Under Islamic Law of inheritance, as soon as an owner dies, succession to his property opens

 PLJ 2024 SC 338

[Appellate Jurisdiction]

Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Ms. Musarrat Hilali, JJ.

NOOR DIN deceased through LRs--Appellants

versus

PERVAIZ AKHTAR and  others--Respondents

C.As. No. 130 of 2016, decided on 1.8.2023.

(On appeal against the Judgment dated 13.11.2015 passed by
the Lahore High Court, Rawalpindi Bench, in Civil Revision
No. 399-D of 2014).

Transfer of Property Act, 1882 (IV of 1882)--

----Succession--Islamic Law of inheritance--Mutation--Right of--Under Islamic Law of inheritance, as soon as an owner dies, succession to his property opens--Mutation is meant to record legal entitlement and if mutation is erroneously made such mutation would not create title in accordance with sharia law of inheritance--The law of limitation would be relevant when conduct of claimant demonstrates acquiescence and particularly when third party interest is created in inherited property--There is nothing on record to show that Mst. Mir Jan had either relinquished her interest in disputed property or transferred it in favour of her brothers, cause of action accrued when appellants denied their right--There is no cavil to proposition and claim to inheritance, which have to be devolved on death of Qaim Din but revenue authorities had also allowed shares on account of inheritance in properties, which have been purchased by appellants by their own, which were not part of inheritance of estate of late Qaim Din.

                                                                [Pp. 341 & 342] A, B, C, D, E

PLD 1990 SC 1; 2014 SCMR 801; PLD 2002 SC 677;
2014 SCMR 513 ref.

Mr. Mushtaq Ahmad Mohal, ASC and Syed Riffaqat Hussain Shah, AOR for Appellants.

Mr. Asad Hussain Ghalib, ASC for Respondents 1-6.

Date of hearing:1.8.2023.

Judgment

Ms. Musarrat Hilali, J.--Subject matter in hand is the estate of one Qaim Din, who died in the year 1957. His inheritance mutation No. 18 was attested on 05.04.1958 in favour of his two sons, Fazal Ellahi and Noor Din; however, name of Mst. Mir Jan, his real daughter, was excluded from the inheritance mutation. Later on, Fazal Ellahi died issueless and his estate was also devolved upon his brother Noor Din. After the death of Mst. Mir Jan, her legal heirs (the respondents herein) filed a suit for a declaration, cancellation of inheritance Mutation No. 18 dated 05.04.1958 and the subsequent inheritance mutation of Fazal Ellahi, who died issueless, on the ground of being illegal and based on fraud. They also prayed for permanent injunction restraining the appellants/defendants from further alienating the suit property. They further prayed for mandatory injunction directing the revenue authorities to correct the entry in the revenue record.

2. The suit was contested by the appellants/defendants by filing written statement. The learned trial Court, after framing of issues and recording pro and contra evidence, dismissed the suit vide judgment dated 28.09.2012, however, appeal of the respondents was allowed by the learned Additional District Judge, Rawalpindi vide judgment dated 26.02.2014. The appellants/defendants assailed the said judgment in revision which was also dismissed by the Lahore High Court, Rawalpindi Bench, Rawalpindi vide judgment dated 13.11.2015. Hence, revisional judgment was challenged by the appellants/ defendants before this Court and on 03.02.2016 leave to appeal was granted in the following terms:

“It is contended by the learned counsel for the Petitioners that the Suit filed by the Respondents was time barred and no explanation, in this behalf, was given. The matter in issue pertains to a Mutation of Inheritance dated 05.04.1958 while the suit was filed on 20.06.2005. In this behalf, the learned counsel relied upon the judgment of this Court in the case, reported as Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513). Leave is granted, inter alia, to consider the aforesaid contentions.

3. We have heard learned counsel for the parties and with their assistance examined the documents on record.

4. Perusal of the record would reveal that Qaim Din, the predecessor of the parties, died in the year 1957 leaving behind two sons namely Fazal Ellahi and Noor Din and a daughter namely Mst. Mir Jan, the mother the respondents. However, vide the inheritance mutation No. 18 dated 05.04.1958 the estate of Qaim Din was devolved upon his two sons Fazal Ellahi and Noor Din while his daughter Mst. Mir Jan was excluded. The appellants/ defendants in their written statement though did not deny relationship of the parties yet took a stance that Qaim Din had transferred the entire property in his life time in favour of his sons but no evidence was produced in support of their stance. Allah Ditta son of Noor Din appeared as OW-1 but he neither produced any document as to the transfer of the suit property in the name of his father Noor Din by his grandfather Qaim Din nor stated the factum of gift and even during cross-examination showed his ignorance as to when Qaim Din transferred his estate to his sons during his life time. He further admitted that he has no knowledge as to whether Qaim Din had transferred his property by way of gift or otherwise.

5. Learned counsel for the appellants/ defendants mainly highlighted the question of limitation formulated in the leave granting order by contending that law of limitation is relevant whenever property is claimed on the basis of inheritance. He contended that the suit is hopelessly time barred as the inheritance mutation was sanctioned in the year 1958 while the suit was filed in the year 2005 and that too by the legal heirs of Mst. Mir Jan, after more than three decades of her death, as she did not challenge the inheritance mutation in her life time.

6. Undisputedly, the matter pertains to inheritance and under the Islamic Law of inheritance, as soon as an owner dies, succession to his property opens. This Court in the case titled Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) has held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship-even of kinship, thus, the brother, the father, the husband, the son or vice versa, does not or cannot intervene as an intermediary. Likewise, the law is well settled that wrong mutation confers no right in property as revenue record is maintained only for fiscal purposes. This Court in a case titled Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801) has held that mutation is meant to record the legal entitlement and if the mutation is erroneously made such mutation would not create title in accordance with Sharia Law of inheritance. So far possession of the property by an heir is concerned, a three member bench of this Court in a case titled Khair Din v. Sala man (PLD 2002 SC 677) has followed the decision of a two member bench in the case of Ghulam Ali, supra, that heir in possession has to be considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters in favour of brothers and in order to relinquish or transfer her interest in the property, there has to be a positive and affirmative act. In the case titled Mst. Granan though legal heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167) this Court has held that the law of limitation would be relevant when the conduct of the claimant demonstrates acquiescence and particularly when third party interest is created in the inherited property. Here in the instant case, there is nothing on the record to show that Mst. Mir Jan had either relinquished her interest in the disputed property or transferred it in favour of her brothers, therefore, the cause of action accrued when the appellants/ defendants denied their right. As per averments of plaint, the respondents came to know about the wrong entry for the first time on 22.12.2004 when they obtained copy of inheritance mutation of Qaim Din, therefore, the suit cannot be held as time barred.

7. In view of the above discussion, we find that the conclusion arrived at by the appellate and revisional Court concurrently is in accordance with law and record, therefore, we see no justification to

interfere in the impugned judgment. However, at this stage learned counsel for the appellants/ defendants pointed out that there is no cavil to the proposition and claim to inheritance, which have to be devolved on the death of Qaim Din but the revenue authorities had also allowed shares on account of inheritance in the properties, which have been purchased by the appellants/defendants by their own, which were not part of the inheritance of the estate of late Qaim Din. Learned counsel representing Respondents No. 1 to 6 categorically stated that the inheritance claim should be confined only to the estate of late Qaim Din devolved upon his legal heirs/Respondents No. 1 to 6 and not in the properties purchased by the appellants/ defendants by their own. Hence, the instant appeal is disposed of in the above terms.

(K.Q.B.)          Appeal disposed of

Child Custody in case of second marriage

 PLJ 2024 SC 537

[Appellate Jurisdiction]

Present: Amin-ud-Din Khan and Athar Minallah, JJ.

SHAISTA HABIB--Petitioner

versus

MUHAMMAD ARIF HABIB and others--Respondents

C.P. No. 3801 of 2022, decided on 6.3.2023.

(Against the order dated 21.09.2022 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No. 2582 of 2022)

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Arts. 37 & 199--Question of custody of a child--welfare of minor--Second marriage--Petitioner and respondent were blessed with a son, minor--Petitioner appeared in person along with minor--The latter was smartly dressed and we found him to be visibly confident and mature for his age--Although he acknowledged respondent to be his father but he was a stranger to him, since they had hardly met after leaving his house--Petitioner and respondent are litigating over custody of minor since 2017--Marriage had ended in a divorce--The minor was an infant when he had left house of respondent and since then he had lived with petitioner--The petitioner had contracted another marriage after her divorce and second husband had children from his first wife--The welfare of a minor and latter’s best interest is foundational principle for deciding custody disputes--The question of custody involves taking into consideration factors which are relevant to upbringing, nursing and fostering of child--The court has to adopt a course that would be in best interest of child because his welfare must always be paramount consideration--The minor was definitely not prepared nor willing to live with his father at that stage--He preferred to remain in custody of his mother with whom he had lived since his birth--The psychological and emotional impact on minor would had breached foundational principle of his welfare and of adopting a course in his best interest--The custody of minor should be retained by petitioner--A visitation schedule will also be settled by them in such manner which would not breach principle of welfare of minor--The children are vulnerable and traumatic experiences early in life can leave lifelong scars which may profoundly affect quality of their lives--Insensitivity or lack of special expertise on part of presiding judges while dealing with matters relating to litigation involving rights of children can gravely affect their rights and thus impact their lives adversely--Petition was allowed.        [Pp. 539, 540, 541, 542, 543 & 544] A, B,
                                                 C, D, E, F, G, I, J, K, L, M, N, O, P

PLD 1967 SC 402; 1999 SCMR 1834; 1993 SCMR 2303; 1998 SCMR 1593; 1983 SCMR 606; PLD 2020 SC 508; 2011 SCMR 1329; 2022 SCMR 2123; 1970 (H.L.(E).668; 2000 SCMR 707; PLD 2006 SC 533; 2018 SCMR 427; 1999 SCMR 1834 ref.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Natural guardian--Father is natural guardian while mother is entitled to custody (hizanat) of a male child till age of seven years while in case of a female till she attains puberty.            [P. 540] G

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--It is duty of court to form an opinion and adopt a course on basis of paramount principles of welfare of child.                                                                                          [P. 542] I

In person a/w Ibrahim (minor) for Petitioner.

Raja Muhammad Sattar, ASC a/w for Respondent No. 1.

Date of hearing: 6.3.2023.

Judgment

Athar Minallah, J.--The High Court has dismissed the petition of Shaista Habib (“petitioner”), who had invoked the jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). She had challenged the orders of two competent Courts, whereby the question of custody of a child, Mohammad Ibrahim, was decided against her. Through this petition she has sought leave against the judgment, dated 21.09.2022, of the High Court.

2. Muhammad Arif Habib (“respondent”) and the petitioner had tied the knot on 21.6.2012. They were blessed with a son, Muhammad Ibrahim (“minor”) on 17.4.2013. The matrimonial differences which developed between the spouses had initially led to their separation but, subsequently, the marriage ended in a divorce on 22.11.2016. The petitioner and the minor moved to the house of the former’s mother after separation. The relationship between the parties became unpleasant to such an extent that, on acceptance of
the respondent’s petition, the Justice of the Peace, vide order dated
02-01-2017, ordered registration of a criminal case against the petitioner. The respondent filed an application on 28-01-2017 under Section 25 of the Guardian and Wards Act, 1890 (“the Act of 1890”) seeking the custody of the minor. The Guardian Judge/Judge Family Court, Kahuta, allowed the application on 30.06.2021 while the appeal preferred by the petitioner was dismissed by the Additional District Judge on 20.06.2022. The constitutional petition filed by the petitioner did not succeed and it was dismissed by the High Court vide the impugned judgment dated 21.09.2022.

3. The petitioner appeared in person along with the minor, Mohammad Ibrahim. The latter was smartly dressed and we found him to be visibly confident and mature for his age. He responded to our queries intelligently and his self assured demeanor was noticeable, despite having been exposed to the vicissitudes of separation followed by the divorce of his parents. He has unequivocally stated that although he acknowledged the respondent to be his father but he was a stranger to him, since they had hardly met after leaving his house. He, therefore, unequivocally expressed his reluctance to be separated from his mother i.e the petitioner so as to live with his father. It was obvious that the respondent and the minor did not have a relationship or a bond in order to justify uprooting the latter from the custody of his mother. The learned counsel for the respondent was also heard.

4. The petitioner and the respondent are litigating over the custody of the minor since 2017. The marriage had ended in a divorce in 2016 and the respondent had filed an application before the family Court in 2017 for obtaining the custody of the minor. The minor was an infant when he had left the house of the respondent and since then he has lived with the petitioner. The record shows that the respondent had not made a serious and meaningful effort to enable him to spend time with the minor, either through intervention of the Court or otherwise. Admittedly, the petitioner has contracted another marriage after her divorce and the second husband has children from his first wife. It appears from the reasoning recorded in the judgments rendered by the Guardian Judge/Judge Family Court as well as the appellate Court that the petitioner’s second marriage and the age of the minor were the two factors that had prevailed for granting custody of the minor to the respondent. The variables in the context of assessing the welfare of the minor were not taken into consideration. The evidence produced by the parties appears to have been found sufficient to decide the custody dispute. The evidence relied upon by both the Courts was not in the context of those factors which should have been considered in order to assess the welfare of the minor. The Courts also did not seek professional assistance in order to assess the crucial factor of the welfare of the minor, nor such a professional service or facility appears to have been accessible to the Courts. The minor was at the centre stage of the custody battle between feuding parents and the assessment of his interests and welfare was most crucial. This was definitely an overarching principle which ought to have been considered while deciding the custody dispute. The rights of the parents were subservient to the welfare of the minor and thus it was the duty of the Courts to assess and determine a course that would have served the best interest of the minor. Any decision regarding the custody of a child without assessment and determination of the latter’s welfare and best interests by taking into consideration the relevant factors and variables cannot be sustainable, nor can the exercise of discretion be lawful. The welfare of a minor and the latter’s best interest is the foundational principle for deciding custody disputes. In order to appreciate the significance of the principle governing custody disputes it would be beneficial to highlight the settled law which ought to guide a Court.

5. It is settled law that the father is the natural guardian while the mother is entitled to the custody (hizanat) of a male child till the age of seven years while in case of a female till she attains puberty. This right continues notwithstanding a divorce or separation. As a natural guardian it is the obligation of the father to maintain the child even if the custody is with the mother. The inability of the mother to financially support the child is not a determinate ground to deprive her from custody because in such an eventuality the father’s obligation regarding maintenance is not extinguished. The rule that the father is a natural guardian and, therefore, entitled to the custody of the child nor that the mother loses the right of hizanat after the minor has attained the prescribed age or puberty, as the case may be, is not absolute, rather subject to exceptions.[1] The decision regarding custody of a child is governed on the fundamental principle, the paramount and overarching consideration is the welfare of the child i.e to ascertain the course which is in the latter’s best interest. The crucial criterion is, therefore, the best interest and welfare of a child while determining the question of custody. The rights or aspirations of the parents or some other person are subservient to this principle and each case of custody must be decided on the basis of ascertaining a course which is in the ‘best interest of the child’. The factors or variables that may be taken into consideration while determining the question of custody of a child are not exhaustive but they would depend on the facts and circumstances of each case. The guiding principle is to ensure that the determination of custody promotes the rights of the child as well as the latter’s wellbeing. The overriding consideration must be to protect the child from any physical, mental or emotional injury, neglect or negligent treatment. The mother’s disability, illiteracy or financial status are not the sole determinant factors.[2] The second marriage contracted by the mother also cannot become a stand-alone reason to disqualify her from obtaining the custody of the child.[3] The question of custody involves taking into consideration the factors which are relevant to the upbringing, nursing and fostering of the child. It essentially extends to the emotional, personal and physical wellbeing of a child. The sole object is to ensure that the overall growth and development of the child is guaranteed. The process adopted in order to determine the best interest has been described by the House of Lords[4] “ ....... connotes a process, whereby all the relevant facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to follow will be that which is best in the interest of the child.”

6 & 7. The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child. Sections 17 and 25 of the Act of 1890 set out the broad guidelines which are to be taken into consideration while deciding custody disputes. It is the duty of the Court to form an opinion and adopt a course on the basis of the paramount principle of the welfare of the child. Section 17 explicitly provides that a Court shall be guided by what appears in the circumstances to secure the welfare of the minor, consistent with the law to which the minor is subject. Sub-section (3) provides that if the minor is old enough to form an intelligent preference then the Court may consider that preference. As already noted above, while determining the welfare of the child in the context of custody disputes the Court may grant the custody to a person other than the parents e.g the grandparents or aunt, if doing so would promote the welfare and best interest of the child.[5] As a general rule the guardian and family Court is the final arbiter for determining the question of custody, except when it has made a determination in an arbitrary, capricious or fanciful manner i.e when the fundamental principle of welfare of the child has not been considered or determined in the light of the variables which are relevant in the given circumstances.[6] If the Court has ignored the welfare of the child and the latter’s best interest or has given preference to some other ground then the decision would not be sustainable. The Court, in its endeavor to assess and determine the welfare of a child, is not bound to follow rigid formalities, strict adherence to procedure or rules or technicalities if doing so may hamper the determination or undermine the fundamental criterion of the best interest of the child.[7] In a nutshell, the overarching and fundamental principle that must prevail and guide a Court in determining custody disputes is the welfare of a child. The Court has to adopt a course that would be in the best interest of the child because his/her welfare must always be the paramount consideration.

8. In the case before us, the minor was confident, intelligent and mature enough to form his own preferences. He had unambiguously stated before us that his father was no more than a stranger because he had not had the opportunity to spend time with him. He had also stated that he was not familiar with the other members of his father’s family and thus for him they too were strangers. He visibly appeared to be happy and comfortable with his mother and his relationship with his step father also seemed to be pleasant. It is obvious from the record that the respondent, despite being his father, had not made a serious and meaningful effort to assert his visitation rights. The minor was definitely not prepared nor willing to live with his father at this stage. He unambiguously stated that he preferred to remain in the custody of his mother with whom he had lived since his birth. The crucial factor of the welfare of the minor and his best interest was not taken into consideration by the Courts. In such an eventuality the minor would have been compelled, without his consent, to abruptly shift to a new abode where all the inhabitants would have been strangers to him. It would have definitely exposed him to unimaginable mental and emotional trauma. It could have resulted in irreversible lifelong psychological scars. It is obvious from the record that neither the family Court nor the appellate Court had taken appropriate steps to assess the welfare of the minor and, instead, the question of custody was decided on the basis of other factors. The factors taken into consideration could not override the criterion of adopting the course which would have been in the best interest of the child. The Courts had erred in failing to inquire into or assess the emotional and psychological impact on the minor in case of an abrupt displacement from the custody of his mother with whom he had lived since his birth. There is nothing on record to even remotely show that the Courts had undertaken an effective exercise to assess and determine the welfare of the minor and, thereafter, adopt a course that would have been in his best interest. The Courts appear to have treated the delicate and sensitive dispute relating to child custody as if it was an ordinary civil matter. The judges who had dealt with the case may not have been professionally trained in order to enable them to identify the relevant variables and to assess and determine the question of custody of the child on the basis of the foundational principle of welfare of the child and then adopt a course that would have been in the latter’s best interest. The relevant factors such as the parenting capacity, relationship of the child with each parent, the mental health of both the parents as well as the minor, the latter’s emotional and mental needs and such other relevant factors in the context of determining the welfare of the child were not taken
into consideration let alone assessment and determination of a course that would have been in the best interest of the child. The order regarding giving custody of the minor to the respondent in the circumstances could not have served his best interests. The psychological and emotional impact on the minor would have breached the foundational principle of his welfare and of adopting a course in his best interest. The impugned judgments are, therefore, not sustainable because the paramount fundamental criterion, the welfare of the minor, was not even considered, let alone its assessment and determination.

10. For the above reasons, we convert this petition into an appeal and the same is allowed. The impugned judgments/orders are hereby set-aside. Consequently, the custody of the minor shall be retained by the petitioner. We expect that as reasonable and responsible parents the respondent and the petitioner will amicably settle the custody dispute having regard to the best interest and welfare of the minor. We also expect that a visitation schedule will also be settled by them in such manner which will not breach the principle of the welfare of the minor. In case they fail to agree upon a schedule then the respondent shall be at liberty to approach a competent Court to assert his visitation rights. In the meanwhile, the schedule, if any, settled by a competent Court shall continue to be observed until it has been modified and varied.

11. We cannot turn a blind eye to the apparent failure of the State to fulfill its constitutional obligations in the context of safeguarding the rights of the children embroiled in litigation between the parents regarding their custody. The children are vulnerable and traumatic experiences early in life can leave lifelong scars which may profoundly affect the quality of their lives. The exposure of a child to the environment generally prevalent in the ordinary Courts could profoundly affect their impressionable minds. Moreover, insensitivity or lack of special expertise on part of the presiding judges while dealing with matters relating to litigation involving the rights of children can gravely affect their rights and thus impact their lives adversely. The litigation involving the rights of children, such as custody disputes, requires special expertise, training and professional aptitude on part of the presiding judges. The environment of a Court dealing with the rights of the children must also cater to their emotional and psychological needs. The Courts must also be adequately equipped and enabled to professionally assess and determine the welfare of a child in each case. The Courts must have access to professional consultation and advice of qualified experts such as psychologists. The parents and the Courts must also have access to child welfare and social assistance services to protect and fulfill the rights of each child. Article 35 of the Constitution has explicitly made it an obligation of the State to protect the marriage, the family, and the mother and the child. The State has been defined in Article 7. It is a constitutional duty under Article 29(3) of the President or the Governor of the Province, as the case may be, to cause to be prepared and laid before the respective legislatures a report in respect of each year, inter alia, regarding observance and implementation of the obligation relating to children under Article 37 of the Constitution. Likewise, it is an obligation of the State to ensure that the fundamental rights enshrined in the Constitution are protected and fulfilled in the case of children. It is, therefore, implicit

in the obligation of the State towards protecting the rights of the children to provide child friendly Courts presided by specially trained professional judges. It is also the duty of the State to enable the child friendly Courts to assess the welfare of the child in family matters, such as custody disputes, by providing access to professional consultation and opinions of experts e.g. psychologists etc. It is the State’s responsibility to provide affective child care and social services to protect and facilitate fulfilling the rights of those children who get entangled in custody disputes between feuding parents. It is an obligation of the State of Pakistan under the United Nation Convention of Rights of the Child to ensure the protection and to take all necessary steps for child welfare. We direct the Registrar of this Court to send copies of this order to the President and the Governors of the Provinces to ensure compliance with their respective obligations under Article 29(3) of the Constitution in the context of Article 35 ibid. The Registrar is further directed to send copies of this order to the Chief Secretaries of the Provinces and the Chief Commissioner of Islamabad Capital Territory for fulfilling the obligations of the State in relation to the rights of the children as highlighted herein above. In addition, copies of the order is directed to be sent to the Director Generals of the Federal and Provincial Judicial Academies for their consideration to include special training courses for judges and staff of family Courts, relating to dealing with child custody cases and to develop their capacity to assess and determine the criterion of welfare of the child.

(K.Q.B.)          Petition allowed

---

[1].       Malik Khizar Hayat Khan Tiwana and another v. Mst. Zainab Begum and others (PLD 1967 Supreme Court 402), Mst. Rubia Jilani v. Zahoor Akhtar Raja and others (1999 SCMR 1834), Mst. Zahida Kiani and another v. Capt. (Rtd.) Shahid Ali Khan (1993 SCMR 2303) Mst. Nighat Firdous v. Khadim Hussain (1998 SCMR 1593), Mst. Feroze Begum v. Lt.Col. Muhammad Hussain (1983 SCMR 606).

[2].       Mst. Beena v. Raja Muhammad and others (PLD 2020 Supreme Court 508) Bashir Ahmed v. Incharge (Female) Darulaman, Mianwali and others (2011 SCMR 1329).

[3].       Raja Muhammad Owais v. Mst. Nazia Jabeen and others (2022 SCMR 2123).

[4].       J. v. C. 1970 (H.L.(E.) 668.

[5].       Raja Muhammad Owais v. Mst. Nazia Jabeen (2022 SCMR 2123), Zahoor Ahmad v. Mst. Rukhsana Kausar and others (2000 SCMR 707) and Mst. Razia Rehman v. Station House Officer (PLD 2006 SC 533).

[6].       Mirjam Aberras Lehdeaho v. SHO Police Statoin Chung and others (2018 SCMR 427).

[7].       Mst. Rania Jilani v. Zahoor Akhtar Raja and others (1999 SCMR 1834).

A non custodial parent has inherent right to effectively participate in the upbringing of minor

 PLJ 2024 Lahore 601

Present: Masud Abid Naqvi, J.

FAYYAZ-UL-HASSAN ANWAR--Petitioner

versus

Mst. SHEHLA KHALID etc.--Respondents

W.P. No. 46618 of 2021, heard on 21.3.2024.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Application for custody of minor--Dismissal of petition as withdrawn--Visitation schedule--Appeal--Partly allowed--Petitioner was paying maintenance allowance--Petitioner was living alone without any female--Non-custodial parent--Amendment in visitation schedule--Challenge to--Counsel for petitioner, under instructions of petitioner fully assures High Court that petitioner will never ever remove minor from jurisdiction of Guardian Court--A minor not only needs love, affection, care and attention of a mother but also father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation--A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule--Visiting schedule significantly bridges a relationship between minor children and a non-custodial parent--Using visitation rights, a non-custodial parent can not only recolour emotions of minor children for him/her but also reinvigorate bond of love and affection with minor--Partly allowed.            [Pp. 603 & 605] A, B & C

2018 SCMR 1991 ref.

Mr. Muhammad Mumtaz Faridi, Advocate for Petitioner.

Mr. Allah Ditta Naseem, Advocate for Respondent No. 1.

Date of hearing: 21.3.2024.

Judgment

Brief facts of this writ petition are that petitioner/ father filed an application under Section 25 of the Guardians & Wards Act, 1890 (“Act”) for custody of the minor namely Marosh Hassan, which was contested by Respondent No. 1/ mother by filing reply and raising certain legal as well as factual objections. Out of divergent pleadings of both the parties, issues were framed by the learned Guardian Court. Thereafter, on 10.06.2020, the petitioner/father appeared before the learned Guardian Court and got recorded his statement which is reproduced hereunder:

“stated that if schedule of the minor’s meeting with me as a real father be fixed by the Court then I would not be having any objection if the instant petition for custody of the minor be dismissed as withdrawn.”

Learned Guardian Court issued a schedule of meeting with minor and dismissed the petition as withdrawn vide order dated 10.06.2020. Feeling aggrieved, Respondent No. 1 filed an appeal and learned Additional District Judge, Pakpattan vide judgment dated 31.05.2021 partially allowed the appeal and issued new schedule for visitation of minor with the petitioner/father. Being dissatisfied, the petitioner/father has filed the instant writ petition and challenged the validity of impugned judgment passed by the learned Appellate Court.

2. During arguments, learned counsel for the petitioner has shown no objection on certain amendments in the order of learned Guardian Court, under instructions, while learned counsel for Respondent No. 1 fully supports the impugned judgment, passed by learned Appellate Court with the arguments that the petitioner/ father is living alone without any female in the house and will not properly maintain his ten years old minor daughter and the Respondent
No. 1/mother seriously apprehends that overnight stay will be misused by the petitioner/father in removing the minor from the jurisdiction of the learned Guardian Court but also acknowledges that the petitioner/ father is paying the maintenance of minor without any arrears at this moment. On query, learned counsel for the petitioner, under instructions of petitioner present in the Court, fully assures this Court that the petitioner will never ever remove the minor from the jurisdiction of the learned Guardian Court. I have heard the arguments of the learned counsels for the parties and perused the available record as well as have minutely gone through the impugned judgment.

3. Perusal of record reveals that after recording the statement of the petitioner/father, the learned Guardian Court dismissed the application under Section 25 of the Guardians & Wards Act, 1890 as withdrawn and also issued a schedule of visitation, which is reproduced hereunder:-

(i)       The interim custody of the minor will be handed over to the petitioner (father) on first Saturday of every Calendar month at 5:00p.m and respondent shall return the interim custody of the minor to the respondent (mother) on first Sunday at 5:00p.m.

(ii)      On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody of the minor on 2nd day of Eid-ul-Fitar from 5:00p.m and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 5:00p.m.

(iii)     On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody of the minor on 2nd day of Eid-ul-Azha from 5:00p.m and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 5:00p.m.

(iv)     On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim custody of the minor from 5:00p.m and petitioner shall return the interim custody of minor to respondent (mother) on the next day of birthday of the minor at 5:00p.m.

(v)      During summer vacations, the interim custody of the minor shall be handed over to the petitioner/father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the respondent/mother at the evening on the 4th Sunday so that minor may have four weeks to spent with his father.

(vi)     During winter vacations the interim custody of the minor shall be handed over to the petitioner/father for first half of the winter vacations and the minor shall be returned to the respondent/mother. All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 700,000/- and fee payable to the bailiff by the petitioner.

Learned Appellate Court partially accepted the appeal of Respondent No. 1/mother and new schedule for visitation of minor with respondent was framed, which is reproduced hereunder:-

(i)       The interim custody of the minor will be handed over to the respondent (father) on first Saturday of every Calendar month at 10:00 a.m and he shall return the interim custody of the minor to the appellant (mother) on the same day at 1:00 p.m. This meeting would be happened in the visitation room established inside the Court premises.

(ii)      On second day of every Eid, at 11:00 a.m the custody of minor will be handed over to the respondent. And he will return her custody to appellant at 3:00 p.m on the same day subject to furnishing surety bond of Rs. 10,00,000/- . Surety will be responsible for safe custody of minor and handing over the custody of minor from one person to another.

(iii)     On the occasion of birthday of the minor, the respondent (father) shall be entitled for interim custody of the minor from 1:00 p.m and he shall return the interim custody of minor to appellant (mother) on the same day at 4:00 p.m.

(iv)     The respondent (father) will visit the minor during Summer and Winter vacations on every Saturday of month at 11:00 a.m. to 01:30 p.m. at Court premises because minor is of tender age and her custody cannot be handed over to the respondent for night stay.

(v)      All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 10,00,000/- and fee payable to the bailiff by the respondent (father).

4. It is a settled proposition of law that a non-custodial parent has all the rights to meet his/her children and neither right of access to his/her minor children can be denied nor a non-custodial parent will be considered as an alien to his/her children. A minor not only needs love, affection, care and attention of a mother but also the father and negating a non-custodial parent of his/her right to meet his/her minor children would lead to emotional deprivation. A non-custodial parent has an inherent right to effectively participate in upbringing of minor and that cannot be achieved without properly chalked visitation schedule. Due to lack of interaction with non-custodial parent, the children start forgetting and in many cases disliking the non-custodial parent and this phenomenon has been named as Parental Alienation Syndrome by the psychiatrists. Hence, visiting schedule significantly bridges a relationship between the minor children and a non-custodial parent. Using visitation rights, a non-custodial parent can not only recolour the emotions of minor children for him/her but also reinvigorate the bond of love and affection with minor.

5. Although, the law on the subject of visitation is contained in the Guardian & Wards Act (VIII of 1890) but without any guidelines about the duration, frequency of those visits of minor and about the visitation schedule, hence, while deciding about the visitation schedule, the paramount consideration is the welfare of minor. Considering the paramount consideration of welfare of minor and in view of the dictum laid down by the Honorable Superior Courts about chalking the visitation schedule of minor, especially the case reported as Mst. Madiha Younus vs. Imran Ahmed (2018 SCMR 1991), the petitioner is entitled to meet with his daughter/ minor as per new visitation schedule which is reproduced hereunder:

(i)       The interim custody of the minor will be handed over to the petitioner (father) on first Saturday of every Calendar month at 5:00 pm and respondent shall return the interim custody of the minor to the respondent (mother) on first Sunday at 3:00 pm.

(ii)      On the second day of Eid-ul-Fitar the petitioner (father) shall be entitled for interim custody of the minor from 5:00 pm and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Fitar at 3:00 pm.

(iii)     On the second day of Eid-ul-Azha the petitioner (father) shall be entitled for interim custody of the minor from 5:00 pm and petitioner shall return the interim custody of the minor to the respondent (mother) on the 3rd day of Eid-ul-Azha at 3:00 p.m.

(iv)     On the occasion of birthday of the minor, the petitioner (father) shall be entitled for interim custody of the minor from 4:00 pm and petitioner shall return the interim custody of minor to respondent (mother) on the same day of birthday of the minor at 8:00 pm.

(v)      During summer vacations, the interim custody of the minor shall be handed over to the petitioner/ father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the respondent/mother by the petitioner after two weeks of minor’s stay with him & during winter vacations the interim custody of the minor shall be handed over to the petitioner/father for just first three days of the winter vacations and thereafter, minor shall be returned to the respondent/mother.

(vi)     All the above said meetings will be subject to submission of surety bonds to the tune of Rs. 1000,000/- (rupees ten lacs only) by the petitioner/father to the satisfaction of the learned guardian Court prior to receiving the minor from respondent/mother and also surrendering his international valid passport during the minor’s stay with him and by paying fee payable to the Court’s bailiff by the petitioner.

6. In view of above discussion, instant petition is partly allowed by setting aside the impugned judgment of learned Appellate Court and by also amending the visitation schedule, chalked out by the learned Guardian Court.

(Y.A.)  Partly allowed

Maternal Grandparents Rights of Custody of Minor

 PLJ 2024 Lahore (Note) 126

[Multan Bench, Multan]

Present: Raheel Kamran, J.

Mst. AMEER MAI etc--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 11228 of 2023, decided on 20.2.2024.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Application for custody of minor--Pendency of litigation--Appeal--Dismissed--Visitation schedule--Maternal grand parents--Visitation rights--Challenge to--Undisputedly minor had been resided with her grandmother since her birth--She was of tender age of about 2½ years--No emotional bond had been developed between minor and her father and paternal relations, abrupt withdrawal of her custody from her maternal grandparents might be very traumatic for minor--Documents qua early retirement of Respondent No. 3 and admission of brother of minor in F.G. Public School No.1 (Boys), Gujranwala Cantt did not form part of evidence as those came into existence after decision of Guardian Court--High Court deemed it appropriate to remand matter to trial Court concerned for determination of custody of welfare of minor after permitting parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à-vis minor twice every month on weekends for two hours each time so that bond of love and affection between minor and her father was allowed to be developed--Petition disposed of.               

                                                                                  [Para 6] A, B & C

Mr. Muhammad Nadeem Fareed, Advocate for Petitioners.

Rao Muhammad Adnan, Advocate for Respondent No. 3.

Date of hearing: 20.2.2024.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed judgment dated 06.07.2023 passed by the learned Additional District Judge, Taunsa Sharif whereby her appeal against the judgment dated 27.04.2023 passed by the learned Guardian Judge, Taunsa Sharif about custody of minor namely Rukhsar Bano aged 2½ years to her real father i.e. Respondent No. 3 was dismissed.

2. Learned counsel for the petitioner contends that impugned judgments of the learned Courts below are unsustainable as Respondent No. 3 is serving in Pakistan Army who is not residing within the village and is unable to devote time for proper upbringing of the minor, whereas the minor has been residing with her maternal grandmother since her birth. He maintains that no effort has been made by Respondent No. 3 to exercise his visitation rights during pendency of proceedings before the learned trial Court, learned Appellate Court or this Court, therefore, there is no bond of love and affection between minor and her father. He adds that application for custody of the minor has been moved with malafide to deprive maternal grandparents from custody of minor and entrust the same to her paternal grandparents which hardly serve welfare of the minor. Reliance has been placed on judgments in the cases of Raja Muhammad Owais vs. Mst. Nazia Jabeen and others (2022 SCMR 2123) and Mst. Anwari Bibi vs. Hidayat Ulah Khan and others (2020 MLD 302).

3. Conversely, learned counsel for the Respondent No. 3 has supported the impugned judgments for the reasons that stated therein. He has emphasized that not only father of the minor is her natural guardian who, in the absence of any disqualification in law, is entitled to her custody but he is with better means and resources to ensure welfare of the minor and her upbringing with the assistance of his mother and sister. He adds that the minor would be better off to be brought up in the company of her brother who is already in the custody of her father. It has been emphatically argued that custody of the minor could not be entrusted to maternal grandparents who are delinquent in upbringing their own granddaughter and litigation in this regard is pending adjudication before the learned Family Court which has been filed by their daughter- in-law for the provision of her maintenance. He maintains that in order to properly bring up his minor children, the Respondent No.3 has applied for early retirement and his son has already been enrolled at F.G. Public School No. 1 (Boys), Gujranwala Cantt since July 2023 where he is residing with his paternal grandmother and paternal aunt. Reliance has been placed on the case of Shabana Naz vs. Muhammad Saleem (2014 SCMR 343).

4. Father of the minor, present in the Court, submits that he has not been allowed to meet the minor rather threats have been extended to him whenever he made any such attempt of visitation. Documents i.e. Fee Card of Muhammad Saqlain issued by F.G. Public School No. 1 (Boys) Gujranwala Cantt, application regarding retirement submitted by the Respondent No. 3 and Residency Certificate are produced by the learned counsel for the Respondent No.3, copies whereof has been retained and original documents have been returned to the learned counsel for the Respondent No. 3.

5. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

6. Welfare of the minor is the primary consideration governing the grant of custody of minors. While this Court is of the considered opinion that in the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lies with his or her parents. In exceptional cases and for valid reasons, a parent can be denied the right of custody while entrusting it to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so. In the instant case, undisputedly the minor has been residing with her grandmother since her birth. She is of tender age of about 2½ years. Undeniably, no emotional bond has been developed between the minor and her father and paternal relations, therefore, abrupt withdrawal of her custody from her maternal grandparents may be very traumatic for the minor. Additionally, documents qua early retirement of Respondent No.3 and admission of brother of the minor in the F.G. Public School No.1 (Boys), Gujranwala Cantt do not form part of the evidence as those came into existence after decision of the Guardian Court. Therefore, to allow fair opportunity to either side, this Court deems it appropriate to remand the matter to the learned trial Court/Guardian Judge concerned for determination of custody of welfare of minor after permitting the parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à- vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father is allowed to be developed. For that purpose, schedule of visitation shall be set down on an application to be moved by Respondent No.3. The learned Guardian Judge shall ensure that visitation right is allowed to be exercised by the Respondent No. 3 without any hindrance or intimidation whatsoever. Accordingly, the impugned judgments shall be set aside and application of Respondent No. 3 shall be deemed to be pending before learned Guardian Judge concerned who shall decide the same afresh within a period of three months and a compliance report in that regard shall be submitted to the Deputy Registrar (Judicial) of this Court.

7. Disposed of.

(Y.A.)  Petition disposed of