ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Constitution Petition.No.S-191 of 2024
(Arshad Ali v. Mst. Uzma& Ors)
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
1. For orders on office objection “A”
2. For hearing of main case.
Petitioner: Through Mr. Naseer Ahmed Wagan, advocate
Respondents No 1 & 2: Through Mr. Sajid Ali Mahessar, advocate
Mr. Aftab Ahmed Bhutto, Assistant A.G.
Date of hearing: 08.04.2025
Date of Order: 08.04.2025
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ORDER
NISAR AHMED BHANBHRO, J;- Through instant Constitution Petition, the petitioner has challenged the order dated 19.04.2024 (the impugned order) passed by the Court of Learned I-Additional District Judge, Mehar (the Appellate Court) in Guardian and Wards Appeal No 05 of 2024 Re: Mst Uzma and another Versus Arshad Ali, whereby the appeal filed by the Respondent No 1 was allowed and order dated 28.02.2024 passed by the Court of Learned Family Judge I Mehar (the Trial Court) in Guardian & Wards Application No 22 of year 2023 was set aside.
2. Facts in brief of the case are that the petitioner (Arshad Ali) and Respondent No.1 (Uzma) contracted marriage about 6 years ago and out of the wedlock they have one issue namely Shazaib aged about 5 years. The marriage between the parties was dissolved on the ground of Khulla in lieu of Judgment dated 27.01.2024 passed by the Court of Learned Family Judge-I, Mehar in Family Suit No.118 of 2022 titled Mst. Uzma versus Arshad Ali. After dissolution of marriage the Respondent No.1 contracted second marriage with one Anwar Ali Sohu (Respondent No.2) and out of the second marriage she mothered one baby girl.
3. Petitioner filed Guardianship Application No.22 of 2023 seeking the custody of minor Shahzaib before the Trial Court. The application of the petitioner was granted, he was appointed as Guardian of the minor and Respondent No 1 was directed to hand over the custody of minor Shahzaib to the petitioner. The respondent No.1 filed Guardian and Wards Appeal No.05 of 2024 before the Court of Learned District Judge Dadu, which was assigned to the Appellate Court for its disposal in accordance with law. The Appellate Court through the impugned order set aside the order of the trial Court and ordered to retain the custody of minor with Respondent No.1 being real mother.
4. Mr. Naseer Ahmed Wagan Learned Counsel for the Petitioner contended that the Petitioner being the real father of the minor is a natural guardian and under the given circumstances when the mother of minor has contracted second marriage the balance of preferential right of custody of minor titled in his favor. He contended that the second husband of the Respondent No 1 is already married, having 5 children from first wedlock, the welfare of the minor required that his custody be given to the Petitioner being real father. He contended that the Trial Court passed a well reasoned order on proper appraisal of the evidence; the Appellate Court reversed the findings of Trial Court without any rational cause merely under emotions. He prayed to set aside the impugned order by maintaining the order of the Trial Court.
5. Mr. Sajid Ali Mahessar Learned Counsel for Respondents No 1 & 2 contended that Respondent No 1 Mst. Uzma being the real mother of the minor has preferential rights to retain custody. He contended that minor cannot be deprived of the lap of the mother as he is 5 years of the age under the right of Hizanat. Minor needs tender care which can only be provided by the mother, and her second marriage will not in any way affect her rights for grant of custody of minor son. He prayed for dismissal of the petition.
6. Mr Aftab Ahmed Bhutto Learned Assistant Advocate General supported the impugned order passed by the Appellate Court and prayed for dismissal of the Petition.
7. Heard Learned Counsel for the parties and perused material available on record.
8. The parties in the instant lis are parents of the minor Shazaib contesting for his custody being natural Guardian. The dispute as to the custody of the minor Shahzaib arose when Respondent No 1 separated from Petitioner after obtaining Khula and contracted second marriage with Respondent No 2, who was already married and father of five children, the claim of the Petitioner was that minor resided in the house of Respondent No 2 who was alien to him and would not in any manner take care of his future in presence of his own children, therefore he was the right person to get custody of the minor son. The Petitioner preferred an application under section 7 of The Guardian and Wards Act, 1890 (the said Act) before the Trial Court which was vehemently opposed by the Respondent No 1. Out of the pleadings of the parties, the Trial Court framed following three issues:
1. Whether the Application of the applicant is not maintainable under the law?
2. Whether welfare of the minor namely Shahzaib aged about 31 months lies with the applicant?
3. What should the order be?
The Trial Court resolved issue No 2 in favor of Petitioner and appointed him as Guardian of the minor, directing the Respondent No 1 to hand over the custody of minor to Petitioner. The Trial Court rendered its findings in favor of Petitioner by making following observations:
“By contracting Second marriage, the Respondent No 1 has lost the right of Hizanat. Further the second husband of the Respondent No 1 is also stranger to minor, I also believe that minor would not be loved, cared by the family members of the Anwer Sohu, respondent No 2. Further being unhappy with the decision of contracting second marriage with Mst Uzma by the Respondent, his first wife and children would not accommodate Mst Uzma and minor, therefore, there would be no conducive atmosphere available for the minor to grow and develop in that house. He would grow in the circumstances where disturbance would be the order of the day, hence welfare of the minor would not lie with the mother.”
9. The Respondents No 1 & 2 assailed the order of the Trial Court before the Appellate Court, raising a plea that the minor was aged about 3 years, there was no substitute to the love and care of a mother, therefore, Respondent No 1 was the most suitable person to get the custody of minor. The Appellate Court after hearing the parties set aside the order of the Trial Court and retained the custody of minor with his mother by appointing her guardian and granting visiting rights to the Petitioner for three hours once a week. The operative part of the impugned order dated 19.04.2024 is reproduced for the sake of convenience.
“Additionally considering the Respondents daily absence due to work commitments, leaving the minor without the mother’s care or at the discretion of other paternal family members would not be in the child’s best interest. The trial court’s concern about the joint family system and the potential lack of proper love and care from step siblings is not sufficient to override mother’s established role and the child’s welfare, which is the paramount consideration. On the contrary living in an extended family system with her mother and other inmates of the house could provide a supportive environment for the minor. The presence of other family members from the second husband, could beneficial for the minor’s social development. There is no concrete evidence that mother remained neglectful or maltreated or unloved the minor in new family setting.
Based on the principles discussed, I believe that the trial court made significant errors in its decision, which cannot be upheld by law. Therefore, this appeal is granted and the order dated 28.02.2024, passed by the trial court in the case of Guardian and Wards Application No.22/2023, Re-Arshad Ali versus Mst. Uzma and another, is set aside and the Guardian and Wards Application No.22/2023, re-Arshad Ali versus Mst. Uzma and another is dismissed. The respondent, being the biological father, will have regular visitation rights with maintenance allowance. If these conditions are met, the child will be allowed to spend time with the respondent for three hours, from 09.00 A.M to 12.00 P.M every Friday at the court of the learned Guardian Judge-I in Mehar, until the child reaches the age of seven years. No costs are awarded. The office is directed to send a copy of this order and the case record to the trial court for information and necessary action.”
10. The Guardian & Wards Court regulates the custody of minor in terms of section 7 of the said Act, which requires the Court to decide the custody of minor by taking into consideration all the aspects of the case paving way to the welfare of minor, the words “where the Court is satisfied that it is for the welfare of minor” embodied in section 7 cast a duty upon the Court to decide the cases of custody of minor with great caution having prime and paramount consideration for appointment of Guardian in all circumstances be the welfare of the minor. Section 25 of the said Act, enunciates the title of guardian as follows:
'25. Title of guardian to custody of ward. (1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian."
The section 17 of the said Act elaborates further as to how the custody of minor is regulated, which reads as under:
17. Matters to be considered by the Court in appointing guardian. (1) In appointing or declaring the guardian of the minor, the Court shall, subject to the provisions of this section, be guarded by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2). In considering what will be for the welfare of the minor the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3). If the minor is old enough to form an intelligent preference, the Court may consider that preference.'`
The above provisions of law make it clear that foremost consideration to decide the question of custody of a minor is his or her welfare and betterment. Welfare of the minor would overweigh against all other considerations. It is also apparent from the bare reading of section 17(2) of the said Act that character and capacity of the proposed guardian as well as age and sex, is also an important factor to be considered while determining the welfare of the minor. The right of custody of minor is not an absolute right o any of the parent rather it is always subject to the welfare of the minor. The Court in the light of facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to this settled principle. No doubt under Muhammadan Law a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule even does not rigidly apply.
11. The Trial Court keeping in view the peculiar circumstances of this case that the mother had contracted second marriage with a person who was already married having five children and both wives resided in the same house granted custody of minor in favor of father. The Appellate Court under the right of 'Hazzanat' as the age of minor was below seven (7) years granted custody of minor in favor of mother. The right of Hizanat with respect to a male child goes to the mother, until minor becomes independent and capable of understanding things that is to say, he becomes capable of easy walking, eating, drinking and performing other natural functions without assistance. The Hizanat with respect to a boy ceases at the end of seven years of age. Although Mohammadan Law delineates that the mother loses her right to the custody of minor if she separates and re-marries as observed by the Trial Court in its finding on issue No 2, however, this is not an absolute rule and may be departed from in exceptional circumstances to justify such departure and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody.
The view finds support from the dicta laid down by the Honorable Supreme Court Gul Sadem Khan Versus Mst Halima reported in PLD 2025 Supreme Court 47, wherein the Honorable Apex Court has been pleased to hold as under:
“As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of 'Hizanat' of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under section 25 of the Guardians and Wards Act, (VIII of 1890). The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor.”
12. In the present case both the Courts below did not consider the welfare of minor in its strict sense, which required his upbringing, schooling, nutrition and day to day expenses. It is settled principle that Guardianship Courts while dealing with matters relating to custody of minor children exercise parental jurisdiction.The custody of a minor can, be delivered by the Court only in the interest and welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided again if it is for the welfare of the minor. Similarly the right of the mother to claim the custody of a minor son aged below 7 years is not an absolute right, in that, the mother may disentitle herself to custody on account of her conduct in the light of the facts and the circumstances of each case. In the instant case material on record manifested that the respondent No 1 mother neglected the child since the separation of the spouses. She had not made any arrangements for his schooling, she opted for second marriage and mothered on baby girl, the minor Shahzaib remained exposed to the onslaughts of the step-motherly and step fatherly treatment in the house of Respondent No 2 and at no point of time a separate residence was provided to the Respondent No 1 so that minor Shazaib could live independently. All these factors and circumstances though disentitled Respondent No 1 from custody of minor but keeping in view the tender age of minor, he cannot be deprived of the care of mother.
13. Minor Shahzaib was brought in court today, though he was aged about 5 years but seemed to be sharp enough and was capable of understanding the relations. He at the time of appearance in the Court was in the lap of his step father Respondent No 2, when asked whether he recognized his real father, the Respondent No 1 mother of the minor told that he would not but surprisingly he not only recognized petitioner being his father but also went into his lap. The Petitioner was inquired about his financial status, he told that he was a shop keeper and earned sufficient income to admit the minor in school and maintain him properly. Since minor is aged about 5 years, it will not be appropriate to deprive him of the love, care and affection of his mother but at the same time fixing a single day of visitation for three hours to the father would never be in the welfare of minor keeping in view the family atmosphere at the house of Respondent No 1.
14. Under the given circumstances, It will be in the interest and welfare of the minor that he remains under equal care of both the parents until he attains the age of 7 years, thereafter the parents would be at liberty to approach the Guardian Court for permanent custody of the minor. The parties did not dispute the proposal and agreed for the disposal of this petition in the following terms:
(i) The Petitioner shall continue paying the monthly maintenance of minor to the mother as ordered by the Family Court to meet the routine expenses of child.
(ii) The Custody of the minor shall be retained by the father for 3 days in a week, accordingly the custody of minor Shahzaib shall be handed over to father Arshad Ali one every Friday from12:00 Noon until Sunday 5.00 pm and for the remaining days of the week he shall remain in the custody of his mother, until the age of seven years.
(iii) The Respondent No.1 shall handover the custody of minor to the petitioner on every Friday at 12:00 Noon in Mehar town and the petitioner shall return the custody of minor to the Respondent No. 1on Sunday at 5.00 pm in Mehar town.
(iv) The minor shall be admitted in school in Mehar Town at the expense of Petitioner and such proof shall be submitted before the Family Court dealing with the maintenance case. the weekly transfer of the custody shall not in any manner affect the schooling of minor.
(v) The Petitioner and Respondent No 1 shall not permanently remove the custody of minor from present place of abode except by the permission from the Gordian Court.
(vi) The petitioner or the Respondent No 1 shall be at liberty to file proper proceedings for permanent custody as minor Shahzaib attains the age of seven years, the Guardian Court if approached shall decide the case on its merits under the prevailing circumstances at that time.
The petition stands disposed of in above terms.
Judge