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Civil Miscellaneous Appeal No. 43 of 1962, decided on 28th January 1963.

Guardianship‑Mother best entitled to custody of infants during, and after dissolution of, connubial relationship‑Second marriage with stranger after divorce‑Does not deprive mother of her right of hizanat if welfare of infants demands their remaining with mother‑Father failing to claim persons of infants within reasonable time after hazina contracts second marriage or from date of his knowledge thereof‑Presumed to have abandoned his right to custody of infants‑Maternal grand‑mother next person entitled to custody of female children till their age of puberty on mother's contracting second marriage with stranger after divorce ‑ Guardians and Wards Act (VIII of 1890), S. 25.

Amar 1lahi v. Mst. Rashida Akhtar P L D 1955 Lah. 412 ; Tumina Khatun v. Gaharjan Bibi A I R 1942 Cal.. 281 ; In re Ghulam Muhammad‑Muhammad Jaffar I L R 1942 Kar. 363‑; Mst. Fatima and another v. Darwaz A I R 1936 Pesh. 63 ; Syed Ameer Ali: "Muhammadan Law," 4th Ed. p. 301 and "Fatawa‑i Alamgiri" Vol. I, p. 728 ref.

Opponent declining to avail of opportunity to put his essential and material case in cross‑examina tion‑Testimony given could not be disputed‑Evidence Act (1 of 1872), S. 138.

A. E. G. Carapiet v. A. Y. Derderian A I R 1961 Cal. 359 rel.

Nizamuddin for Appellants.

M. A. 1. Lakhani for Respondent.

Dates of hearing : 2nd October 1962 and 28th January1963.

This is an appeal under section 47 of the Guardians and Wards Act (Act VIII of 1890) (hereinafter called the Act) against the order of the Additional District Judge, Larkana dated the 23rd June, 1962 granting the application of the respondent for custody of his two minor daughters. The facts necessary for the disposal of this appeal are these:

The appellant Mst. Nazeer Begum was. married to the respondent Abdul Sattar who divorced her sometime in 1957. At the time of the divorce Mst. Nazeer Begum had a daughter Mst. Naheed who was aged about 2j years and was also in the family way and gave birth to Mst. Kouser Parveen. The respondent filed an application for the custody of his two minor children on 22nd March 1962. Para. 7 of the application gives the grounds for claiming the custody of the two children. The grounds are:‑

(1) That Mst. Nazeer Begum has married a stranger;

(2) that Mst. Nazeer Begum and her parents did not allow the respondent to see his minor daughters;

(3) that the minors are not being properly looked after; and

(4) that Mst. Nazeer Begum wishes to give away the minors in marriage to their disadvantage.

2. Whenever there is a dispute between father and mother for the custody of their minor children the Court is called upon to give its very serious and anxious consideration as to who should have the custody of the minors considering their welfare. In this case I have come to the conclusion that it would be to the welfare of the minors if they continued to remain in the custody of their mother.

3. It has been very strenuously contended by Mr. Lakhani, the learned Advocate for the respondent, that under the Muslim Law the mother loses her right of Al‑Hizanat (custody) when she married a stranger. There can be no two opinions about this proposition of law. It has, however, been held in some cases that though the mother loses her right of custody on the ground of her marriage with a stranger, the Court has still to see whether in the interest of the minors she should be deprived of the custody of her minor children. Mr. Nizamuddin, in support of this pro position, relied en the following cases

(1) Amar Ilahi v. Mst. Rashida Akhtar P L D 1955 Lah. 412.

(2) Tumina Khatun v. Gaharjan Bibi A I R 1942 Cal. 281.

(3) In re : Ghulam Muhammad Muhammad Jaffer I L R 1942 Kar. 363.

(4) Mst. Fatima and another v. Darwaz A I R 1936 Pesh. 63.

4. Under the Muhammadan Law the mother of all persons is best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution (Fatawai Alamgiri, Vol. I, p. 728). The right of the mother to the custody of her minor children, in the case of female until the children' attain puberty, cannot be questioned. As I have already mentioned the mother in the present case has lost her legal right of custody of the minor children under the Muslim Law because of her marriage to a stranger. This, however, does not deprive her, if the Court was of the opinion that it would still be to the welfare of the minors, if they remain in the custody of the mother. There are several grounds which have led me to the conclusion that it would be to the interest of the minors if they remain in the custody of their mother. I propose to deal with these considerations separately.

5. In the first place, I would like to deal with the grounds alleged by the respondent in his application for the custody of the minors. It has become necessary to examine these grounds as the respondent did not make an application for the custody of the minors soon after the dissolution of marriage or even within a reasonable time thereof. The respondent divorced Mst. Nazeer Begum in August 1957. The present application was filed in 1962 almost after 5 years. There is nothing in the application as to why the application had been filed after such a long time. If Abdul Sattar was anxious to have the custody of the minors on the ground of Nazeer Begum being married to a stranger he should have filed the application about four years earlier. In these circumstances it would be necessary in order to determine the bona fide of Abdul Sattar to examine the grounds alleged in para. 7 of his application.

5‑A. The first ground is that Mst. Nazeer Begum has married a stranger. It would appear from the statement of Mst. Nazeer Begum that at the time she gave her statement in Court on 2nd June 1962 she was already married to one Niazali since about 3 years. The marriage of Mst. Nazeer Begum to a stranger, there fore, cannot be a valid ground for the application as she had been married to a stranger since long.

6. The second ground alleged is that the relationship between Abdul Sattar on the one hand and Mst. Nazeer Begum and her parents and her husband on the other hand had been very strained. The relationship between the parties must have been strained from 1957. This, therefore, cannot be said to be a ground for making the application in 1962.

7. The third ground alleged is that Mst. Nazeer Begum and her parents did not allow Abdul Sattar to see his minor children. There is no substance in this ground. Mst. Nazeer Begum in her statement before the Court definitely stated that she did not disallow the applicant to see his children. She further stated that "1n fact he has never cared to meet them." This statement has not been challenged by Abdul Sattar in the cross‑examination of Mst. Nazeer Begum.

8. The fourth ground is that the minors are not being properly looked after. Abdul Sattar examined himself before the Court. I have gone through his statement. He has not stated anything to show that the miners are not being properly looked after by their mother. On the other hand, Abdul Sattar admitted in cross‑examination that "Naheed minor is reading in Standard IV Class. She is learning Quran also." So far as the other minor Mst. Kousar Parveen is concerned, she is only aged about 4J years. The question of her education does not arise. It cannot, therefore, be said that the minors are not being properly looked after by their mother.

9. The last ground alleged is that the mother is intending to give away the minors in marriage to their disadvantage. There is nothing in the statement of the respondent himself to support this allegation in the application. Moreover, no suggestion has been made to Mst. Nazeer Begum or‑ to her father Ghulam Muhammad that they intended to give away the minors in marriage. Abdul Sattar being the legal guardian of the minors can at any time restrain Mst. Nazeer Begum or anyone else from giving away the minors in marriage without his consent during their minority.

10. The respondent Abdul Sattar, as it would appear from the above discussion, has failed to substantiate the grounds that he made in the application for the immediate custody of his minor children. Mr. Lakhani, the learned Advocate for Abdul Sattar, very strenuously contended that the application for the custody of the minors was made only when a child from Niazali was born to Mst. Nazeer Begum. There is no much substance in this contention. In the first place Abdul Sattar does not so state in his statement. In the second place, Mst. Nazeer Begum had given birth to a child from Niazali about a year and a half before the application was filed.

11. The learned Additional District Judge in his order gave the following reasons for his conclusion that it would be to the interest of the minors if they are given to the custody of Abdul Sattar

(1) That Abdul Sattar has not taken another wife ;

(2) He is a clerk in the S. P's office and is an educated person ;

(3) His father is a Post Master ;

(4) That the applicant's sisters are schooling ;

(5) That the relationship between Abdul Sattar and Mst. Nazeer Begum are very much strained ;

(6) That in the circumstances of the case Abdul Sattar cannot have any access to the minors so as to exercise control over them ;

(7) Mst. Nazeer Begum has started having children from her second husband with the result that her attention will be diverted to her children by Niazali.

(8) That Abdul Sattar appeared to the learned Judge to be a polished and sober young-man.

12. The grounds given by the learned Additional District Judge for giving over the custody of the minors to Abdul Sattar appear to be good grounds. The learned Additional District Judge, however, has failed to consider the grounds in favour of the mother for the continuance of the custody of the minors with her. Minor children, especially females, should not be deprived of the loving care of their mother without sufficient justification. In this case as the learned Additional District Judge observed the respondent appeared to be a stranger to the children. The fault is that of the respondent himself as he did not care to see his children or take any interest in them. To deprive the minors, in these circumstances, the love and care that they receive from their mother and maternal grand‑parent with whom they are admittedly living is not only cruel but is likely to adversely affect them. The first and foremost ground that the learned Additional District Judge should have considered was the negligence of the respondent to maintain or to look after the welfare of his minor children. The application was made when Mst. Naheed was about 7 years of age, and Mst. Kouser Parveen about 41 years of age. Mst. Nazeer Begum very clearly and emphatically stated in her examination‑in‑chief that Abdul Sattar had never cared to maintain the children or to even meet them. The relevant portion of her statement is as under:‑

"The applicant never provided any maintenance or any clothing for the children. It is not a fact that we did not allow the applicant to see his children. In fact he has never cared to meet them."

It was for the respondent to put his case in the cross‑examination of Mst. Nazeer Begum. The applicant did not care to challenge the statement made by Mst. Nazeer Begum as reproduced above. It has been held in a well considered judgment of a Division Bench of the Calcutta High Court in the case of A. E. G. Carapiet v. A. Y. Derderian (A I R 1961 Cal. 359) that wherever an opponent declines to avail himself of the opportunity to put his essential and material case in cross‑examination, it must follow that he believed that the testimony given could not be disputed at all. I would, for the purposes of this application, take it that the applicant did not care to provide any maintenance for his minor children or make an attempt to see them. I have tried to find out some reason as to why the applicant made the present application ; I find none. In the absence of any reason I am inclined to think that the respondent has some ulterior motive in claiming the custody of the children. It has been suggested by Mst. Nazeer Begum in her reply to the application that the applicant wishes to give the children in marriage for monetary consideration. The applicant no doubt stated that "It is absolutely incorrect that I intend to sell my children." It is true that the applicant has denied the suggestion made by the appellant, but the fact remains that he has not been able to give any cogent reason whatsoever for the custody of the children while making the application after such a long time. In this connection where the father has failed to care to maintain his children I would like to cite a passage from Muhammadan Law by Syed Ameer Ali, 4th Edition p. 301. It runs as under :‑

"Where the hazina contracts a second marriage and the father does not, within a reasonable space of time from the date of such marriage, or from the date of his knowledge thereof, claim the person of the infant, he should be supposed to have abandoned his right over it, and it should remain thenceforward definitely under her care."

The above proposition no doubt is subject to the welfare of the minor. In the present case, as I have already mentioned in the absence of anything on the record as to why the welfare of the minor will not be served by letting the custody of the minors remain with Mst. Nazeer Begum, I am of the view that the above proposition would apply to the circumstances of this case also.

13. The learned Additional District Judge believed the statement of the applicant that he was not given to any intoxicants. The learned Additional District Judge however failed to consider the statement of Mst. Nazeer Begum. She stated in her examination‑in‑chief that the applicant was addicted to charas and Mang. This statement has not been challenged by the applicant in her cross‑examination. Mst. Nazeer Begum was in a position to know the habits of the applicant. The applicant did not dare to challenge her statement as she may have disclosed things which may have damaged his service in the Police Depart ment. So far as the impression of the learned Judge that the applicant is a polished and sober person, the learned Additional District Judge did not give weight to the statement of Mst. Nazeer Begum. She stated as under: ‑

"He used to ill‑treat me and always returned home late in the night."

This statement has not been challenged in the cross‑examination. A person who ill‑treats his wife cannot be said to be a polished and sober person.

14. Mst. Nazeer Begum has an apprehension that her children may not receive good treatment from the mother of the applicant. She stated as under:‑

"The applicant's mother will not keep the children happy as her treatment towards me was very cruel."

It is true that it does not necessarily follow that because the treatment of the applicant's mother was not good towards Mst. Nazeer Begum it should be likewise towards the minors; the fact however remains that this statement has not been challenged in the cross‑examination.

15. The fact that the applicant is earning about Rs. 100 and his father is also earning about Rs. 200 and therefore they are in a better position to maintain the minors is not a sub stantial ground. It is an admitted position that Mst. Nazeer Begum's father is a screened out Sub‑Inspector. She stated that Niazali has got a grocery shop and that her father has a workshop. These facts have not been challenged in the cross‑examination.

There is nothing in the cross‑examination of Mst. Nazeer Begum to show that Niazali has not got a grocery shop or that her father has not got a workshop. Moreoever, Gul Muhammad was examined by the Court. He stated that Mst. Nazeer Begum was his only daughter. This would disclose that Gul Muhammad is looking after her and her children because of the great attachment he has for them.

16. Mr. Lakhani, the learned Advocate for Abdul Sattar very strenuously proposed that his client, in the interest of the minors, was willing to put them in some Boarding House at Karachi. After hearing Mr. Nizamuddin, the learned Advocate for Mst. Nazeer Begum, I have come to the conclusion that this would not be in the interest of the minors. In the first place, the meager income of Abdul Sattar and his father of about Rs. 300 would not be sufficient to maintain the family at home as well as the two children in some Boarding House at Karachi. In the second place, I am not aware of any school in Karachi, whose medium of instruction is Sindhi. This fact also would show that the respondent wants to remove the children from the custody of Mst. Nazeer Begum at any cost. It is not so much for the love of the children as perhaps because of the hatred that the respon dent has for Mst. Nazeer Begum and her parents and Niazali. Had it been otherwise, the admitted position being that Mst. Nazeer Begum and Abdul Sattar live within a distance of about 300 yards Abdul Sattar would have taken steps to see his minor children. This makes the conduct of the respondent suspicious. It would show that the reason for getting the custody of the children is not their welfare but some other ulterior motive.

17. The conduct of Abdul Sattar does not inspire confidence that he will treat the children with care and tenderness which their age and sex would require. It is indeed strange that he did not care to see Naheed, who was about 21 years of age at the time of divorce, for all these five years, though he was living at a distance of only about 300 yards from her. He did not make any applica tion during the pendency of the proceeding to be allowed to see his children. Moreover, his sisters are schooling and his mother must be too old to manage two small children. To deprive the minors, in these circumstances, considering their age and sex of the affection and care of their mother will not be to the welfare of the minors. This is likely to affect them psychologically. I may not have given too much importance to the love and affection of the mother if the children were not well brought up. Mst. Naheed is admittedly in 4th Standard and getting religious instruction also. Moreover, even if Mst. Nazeek Begum is not entitled to the custody of her minor children because of her marriage to a stranger the next person under the; Muslim Law entitled to the custody of female children till they attain the age of puberty would be maternal grandmother. Mst. Nazeer Begum is admittedly living with her parents. The mother of Mst. Nazeer Begum was a party to this case and she had filed a joint statement with her daughter before the Court. As Mst. Nazeer Begum is living with her mother, the question of giving the custody of the children to her mother does not arise. In these circumstances, I consider that it cannot be said to the welfare of the minors if their custody is handed over to Abdul Sattar who is almost a stranger to the children. I would however order that if Abdul Sattar so wishes he can get the children on every Saturday evening and send them back on Sunday afternoon by 3 o'clock to the house of Mst. Nazeer Begum. I would, there fore, for the reasons given above, allow the appeal and order the parties to bear the costs of the appeal.

K. B. A.

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