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First Appeal From Order No. 2 of 1959, decided on 20th March 1961.

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-----, S. 25‑Father may apply for custody of minor under S. 25.

A father is the natural guardian of his children and in spite of the fact that they did not live with him it would be presumed that they were in his constructive custody. As soon as the person who has the actual custody of the children refuses to deliver then to their father, the father can validly file an application under section 25 of the Guardians and Wards Act, 1890.

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-‑Hizanat‑Right of mother.

Under Muhammadan Law, a mother is entitled to the hizanat of her daughter till she attained puberty and of her son till he attained the age of seven years. She does not lose her right to the custody of her children merely because she lived separately from her husband. The principle of Muhammadan Law as regards hizanat is fundamentally based on this fact that it is for the welfare of the minors to live with their guardians as directed under the law.

If the relations of husband and wife are strained and as a result of that they live separately, the wife would not lose the hizanat of her children during the period the law permits her to keep them.

Where the father never paid any maintenance to the children that would show how much he was interested in the welfare of the minors.

It is not in the welfare of the minors that they should be separated from their mother at young age and handed over to the father.

Abdul Qayyum Bhatti for Appellant.

Respondent in person.

Date of hearing : 20th March 1961.

This is an appeal against the order of the Administrative Civil Judge, Jhelum, on an application under section 25 of the Guardians and Wards Act, whereby he directed that Mst. Parveen Akhtar, aged about 6 or 7 years, and Khurshid Akhtar, aged about 21 years, be taken away from the custody of their mother Mst. Bivi appellant and handed over to their father Shah Nawaz respondent.

2. Shah Nawaz in his application stated that Mst. Bivi did not live with him in spite of the fact that a decree for restitution of conjugal rights had been passed against her on the 21st of December 1956, and that since she was not looking after the children properly, the children be handed over to him. Mst. Bivi controverted these allegations and stated that she had been turned out by Shah Nawaz, that he did not maintain her and the children and that she was properly looking after the children. It was further contended that it was in the welfare of the minors that they should remain with their mother. The learned trial Judge framed the following issues :‑

(1) Whether the welfare of the minors requires that their custody be given to the petitioner

(2) Relief.

3. Shah Nawaz respondent appeared as who is a witness and examined Zariat Khan as P. W. 2. Both of them stated that Mst. Bivi did not live with her husband in spite of a decree for restitution of conjugal rights having been passed against her and that she lived at Lahore and sometimes in villages Khana Boki and Nawan‑Loke. The parents of Mst. Bivi lived in Nawan Loke. Both of these witnesses further stated that the minor daughter was not being properly looked after and was not being given education. In rebuttal, Jamroze Khan, who is the brother of Mst. Bivi, appeared as a witness for her. He stated that a sister of Shah Nawaz respondent was married‑to him and that his wife had deserted him and was living with her brother Shah Nawaz in spite of the fact that a decree for restitution of conjugal rights had been passed against her. It is, therefore, clear that the wives of Shah Nawaz and Jamroze Khan who were married in exchange, were not living with their husbands. Manzur Husain and Rashid Husain were examined by the appellant as her witnesses and both of them stated that Mst. Bivi, along with her children, was living with her brother Jamroze Khan, who was employed at Lahore, and that the minors were being looked after properly. Mst: Bivi also appeared as her own witness. She stated that she had been turned out by Shah Nawaz for the last about 2 years and that she was living with her brother at Lahore and that she was properly looking after her children.

4. The learned counsel for the appellant has raised a preliminary objection that since the minors had been removed from the custody of Shah Nawaz respondent, an application under section 25 of the Guardians and Wards Act was not com petent. This objection of the learned counsel has no force. A father is the natural guardian of his children and in spite of the fact that they did not live with him it would be presumed that they were in his constructive custody. As soon as the person who has the actual custody of the children refused to deliver them to their father, he can validly file an application under section 25 of the Guardians and Wards Act. I would, therefore, overrule this objection.

5. On the basis of the evidence discussed above, the learned trial Judge came to the conclusion that the minors were residing at Lahore and that Shah Nawaz petitioner was being denied access to his minor children. Relying on section 258, clause (2) of the Principles of Muhammadan Law, 12th Edition, the learned trial Judge held that since Mst. Bivi was living separately from her husband without any justification in spite of a decree for restitution of conjugal rights having been passed against her, she had lost the right of hizanat. The learned trial Judge has absolutely failed to make out a case on the evidence that it was in the welfare of the minors that they should be handed over to the respondent at an age when they were not even capable of looking after themselves. Under Muhammadan Law, a mother is entitled to the hizanat of her daughter till she attained puberty and of her son till he attained the age of seven years. She does not lose her right to the custody of her children merely because she lived separately from her husband. The principle of Muhammad Law as regards hizanat is fundamentally based on this fact that it is for the welfare of the minors to live with their guardians as directed under the law. There is pro decided case based en section 258 (2) of the Principles of Muhammadan Law by Mulla. This subsection is worded rather in a very loose language. It runs as follows :

"A female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody‑

(1) ..

(2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence."

It has not been defined anywhere as to what would be the distance that would be regarded as sufficient to deprive a mother of her right to the custody of her children. In the present case, Mst. Bivi admittedly at times lived in her village with her parents and at times she comes to live with her brother who is employed at Lahore. If the relations of a husband and wife are strained and as a result of that they live separately, the wife would not loose the hizanat of her children during the period the law permits her to keep them. Shah Nawaz respondent had never paid any maintenance to the children. That would show as to how much he was interested in the welfare of the minors. From the evidence on the record it cannot be said that it is in the welfare of the minors that they should be separated from their mother at that young age and handed over to the respondent. I would, therefore, accept this appeal and set aside the order passed by the learned trial Judge. The respondent shall pay the costs of both the Courts to the appellant.

K. M. A. Appeal accepted.

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