, removed from custody of father from K two days before application fled under S. 25‑Court at K has jurisdiction to entertain application.
, S. 25 Father is guardian of minors, even though they are in custody of mother.
, S. 25 LVife refusing to live with husband and removing minor children and living at distance from husband's residence loses right of custody of minors‑Custody of minor should be givers to father.
, S. 25 Shia law‑Father applying for custody of minor daughter aged 6 years 11 months‑Court should not dismiss such application but order that custody of minor daughter be given to father after minor attains age of 7 years.
, S. 25 Court while ordering that mother should hand over children to their father may order that mother be allowed to see children.
Zamirul Haq for Appellant.
Ali Raza for Respondent.
--‑ This is a miscellaneous appeal from the order, dated 6th February 1956, of Muhammad Bachal, J., by which the application of the respondent under section 25 of the Guardians and Wards Act, for the return of Nargis Khatoon and Syed Hasnain lqbal, two minor children of the respondent, was granted. It is admitted that the appellant, who is the mother of the minor children, was married to the respondent in January 1950 at Khanewal (Multan) and after the marriage they lived at Karachi upto October 1952. The daughter was born at Karachi on 26th of December 1950. The appellant then left the respondent's house along with the daughter in October 1952, and went away to live with her parents in Multan. The son was born at Multan on 28th of June 1953. The appellant continued to live there with the two children until the 1st of June 1955 when she came along with the children to live with the respondent as her husband at Karachi. Apparently the husband and the wife did not get along well and the appellant managed through the good offices of her father to secure an order from the Court of a Magistrate at Karachi that she should be released from her alleged unlawful confinement in‑the house of her husband and that the two minor children should be handed over to her. The children were thus removed from the custody of the respondent on the 10th of August 1955. On the 12th of August 1955, that is to say two days after it; the respondent made an application under section 25 of the Guardians and Wards Act in the Chief Court of Sind for the return of the minor children to him.
The order by which the application of the respondent has been accepted is questioned by the learned counsel for the appellant on three grounds mainly. According to him the Courts at Karachi did not have jurisdiction to entertain the application because the minors for whose custody the application was made did not ordinarily reside within the jurisdiction of the Courts at Karachi at the time of the application because they were taken out of the Courts jurisdiction by the appellant immediately after their custody was given to her by the Criminal Court. Secondly the age of the daughter on the date of the application for the custody was about 4 years 7 months and therefore the applicant was not entitled to her custody under the Shia Law, which is the personal law of the parties. Thirdly the respondent, according to him, is not a fit person to have the custody of the children.
The last argument can be disposed of in a few words. The appellant has no doubt made many allegations of ill‑treatment against her husband but her allegations cannot be taken to have been substantiated, only because the Criminal Court has on their basis ordered her release and also ordered that the children be handed over to her. That Court was not concerned with the truthfulness or otherwise of the allegations of cruelty or misbehaviour from the point of view of the Guardians and Wards Act. Moreover, the allegations which were made by her before the Original Court during the proceedings of the application made under section 25, do not contain allegations with regard to any cruelty of the father towards the children. I‑ is no doubt alleged that the father did not take care of the children and showed negligence towards their welfare during the period in which she lived with her parents, but it cannot' be said that for the purposes of the Guardians and Wards Act, the mother's action was right in refusing to live with her husband and demanding that the fatter should maintain the children to suit her convenience. As there is no material on the record for coming to any conclusion in this regard, it cannot be said that the father's conduct was such as to show that he was not fit to have the custody of the children or that he was disentitled to get their custody. The learned counsel for the appellant has relied on Achratlal Jekisendas v. Chimanlal Parbhudas (A I R 1916 Born. 129) and Manoo Ali v. Hawabi (A I R 1936 Rang. 63) for the proposition that a father, who has never had the care and custody of his infant child, cannot successfully call upon the Court by an application under the Guardians and Wards Act for an order that the infant be handed over to him. The facts of these cases were clearly different from the facts of the case. Section 25 did not apply to them because the ward had never left or been removed from the custody of the father.
The objection, which has been argued seriously by the learned Advocate of the appellant relates to the jurisdiction of the Karachi Courts. According to him it was necessary that the minor children should have been present within the territorial jurisdiction of the Karachi Courts at the time of the application. Moreover, their presence in Karachi two days before the application when they were removed from the custody of the father did not amount to their ordinary residence, because the mother is said to have come to her husband's house at Karachi without the intention of staying with him but only by way of a trial in order to see whether she would be treated by him properly or not. The counsel has sought to conclude from this that the ordinary residence of the minor children continued to be at Multan, where they had been for the longest period of their short lives and that their stay in Karachi with their father from the 1st of June 1955 to the 11th of August 1955, was only a temporary halt not amounting to ordinary residence. The defect in this argument is that the infants of the ages of about 2 years and 5 years do not have an intelligent preference for the places where they may be, and they happen to be at one place or another according to the discretion of those under whose care they may be kept. C Their residence, therefore depends on the will of those who look after them. It is therefore immaterial as to whether they were at Multan or Karachi. Under Shia Law, the mother has the right to the custody of a male child until he attains the age of 2 years and that of the female child D until she attains the age of 7 years. After these ages the lawful custody of the children belongs to their father. It the children are in actual custody of somebody else than the father who is entitled to their lawful custody then the person having the custody of the minor children should be deemed to have it on behalf of the father. In other words, the father has the constructive custody of the children from the date on which he becomes legally entitled to it. This view has been lucidly expressed in Sm. Vimalabai w/o Baburao Kshirsagar v. Baurao Shamrao Kshirsagar (A I R 1951 Nag. 179) and we are in respectful agreement with it. We may add that a strong support is lent to this view by subsection (3) of section 25 of the Guardians and Wards Act, which runs as follows
" The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship ".
The facts of the present case relating to the son are simpler than the facts relating to the daughter. The son was born on the 28th of June 1953 and therefore lie became 2 years of age on the 27th of June 1955. Oil this date the child was in the house of the father and therefore the lawful custody of this child, both actual as well as con structive, belonged to the father. The counsel for the appellant has argued that the child's presence in Karachi and in the house of the father should be considered to have belonged to the mother, because she brought him over to Karachi and her intention was not to reside here ordinarily but only to find whether she could do so or not. This argument does not appear to be sound to us because, the father had a right to the custody of the son and, as stated above, the place of the residence of the father should be taken to be the place of the residence of the son. The learned counsel for the appellant has relied on Mst. Nazir Begum v. Ghulam Qadir Khan and others (A I R 1937 Lah. 797) in support of the opposite proposition. This ruling is in a way against the contention of the appellant's counsel because it was held in it that although the minor girl was sent away from Multan to Bahawalpur, yet, the Court at Multan had the jurisdiction over the minor who was there until a few weeks before the application under the Guardians and Wards Act was made. In the present case the children were in Karachi with the father two days before they were removed to Multan. In our view, the Karachi Courts did G have jurisdiction with regard to the minor son.
The case of the minor daughter is different but it is covered by the argument advanced by the learned counsel for the respondent. His argument is that the right of the mother to the custody of the children does not mean that the father has nothing to do with the children. He is also a guardian according to the definition of a 'guardian' as given in the Guardians and Wards Act. A ' guardian ' is defined in section 4 of the Act to mean :‑
" a person having the care of the person of a minor or of r his property, or of both his person and property ".
The father is bound to take care of the child even when the child is in the custody of the mother because it is the duty of the father to supply the needs of the minor and to take care of the minor's welfare with respect to its education and maintenance. As soon as the mother loses her right to the custody of the person of the minor the father acquires it in suitable circumstances. The mother loses the right to the custody of children when they attain j certain ages, but she also loses the right to their custody, " If she goes and resides during the substance of the marriage at a distance from the father's place of resi dence ". Her refusal to live with her husband is a dis qualification for the custody of the minor children and this disqualification is applicable to both Hanafi as well as Shia Muslims. This law is stated in clause (2) of section 350 of Mulla's Muhammadan Law. In the present case the appellant left the place of the residence of her husband and went away from Karachi to live at Multan, which is a disqualification for the custody of the minor children. She cannot use this disqualification as a ground for resisting the claim of the father for the children's custody. On the contrary, the father acquired a preferential right to the custody of the minor children irrespective of their ages as soon as the mother became subject to the disqualification This argument has been accepted by Muhammad Bachal j., in the order from which the appeal has been preferred and the learned counsel for the appellant: has not been able to show to us any law to the contrary. It is true that the appellant has grievances against the respondent, but it cannot be said that, in this case, they are a justification for entitling her to claim an exemption from this disqualification, We accept this contention of the learned counsel for the respondent and hold that the respondent became entitled to the custody of the son as well as the daughter inspite of the fact that the daughter had not completed the age of 7 years at the time when the application under section 25 was made by the father. We may mention here that according to her date of birth she will be 7 years of age on 25th of December 1957, which means that her age is now less than seven years by about a month only. If we were not satisfied by this argument of the learned counsel for the respondent even then probably we would not have today dismissed the application of the respondent but, to order to avoid multiplicity of litigation, only deferred the operation of our order for returning the daughter until the 26th of December 1957.
We realise that the two children whose custody is being granted to the father are very tender of age and their separa tion from mother may upset them emotionally. Their welfare is, however, to be judged from the point of view of Shia Law. We have been assured by the learned counsel for the respondent that everything will be done to avoid their emotional upsets and to give them opportunity for having the benefit of the affection of their mother provided they do not have to be sent outside the jurisdiction of this bench. Consistently with this assurance and for the welfare of the minor children we modify the order under appeal so that it shall run as follows :
The respondent is declared to be entitled to the custody of the minor children namely Nargis Khatoon and Syed Hasnain Iqbal by right and in preference to the appellant and the appellant is directed to forthwith return the children to the respondent subject to the following conditions :‑
(a) They shall not be removed by the respondent from the jurisdiction of this Bench without its permission ;
(b) The father shall allow the appellant mother to have access to the children and to let them be with her by allowing her either to visit them in the house of the respondent or to call them for short periods to herself at any other place within a reasonable distance from the residence of the respondent and within the jurisdiction of this Bench and in the event of the res pondent's failure to comply with these conditions the appellant shall be entitled to seek remedy from this Court.
The appeal is accordingly dismissed and the parties are left to bear their own costs.
K. M. A. Appeal dismissed.
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