2019 S C M R 520

[Supreme Court of Pakistan]

Present: Qazi Faez Isa and Mazhar Alam Khan Miankhel, JJ
MIR BAT KHAN---Petitioner
Versus
Mst. SHERIN BIBI and others---Respondents
Civil Petition No. 809-P of 2018, decided on 8th February, 2019.
(Against the judgment dated 12.11.2018 of the Peshawar High Court, Peshawar
passed in Writ Petition No. 1783-P of 2018)
(a) Guardians and Wards Act (VIII of 1890)---
----S. 25---Custody of minor girl---Father worked as a labourer in a foreign country
and the minor was looked after by her stepmother and a divorcee sister of the
father---Father also had three children from his second wife---Mother had not
married again after she was divorced by the husband---Family Judge interviewed
the minor in court and it was observed that she did not recognize her mother---Fact
that the child did not recognize her real mother should have alerted the First
Appellate Court that the natural order had been disrupted; instead, this was used as
a reason to deprive the mother of love of her daughter and the daughter of the love
and care of her mother---High Court had directed the peaceful handing over of the
minor to the mother but such direction had not been complied with even after three
months, and the father continued to illegally retain the custody of the child---
Resultantly, an innocent child continued to be deprived of the love and care of her
mother---Supreme Court directed that the father was to immediately and peacefully
hand over the minor girl to her mother, and in case he did not comply, the Social
Welfare Department was to ensure that the child was handed over to her mother
through an officer of the Department--- Petition for leave to appeal was dismissed
and leave was refused.
(b) Guardians and Wards Act (VIII of 1890)---
----S. 25---Custody of minor---Mother financially dependent on her parents---
Poverty on part of mother---Relevance---Plea on behalf of father that the mother
lived with her parents and was financially dependent on them, therefore,
presumably she was not able to support the minor---Held, that such presumption
was contrary to law since the father was legally obliged to maintain his child---
Poverty on the part of a lady was no ground to disentitle her from the custody of
minor---Supreme Court directed the father to immediately and peacefully hand over
the minor girl to her mother---Petition for leave to appeal was dismissed and leave
was refused.
Razia Bibi v. Riaz Ahmad 2004 SCMR 821 ref.
(c) Guardians and Wards Act (VIII of 1890)---
----S. 25---Custody of minor---Matter of custody of minor decided by a 'jirga'---
Legality---Jirga had no legal authority to decide the custody of children and in
doing so it violated the law and Islamic Injunctions---Mother could not be
compelled to part with her child by a jirga; she could not be called upon to barter
the right to her child's custody to secure a divorce nor could a child be used to settle
personal scores---Supreme Court directed the father to immediately and peacefully
hand over the minor girl to her mother---Petition for leave to appeal was dismissed
and leave was refused.
Al-Quran, Surah Al-Baqarah (2) verse 233 ref.
M. Amin Khattak Lachi, Advocate Supreme Court and M. Tariq Khan,
Advocate-on-Record (Absent) along with Petitioner and Minor Girl for Petitioner.
Nemo for Respondents.
Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa on
Court's Notice.
Date of hearing: 8th February, 2019.
ORDER
Qazi Faez Isa, J. This petition for leave to appeal assails the judgment dated 12th
November, 2018 of the Peshawar High Court, Peshawar, which had set aside the
judgment dated 14th March, 2018 of the learned District Judge, Hangu. The learned
Chief Justice of the High Court through the impugned judgment had restored the
judgment dated 18th December, 2017 of the learned Family Judge, Hangu and
directed that the custody of the minor girl Saima, born in the year 2011 from the
matrimonial union of the petitioner and the respondent No. 1, be handed over to her
mother, the respondent No.1.
2. The learned counsel for the petitioner states that the District Judge, Hangu had
noted that the child did not even recognize her mother and was not ready to go with
her. He has also referred to a decision dated 13th May, 2016 of the jirga (Exhibit
DW1/2). The jirga had decided that the custody of the child should remain with the
petitioner, that the petitioner should divorce the respondent No. 1 and that the
respondent No.1 should return her dower/dowry to the petitioner. The petitioner
divorced the respondent No.1 pursuant to the jirga's decision therefore, the learned
counsel contends, the respondent No.1 should also abide by the decision.
3. We sought certain information about the petitioner from the petitioner's
learned counsel in the petitioner's presence and were told that the petitioner works
as a labourer in Dubai and the child is looked after by her stepmother (Mst.
Khalida) and a divorcee sister (Mst. Zohra) of the petitioner. The petitioner, we are
informed, also has three children from Mst. Khalida. The learned counsel also
confirmed that the respondent No. 1 had not married again after she was divorced
by the petitioner.
4. The learned District Judge in setting aside the Judgment of learned Family
Judge relied upon the fact that the, "minor was interviewed in court and it was
observed that she does not recognize her mother". When the learned Judge
interviewed the child she was six or seven years of age. The fact that the child did
not recognize her real mother should have alerted the learned District Judge that the
natural order had been disrupted. Instead, this was used as a reason to deprive the
mother of her daughter and the daughter of the love and care of her mother. Another
factor which persuaded the learned District Judge was that the respondent No.1
lived with her parents and was financially dependent on them, therefore,
presumably not able to support the child. This reason too was contrary to law since
the petitioner is legally obliged to maintain his child. In the case of Razia Bibi this
Court had reiterated that, "poverty on the part of a lady is no ground to disentitle
her from the custody of minor"1. The learned Judge had also relied upon a so-called
decision of a jirga. jirga has no legal authority to decide the custody of children and
in doing so it violated the law2 and Islamic injunctions. The law3 and precedents of
this Court have stressed the welfare of the minor as the paramount consideration4
in determining the custody of a minor and to abide by the principles of hizanat
unless there are valid reasons not to do so5. A mother cannot be compelled to part
with her child by a jirga. She cannot be called upon to barter the right to her child's
custody6 to secure a divorce nor can a child be used to settle personal scores.
5. The learned District Judge disregarded the welfare of the minor and the
precedents of this Court which have extensively elaborated upon this. Instead the
learned District Judge relied on a so-called decision by a jirga. The High Court was
therefore correct to set aside the judgment of the District Court which was based, as
mentioned above, on untenable considerations. The petitioner's retention of Saima's
custody is wholly unjustified, which he continues to retain by flouting the
impugned judgment dated 12th November, 2018. The High Court had directed the,
"peaceful handing over of the minor to the mother" but this direction has not been
complied even after three months. Resultantly, an innocent child continues to be
deprived of the love and care of her mother.
6. Since the petitioner has continued to illegally retain the custody of the child
Saima we called upon the learned Additional Advocate General of the Khyber
Pakhtunkhwa ("the AAG") to ensure that the impugned judgment of the High Court
is implemented without further loss of time, and to save both Saima and her mother
further agony and harassment at the hands of the petitioner. The learned AAG states
that there is a Social Welfare Department of the Provincial Government which
amongst its different functions includes the care and welfare of women, children
and underprivileged sections of society.
7. Therefore, whilst declining leave to appeal and dismissing this petition, we
direct the petitioner to immediately and peacefully hand over the minor girl (Saima)
to her mother (respondent No.1). In case he does not comply the Social Welfare
Department is directed to ensure that the child Saima is handed over to her mother
(respondent No.1) through a lady officer of the Department, and in case there is no
lady officer through any other lady officer of the police/government. Copies of this
order be sent to the learned AAG, the Secretary, Social Welfare Department,
Government of Khyber Pakhtunkhwa, the learned Family Judge, Hangu and the
District Police Officer, Hangu for information and compliance. Office to also send
a copy of this order to the Registrar of the Peshawar High Court for placing it
before the Hon'ble Chief Justice, Peshawar High Court.
MWA/M-6/SC Petition dismissed.
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