High court granted interim custody of the minor son to the mother, acknowledging her preferential right to custody under Islamic law, pending final determination by the Guardian Court.
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| Custody of Minor |
The court granted interim custody of the minor son to the mother, acknowledging her preferential right to custody under Islamic law, pending final determination by the Guardian Court.
The case revolves around a mother, Sadia Aziz, seeking custody of her minor son, Muhammad Shahzain, who was reportedly in the custody of his father, Zain-ul-Abideen. The petitioner claimed that she was expelled from the house by the respondent, depriving her of custody of her son. The father argued that the mother had abandoned the child and was not in touch for two months. The court, considering Islamic law, highlighted the mother's preferential right to custody, especially for children of tender age. The court granted interim custody to the mother, pending final determination by the Guardian Court. The case demonstrates the intricate legal considerations in matters of child custody, balancing parental rights with the best interests of the child.
Form No.HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
Case No: Writ Petition No. 3109-H of 2024
Sadia Aziz
VS
DPO etc.
S.No. of
order/
Proceeding
Date of order/
Proceeding
Order with signature of Judge, and that of parties or counsel, where
necessary
02.05.2024 Mr. Muhammad Ajmal Khan Bhutta, Advocate with the
petitioner.
Mr. Zafar Iqbal Awan, Additional Advocate General
with Mehboob, ASI.
Sardar Basit Khan Baloch, Nazar Aslam and Ms.
Mehreen Riaz, Advocates for respondent No.3.
Petitioner being mother through this petition seeks custody of
her minor son namely, Muhammad Shahzain reportedly in the illegal
and improper custody of Zain-ul-Abideen (respondent No. 3), father
of the minor (herein after called as the respondent).
2. Learned counsel for the petitioner states that on a family
dispute petitioner was expelled from the house by the respondent
while depriving her from the custody of minor son. In response to rule
nisi issued, minor present in the Court was claimed to have been with
the father by the order of learned Guardian Court passed on
27.04.2024.
Learned counsel for the petitioner states that petitioner did not
have information about filing of such petition which was filed on
27.04.2024 as per record and on the same day custody of minor was
secured through an ex-parte order of learned Gurdian Court. Further
states that petitioner is resident of Tehsil Ali Pur, District
Muzaffargarh whereas Guardian Petition was filed at District
Bahawalpur. Adds that petitioner is ready to join the proceedings
before the Guardian Court but minor being in tender age of less than
two years requires lap of her mother, therefore, interim custody of the
minor may be regulated in favour of the petitioner, which was
vehemently opposed by the other side on the ground that petitioner
Writ Petition No. 3109-H of 2024 2
herself had abandoned the custody of minor and left him alone in the
house of respondent; she is not in touch with him for the last two
months and minor is happily living with the father; further argued that
petitioner, though an acclaimed doctor preparing for FCPS, is a
careless lady with busy schedule of professional duties, therefore,
cannot take proper care of the minor and custody of minor with the
father is also not illegal or improper.
3. The next say of respondent was that matter is pending before
Guardian Court; therefore, parties may be given opportunity to contest
interim custody before said court.
4. Arguments, pro and contra of proponents were heard;
5. The main stay of the respondent was that once the mother
waived her right to take custody, she is precluded to make a reattempt. Right of hizanat of a mother is recognized in Islam as well
as in law; claim of the respondent being guardian of the minor would
obviously give way to the right of hizanat till prescribed age of the
minor under the law. The waiving of her right of hizanat has no
binding force in the eyes of law and mother cannot be held
accountable if at one occasion she had given up her right to hizanat
on any condition. She will retain her right of hizanat when there is no
disqualification in law of her waiver, therefore, is not disentitled for
claiming right of hizanat again. Reliance is placed on cases reported
as “Mst. HASEENA BIBI versus ABDUL HALEEM and others” (PLD
2024 Supreme Court 291) and “Mst. RAZIA REHMAN versus
STATION HOUSE OFFICER and others” (PLD 2006 Supreme
Court 533).
6. It is essential to highlight that there is difference between Walayat
(Guardianship) and Hizanat (Custody); in Muslim Law, as in almost
every other system of law, the father is the natural guardian of the
person and property of his minor child but Islam recognizes the mother
as having prior right of custody, obvious reason is the nourishment,
sustenance, patronage and up bringing of a human child so as to make
him/her a useful human being. Mother keeps a caring instinct,
therefore, is the suitable person for such task. That was the reason, for
Writ Petition No. 3109-H of 2024 3
custody, the term ‘Hizanat’ has been used. The word “Hizanat” is
derived from the Arabic word “Hizan” which means ‘lap of the
mother’, it denotes giving a child to the mother’s lap for caring and
rearing. Reliance is on case reported as “Miss HINA JILANI, DIRECTOR
OF A.G.H.S. LEGAL AID CELL Versus SOHAIL BUTT” (PLD 1995 Lahore
151)
7. It signifies love, care and affection directly and constantly needed
by a male child up to the age of seven years and female child till she
attains puberty. Care, love and affection play a vibrant and vital role
in developing the nature and character of a person and as such Hizanat
can safely be termed as a tribute and privilege of a minor assigned and
vested in the mother. The woman who holds the custody is called
“Hizana” and she loses the right of hizanat in certain circumstances
suggested in the law.
The Rule of Hizanat of children of tender age under Muslim law
is based on the following tradition of the Holy Prophet محمدصلى الله عليه وسلم;
“A woman once applied to the Prophet, saying, ‘O Prophet of God!
That is my son, the fruit of my womb, cherished in my bosom and
suckled at my breast, and his father is desirous of taking him away
from me into his own care; to which the Prophet replied, thou hast a
right in the child prior to that of thy husband, so long as thou do not
marry with a stranger”.
The tradition is quoted in Hedaya (2nd Edition, Vols. I-IV, page 138)
in Chapter XIV of hizanat, or the care of infant children and under
section “in case of separation, the care of the infant children belongs
to the wife". It is followed by the comment that;
"A mother is naturally not only more tender, but also better qualified
to cherish a child during infancy, so that committing the care to her
is of advantage to the child and Siddeek alluded to this, when he
addressed Omar on a similar occasion, saying, 'the spittal of the
mother is better for thy child than honey, O Omar! which was said at
a time when separation had taken place between Omar and his wife
the mother of Assim. The latter being then an infant at the breast,
Omar desirous of taking him from the mother and these words were
spoken in the presence of many of the companions, none of whom
contradicted him."
At page 139 under the title "Length of the term of hizanat" it is said;
"The right of hizanat with respect to a male child, appertains to the
mother, until he becomes independent of it himself that is to say, he
becomes capable of shifting, eating drinking and performing other
Writ Petition No. 3109-H of 2024 4
natural functions without assistance after which the charge devolves
upon the father, or next paternal relation. The hizanat with respect to
a boy, ceases at the end of seven years, as in general a child at that
age is capable of performing all the necessary offices himself,
without assistance. But the right of hizanat with respect to a girl,
appertains to a mother, grand-mother, and so forth, until the first
appearance of the menstrual discharge, that is to say, until she attains
the age of puberty, because a girl has occasion to learn such manners
and accomplishments as are proper to women, to the, teaching of
which the family relations are most competent, but after that period
the charge of her properly belongs to the father, because a girl, after
maturity, requires some person to superintend her conduct, and to
this the father is most completely qualified."
Reliance is on case reported as “RAHIMULLAH CHOUDHURY versus MRS.
Sayeda HELALI BEGUM AND OTHERS” (1974 SCMR 305)
8. In case of conflicting views expressed in text books on Muslim
Law, such as Hedaya, Fatawai-i-Alamgiri, Radd-ul-Mukhtar,
Muhammadan Law by Sayyed Amir Ali, etc., how are the Courts to
determine which view is correct? " The answer given by the Bench is
that where there is no Quranic or Traditional Text or an Ijma' on a
point of law, and if there be a difference of views between A'imma and
Faqihs, a Court may form its own opinion on a point of law. Reliance
is on case reported as “Mst. ZOHRA BEGUM Versus Sh. LATIF AHMAD
MUNAWWAR” (PLD 1965 (W.P.) Lahore 695).
9. Hizanat is regulated through Muslim Personal Law of the parties;
under the Shia Law mother is entitled to the custody of male child
until he attains the age of two years and if female child until she attains
the age of seven years. After the child has attained the abovementioned age, the custody belongs to the father. Reliance is placed
on case reported as “MAHMOODA KHATOON versus Syed ZAINUL
HASNAIN RIZVI” (PLD 1958 (W.P.) Karachi 150). It has been
observed under Shafei Law that the mother is entitled to the custody
of her daughter even after she has attained puberty and until she is
married. AIR 1941 MADRAS 760.
10. As per Para 352 of Muhammadan Law, a guiding book, mother
is entitled to custody of male child until he has completed the age of
seven years and her female child until she has attained puberty. The
right continues though she is divorced by the father of the child;
Writ Petition No. 3109-H of 2024 5
reliance is on cases reported as “Mst. QURAT-UL-AIN versus
STATION HOUSE OFFICER, POLICE STATION SADDAR
JALALPUR JATTAN, DISTRICT GUJRAT and others” (2024 SCMR
486) and “Raja MUHAMMAD OWAIS versus Mst. NAZIA JABEEN
and others” (2022 SCMR 2123). However, if she marries a second
husband, stranger to child, in which case custody belongs to the father
but subject to determination by learned Guardian Court. There are
certain conditions which disqualify females for custody. Para 354 of
Muhammadan Law says that a female, including the mother, who is
otherwise entitled to the custody of a child, loses the right of custody
in the following situations;
(1) if she marries a person not related to the child within the
prohibited degrees (Ss. 260-261), e.g., a stranger but the
right revives on the dissolution of marriage by death or
divorce, or,
(2)
if she goes and resides, during the subsistence of the
marriage, at a distance from the father’s place of residence;
or,
(3)
if she is leading an immoral life, as where she is
prostitute, or
(4)
if she neglects to take proper care of the child.
11. The claim of respondent’s counsel (s) that custody of father is
neither illegal nor improper, therefore, habeas petition is not
maintainable. There is another way of looking at things; under section
491 of the Cr.P.C. the High Court exercises two-fold jurisdiction;
firstly, to direct the production of a person who is illegally detained to
be brought before the Court so as to set him at liberty and secondly, to
direct the production of a person so that he be dealt in accordance with
law. In the latter case, it is not essential that the detention must be by
use of force; if a person has been confined in a manner not warranted
by law, in that situation also the Court can issue appropriate direction
under Section 491, Cr.P.C. This question was considered by the
Supreme Court of Pakistan in case reported as “Muhammad Rafique v.
Muhammad Ghafoor” (PLD 1972 Supreme Court 6) wherein it was
ruled as und
Writ Petition No. 3109-H of 2024 6
"The High Court has two-fold jurisdiction under this section: (i) to
deal with a person within its appellate criminal jurisdiction according
to law; and (ii) to set him at liberty if he is illegally or improperly
detained. The question which falls for determination, however, is that
if the Court finds that the person brought before it was not being
illegally or improperly confined or detained what order can be passed
regarding the custody of that person.
If the person is a minor, the Court may make over his custody
to the guardian which will be dealing with him in accordance with
law, but if the person is major, the only jurisdiction which the Court
can exercise is to set him at liberty whether illegally or improperly
detained in public or private custody or not. The Court may “set at
liberty”, but cannot restore status quo ante against the wishes of the
person brought before it. Such a course will lead to curtailment of
liberty for which there is no warrant under section 491 nor can such
an order be sustained under section 561-A of the Code as it cannot
be said that allowing a person freedom of movement is an abuse of
the process of the Court.""
12. Proceedings under Section 491 of Cr.P.C can be initiated before
the Sessions Judge or Additional Sessions Judges and before this Court
if any person is in illegal and improper custody; similar relief can also
be sought by a party under Article 199 (1)(b)(i) of the Constitution of
the Islamic Republic of Pakistan, 1973 through writ of Habeas Corpus
when any person is in custody without lawful authority or in unlawful
manner. This Article is usually applicable on malfeasance, misfeasance
and nonfeasance of any party with respect to custody of a detenu.
However, High Court Rules and Orders do not create any difference in
the format of petition and style of orders in both types of petitions.
Chapter 4-F, Volume-V of High Court Rules & Orders consists of rules
framed by the High Court under Section 491(2) of Code of Criminal
Procedure, 1898 which regulate the proceedings on petitions under
Section 491 Cr.P.C. They are as follows;
PART-F RULES FRAMED UNDER SECTION 491(2) OF THE
CODE OF CRIMINAL PROCEDURE, 1898, TO REGULATE
PROCEDURE IN CASES UNDER SECTION 491.
1. An application for an order under section 491 shall be made on
an affidavit setting forth the circumstances under which the
order is sought: Provided that all communications addressed to
the High Court by a person in the custody of a public officer
complaining of his detention or the conditions of his detention,
whether supported by affidavit or not, shall be laid before a
Judge for orders as applications under this rule.
2. Where the court is of the opinion that a prima facie case for
granting the application is made out, a rule nisi may be issued
calling upon the person or persons against whom the order is
Writ Petition No. 3109-H of 2024 7
sought to appear on a day to be named therein to show cause
why such order should not be made and at the same time to
produce in Court the body of the person or persons alleged to be
illegally or improperly detained then and there to be dealt with
in accordance with law: Provided that if the Court so orders,
production of the body of the person alleged to be illegally or
improperly detained may be dispensed with.
3. If the application for an order under clause (a) or (b) of
subsection (1) of the section alleges that a person is confined
under such circumstances that the confinement amounts to an
offence, the Court may, at the time of issuing a rule nisi, also
issue a search warrant, and the person to whom the warrant is
directed may search for the person so confined; and such search
shall be made in accordance therewith, and the person, if found,
shall be immediately brought before the Court, which shall make
such order as in the circumstances of the case may seem to be
proper.
4. The provisions of sections 43, 75, 77, 79, 82, 83 and 84,
Criminal Procedure Code, shall, so far as may be, apply to all
such warrants issued under rule 3.
5. If the Court issuing a search warrant under rule 3 has reasons to
believe that the person to whom the warrant has been directed
may not be able to identify the person confined, the Court may
order a person named in the warrant to accompany the person to
whom the warrant is directed, to assist him in the execution of
the warrant.
6. The writ or the warrant shall be served by the bailiff of the Court
out of the list prepared by the Registrar in consultation with the
Deputy Registrar, or by such other person as may be appointed
by the Judge. Where the application is by or on behalf of a
security prisoner, the writ will be served on the appropriate
Government and not on the officer detaining the prisoner. A
security prisoner means a person who has been detained under
the orders of the Federal or Provincial Government under a law
providing for preventive detention.
7. On the return day of such rule or on any day to which the hearing
thereof may be adjourned, where no cause is shown or where
cause is shown and disallowed, the Court shall pass an order that
the person or persons illegally or improperly detained shall be
set at liberty or delivered to the person entitled to his or their
custody. Where cause is allowed, the rule shall be discharged.
8. The Court may, if necessary, in disposing of such rule, take
evidence or direct a Court of Sessions or a Magistrate to take
evidence.
9. Upon the return and production of the party on whose behalf the
rule was issued, the custody of the prisoner shall be under the
control and direction of the Court until the disposal of the rule.
Pending the hearing, the Court may admit the prisoner to bail or
remand him to the prison where he is in custody.
10. When a bailiff is deputed by the Court to produce an alleged
detenu/detenus, the party requiring the production should
deposit with the Treasurer in advance, an amount equal to the
calculated expenses for the journeys involved keeping in view
his grade of pay and the daily allowance admissible to him under
Writ Petition No. 3109-H of 2024 8
the relevant rules. The amount shall be paid to the bailiff after
sanction by Deputy Registrar (Judl.) before proceeding to his
destination against a receipt which shall be kept on the file of the
case.
11. ***01[Omitted].
12. ***01[Omitted].
13. In case the bailiff does not submit his claim within the time
mentioned in the last rule, the amount or the balance thereof
should be refunded to the party concerned. In case, however, the
party fails to claim refund within six weeks, the amount due to
it be credited to Government under the head
“Major head 1200000, Minor head 1230000 Law
& Order Receipts, Detailed head 1231000
Justice, 1231003 Justice-General fees, fines and
forfeitures (74)”
and the treasury challan showing the credit should be attached
to the file of the case. *01
14. If the writ is to be executed at State expense, the bailiff should
be paid his expenses as admissible under the rules.
15. If, at any time, on sufficient ground shown to the satisfaction of
the Registrar, it is proved that the bailiff submitted an
exaggerated or incorrect claim or claimed expenses though they
were met by the party concerned, this should be taken to be a
misconduct and necessary proceedings against him be initiated
under the High Court Establishment (Appointment &
Conditions of Service) Rules, which may result in major penalty
provided by the relevant rules.
16. To check the tendency to file frivolous habeas corpus petitions,
the Court may, at its discretion, require the party concerned to
deposit in advance an amount as fixed by the Court directing the
issuance of rule nisi to be paid to the detenus as a compensation
if the petition is found to be frivolous or vexatious. *01”
17. In disposing of any such rule, the Court may, in its discretion,
make an order for the payment by one side or the other of costs
of rule.
18. The forms of warrants No.1 and 2 in the Appendix to these rules
shall be followed.
Such rules further clarify that Chapter-4, Part-J of above Volume
deals with rules for the issue of orders/directions under Articles 199
and 202 of the Constitution of the Islamic Republic of Pakistan, 1973
and clause 27 of the letter patent. According to Part-1 of Part-J
referred above, such application shall be governed by rules 1 to 18 of
Chapter 4-F, Volume-V of High Court Rules and Orders, which
means rules 1-18 cited above shall also be applicable on habeas
petition filed under Article 199 of the Constitution of the Islamic
Republic of Pakistan, 1973.
Writ Petition No. 3109-H of 2024 9
13. Keeping in view the above explanation, in appropriate cases
order for recovery of minor can be issued under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973, which is being
issued in this case accordingly.
14. From the above discussion, it is clear that under the law mother
has a preferential right for custody of a minor till the prescribed age.
Even if divorce has become effective between the spouses, mother
does not lose her right of hizanat except in the situations mentioned
in Para 354 of Muhammadan Law subject to determination by
Gurdian Court. Thus, for what has been discussed above, the
circumstances warrant that minor being of tender age requires the lap
of mother; therefore, interim custody of minor Muhammad Shahzain
is regulated in favour of petitioner/mother who shall be bound to
produce him before the learned Gurdian Court where the proceedings
are pending and fixed for 15.05.2024. However, this order would be
subject to final determination by the learned Gurdian Court as to the
rights of parties for custody and visitation of minor.
15. Disposed of.
(Muhammad Amjad Rafiq)
Judge
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