P L D 2020 Lahore 489

Before Tariq Saleem Sheikh, J NASIRA---Petitioner

Versus
JUDICIAL MAGISTRATE and 5 others---Respondents
Writ Petition No. 45156 of 2019, heard on 2nd August, 2019.
(a) Constitution of Pakistan---
----Art.20(a)---International Covenant on Civil and Political Rights (ICCPR), 1966,
Art.18---"Religious conversion", meaning of---Religious conversion was adoption
of a set of beliefs identified with one particular religious denomination to exclusion
of others and said phrase described abandoning of adherence to one denomination
and affiliating with another, which might be from one to another denomination
within the same religion, for example, from Baptist to Catholic Christianity or from
Shi'a to Sunni Islam, etc.
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 and Stark, Rodney and Roger
Finke, "Acts of Faith : Explaining the Human side of Religion" University of
California Press, 2000 p.114 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Custody of minor---
Domestic employment of minor under the age of fifteen---Forced religious
conversion---Legal recognition of religious conversion, criteria---Nature of
religious conversion / belief---Scope---Petitioner sought custody of minor daughter,
who whilst under domestic employment of respondents, allegedly converted from
Christianity to Islam and refused to see petitioner / mother---Petitioner impugned
order of Judicial Magistrate whereby said minor daughter was lodged in a shelter
home instead of being returned to petitioner on ground that such minor expressly
stated that she had converted to Islam and did not want to go with her mother /
petitioner---Validity---Minor lacked legal capacity to abjure her religion without
consent of her parents or guardian---While petitioner / mother stated before Judicial
Magistrate that she had no objection to minor's conversion to Islam however such
statement could not be regarded as parental consent for change of religion as it was
made in anxiety under a misguided belief that same would help her to get custody
of her daughter---Contention that alleged forced religious conversion of minor be
declared void was not tenable as concepts of valid, void and voidable could not be
applied to religious rights and resulting personal law unless latter itself ordained
the same, or was sanctioned by statutory law; and a person's religious belief was
not tangible and could not be seen or touched---Change of religion did not, ipso
facto, deprive a parent of right to custody of a child and petitioner being real
mother of minor was entitled to custody and also to exercise control over minor---
High Court observed that minor was not sui juris and lacked legal capacity to
change religion on her own, however, since question of faith was a matter of heart
and conviction, therefore no Court could declare said conversion invalid or void
and could only refuse to recognize or give effect to it for certain legal purposes---
High Court directed that minor be returned to petitioner who was entitled to
custody---Constitutional petition was allowed, accordingly.
Meghan G. Fischer, Anti-Conversion Laws and the International Response, 6
PENN.ST.J.L. and INT.L AFF.1(2018). Available at:https://elibrary.
law.psu.edu/jlia/vol6/iss1/5; CCPR/C/21/Rev.1/ Add.4, General Comment No.22;
Suo Motu Case SMC No.1 of 2014 PLD 2014 SC 699; Rev. Stainislaus v. State of
Madhya Pradesh and others AIR 1977 SC 908; Smt. Sarla Mudgal, President,
Kalyani and others v. Union of India and others AIR 1995 SC 1531; Lily Thomas
and others v. Union of India and others AIR 2000 SC 1650; Interim report of the
Special Rapporteur on freedom of religion or belief, 15,
U.N.Doc.A/67/303(Aug.13, 2012); Pakistan Hindu Council v. Pakistan through
Ministry of Law PLD 2012 SC 679; Sahih Muslim, Book 33, Hadith No.6426;
Tafseer Ibn Kathir; Encyclopedia of Islam, University of the Punjab; Chapter IV of
his book on Muhammadan Law, Ameer Ali; Muhammad Sadiq v. (Mrs.) Sadiq
Safoora PLD 1963 (WP) Lah. 534; Eyal Ginio, Childhood, mental capacity and
conversion to Islam in the Ottoman State, Byzantine and Modern Greek Studies
25(2001) 90-119; Re: Maria Huberdina Hertogh, [1951] MLJ 164; Teoh Eng Huat
v. Kadhi, Pasir Mas and Anor (1990) 2 MLJ 300; Shahid Nabi Malik and another v.
Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32; Reade v.
Krishna (1886) I.L.R. 9 Mad. 391; Mst. Rani v. Roshan Masih and another 1986
PCr.LJ 1404; Abdul Razack v. Aga Mahomed Jaffer Bindanim [(1894) L.R. 21 I.A.
56; verse No.10 of Surah Al-Mumtahana (Chapter 28); Hakim Khan and 3 others v.
Government of Pakistan through Secretary Interior and others PLD 1992 SC 595;
Re: Agar Ellis, (1878) 10 Ch.D.49; Reade v. Krishna ILR 9 Mad.391; Mrs. Grace
Abdul Hadi Haqani v. Abdul Hadi Haqani and others PLD 1961 (W.P.) Kar. 296;
Mst. Ghulam Fatima alias Shammi Bai v. Chanoomal and another PLD 1967 Kar.
569; Helen Skinner v. Sophia Evelina Orde [(1871) 14 MIA, 309; Peggy Collin v.
Muhammad Ishfaque Malik PLD 2010 Lah. 48; Sheila Umesh Tahiliani v. Soli
Phirozshaw Shroff and others AIR 1981 Bombay 175 and Lekshmi and another v.
Vasantha Kumari AIR 2005 Ker. 249 rel.
(c) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction of High Court---Question of religious
conversion---Factual controversy---Scope---Conversion from one religion to
another had far reaching legal consequences as it affected succession, marital status
and right to seek elective office, etc.---Courts in certain cases, therefore, may be
called upon to decide whether a conversion was bona fide, genuine, voluntary or
otherwise and in such eventualities they gave findings on basis of evidence
produced---Unless there existed statutory prescription about nature of proof
required, subsequent conduct of a convert had immense importance and courts were
to insist that declaration of conversion must be followed by adherence to cultural
and spiritual tradition---High Court, under Art. 199 of the Constitution, could not
undertake factual inquiry and thus question as to whether a conversion was tainted
or otherwise could not be determined without recording evidence, therefore it could
only be challenged through appropriate proceedings before a forum/court provided
by Sub-Constitutional law.
Chapter II of the Principles of Muhammadan Law by D.F. Mullah; Moulabux v.
Charuk and others PLD 1952 Sindh 54; Mst. Zarina and another v. The State PLD
1988 FSC 105; Punjabrao v. Dr. D. P. Meshram and others AIR 1965 SC 1179;
Perumal Nadar v. Ponnuswami Nadar AIR 1971 SC 2352; S. Anbalagan v. B.
Devarajan and others AIR 1984 SC 411; Skinner v. Skinner (1897) L.R. 25 I.A.34;
Abdul Razack v. Aga Mahomed Jaffer Bindanim (1894) L.R. 21 I.A. 56; Kailash
Sonkar v. Smt. Maya Devi AIR 1981 SC 600; Sapna Jacob, minor v. The State of
Kerala and others AIR 1993 Kerala 75; Mst. Kaniz Fatima through Legal Heirs v.
Muhammad Salim and 27 others 2001 SCMR 1493; Haji Sardar Khalid Saleem v.
Muhammad Ashraf and others 2006 SCMR 1192 and Dr. Sher Afgan Khan Niazi v.
Ali S. Habib and others 2011 SCMR 1813 rel.
(d) Interpretation of statutes---
----Intention of Parliament---Most settled principle of interpretation was that a
court must deduce intention of the Parliament from the words used in an Act /
Statute.
Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and
7 others PLD 1997 SC 32 rel.
Malik Zeeshan Ahmad for Petitioner.
Malik Naveed Akram, Assistant Advocate General for Respondents
Shaukat Ali Mirza for Respondents Nos. 5 and 6.
Sheraz Zaka as Amicus curiae.
Muhammad Sher Abbas, Shafqat Abbas Mighiana, Muhammad Shafique and
Fakhar Bashir Sial, (Lahore High Court Research Centre) Research Officers.
Date of hearing: 2nd August, 2019.
JUDGMENT
TARIQ SALEEM SHEIKH, J.---The Petitioner, Nasira, has filed this petition
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the
"Constitution"), praying that her minor daughter Pumy Muskan be recovered from
the alleged illegal custody of Respondents Nos.5 and 6 and dealt with in
accordance with law.
2. Brief facts giving rise to this petition are that the Petitioner is a Christian by
faith and her husband is confined in jail serving sentence in a criminal case. She is
supporting a large family all by herself working in different houses. Respondents
Nos.5 and 6 employed her 14-year-old daughter Pumy Muskan for household
chores promising not only to pay for her needs but also provide education. After a
few months when the Petitioner went to meet Pumy Muskan Respondents Nos.5
and 6 told her that she was with the sister of Respondent No.5 in another city and
having embraced Islam did not want to see her any more. The Petitioner protested
but they turned her out of their house. She approached the Respondent SHO but he
did not help. The local Christian leader, Ch. Mushtaq Gill, then intervened and
informed the Respondent SHO that the incident had hagridden his community and
urged him to recover the girl. The police officer was initially reluctant but
eventually agreed to produce her before the Judicial Magistrate, Sargodha, on
5.7.2019. Respondents Nos.5 and 6 also entered appearance before the Magistrate
that day. During the proceedings the Respondent SHO confirmed that Pumy
Muskan had embraced Islam but, in view of her tender age, requested that she
should either be handed over to the Petitioner or sent to Dar-ul-Aman (shelter
home). The Magistrate recorded Pumy Muskan's statement who expressly stated
that she did not want to go with the Petitioner. Accordingly, he lodged her in Dar-
ul-Aman. His order dated 5.7.2019 is reproduced hereunder:
3. According to the Petitioner, she requested the Superintendent Dar-ul-Aman to
allow her to see Pumy Muskan but he refused. On 8.7.2019, she learnt that the
Magistrate had ordered her release and the Superintendent had once again handed
her over to Respondents Nos.5 and 6. Consequent thereupon she filed the instant
petition before this Court.
4. This Court directed the Respondent SHO to recover Pumy Muskan who has
produced her today.
5. The learned counsel for the Petitioner contended that Pumy Muskan was a
minor and Respondents Nos.5 and 6 had converted her to Islam through
inducement and undue influence. The girl being of tender age could not make an
informed decision to change her religion and even if she had consented to it the
same was of no legal consequence. He further contended that even if Pumy
Muskan's conversion was recognized and declared valid, the Petitioner being her
mother could not be deprived of her custody. He argued that in their enthusiasm to
support the conversion of a female of tender age Respondents Nos.1 to 4 had not
only ignored the Injunctions of Islam but also the law of the land. The learned
counsel prayed that the custody of Pumy Muskan with Respondents Nos.5 and 6 be
declared illegal and she may be returned to the Petitioner.
6. The learned Assistant Advocate General adopted the arguments of the learned
counsel for the Petitioner and supported this petition.
7. On the other hand, the learned counsel for Respondents Nos.5 and 6
vehemently opposed this petition. He contended that Pumy Muskan had converted
to Islam with her own choice being impressed with its teachings. This was evident
from the fact that she had learnt by heart a number of Surahs from the Holy Qur'an
within a short span of time. He further contended that this Court would put her life
and security at great risk if it gave her to the Petitioner. He prayed for dismissal of
this petition.
8. Mr. Sheraz Zaka, Advocate, the learned amicus curiae, submitted that
employment of Pumy Muskan with Respondents Nos.5 and 6 was violative of
section 3 of the Punjab Domestic Workers Act, 2019, which prohibited engagement
of a child below the age of 15 years for any household work. Although there was no
evidence to show that it was a forced conversion, it was doubtful that the girl could
make an intelligent decision about changing her religion at the age of 14. He added
that even if it was assumed that she had done so freely and voluntarily, the
Petitioner could not be deprived of her right of custody.
9. Arguments heard. Record perused.
10. There is no precise definition of religion. It is a matter of faith and belief in
God is not essential to constitute religion. In The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR
1954 SC 282), the Supreme Court of India observed:
"Religion is certainly a matter of faith with individuals or communities and it is
not necessarily theistic. There are well known religions in India like
Buddhism and Jainism which do not believe in God or in any Intelligent
First Cause. A religion undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion as
conducive to their spiritual well being, but it would not be correct to say that
religion is nothing else but a doctrine or belief. A religion may not only lay
down a code of ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship which are
regarded as integral part of religion, and these forms and observances might
extend even to matters of food and dress."
11. On the other hand, religious conversion is "the adoption of a set of beliefs
identified with one particular religious denomination to the exclusion of others.
Thus 'religious conversion' would describe the abandoning of adherence to one
denomination and affiliating with another. This might be from one to another
denomination within the same religion, for example, from Baptist to Catholic
Christianity or from Shi'a to Sunni Islam."1
12. Freedom of conscience and the right to profess, practice and propagate
religion is reckoned as a fundamental human right. The Universal Declaration of
Human Rights (1948) (UDHR), which is a seminal multilateral instrument that
provides "a common standard of achievement of all people and all nations",
specifically recognizes it as such. Article 18 thereof states:
"Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others in public or private, to manifest his
religion or belief in teaching, practice, worship or observance."
13. Article 18 of the International Covenant on Civil and Political Rights, (1966)
(ICCPR), articulated the United Nations' aforementioned Declaration regarding
religious freedom as follows:
Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of
his choice, and freedom, either individually or in community with others
 and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have
or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of
others.
4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.
14. Similar provisions are found in a host of other international instruments. In
this context reference may be made to Article 9 of European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950), Article 5 of the
International Convention on the Elimination of All Forms of Racial Discrimination
(1965), Article 12 of the American Convention on Human Rights (1969), Article 8
of the African Charter on Human and Peoples. Rights (1981), Universal Islamic
Declaration on Human Rights (1981), and Arab Charter on Human Rights (1994).
15. ICCPR protects not just the internal components of belief, such as choosing
one's religion, but also "the freedom to communicate within one's own religion or
belief group, share one's conviction with others, broaden one's horizons for
communicating with people of different convictions, cherish and develop contacts
across State boundaries, receive and disseminate information about religion or
belief issues and try to persuade others in a non-coercive manner."2 The Human
Rights Committee, the body charged with monitoring implementation of ICCPR,
explained in General Comment No.22 that freedom to "have or to adopt" a religion
or belief includes the right to change one's current religion or belief or to adopt
atheistic views. Relevant excerpt from General Comment No.22 is reproduced
hereunder:
"The Committee observes that the freedom to 'have or to adopt' a religion or
belief necessarily entails the freedom to choose a religion or belief,
including the right to replace one's current religion or belief with another or
to adopt atheistic views, as well as the right to retain one's religion or belief.
Article 18.2 bars coercion that would impair the right to have or adopt a
religion or belief, including the use of threat of physical force or penal
 sanctions to compel believers or non-believers to adhere to their religious
beliefs and congregations, to recant their religion or belief or to convert."3
16. Pakistan signed the ICCPR on 17.4.2008 with the following reservation:
"The Government of the Islamic Republic of Pakistan reserves its right to attach
appropriate reservations, make declarations and state its understanding in
respect of various provisions of the Covenant at the time of ratification."
17. On 23.6.2010 Pakistan ratified the ICCPR subject to certain reservations.
However, through a subsequent communication dated 20.9.2011 the government
notified the Secretary-General that it had decided to partially withdraw the
reservations, made upon ratification, to Articles 3 and 25 and to Articles 6, 7, 12,
13, 18, 19 and 40.4
18. Our Constitution of 1973 envisages "equality of status, of opportunity and
before law, social, economic and political justice, and freedom of thought,
expression, belief, faith, worship and association, subject to law and public
morality."5 Besides, it commits that "adequate provision shall be made for the
minorities freely to profess and practice their religions and develop their cultures."
19. The freedom to religion lies at the heart of our democratic enterprise. Article
20 of the Constitution of 1973 sanctifies it as a fundamental right reading as under:
20. Freedom to profess religion and to manage religious institutions.---Subject to
law, public order and morality-
(a) every citizen shall have the right to profess, practice and propagate his
religion; and
(b) every religious denomination and every sect thereof shall have the right to
establish, maintain and manage its religious institutions.
20. In Suo Motu Case SMC No.1 of 2014 (PLD 2014 SC 699) the Hon'ble
Supreme Court of Pakistan held that the freedom of religion must be construed
liberally to include freedom of conscience, thought, expression, belief and faith.
Freedom, individual autonomy and rationality characterize liberal democracies and
the individual freedoms thus flowing from the freedom of religion must not be
curtailed by attributing an interpretation of the right to religious belief and practice
exclusively as a community-based freedom.
21. In order to reassure the above-mentioned right, Article 21 prohibits
imposition of any special tax the proceeds of which are to be spent on the
propagation of any religion other than a person's own. Article 22 inter alia provides
safeguards as to educational institutions in respect of religion.
22. The freedom to religion is guaranteed to "every citizen" in the country
irrespective of his age and whether he is a Muslim or non-Muslim. In Suo Motu
Case No.1 of 2014 (PLD 2014 SC 699), supra, the Hon'ble Supreme Court of
Pakistan explained:
"15. Of all the Articles relating to the minorities' rights, Article 20 is of prime
significance. A close reading of this provision would indicate that the
freedom to practice religion and manage religious institutions under this
provision is multifaceted because:
(a) The right to religious conscience conferred under this Article does not make
any distinction between majority and minority or Muslim and Non-Muslim.
It is in the nature of an Equal Religious Protection Clause conferred on
every citizen, every religious denomination and every sect thereof. This
equal religious protection clause is in the same nature as the equal justice
under the law and equal protection under the law clauses conferred under
Articles 4 and 25. In other words, every absolute equality and there is no
distinction among citizens, religious denominations and sects thereof, as far
as the right to religious conscience, is concerned.
(b) The right to religious conscience is a fundamental right. It has not been
subjected or subordinated to any other provision of the Constitution because
it is only subject to law, public order and morality and not to any religious
clauses of the Constitution. The very term law, public order and morality has
been used in non-religious terms as the notion of law or public order or
morality is not reducible to the Islamic meanings of these terms. Therefore,
Article 20 has a certain preeminence in the Constitution being only subject
to the general restrictions of law, public order and morality, which three
terms cannot be interpreted or used in such a restrictive way as to curtail the
basic essence and meaning of the pre-eminent right to religious conscience.
(c) The right to profess and practice is conferred not only on religious
communities but also on every citizen. What this means is that every citizen
can exercise this right to profess, practice and propagate his religious views
even against the prevailing or dominant views of its own religious
denomination or sect. In other words, neither the majority religious
denominations or sect nor the minority religious denomination or sect can
impose its religious will on the citizen. Therefore, not only does it protect
religious denominations and sects against each other but protects every
citizen against the imposition of religious views by its own fellow co-
believers. It needs to be mentioned here that every citizen would necessarily
include both males and females (Article 263), which point needs emphasis
considering the exclusion or subordination of women in relation to
numerous forms of religious practices.
(d) As far as every religious denomination is concerned, even sects within these
religious denominations have been conferred the additional right to
establish, maintain and manage its religious institutions. Therefore, even
 sects within these religious denominations have been protected against their
own co-religious denominations.
(e) The right of religious conscience conferred on every citizen is a right
conferring three distinct rights, i.e. Right to Profess, Right to Practice and
Right to Propagate. What this means is that Article 20 does not merely
confer a private right to profess but confers a right to practice both privately
and publicly his or her religion. Moreover, it confers the additional right not
only to profess and practice his own religion but to have the right to
propagate his or her religion to others. It is important to note that this
propagation of religion has not been limited to Muslims having the right to
propagate their religion but this right is equally conferred on Non-Muslims
to propagate their religion to their own community and to other
communities. This should not be seen as a right to encourage conversions
but more importantly, should be seen as a right against forced conversions
or imposing beliefs on others because if all citizens have the right to
propagate then no citizen has the right of forced conversion or imposing
beliefs on others." (emphasis added)
23. It is pertinent to note that, as the Supreme Court of Pakistan highlighted in
the above-mentioned judgment, Article 20 grants right to the citizens to propagate
their faith but this right does not extend so as to allow any one to convert a person
to another religion by coercion or inducement. Forced conversion or imposing
beliefs on others rather constitutes infringement of the right to freedom of religion.
The Supreme Court of India expressed similar view in Rev. Stainislaus v. State of
Madhya Pradesh and others (AIR 1977 SC 908) while construing Article 25 of the
Indian Constitution which is analogous to Article 20 of our Constitution. It said:
"We have no doubt that [what] the word, 'propagate' in Article 25(1) [of the
Constitution of India], grants is not the right to convert another person to
one's own religion, but to transmit or spread one's religion by an exposition
of its tenets. It has to be remembered that Article 25(1) guarantees 'freedom
of conscience' to every citizen, and not merely to the followers of one
particular religion, and that, in turn, postulates that there is no fundamental
right to convert another person to one's own religion because if a person
purposely undertakes the conversion of another person to his religion, as
distinguished from his effort to transmit or spread the tenets of his religion,
that would impinge on the 'freedom of conscience' guaranteed to all the
citizens of the country alike .we find no justification for the view that it
grants a fundamental right to convert persons to one's own religion. It has to
be appreciated that the freedom of religion enshrined in the Article is not
guaranteed in respect of one religion only, but covers all religions alike, and
it can be properly enjoyed by a person if he exercises his right in a manner
commensurate with the like freedom of persons following the other
religions. What is freedom for one, is freedom for the other, in equal
 measure, and there can there- fore be no such thing as a fundamental right to
convert any person to one's own religion."
The Supreme Court of India reaffirmed the above view in Smt. Sarla Mudgal,
President, Kalyani and others v. Union of India and others (AIR 1995 SC 1531) and
Lily Thomas and others v. Union of India and others (AIR 2000 SC 1650).
24. Heiner Bielefeldt, the United Nations Special Rapporteur on freedom of
religion or belief from 2010 to 2016, reported that owing to violations of the right
to convert the issue of conversion has "become a human rights problem of great
concern."6 According to him, there are different perpetrators of, and motives for,
such violations:
"For instance, abuses are perpetrated in the name of religious or ideological truth
claims, in the interest of promoting national identity or protecting societal
homogeneity, or under other pretexts such as maintaining political and
national security. While some undue restrictions on the rights of converts or
those trying non-coercively to convert others are undertaken by State
agencies, other abuses, including acts of violence, stem from widespread
societal prejudices. Violations in this sensitive area also include forced
conversions or reconversions, again perpetrated either by the State or by
non-State actors. In addition, the rights of converts or those trying non-
coercively to convert others are sometimes questioned in principle."
25. Some countries, including India, Nepal, Myanmar and Bhutan, have enacted
anti-conversion laws. The legislatures in Pakistan and Sri Lanka considered anti-
conversion bills but did not pass them. In Pakistan Hindu Council v. Pakistan
through Ministry of Law (PLD 2012 SC 679) the Hon'ble Supreme Court of
Pakistan observed that in Pakistan it was probably not required because Article 20
of the Constitution guarantees sufficient protection to the minorities against all
accesses.
26. Children have rights and liberties like adults but they are sometimes
restricted because of their vulnerability. The human rights law also focuses on
them, particularly in respect of religious freedom. For this reference may usefully
be made to the Declaration on the Elimination of All Forms of Intolerance and
Discrimination Based on Religion or Belief (1981) and the Convention on the
Rights of the Child (1989). So far as religious freedom is concerned, Article 5 of
the said Declaration of 1981 recognizes (a) the right of the parents or legal
guardians to bring up the child in their religion or belief; and (b) right of the child
to education in religion or belief, in accordance with the wishes of the parents and
the right not to be compelled to receive education against their wishes. On the other
hand, the Convention of 1989 provides:
Article 2
1. States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of
any kind, irrespective of the child's or his or her parent's or legal guardian's
 race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is
protected against all forms of discrimination or punishment on the basis of
the status, activities, expressed opinions, or beliefs of the child's parents,
legal guardians, or family members.
Article 14
1. States Parties shall respect the right of the child to freedom of thought,
conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when
applicable, legal guardians, to provide direction to the child in the exercise
of his or her right in a manner consistent with the evolving capacities of the
child.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public
safety, order, health or morals, or the fundamental rights and freedoms of
others.
Article 30
In those States in which ethnic, religious or linguistic minorities or persons of
indigenous origin exist, a child belonging to such a minority or who is
indigenous shall not be denied the right, in community with other members
of his or her group, to enjoy his or her own culture, to profess and practice
his or her own religion, or to use his or her own language.
27. Having discussed the law on the subject, I turn to the case before me. It
involves the following moot points:
I. Whether Pumy Muskan, who is admittedly a 14-year-old minor, could change
her religion without the consent of her parents?
II. Whether her conversion is tainted and forced?
III. Whether the Petitioner is entitled to her custody notwithstanding the fact that
she has embraced Islam?
I take up these issues seriatim.
Moot Point I
28. Prophet Muhammad (peace be upon him) said:7

[No babe is born but upon Fitra. It is his parents who make him a Jew or a
Christian or a Polytheist.]
29. Islam teaches that everyone is Muslim at birth but the parents or society
cause one to deviate from the straight path. Therefore, when someone accepts Islam
he is considered to revert to his original condition. Nevertheless, Islam prohibits
use of force against anybody to get him converted. The following verses of the
Holy Qur.an are very instructive:
Surah 2 Verse 256:
[There is no compulsion in religion. The right direction is henceforth distinct
from error. And he who rejecteth false deities and believeth in Allah hath
grasped a firm handhold which will never break. Allah is Hearer, Knower.]
Surah 10 Verse 99:
[And if thy Lord willed, all who are in the earth would have believed together.
Wouldst thou (Muhammad) compel men until they are believers?]
30. Hafiz Ismail Ibn Kathir (1300-1373), a great historian, exegete and scholar,
has explained the above-mentioned Divine Command in his famous commentary
Tafseer Ibn Kathir as under:
"Do not force anyone to become Muslim, for Islam is plain and clear, and its
proofs and evidence are plain and clear. Therefore, there is no need to force
anyone to embrace Islam. Muslims have a collective responsibility to share
the message of Islam, but the normative way to do this has been clearly
described in the Qur'an, itself i.e. "Invite all to the Way of your Lord with
wisdom and kind advice, and only debate with them in the best manner
(16:125)."
31. Neither any verse in the Holy Qur'an nor specific Hadith of the Prophet
(peace be upon him) expressly stipulates minimum age for conversion to Islam.
Hazrat Ali (R.A) was only 10 years old when he accepted it.8 However, Muslim
jurists regard mental capacity of a child as of crucial importance when considering
the question of his conversion. Age of discernment is generally reckoned as the age
when one attains puberty.
32. According to some jurists, the minimum age of puberty for boys is 12 years
while for girls it is 9. After that age whenever they show signs of puberty they
would be considered baligh (adults) and when they get 15, without distinction of
sex, they would be considered baligh irrespective of the fact whether there are any
visible signs. While discussing the subject of the "Wilayet-ul-Jabar", or the
Doctrine of Patria Potestas, in Chapter IV of his book on Muhammadan Law,
Ameer Ali states that:
"Puberty is presumed on the completion of the fifteenth year, according to most
of the schools, unless there is evidence to the contrary. As a general rule,
however, a person who completes the fifteenth year is considered, without
distinction of sex, to be adult and sui juris, possessed of the capacity to enter
into legal transactions (page 235)".
33. In Muhammad Sadiq v. (Mrs.) Sadiq Safoora (PLD 1963 (WP) Lahore 534),
Anwar-ul-Haq, J. considered Ameer Ali's aforementioned statement and a host of
other authorities on the subject and stated the law as under:
"There is consensus of opinion among Muslim jurists that when a child attains
the age of discretion (Sinee Rushd) he is regarded a major or sui juris for all
purposes. As a general rule, the age of discretion or majority and the age of
 puberty are equated. Majority is attained at the age of 15 years except in a
case where the child is not of ripe discretion at that age."
34. The Qazis in the Ottoman Empire used to classify minors in three categories
when dealing with conversions to Islam: children under the age of seven; children
of about the age of seven to ten; and adolescents above this last age.9 In the first
age-group the children could not convert independently of their parents as they had
not yet attained the age of discretion. Their embracing Islam followed from their
parents'. conversion and their affiliation to them. It's validity relied on the view that
the child at this stage is subject to his parent's. will and it is beneficial that he
should follow them. The children of seven to ten falling in the second category
could convert without the permission of their parents. However, the Qazi was
supposed to treat each case separately: to present the basic articles of the Islamic
faith before the child and to assess his comprehension and then validate or reject
his conversion. The third category comprised the young adolescents. Since Islamic
law considers the first signs of sexual maturity as indicators of the termination of
childhood, they were not considered as children. The Qazi would generally assume
that they fully understood the meaning of their act and acknowledged their
conversion without further questioning.
35. The UDHR and ICCPR do not expressly provide minimum age for religious
conversion. In the absence of global consensus on this issue, jurisprudence in
different States varies.
36. In Malaysia, development of law on conversion of minor to Islam is broadly
classified into pre-Independence and post-Independence eras. Re: Maria Huberdina
Hertogh, [1951] MLJ 164, is the leading case of the first period in which it was
held that a minor had no capacity to decide her own religion as she was subjected to
the consent of her parents. The evidence was that the child, whose parents were
Roman Catholics, had been brought up as a Muslim from her tender years until she
was fourteen years old. The court returned her custody to the natural parents
holding that she had no capacity to decide what religion she should follow and it
was the right of her parents to determine it. After the independence the issue of
conversion to Islam is regulated by different enactments at the federal and state
level. Briefly, the process and procedural aspect of conversion under the States
Administration of Enactments provides for three stages, namely, pre-conversion,
conversion solemnization and, finally post-conversion registration. A non-Muslim
who intends to convert must fulfill two basic requirements: he should be of sound
mind and have the age qualification. Presently the States Enactments stipulate two
categories of age requirement: (a) upon attaining the age of majority (baligh) in
accordance with the Islamic law; and (b) upon attaining the age of 18 years. If the
intending convert does not meet the age requirement, consent of his parents or
guardian, as the case may be, is required. In Teoh Eng Huat v. Kadhi, Pasir Mas and
another [(1990) 2 MLJ 300], the appellant challenged the High Court's order
validating the action of Majlis Ugama Islam Kelantan converting his minor
daughter without his permission. The Supreme Court held as follows:10
"It is our view that under normal circumstances, a parent or guardian (non-
Muslim) has the right to decide the choice of various issues affecting an
 infant's life until he reaches the age of majority. Our view is fortified by the
provisions of the Guardianship of Infants Act, 1961, which incorporates the
rights, liabilities of infants and regulate the relationship between infants and
parents. We do not find favour with the learned judge's view that the rights
relating to religion is not covered by the Act on the ground that the word
'religion' is not clearly spelt out in the law. In all the circumstances, we are
of the view that in the wider interest of the nation, no infant shall have the
automatic right to receive instruction relating to any other religion than his
own without the permission of the parent or guardian."11
37. In Pakistan there is no uniform standard definition of age of majority. To this
end, various laws prescribe different ages for exercising civil, political, economic,
social rights or criminal liabilities. Nevertheless, for our present purposes the
Majority Act, 1875 (the "Majority Act"), is relevant. Section 3 thereof stipulates
that every person domiciled in Pakistan shall be deemed to have attained his
majority on attaining the age of 18 years. However, where a Court has appointed or
declared the guardian of the minor's person or property, or both, or where the Court
of Wards has assumed superintendence of his property, he attains majority on
completing his age of 21 years. These provisions are subject to Section 2 of the Act
which read as under:
2. Savings.---Nothing herein contained shall affect---
(a) the capacity of any person to act in the following matters (namely), marriage,
dower, divorce and adoption;
(b) the religion or religious rites and usages of any class of citizens of Pakistan.
38. For interpretation of a statute it is imperative that the Court should find out
the intention of the legislature. To this end, it must consider every word used by it.
In Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and
7 others (PLD 1997 SC 32), the Supreme Court of Pakistan held that the "most
settled principle of interpretation is that the Court must deduce the intention of the
parliament from the words used in the Act." The language employed in Section 2,
supra, seeks to exclude religion and all religious issues (except guardianship
matters) from the operation of the Majority Act. The purpose is to give maximum
liberty to the people to follow their faith. The term "religion" is wide enough to
encompass religious conversion. However, the question would be whether the age
of majority for the purpose of conversion would be determined with reference to
the personal law to which the intending convert is subject or the faith that he wants
to embrace. According to the Madras High Court, it would be the former. Relevant
excerpt from the case Reade v. Krishna [(1886) I.L.R. 9 Mad. 391] is reproduced
hereunder:
"The construction suggested for Appellant is that when a Hindu youth of 16
changes his religion, his father's right to custody ceases; and adopting as we
must do, the finding of the District Judge that the youth had completed his
16th year, he was according to Hindu law sui juris and therefore competent
to change it; still this would not affect the right of the father to the custody
and control of his minor son, and that right is not taken away by the Act; and
 in this suit the question with which we have to deal is, as the District Judge
very properly remarks, not a question of interference with the right of a
Hindu son to change his religious persuasion, but whether Hindu father is
entitled to the custody of his son and to such control over him as he may
lawfully be entitled to exercise." (emphasis added)
39. In contrast, Islamic jurists and even in some cases our Courts have held that
where a person intends to become a Muslim, the governing law for determination
of the age of majority would be Islamic Law. In this regard Mst. Rani v. Roshan
Masih and another (1986 PCr.LJ 1404) may be referred. In the instant case, Pumy
Muskan is admittedly 14 years old and a minor by all means. Therefore, any
discussion on the aforesaid issue would be of academic interest only and should be
postponed for some other time.
40. Pumy Muskan being a minor lacked legal capacity to abjure her religion
without the consent of her parents or guardian. I have noted that in paragraph-4 of
her application before the Judicial Magistrate (a copy whereof is appended with the
present petition at page-19) the Petitioner stated that she had no objection to Pumy
Muskan's conversion to Islam. I am not inclined to attach much importance to the
said statement and take it as a parental consent for change of religion because, in
my opinion, she made it in anxiety under a misguided belief that this would help
her get custody of her daughter.
41. The learned amicus curiae, Mr. Sheraz Zaka, Advocate, urged this Court to
declare Pumy Muskan's conversion void in view of her legal disability. I am afraid,
this cannot be done. The concepts of valid, void and voidable cannot be applied to
religious rights and the resulting personal law unless the latter itself ordains or the
statutory law sanctions them. For instance, in Islam marriage between certain
relations is prohibited and thus void. On the statutory plane, Section 10 of the
Hindu Marriage Act, 2017, empowers the Court to declare a Hindu marriage null
and void on the conditions specified in clauses (c) and (d) of Section 4. To this end,
clause (c) indicates any prohibited relationship between the two parties, and clause
(d) relates to another living spouse at the time of marriage. The learned amicus
curiae has not referred to any rule of law to support his prayer.
42. A person's religious belief is not a tangible thing and cannot be seen or
touched. Thus, the Privy Council held in Abdul Razack v. Aga Mahomed Jaffer
Bindanim [(1894) L.R. 21 I.A. 56] that "no Court can test or gauge the sincerity of
religious belief." On this premise too a court cannot declare a person's conversion
invalid or void -- unless he/she is of very tender age. However, it may refuse to
recognize or give effect to it for certain legal purposes.
Moot Point II
43. The question as to whether Pumy Muskan's conversion is forced or otherwise
has lost significance in view of my holding that she lacked the legal capacity to
make such decision. Nevertheless, I would like to make a few observations.
44. Conversion from one religion to another has far reaching consequences. It
affects succession, marital status and also the right to seek elective office. Divorce
can be granted on the ground that the spouse has changed the religion. Upon
conversion a person may be governed by a different personal law. The right to
contest elections from a constituency reserved for minorities may be lost. Thus, the
event of conversion is of critical importance from the point of view of rights and
disabilities of a convert.
45. In Islamic Law it is a well recognized principle that a person who has read
'Kalma' even once, believes in the unity of Allah and that Prophet Muhammad
(peace be upon him) is the last prophet and professes to be a Muslim, must be
accepted as such. Paragraph-19 of Chapter II of the Principles of Muhammadan
Law by D.F. Mullah states:
19. Who is a Muhammadan.---Any person who professes the Muhammadan
religion, that is, acknowledges (1) that there is but one God, and (2) that
Muhammad is His Prophet, is a Muhammadan. Such a person may be a
Muhammadan by birth or he may be a Muhammadan by conversion. It is not
necessary that he should observe any particular rites or ceremonies, or be an
orthodox believer in that religion; no Court can test or gauge the sincerity of
religious belief. It is sufficient if he professes the Muhammadan religion in
the sense that he accepts the unity of God and the prophetic character of
Muhammad."
46. The principle that when a person declares that he professes Islam (or has
converted to it) has to be believed was reiterated in Moulabux v. Charuk and others
(PLD 1952 Sind 54) and Mst. Zarina and another v. The State (PLD 1988 FSC
105).
47. Some other religions also require certain rituals --- like "Suddhi" in the case
of Arya Samajists and baptism in Christianity --- for admission. However, the
Supreme Court of India has ruled in a number of cases that no formal ceremony of
purification or expiation is necessary to effectuate conversion. For this reference
may be made to Punjabrao v. Dr. D. P. Meshram and others (AIR 1965 SC 1179),
Perumal Nadar v. Ponnuswami Nadar (AIR 1971 SC 2352) and S. Anbalagan v. B.
Devarajan and others (AIR 1984 SC 411).
48. Conversion may not always be for spiritual reasons. It can also be motivated
(a disingenuous act for wordy gains) or a forced conversion. It may also be a
pretense or a ruse. In Skinner v. Skinner [(1897) L.R. 25 I.A.34] the Privy Council
held that where the sole object of conversion is to alter rights, liabilities or
disabilities prescribed by law to which the parties are subject, such conversion is to
be considered as fraud upon the statute and will not be permitted by the courts.
49. In view of the foregoing, in certain cases courts may be called upon to
decide whether the conversion is bona fide, genuine, voluntary or otherwise. In
such eventualities they give findings on the basis of evidence produced before
them. Unless there is a statutory prescription about the nature of proof required,
subsequent conduct of the convert has immense importance. The courts insist that
declaration of conversion must be followed by adherence to cultural and spiritual
traditions. The convert must take to the mode of life of his new religion. In this
context, the Privy Council laid down the following dictum in Abdul Razack v. Aga
Mahomed Jaffer Bindanim [(1894) L.R. 21 I.A. 56]:
" the question of conversion must be decided not by an enquiry into the mind of
the convert but by an enquiry into the conformity of his acts to the conduct
that may reasonably be expected from a person of his alleged religion."
50. In Kailash Sonkar v. Smt. Maya Devi (AIR 1981 SC 600), the Supreme
Court of India adopted a similar approach while dealing with a case of
reconversion. It ruled:
"In our opinion, the main test should be a genuine intention of the reconvert to
abjure his new religion and completely dissociate himself from it. We must
hasten to add here that this does not mean that the reconversion should be
only a ruse or a pretext or a cover to gain mundane worldly benefits so that
the reconversion becomes merely a show for achieving a particular purpose
whereas the real intention may be shrouded in mystery."
51. Again, in Sapna Jacob, minor v. The State of Kerala and others (AIR 1993
Kerala 75), the Kerala High Court observed:
"In order to prove that the petitioner was a member of the Hindu community she
must have established that there was a bona fide intention to be converted to
the Hindu faith accompanied by conduct or unequivocally expressing that
intention. It is true that no formal ceremony of purification or expiation is
necessary to effectuate conversion. The petitioner is admittedly the daughter
of a Jacobite Christian. So by birth she is a Christian. A convert must
embrace Hinduism and follow the cultural system and tradition of that
religion and should take the Hindu mode of life. It may be true that the
Court cannot test or gauge the sincerity of religious belief; or where there is
no question of the genuineness of a person's belief in a certain religion, the
court cannot measure its depth or determine whether it is an intelligent
conviction or ignorant and superficial fancy. But a court can find the true
intention of men lying behind their acts and can certainly find from the
circumstances of a case whether a pretended conversion was really a means
to some further end."
52. The High Courts in our country cannot undertake factual inquiry while
exercising jurisdiction under Article 199 of the Constitution. Inasmuch as the
question as to whether a conversion is tainted or otherwise cannot be determined
without recording evidence, it can be challenged by the party concerned only
through appropriate proceedings before the forum/court provided by (sub-
constitutional) law. Reference in this regard may be made to Mst. Kaniz Fatima
through Legal Heirs v. Muhammad Salim and 27 others (2001 SCMR 1493)
wherein the Hon'ble Supreme Court held:
"Even otherwise such controversial questions could not be decided by High
Court in exercise of powers as conferred upon it under Article 199 of the
Constitution of Islamic Republic of Pakistan. In this regard reference can be
made to case titled State Life Insurance Corporation of Pakistan v. Pakistan
Tobacco Co. Ltd. (PLD 1983 SC 280). The superior Courts should not
 involve themselves into a thorough probe or an in depth investigation of
disputed question of fact which necessitate taking of evidence. In our
considered view this can conveniently and appropriately be done by the
forums available in the hierarchy. The constitutional jurisdiction is primarily
meant to provide expeditious and efficacious remedy in a case where
illegality, impropriety and flagrant violation of law regarding impugned
action of the authority is apparent and can be established without any
comprehensive inquiry into complicated, ticklish, controversial and disputed
facts."
The above view has been reiterated in a host of other cases, including Haji
Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192) and Dr.
Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813).
Moot Point III
53. Admittedly, the Petitioner is the real mother and natural guardian of Pumy
Muskan. The learned counsel for Respondents Nos.5 and 6 contends that she is
disentitled to her custody because she has converted to Islam. In support of his
contention he has relied upon both the Holy Qur'an and Tafseer Ibn Kathir. From
the Book he has recited Verse No.10 of Surah Al-Mumtahana (Chapter 28) which
reads as under:
[O ye who believe! When believing women come unto you as fugitives, examine
them. Allah is best aware of their faith. Then, if ye know them for true
believers, send them not back unto the disbelievers.]
From Tafseer Ibn Khathir the learned counsel has referred to the following excerpt:
"In Surah Al-Fath, we related the story of the treaty at Al-Hudaybiyyah that was
conducted between the Messenger of Allah and the disbelievers of Quraysh.
In that treaty, there were these words, "Everyman (in another narration,
every person) who reverts from our side to your side should be returned to
us, even if he is a follower of your religion."
This was said by Urwah, Ad-Dahhak, Abdur-Rahman bin Zayd, Az-Zuhri,
Muqatil bin Hayyan and As-Suddi.
So according to this narration, this Ayah specifies and explains the Sunnah. And
this is the best case of understanding.
Yet according to another view of some of the Salaf, it abrogates it.
Allah the Exalted and Most High ordered His faithful servants to test the faith of
women who emigrate to them. When they are sure that they are faithful,
they should not send them back to the disbelievers, for the disbelievers are
not allowed for them and they are not allowed for the disbelievers."12
54. I have thoroughly studied the above citations and noted, with respect, that
they speak of Muslim women who came to Madina after Prophet Muhammad's
migration and have no relevance to the facts and circumstances of the instant case.
Even if it is assumed otherwise, our legal framework does not permit enforcement
of Islamic tenets unless they are enacted into a law through legislation.
Respondents Nos.5 and 6 can at the best rely on Article 2A of the Constitution but
the Hon'ble Supreme Court of Pakistan has settled long ago in Hakim Khan and 3
others v. Government of Pakistan through Secretary Interior and others (PLD 1992
SC 595) that it is not self-executory.
55. It is trite that in all matters relating to custody of minors the Courts act in
loco parentis and it is their legal duty to ensure their welfare. The question as to
what is in the interest of a minor depends on the facts of each case and we have a
rich jurisprudence on this point. The principles set out in the Guardians and Wards
Act, 1890 (hereinafter called the "1890 Act"), serve as a lighthouse. Clause (b) of
Section 19 of the said Act lays down the fundamental principle that no guardian can
be appointed or declared in the case of a minor whose father is living and is not, in
the opinion of the Court, unfit to be guardian of his person. In Re Agar Ellis,
[(1878) 10 Ch.D.49] James L.J. said:
"The right of the father to the custody and control of his children is one of the
most sacred rights. No doubt the law may take away from him this right or
interfere with his liberty, but it must be for some sufficient cause known to
the law. He may have forfeited such parental right by moral misconduct or
by the profession of immoral or irreligious opinions deemed to unfit him to
have the charge of any child at all; or he may have abdicated such right by a
course of conduct which would make the resumption of his authority
capricious and cruel towards the children. But, in the absence of such
conduct by the father entailing such forfeiture or amounting to such
abdication, the court has never yet interfered with the father's legal right."
56. Clause (b) of Section 19, supra, is of vital importance in the instant case
because here the contest for custody of the minor, Pumy Muskan, is not between
her parents (or their close relatives) but between them and a third party/strangers
(Respondents Nos.5 and 6).
57. The welfare of a minor is not restricted to the child's health, education,
physical, mental, and psychological development alone; it also includes his/her
spiritual and moral well being. Section 17 of the 1890 Act, which details the
matters that the Court must take into consideration while appointing a guardian,
gives us a cue in this regard. The said section reads as under:
17. Matters to be considered by the Court in appointing guardian.---(1) In
appointing or declaring the guardian of a minor, the Court shall, subject to
the provisions of this section, be guided 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.
(4) Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII
of 1981.
(5) The Court shall not appoint or declare any person to be a guardian against his
will.
58. Generally speaking, change of religion/conversion does not ipso facto
deprive a parent of his right to custody of his child. Reade v. Krishna (ILR 9
Mad.391) decided in 1886 is one of the earliest authorities on the point. In that case
a 16-year-old Brahman boy left his father to live with a missionary and after some
time embraced Christianity and was baptized. His father filed a suit for his recovery
which the District Judge decreed. He held that the conversion would not affect the
right of the father to the custody and control of his minor son. The High Court
upheld that decision in appeal. In the post-partition era, the case reported as Mrs.
Grace Abdul Hadi Haqani v. Abdul Hadi Haqani and others (PLD 1961 (W.P.) Kar.
296) relates to a minor girl who was born to Muslim man and a woman who had
converted from Christianity. The father was convicted under the Official Secrets
Act by Court Martial and sentenced to 31 years' imprisonment. Before the said
conviction the father and the mother signed a declaration that the child would be
brought up as a Roman Catholic and was baptized at the age of one year on the date
of declaration. Mother then started living an immoral life whereupon the child's
maternal grandparents (Roman Catholics) took over her care. Court held that the
father had not lost right to her custody notwithstanding her baptism. The next case
that may be cited is Mst. Ghulam Fatima alias Shammi Bai v. Chanoomal and
another (PLD 1967 Kar. 569). It involved a Hindu couple which had three children.
The wife embraced Islam after the death of her husband. The Court held that mere
change of religion was not sufficient for removing the minors from the lady's
custody and the paramount consideration was their welfare. Relying upon the Privy
Council's judgment in Helen Skinner v. Sophia Evelina Orde [(1871) 14 MIA, 309]
it ruled that it was in the minors' interest that they should be brought up in their
father's religion and handed over the custody to their uncle. In another case,
reported as Peggy Collin v. Muhammad Ishfaque Malik (PLD 2010 Lah. 48), this
Court gave custody to a French Christian mother following the principle of the
welfare of the child. The Muslim father of the child was a convict and was under
arrest. The Court decided that the Muslim faith of the father was not enough to
establish the fact that giving custody to the father was in the "best welfare of the
child."
59. The same principle obtains in India. The Bombay High Court held in Sheila
Umesh Tahiliani v. Soli Phirozshaw Shroff and others (AIR 1981 Bombay 175) that
conversion cannot be regarded as a disqualification for custody of a minor child so
long as the guardian is capable of providing him a congenial, comfortable and a
happy home. Similarly, in Lekshmi and another v. Vasantha Kumari (AIR 2005 Ker.
249) the Kerala High Court held that the mere fact that the mother has married a
person practicing another faith is not by itself a reason to take away the custody of
the child from her.
60. The Petitioner being the lawful guardian of Pumy Muskan is entitled to her
custody and exercise control over her. The girl cannot be lodged in Dar-ul-Aman
against her will.
61. The prayer of Respondents Nos.5 and 6 that they may be permitted to retain
Pumy Muskan cannot be accepted for a number of reasons. Firstly, the Petitioner,
her guardian, is against it. Secondly, Respondent No.6 is not related to her in the
prohibited degree. Thirdly, section 3 of the Punjab Domestic Workers Act, 2019,
prohibits engagement of a child below the age of 15 years for any household work.
Since Pumy Muskan has not attained that age, her employment with Respondents
Nos.5 and 6 was unlawful from the inception and this Court would be perpetuating
that illegality if it allows them to continue with her services.
Conclusion
62. Pumy Muskan is barely 14 years old. As she is not sui juris she lacks legal
capacity to change religion on her own. However, the question of faith being a
matter of heart and one's conviction, no Court can declare her conversion invalid or
void. It can only refuse to recognize or give effect to it for certain legal purposes.
The Petitioner being the lawful guardian of Pumy Muskan is entitled to her custody.
There is no reason to deprive her of that right.
Order of the Court
63. In view of the foregoing, this petition is accepted and the custody of Pumy
Muskan is handed over to the Petitioner.
KMZ/N-9/L Petition accepted.
;