IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Constt. Petition No.S- 669 of 2019
Petitioner: Mst. Nazia daughter of Aijaz Ali by caste Ghunio, Through Mr. Irfan Badar Abbasi, Advocate,
Respondent: Naveed Ahmed son of Israr Ahmed by caste Sadhayo, Through Mr. Danesh Kumar Jai Jai Veshno, Advocate
The State through Mr. Abdul Hamid Bhurgri, Additional Advocate General.
Date of hearing: 29-10-2020
Date of judgment: 26-11-2020
O R D E R
Zulfiqar Ali Sangi,J.- Through instant petition, the petitioner has prayed for the following relief(s):-
a) To set aside the impugned judgment dated 25.6.219 passed by the learned Civil/ Guardian Judge-III, Shikarpur as well as impugned judgment and decree, both dated 20.8.2019, passed by the learned 3rd Additional District Judge/ Model Civil Appellate Court, Shikarpur; allow the instant petition and to award the custody of minor Azan, son of the petitioner, aged about 2/3 years, in favour of the petitioner, considering the abovementioned facts circumstances and grounds so also welfare of the minor Azan;
b) To award costs of the petition
c) To grant any other equitable and adequate relief to the petitioner in view of the above stated facts and circumstances.
2. Facts leading to this petition are that the petitioner was married with respondent No.1 Naveed Ahmed and out of the wedlock one son namely Azan, aged about 2/3 years was born. The petitioner was divorcedby the respondent No.1 and had kept minor son Azan in his custody. Application under section 491 Cr.PC was filed by the petitioner in the Court of Sessions Judge, Shikarpur which was decided in favour of the petitioner by the learned 5th Additional Sessions Judge, Shikarpur, and custody of minor Azan was handed over to the petitioner being real mother of the minor. Thereafter, respondent No.1 Naveed Ahmed filed Guardianship Application No.01/2019, in the court of Civil /Guardian Judge-III, Shikarpur against the petitioner seeking custody of minor, after usual formalities issues were framed and evidence was led by the parties while the petitioner examined only herself. Learned Judge allowed the guardianship application of respondent No.1 and handed over the custody of minor Azan aged about 2/3 years to the respondent No.1, on execution in the sum of P.R bond of Rs.500,000/-. The petitioner challenged the judgment dated 25.6.2019, of the Civil/Guardian Judge-III, Shikarpur through Appeal No.08 of 2019, in the Court of District Judge, Shikarpur who transferred the case to learned 3rdAdditional Sessions Judge/Model Civil Appellate Court, Shikarpur who dismissed the above family appeal vide judgment and decree dated 21.8.2019 maintaining the judgment of guardian court passed on 25.6.2019.Hence this petition has been filed.
3. Learned counsel for the petitioner has mainly contended that learned guardian court as well as appellate court have committed error of law while awarding the custody of minor Azan to the respondent No.1, the judgments passed by courts below are unsound sketchy,absurd and baseless reasoning and findings as the same have been passed without appreciating the contentions of the petitionerproperly. He further submitted that guardian court allowed the guardianship application of respondent No.1 merely on the point that the respondent No.1 had alleged that the father and one brother(maternal grandfather and maternal uncle of minor) were men of questionable character. He further contended that the petitioner is not dependent upon her parents and she is earning livelihood for herself and her minor son by sewing clothes of others and she was very well maintaining her minor son with care and caution and the respondent No.1, all along failed to show any thing adverse on the part of petitioner or any negligence in that behalf. The petitioner produced documentary proof before the guardian court to show that she had got her minor son admitted in the school, but the same was not properly considered and appreciated by the learned courts below. No doubt the father is a natural guardian of his children, but looking to the age of minor which is only 2/3 years, it would not be proper to handover the custody of minor to the father, particularly when nothing adverse showing any negligence towards maintenance or welfare of minor was placed on record against the petitioner by the respondent No.1. That looking to the age of minor Azan, the mother’s right of “Hizanat” is fully applicable in this case, because in such an age, child always needs full care and attention of a mother instead of father, as the father spends much of his time out of home and as per divine justice there is no substitute of a mother for a child of such an age, therefore, under the law she is entitled to have the custody of her minor son, but the learned trial court as well as the learned appellate court have failed to properly appreciate this fact.Hence he prayed that the impugned judgments and decree passed by the learned courts below may be set aside. In support of his contentions he relied upon case law reported as Mir Bat Khan v. Mst. Sherin Bibi and others 2019 SCMR 520, Mst. Razia Bibi v. Riaz Ahmed and another 2004 SCMR 821, Mst. Firdous Iqbal v. Shifaat Ali and others (2000 SCMR 838), Hayatullah V. Abdul Rasheed (2000 SCMR 845) andMst. Beena v. Raja Muhammad and others (PLD 2020 Supreme Court 508).
4. On the other hand learned counsel for the respondent No.1 has stated that trail court so also appellate court have given cogent reasons and rightlyhanded over the custody of minor to the father. He further submits that the atmosphere in which the petitioner is residing is not good for the welfare of the minor as according to him the petitioner herself admitted that the family members of the petitioner are involved in narcotics cases. In these circumstances, he requested that petition may be dismissed. In support of his contentions he relied upon the case of Muhammad Shafi v. Muniran Bibi and others (CLC 1992 2348).
5. Learned Additional Advocate General, Sindh contended that sufficient material has been produced by the respondent No. 1 to show that the family members of petitioner are involved in narcotics cases, hence the same atmosphere will not be better for the minor he also prayed that the petition may be dismissed.
6. I have heard learned counsel for the parties and gone through the material available on the record with their able assistance.
7. It is well settled principle of law, so enunciated by the Apex Court, in matters of custody of minor (s) that welfare of the minor shall always be the paramount consideration rather a decisive factor, however, the poverty of lady alone would not be sufficient to hold her disentitled for custody of minor as legally the burden to maintain the child lies on father.(Mst. Razia Bibi v. Riaz Ahmed & another (2004 SCMR 821). Honourable Supreme Court in the case of Mst. Mubeena v. Raja Muhammad & another (PLD 2020 SC 508)while reaffirming the legal position of any agreement between parents over custody as invalid went on in holding that even physical disability of mother would not be sufficient to hold her disentitled from the custody of the child. The operative part reads as:-
“11. The principles of Policy (the Principles’) set out in the Constitution is the path, and the destination, that the nation has set for itself. The Principles require that, ‘Steps shall be taken to ensure full participation of women in all spheres of national life’. If women with physical life stand excluded from participation in family life and excluded from the much higher proclaimed objective of participation in all spheres of national life. The Principles also require that the State shall protect ‘the mother and the child’. If child is taken away from the mother, deprived of her love and benefit of her upbringing the mother and the child’s relationship is fragmented.”
8. While deciding such like matter (s), none can take an exception to above settled principles of law as well fact that tilt in normal circumstances shall always be in favour of the ‘mother’ whose disability as well poverty shall, in normal circumstances, be of any consequences but all such things shall become weightless if it is, otherwise, proved that atmosphere which the minor shall enjoy in lap of mother would not be for his / her betterment.Here, it is worth mentioning that ‘lap of mother’ shall never be limited to her two hands but shall always include the place (house as well locality thereof) where she shall keep the child to grow (learn).A man is known by the company he keeps. A growing child always learns from his surrounding as a wholetherefore, the term ‘lap’ in such like matter shall never be confined to its literal meaning, as being insisted by learned counsel for the petitioner.
9. Having kept said principles in mind, I have perused the available material. The perusal thereof shows that in the present case the petitioner (Mother) herself admitted in the evidence recorded before the trial court while replying the questions on behalf of Respondent No. 1(Father) that:
“Rahib and Aijaz are my brothers. It is correct to suggest that my brother Rahib was arrested in the crime No. 147/2015 as he was carrying my father’s charas, Vol says that my father used to smoke the charas.”
She further admitted that:
“My brother used to take the minor to school.”
“It is correct to suggest that my father is convicted by the court. It is correct to suggest I used to live with my brother and father Aijaz at Shikarpur city.”
From above, it was / is always safe to conclude that:
i) petitioner is dependent upon her father and brother;
ii) her father, head of family, is not only addict to Charas but is also a convict;
iii) his brother is also facing charge of possessing narcotics;
iv) petitioner intends to grow minor in house of her father as well in their company;
v)
10. The petitioner admits that she allows the child / minor to remain with his brother and father; and even the minor is allowed to go outside of the house with said person (s). Thus, if all these admitted facts are read together, it can safely, be concluded that if the custody is handed over to mother / petitioner, the minor shall have to grow in company of his uncle and maternal grandfather, and not within laps (literally) of her mother alone. Such company, in no way, shall be in the welfare and betterment of the minor.
[11. The judgment of the trial court dated 25.6.2019 is perused carefully wherein the learned trial court has also kept itself within settled principles of law, as discussed above. The relevant paragraph 7, 8 and 9 of the judgment are reproduced as under:-
“7. It is settled principle of law that while deciding custody of a minor court has to see welfare of the minor as a paramount consideration. When the circumstances discussed above are taken into consideration it appears that minor’s welfare lies with his father because when query was made from minor that where he wanted to go, he replied that he would go with his maternal uncle. This shows that minor is leaned towards his maternal uncles who are not the persons of a sound social standing rather are involved in crimes which also have effect over the human health being offences involving movement and consumption of narcotics, which is also admitted by respondent/mother. There is no denial that poverty of mother is no ground to refuse custody to her but when custody of minor with his mother is detrimental to his health and future, then minor cannot be given in her custody being the same against his welfare. Admittedly, father is law abiding citizen and earns his livelihood by running a mobile shop; therefore, he seems to be more fit than respondent/mother to have custody of his son.
8. It may be a cavil that minor is still in age where right of his mother to retain his custody exists i.e right of hizanat but I may observe in this regard that minor is not of a tender age to suggest that he cannot live without his mother. Even otherwise, minor was living with his father before shifting of his custody to his mother when she filed application u/s 491 Cr.P.C. I may further observe that while deciding the guardianship matters prime consideration before the Court is to see welfare of the minor and due to the circumstances discussed above, particularity the family background of respondent render It unsuitable for child to remain in her mother’s Custody who resides with her father and brothers whose anti-social acts have surfaced on record. Moreover, the minor number of time, even today, has shown his willingness to go with his father and seems happy in showing his readiness to live with his father. No doubt, mothers love is necessary for children but in the given scenario when welfare of minor does not seem with mother, father appears to be fit who otherwise has been weeping for his son and for whose affection son has awaited for long”.
9. Issue No.3, for the reasons recorded in issues No.1& 2 above, I find that it is in the welfare of minor to live with his father/applicant, therefore, application in hand is allowed with no order as to cost. Applicant is held entitled to receive custody of his son on executing P.R. bond in sum of Rs.500,000/-. Since respondent is real mother of the minor, hence she is entitled to meet her son Azan frequently for two to four times a month. However, the dates of the meetings would be fixed looking to the convenience of the parties especially mother. The first meeting to take place on 05-07-2019. It is further clarified that father is natural guardian and he needs not to be appointed guardian, therefore, this application is decided with regard to custody of minor with deciding guardianship.”
12. Appeal filed by the petitioner was too dismissed by the appellate court and appellate court in the above circumstances also found that the welfare of the minor lies with his father and upheld the judgment of the trial court, both the courts bellow have given sound reasons in their judgments which cannot be disturbed while exercising constitutional jurisdiction as the same are based on the evidence produced by the parties.
13. Thus based on the above facts and the circumstance this constitutional petition filed by the petitioner is dismissed.