PLJ 1998 Cr. C. (Lahore) 1215
Present: ghulam MEHMooD QURESHI, J. Mst. KANIZ FATIMA-Petitioner
.
versus •
SHAUKAT
HUSSAIN etc.-Respondents
Crl.
Misc. No. 444-H/97, allowed on 22-10-1997.
Criminal Procedure Code, 1898 (V of 1898)--
—-S. 491-Constitution of Pakistan, 1973
Arts. 199. 203-A to 203-J and 277-Muhammadan
Law by D.F. Mullah Ss. 352 to 354-Kidnapping of minorsby father after eath of mother-Habeas petition
against-Question ofcustody of minors-In matter of custody of minors,
welfare of minors isparamount
consideration-In absence of other, aternal grand motherhas preferential right of immediate custody than
father—Custody ofminors with father is
not proper and it is prima facie, against law whentheir aternal grand
mother is alive—Matter of immediate custody ofminors should be settled promptly
and for this purpose jurisdiction ofH/couit
can be invoked through abeas petition-Minors handed over togrand
maternal mother (petitioners-Respondent was asked to seek hisremedy for custody of his minor children before
court of ompetentjurisdiction-Petition
allowed. [Pp. 1216, 1218, & 1219] A to E
1988 SCMR 1359. 1997 SCMR 1480 re.f.
M/s Ijaz Ahmed Bhatti and Abdul Qadir
Hashirni, Advocates for Petitioner.
Mr. Muhammad Afzal Malik, Advocate for
Respondent No. 1. Kh. Noor Mustafa, Advocate for State. Date of hearing :
22-10-1997.
judgment
The petitioner. Mst.
Kaniz Fatima has filed this habeas petition in order to get back
the custody of minors, who are hiiiis and
daughters of her deceased daughter. Mst. Gulshan Bibi. expired on
4.10.199H. It is alleged that at the time of death of Mst. Gulshan Bibi. the
minors were living in petitioner's house. In this way soon after the death of Msi
Gulshan Bibi, mother of the minors, custody of the minors remained with the petitioner.
It is
also averred that youngest son who was only 30 da.y.s old at the time of death of the deceased, was hronghl up in
hei lap. The date of birth of minors are,
Parwasha Sluuikat 20.8.]98S. Faria Shaukai. II. 11.1989
Uinar Shaukat 19.12.1992 and Muhammad
Usman 28.8. !99<i. ft is submitted that respondent No. 1, who is father of the above said minors kidnapped the minors a couple of days before tiling of this
petition The respondents were directed
to appear before the C'.onrt alon«wit h minors.
2.
After affording many opportunities to the parties to
agree upon some amicable settlement for the purpose of proper nourishment and up bringing of the minors
with mutual understanding of the parties. They have tailed to settle the
dispute and all these efforts remained fruitless.
3. The learned counsel
for petitioner submits that respondent N:
1 obtained the custody
of minors by way of exerting force and kidnapped 'heir. and hence has deprived the minors from affectionate and loving hands ::'
their material grand mother. It, is
further submitted that the minors were :n custody of the petitioner
since the death of their mother and Respondent N"; 1 should have adopted
the legal course for getting the custody of his min:r children. The learned
counsel has produced a copy of application submitTcc to S.S.P.. Multan by
respondent No. 1, alleged that, in the minors, after the death of their mother were detained by the
petitioner's family and he requested
the S.S.P., for their custody, which according to the leaine-d counsel is ample proof that, respondent No. 1 has
not. get the custody :>: minors in
proper way and he is keeping them in an illegal and unlawful manner.
4. The learned
counsel lor petitioner
contends that, under Mohammden
Law maternal mother, in the absence of mother, is entitled to the
custody of minor children npt.o the age of seven years in case of son and upto the age of puberty in case of daughter. In
support of his argument, learned
counsel has referred to Section 353 of Muhammadan Law by D.F. Mulla. The learned counsel further contended that
the father does not figure in the
list provided in the said Section thus the custody of minor during his minority is preferably given to female relations
of minor.
5.
The learned counsel for respondents has submitted that
the father
beiug.natural guardian of the children is very much entitled to their custody and in
absence of mother, father is alone source of help and care for the minors. He has
further contended that custody of minors with their father is not
illegal, therefore, this Court, cannot interfere in the matter.
6.
I have given anxious consideration to the arguments of the learned counsel for
parties and have also gone through the relevant law referred to by the
learned counsel. It is an admitted fact that in the matter of custody of minors
welfare of minors is paramount consideration. So far as welfare of minors is
concerned it is a matter of factual inquiry which can be determined only
after recording of evidence.
This exercise cnnot
be undertaken in Constitutional
jurisdiction or under Section 491 Cr.P.C. In this petition the only question, which can be looked into is the interim custody of the minors till the matter of their
custody is thoroughly considered and determined by the Court of
competent jurisdiction keeping in view the relevant law. Section 353 of
Muhammadan Law by D.F. Mulla is reproduced
here under:
"353. Right of female relations is default of
mother.-Failing the mother, the custody
of a boy \mder the age of seven years
and of a girl who has not attained puberty, belongs to the following female relatives in the order given
below :--
1.
Mother's mother, how highsoever;
2.
Father's mother how highsoever;
3.
Full
sister;
4.
Uterine sister;
5.
Consanguine
sister;
6.
Full sister's daughter;
7.
Uterine sister's daughter;
8.
Consanguine sister's daughter;
9.
Maternal aunt, in like order as sister and
10.
Father aunt also in like order as sister."
Under Section 352 of Mohammaden Law mother is entitled to the
custody of her male child untill he has
completed the age of seven years and of her female child untill she has attained puberty. In absence of mother or otherwise if she loses her right of custody on
account of certain disqualification
mentioned in Section 354 of Mohammaden Law maternal grand mother stepped into her shows as provided in
Section 353 of Muhammadan Law. The
said provisions are based on Islamic principle of jurisprudence viz. Fiqha Under Articles 277 &
203-A to 203-J of the Constitution, injunctions of Islam are to be
followed by the Muslims and it is duty of the Government that all existing laws
shall be brought, in conformity with the
Injunctions of Islam and no law shall be enacted which is repugnant to
such injunction. See the case Major Zafar Iqbal vs. Mst. Rehmat Jan and another (1994 S.C.M.R. 339). Relevant portion of this judgment is reproduced hereunder :—
"In the facts and circumstances of the case the father and
the mother could not be considered fit for
the custody of minor, particularly as
the mother has married and is residing in London while the father with second wife and four children is at present, stationed at Somalia. In these
circumstances.amongst the contending
parties or those who had claimed or could
claim the custody of the minor, the maternal grandmother, respondent No. 1 was rightly adjudged to be the best
person to have the custody of minor for his welfare. We, therefore, find no force in the petition and dismiss the same."
In the cases of Mst. Saddan vs.
Muhammad Nawaz and another (1991 C.L.C. 1238 (Lahore), Ch. Nazir, Ahmad vs. Addl. District Judge III,
Sahiwal and others (1988 S.C.M.R. 1359) and Ghulam Ullah Memon vs.
Mst. Rashid Begum (1983 S.C.M.R. 793) it has been held that grand
maternal mother is entitled to the
custody of minors in preference to father and even to mother, who has
disqualified herself under certain circumstances. Under 'Fatawa-i-Alamgiri Jild
IF and 'Ain-ul-Hadaya' Book II also substantiate the right of grand mother in respect of her grand children. In
'Ain-ul-Hadaya' at page 326 an
incident of era of first Caliph Hazrat Abu Bakkar (Razi-ullah Tala Anhu) is
referred. This incident has been reported by Abu Bakar bin Abi Shaben, Abdul Razzaq, Malik and Beheeqi. It is
stated that Hazrat Umar (Razi ullah Tala Anhu) had married a lady of
Ansars. A son Asim bin Umar born out of this wedlock. Later on Hazrat Umar
divorced her. Once Hazrat Umar found his
son Asim playing infront of 'Masjid Quba' he took him in his lap and tried to take him, but mother-in-law of
Hazrat Umar caught hold of the minor,
Asim. This dispute was brought before the first caliph who decided the matter in favour of mother or
mother-in-law. In the said book the specific words of Abu Bakar (Razi
Ullah Tala Anhu) are that :--
'O' Umar this boy would like much the spitting
water (
cu_^a£ ) of her mother than the delicious honey given by you."
As stated above so far the question of custody of minor is
concerned it is a question of fact. The above discussion with regard to right
of grand maternal mother is only for the
purpose to determine whether under the Muhammadan
Law grand maternal mother is entitled to the custody of her grand minor children or not. The only question
before this Court is with regard to
immediate/interim custody. From the above discussion it has become clear that in absence of mother, maternal
grand mother, has preferential right
of immediate/interim custody than the father. The authorities referred to above relate to cases where
the matter was determined after
recording of evidence and determination of facts and circumstances of each
case. In the instant case the detailed facts can only be determined by the
court of competent jurisdiction. Any how from the abov discussion it is proved that it is proper and also
in fitness of circumstances that till final determination of the question of
custody, the minors should remain
with their maternal grand mother. The custody of minors with father in. the said circumstances is not proper
and it is priina facie against the
law.
7.
The arguments advanced by the learned counsel for
respondent that in a petition under Section
491 of Cr.P.C.. this Court should not interefere in such like matters as the same
falls within exclusive jurisdiction of Guardian Judge, is devoid of any force and
I do not agree with this contention. The matter of immediate custody of minors
should be settled promptly in accordance with the law after tentative appreciation of the
facts of
the case. Reliance in this respect can be placed on 1988 S.C.M.R. 1891, 1994 S.C.M.R. 339,
PLD 1995 SC 633, 1996 S.C.M.R. 268, PLD 1995 Lahore 151 (DB) and 1997
S.C.M.R. 1480. Ay I have held earlier the custody with father for the time
being is improper and illegal, therefore, to remove such an illegality and
impropriety it is just and fair that immediate/interim custody of minors
should be given to the maternal grand mother. The father can seek the custody of minors in a proper way through the court of competent jurisdiction.
8.
The petitioner has averred in her petition that the
respondent had got the custody of minor forcibly while they were putting up with the
petitioner. A photocopy of an
application submitted before S.S.P., Multan
by the respondent has been produced on
record by the learned counsel for petitioner
in support of this contention of petitioner. A factual inquiry is needed to determine such forcible removal of the
minors. However, prima facie,
it is evident that the minors had
been living with their grand maternal mother after
death of their mother
as it is
admitted fact that
the respondent/father lived as
'Ghar-Dimad' during the life time of his wife. Even otherwise when it is held tentatively that the custody of minors
with their father is improper and
illegal in the given circumstances of the present
case it should have been with the maternal grand mother, then their custody should have been delivered to her on her asking for.
case it should have been with the maternal grand mother, then their custody should have been delivered to her on her asking for.
9. The result of above discussion is that this
petition is allowed and the minors
shall be handed over to their maternal grand
mother, the petitioner. 1'he
respondent may seek his remedy for custody of his minor children before the Court of competent
jurisdiction if so advised. The respondent can meet his minor children once in a
week on Sunday in the house of Mr.
Abdul Qadir Hashmi, Advocate, for two hours.
(MYFK) Petition allowed.
