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| Habeas writ | Custody of minor child to father and paternal grand mother. |
نابالغ لڑکی کی تحویل سے متعلق حالیہ فیصلے میں سپریم کورٹ نے کئی اہم نکات پر توجہ دی:
1. **حراست کا تعین:** سپریم کورٹ نے اس بات کا جائزہ لیا کہ آیا حراستی معاملات میں ہائی کورٹ کی مداخلت جائز تھی۔ عدالت نے مشاہدہ کیا کہ ہائی کورٹ نے نابالغ کو پیش کرنے کا حکم دیا تھا باوجود اس کے کہ بچہ اس کی ماں کی تحویل میں ہے اور یہ ظاہر کرنے کے لیے کافی بنیادوں کے بغیر کہ یہ حراست غیر قانونی ہے۔
2. **گارڈین کورٹ کا کردار:** سپریم کورٹ نے اس بات پر زور دیا کہ ہائی کورٹ کو اس انداز میں مداخلت نہیں کرنی چاہیے تھی کیونکہ گارڈین کورٹ، جو خاص طور پر حراستی تنازعات کو نمٹانے کے لیے بنائی گئی ہے، سے رجوع نہیں کیا گیا تھا۔ عدالت نے نشاندہی کی کہ گارڈین کورٹ کو تحویل کے مسائل کو حل کرنے اور اپنے احکامات کو نافذ کرنے کا اختیار حاصل ہے۔
3. **ہیبیس کارپس کے لیے معیار:** عدالت نے اس بات کا اعادہ کیا کہ ہیبیس کارپس کی رٹ کا اجراء تحویل کے معاملات میں ایک قاعدہ کے بجائے ایک استثناء ہونا چاہیے۔ ہائی کورٹ کو اس بات کو یقینی بنانا چاہئے کہ اس طرح کی کارروائی کرنے سے پہلے مجرمانہ یا دیگر غیر معمولی حالات کا واضح معاملہ موجود ہے۔
4. **عدالتی نگرانی:** سپریم کورٹ نے متبادل ریمڈی کی موجودگی پر مناسب طور پر غور نہ کرنے اور بچے کو پرڈیوس کا حکم دینے کے اپنے فیصلے کے لیے واضح جواز فراہم نہ کرنے پر ہائی کورٹ کو تنقید کا نشانہ بنایا۔
سپریم کورٹ کا فیصلہ اس اصول پر زور دیتا ہے کہ تحویل کے فیصلوں کو خصوصی عدالتوں کے کردار کا احترام کرنا چاہیے اور فوری یا انتہائی عدالتی کارروائیوں کے بجائے اچھی طرح سے قائم قانونی معیارات پر مبنی ہونا چاہیے۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE SYED HASAN AZHAR RIZVI
MR. JUSTICE IRFAN SAADAT KHAN
CIVIL PETITION NO.3718 OF 2023
(Against the order/judgment of the Lahore
High Court, Lahore dated 21.09.2023 passed
in Writ Petition No.59365/2023)
Mst. Qurat-ul-Ain
…Petitioner
VERSUS
Station House Officer, Police Station
Saddar Jalalpur Jattan, District Gujrat &
others
…Respondent(s)
For the Petitioner
:
Mr. Iftikhar Ahmad Bashir, ASC
a/w
Petitioner-in-person
For Respondent No.3 :
Mr. Zafar Iqbal Klasoon, ASC
(via V.L. Lahore)
For Respondent (Gov.) :
Mr. Baleeghuz Zaman, Add’l AG Pb.
Other Respondents
:
Nemo
Date of Hearing
:
13.12.2023
JUDGMENT
IJAZ UL AHSAN, J-. On conclusion of the hearing,
this Petition was converted into an Appeal and allowed in the
following terms:
“For detailed reasons to be recorded later, this petition is converted
into an appeal and allowed in the following terms:
1. The impugned judgement/order of the Lahore High Court,
Lahore dated 29.09.2023 passed in WP No.59365/2023 is set
aside.
2. The concerned Guardian Court/Family Court, Gujrat seized
of Guardian Petition titled “Qurat ul Ain v. Biban Bibi etc.” shall
ensure that the custody of the child is restored to the mother
within one week of receipt of a certified copy of this order.
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3. The Office shall ensure that a certified copy of this Order is
sent to and received by the concerned Guardian Court/Family
Court, Gujrat seized of Guardian Petition titled “Qurah-tul-Ain
v. Biban Bibi etc.” within one week.
4. The Guardian Court shall proceed with the pending
Guardianship petition with all due diligence and conclude the
matter as expeditiously as possible strictly in accordance in
law.”
Our detailed reasons are set out herein below.
2.
Bibi (“Respondent No.3”) filed a writ petition before
the Lahore High Court, Lahore seeking the recovery of her
granddaughter Haseeba Noor, a four-year-old minor (the
“Minor”) from the “improper custody” of her mother Mst.
Qurat-ul-Ain (the “Petitioner”) and the Petitioner’s husband
Nasir Bashir. It was averred in Respondent No.3’s writ petition
that her son i.e., Waheedullah had married the Petitioner and
from this union, the minor was born. The marriage did not last
and ended in divorce. Waheedullah was settled abroad and the
Petitioner had contracted a second marriage while retaining
custody of the minor. This second marriage had disentitled the
Petitioner from retaining custody of the minor since her
continued presence in a Ghair Mehram’s house was
impermissible under the law and detrimental to her welfare. In
the absence of a speedy and efficacious remedy and since her
father Waheedullah was not in the country, Respondent No.3
filed the writ petition seeking production of the minor before
the High Court and prayed that the minor’s custody be handed
over to her paternal grandmother i.e., Respondent No.3. The
High Court on 18.09.2023 directed that the minor be produced
before the Court on the next date of hearing i.e., 21.09.2023.
CIVIL PETITION NO.3718 OF 2023
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In compliance of the said order, the concerned Station House
Officer produced the minor before the High Court on
21.09.2023. After hearing the parties, the High Court through
the impugned order/judgement ordered that the custody of the
minor be handed over to Respondent No.3 as an interim
arrangement and that the concerned Guardian Court shall
decide the permanent custody of the minor strictly in
accordance with law. Aggrieved by the High Court’s decision,
the Petitioner assailed the impugned judgement/order before
this Court.
3.
The learned counsel for the Petitioner contended
that the High Court, in its constitutional jurisdiction, had
effectively decided the matter of custody of the minor even
though an alternative and efficacious remedy was available to
Respondent No.3 in the form of a guardian petition under the
Guardian and Wards Act, 1890 (the “GW Act”). He also
contended that the father of the minor was living in Spain, had
consistently failed to pay any maintenance for the minor’s
upkeep and had even contracted a second marriage himself.
He therefore maintained that the sole ground on which the
High Court had handed over custody of the minor to
Respondent No.3 was that she had contracted a second
marriage. He submitted that a second marriage is not an
automatic disqualifier under the law insofar as the custody of
a child is concerned. Reliance on this aspect was placed on a
judgement of this Court reported as Muhammad Owais v. Nazia
Jabeen (2022 SCMR 2123). He prayed that the impugned
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order/judgement of the Lahore High Court be set aside and
custody of the minor be handed over to the Petitioner till a
decision is made by a Court of competent jurisdiction.
4.
The learned counsel for Respondent No.3, on the
other hand, defended the impugned order/judgement and
submitted that in the exercise of its constitutional jurisdiction,
the High Court had ample powers to hand over custody of a
minor to anyone if it was in the interest of the said minor. He
also pointed out that the High Court’s arrangement was purely
temporary and that the High Court had expressly held that its
decision would be subject to the decision of a Court of
competent jurisdiction.
5.
We heard the learned counsel for the parties and
went through the record.
6.
Although the Constitution of the Islamic Republic
of Pakistan, 1973 (the “Constitution”) does away with the
Latin terminology, Article 199 of the Constitution confers on
the High Courts the power to pass certain orders classically
and colloquially referred to as writs of Habeas Corpus,
Mandamus, Quo Warranto, Certiorari, and Prohibition.
7.
In her writ petition before the High Court,
Respondent No.3 made the following prayer:
“In view of the above submissions, it is most humbly prayed
that this petition may kindly be accepted and the
detenue/minor granddaughter of petitioner namely Haseeba
Noor, daughter of Waheedullah aged 4 years my (sic) please be
ordered to be recovered from the improper custody of
respondents No.2 and 3 through Respondent No.1 and after
production of minor before this Honourable Court her custody
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be handed over to the petitioner in the welfare of minor and also
in the best interest of justice, equity and fair play.
Any other relief which this Honourable Court deems fit and
proper in the circumstances of the case may also kindly be
granted.”
8.
A perusal of Respondent No.3’s writ petition and
her prayer reveals that she had sought, in essence, a writ of
Habeas Corpus for the production of the minor. The relevant
portion of Article 199 which deals with the said writ is
reproduced below for ease of reference:
“199. Jurisdiction of High Court
(1) Subject to the Constitution, a High Court may, if it is satisfied that
no other adequate remedy is provided by law, —
(a) …
(i) …
(ii) …
(b) on the application of any person, make an order —
(i) directing that a person in custody within the territorial
jurisdiction of the Court be brought before it so that the Court
may satisfy itself that he is not being held in custody without
lawful authority or in an unlawful manner; or
(ii) …
(c) …”
(Underlining is ours)
9.
It is important to note that Article 199 starts with
the phrase: “Subject to the Constitution, a High Court may, if
it is satisfied that no other adequate remedy is provided by law,
…” Therefore, the High Court’s constitutional jurisdiction is
subject to the satisfaction that no other adequate remedy is
provided by law.
10.
Habeas Corpus has been defined in various ways
over the centuries but its most celebrated is that of
Blackstone’s in which he explained it to be a “great and
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efficacious writ in all manners of illegal confinement”. We need
not go into the intricacy of the various definitions of the writ
for we are of the view that since it was set in stone in the Magna
Carta, it has retained its nature of ensuring that:
“No Freeman shall be taken or imprisoned, or be disseized of
his Freehold, or Liberties, or free Customs, or be outlawed, or
exiled, or any other wise destroyed; nor will We not pass upon
him, nor condemn him, but by lawful judgment of his Peers, or
by the Law of the land.”
11.
The invocation and passing of the writ of Habeas
Corpus, as previously noted, is enshrined in Article 199(1)(b)(i)
of our Constitution whereby any person may file an application
seeking the High Court to direct that “a person in custody
within the territorial jurisdiction of the Court be brought before
it so that the Court may satisfy itself that he is not being held
in custody without lawful authority or in an unlawful manner”.
However, the invocation and passing of the writ is subject to
the satisfaction of the High Court that no adequate remedy is
provided by the law.
12.
The GW Act allows a person to be appointed the
guardian of a minor “if it is satisfied that it is for the welfare of
the minor …”1 It is only once a person is appointed the
guardian that they may seek recourse to Section 25 of the GW
Act for recovery of custody of a ward.
13.
This begs the question: Could Respondent No.3
invoke the constitutional jurisdiction of the High Court for the
issuance of a writ of Habeas Corpus?
1 Section 7 of the GW Act.
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COULD RESPONDENT NO.3 INVOKE THE
CONSTITUTIONAL JURISDICTION OF THE HIGH COURT?
14.
Whatever the inter se relations between the parents
may be, the purpose of a writ of Habeas Corpus when it comes
to the production of a child is to ensure that the child is, at any
given moment, capable of being produced before a Court of law.
However, “… there can be no question that a Writ of Habeas
Corpus is not to be issued as a matter of course, particularly
when the writ is sought against a parent for the custody of a
child. Clear grounds must be made out …”2 The writ must only
be issued in favour of a person who is entitled to custody of the
child. A grandmother, no matter the love she may have for her
grandchildren, is not the parent of a child for the purposes of
the law and must clearly specify why a writ of Habeas Corpus
must be issued for the production of her grandchild(ren),
especially so when it is admitted that the grandchild is in the
custody of one or both parents.
15.
While the Constitution states that the High Court
is empowered to make an order “on the application of any
person …”, when a writ of Habeas Corpus is sought for the
production of a child, it is not for the liberation of a detenue or
a prisoner. Instead, it is, as was held by the Court of Appeal of
England and Wales in R v. Barnardo (1891) 1 QB 194:3
“… to determine whether the person who has the actual
custody of them (infants) as childrens shall continue to have the
custody of them as children. In such cases it is not a question
of liberty, but of nurture, control and education.”
2 The Supreme Court of India in Dushyant Somal v. Sushma Somal (AIR 1981 SC 1026)
3 Which was subsequently affirmed by the Appellate Committee of The House of Lords in Barnardo
CIVIL PETITION NO.3718 OF 2023
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16.
We also note that the issuing of such a writ is
subject to the satisfaction of the High Court that a minor “is
not being held in custody without lawful authority or in an
unlawful manner.”4
17.
The general presumption that children must always
be in the custody of their parent(s) is based on “The principle
… that parental right or power of control of the person and
property of his child exists primarily to enable the parent to
discharge his duty of maintenance, protection, and education
until he [the child] reaches such an age as to be able to look
after himself and make his own decisions.”5 This right to
custody, however, “is a dwindling right which the courts will
hesitate to enforce against the wishes of the child, and the more
so the older he is. It starts with a right of control and ends with
little more than advice.”6 However, where a person entitled to
custody is shown to be incapable of approaching the Court or
where no such person exists, the question of the right of a
friend to make such an application arises.7 In such a situation,
the friend of the minor must show that:
a) No one who is legally entitled to the custody of the
minor or to represent him/her exists, or that such a
person, if any, is unable to file a Habeas Corpus
petition; and
b) The friend is interested in the welfare of the child.
4 Article 199(1)(b)(i) of the Constitution.
5 The Appellate Committee of The House of Lords in Gillick v West Norfolk and Wisbech Area
Health Authority [1986] AC 112.
6 The Court of Appeal of England and Wales in Hewer v. Bryant [1970] 1 QB 357
7 The Calcutta High Court in Raj Bahadur v. Legal Remembrancer AIR 1953 Cal. 522.
CIVIL PETITION NO.3718 OF 2023
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18.
In the instant case, and at the very outset, we note
that Respondent No.3 failed to aver that she was filing the writ
petition in her capacity as a friend of the minor. Even, if for the
sake of argument, we assume that she had filed the writ
petition as a friend of the minor, she had failed to aver how no
one who is legally entitled to the minor’s custody exists or that
such a person (in this case, her father) was unable to file a
petition. At no point has Respondent No.3 averred that she was
authorised by her son to file the writ petition. No
correspondence whatsoever was produced before either the
High Court or this Court which could show that Respondent
No.3 was authorised to file the writ petition as a representative
of the minor’s father. There is also nothing on the record which
shows that Respondent No.3 was ever appointed the guardian
of the minor under the GW Act especially so when a perusal of
Section 8 of the GW Act shows that she was not precluded by
the Act from seeking appointment as guardian since she would
be covered under sub-section (b) of the said Section. We
disagree with the assertion that the father of the minor being
abroad rendered him unable or incapable of filing a petition
seeking a writ of Habeas Corpus. We also note that a mere
assertion in her petition that Respondent No.3 wants to
“properly look after the detenue” is insufficient to show that
she was interested in the welfare of the child.
19.
This factual context goes to the root of the question.
In the absence of a competently filed writ petition and the
presence of an alternative remedy, the High Court ought to, in
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the first place, have satisfied itself that despite these
shortcomings, it was still in the best interests of the minor that
she be produced before the High Court moreso: a) when it was
admitted by Respondent No.3 in her petition that the minor
was in the custody of her real mother; and b) an absence as to
how the minor being in the custody of her own mother was “…
without lawful authority or in an unlawful manner”. These
aspects of the case appear to have escaped the notice of the
High Court.
20.
Despite this, the High Court passed the following
order on 18.09.2023:
“Learned counsel for the petitioner submits that Haseeba Noor
(minor granddaughter of the petitioner statedly aged about 4-
years) is in illegal custody of respondents No.3 and 4.
2. Station House Officer, Police Station: Saddar Jalalpur Jattan,
District Gujrat/respondent No.1 is directed to recover and then
produce aforementioned detenue on 21.09.2023 before this
Court.
3. Office is directed to communicate this Court’s order to
respondent No.1, telephonically.”
21.
A perusal of the said order reveals that at no stage
had the High Court: a) satisfied itself that no alternative or
efficacious remedy was available to Respondent No.3; b) shown
why it had deemed the production of the child appropriate
when she was admittedly with her mother; or c) on what basis
the continued custody of the minor with her real mother was
even prima facie “without lawful authority or in an unlawful
manner” which necessitated the production of the minor before
the Court.
CIVIL PETITION NO.3718 OF 2023
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High Court passed its order of 18.09.2023 was the mere
contention that the Petitioner had remarried.
25.
Therefore, we are of the view that the very order
seeking production of the minor before the High Court was, in
the peculiar circumstances of the case, without jurisdiction, or,
in any event, in excess of jurisdiction.
26.
However, we deem it appropriate to address the
point as to why the prayer for Habeas Corpus ought not to have
succeeded on the merits as well.
THE PRAYER FOR HABEAS CORPUS ON ITS MERITS
27.
Ordinarily, reference is made to Paragraphs 352
and 354 of D.F. Mulla’s Principles of Mahomedan Law for
asserting that a mother is disentitled from custody of her minor
child after a second marriage. The said paragraphs were
discussed by this Court in Shabana Naz v. Muhammad Saleem
(2014 SCMR 343) where this Court was of the view that:
“11. Para 352 of the Muhammadan Law provides the mother is
entitled to the custody (Hizanat) of her male child until he has
completed the age of 7 years and of her female child until she
has attained puberty and the right continues though she is
divorced by the father of his child unless she marries a second
husband in which case the custody belongs to the father.
12. Para 354 provides for disqualification of female from
custody of the minor, which includes the mother and one of the
instance laid down is that if she marries a person not related to
the child within the prohibited degree e.g. a stranger but the
right revives on the dissolution of marriage by death or divorce.
13. Thus, it is apparent from reading of the two paras of the
Muhammadan Law that though the mother is entitled to the
custody (Hizanat) of her minor child but such right discontinues
when she takes second husband, who is not related to the child
within the prohibited degree and is a stranger in which case the
custody of minor child belongs to the father. It has been
construed by the Courts in Pakistan that this may not be an
absolute rule but it may be departed from, if there are
exceptional circumstances to justify such departure and in
making of such departure the only fact, which the Court has to
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see where the welfare of minor lies and there may be a situation
where despite second marriage of the mother, the welfare of
minor may still lie in her custody.”
(Underlining is ours)
In a more recent pronouncement, this Court in Muhammad
Owais v. Nazia Jabeen (2022 SCMR 2123) was of the view
that:
“6. The basic issue is with reference to the custody sought by
the mother for her four children. The emphasis by the father is
on the mother's second marriage which it is argued disentitles
her to custody under the Islamic Law. D.F. Mullah in
Mohammadan Law in Para 352 provides that the mother is
entitled to the custody (hizanat) of her male child until he has
completed the age of seven years and of her female child until
she has attained puberty. Para 352 ibid provides that this right
continues whilst she is divorced from the father of the child,
however, in the event she marries a second time, custody then
belongs to the father. Para 354 of Mohammadan Law provides
that the mother, who is otherwise entitled to the custody of a
child, loses the right of custody if she marries a person not
related to the child within the prohibited degrees which are
specified in paras 260-261 of Mohammadan Law. So as per the
principles of Mohammadan Law by D.F. Mullah where she
remarries, she can be disqualified for custody ... These
provisions and the principles of Mohammdan Law have been
examined by this Court in several judgments where it has held
that the conditions contained in Paras 352 and 354 of Mullah's
Mohammadan Law are not absolute and are subject to the
welfare of the child. In Muhammad Siddique v. Lahore High
Court, Lahore through Registrar and others (PLD 2003 SC 887),
it was held that although the general rule is that the mother on
contracting a second marriage forfeits her right of custody, this
rule is not absolute and if it is in the interest of the child,
custody should be given to the mother. The Court further held
that it is the welfare of the minor that must be considered while
determining custody and there is no absolute rule or fixed
criteria on the basis of which welfare of the minor can be
determined or custody can be awarded. In Mst. Shahista Naz v.
Muhammad Naeem Ahmed (2004 SCMR 990), this Court
concluded that the right of Hizanat having the force of
Injunctions of Islam is an accepted principle of Islamic Law and
a female on account of re-marriage may be disqualified to
exercise this right, but a mother on account of re-marriage is
not absolutely disqualified to be entrusted the custody of a
minor child rather she may lose the preferential right of
custody. The Court further held that there is no denying the fact
that there can be no substitute for the mother of the minor child
especially of tender age, therefore, the consideration for grant
or refusal of custody will always be the welfare of the minor. In
this case, the mother even on contracting second marriage was
entitled to retain custody of the minor. Again while looking at
the Islamic provisions on custody of minor, this Court
concluded in Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC
267) that the question of custody of a minor child will always be
determined on the basis of the welfare of the minor and
notwithstanding the father's right for custody under Muslim
Personal Law, this right is subject to the welfare of the minor.
Again in Shabana Naz v. Muhammad Saleem (2014 SCMR 343),
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Paras 352 and 354 of the Mohammadan Law were considered
and the Court concluded that although Mohammadan Law
provides that the mother is disentitled to custody if she remarries, this is not an absolute rule but one that may be
departed from if there are exceptional circumstances to justify
such departure and even in a situation of a second marriage if
the welfare of the minor lies with the mother then she should
be awarded custody.
7. The aforesaid judgments clearly dispel the stance taken by
the father that on account of the mother's second marriage, she
has lost the right of custody over her four children ...”
Similarly, the Federal Shariat Court has also held that Mulla’s
Principles of Mahomedan Law do not have any statutory
authority or sanction behind them. In Najaat Welfare
Foundation v. Federation of Pakistan (PLD 2021 FSC 1), the
Shariat Court observed that:
“… There is a plethora of judgments of the superior Courts of
Pakistan, where they have differed from the so-called text books
of Muhammadan Law including Mulla's book. This trend was
initiated soon after independence of Pakistan. Although, in a
very limited way and sporadically, this trend was there even in
pre-partition era of British India. After the independence of
Pakistan, this trend became a norm by the superior Courts of
Pakistan to evolve their own jurisprudence inter alia in the
matters of Muslim Personal law also. For example; It was stated
in a judgment very clearly while deciding a matter of Hisanat,
which is an issue of Muslim Personal Law as:
“It would be permissible for the Courts to differ from the rules
of Hisanat as quoted or stated in the text books like book of
Mulla". [Reference PLD 1965 W.P. Lahore 695]. This trend
kept on evolving, and is still evolving. This process is
primarily based on following factors:
(i) the superior courts are clearly of the view that the
opinion contained in text book of so-called Muhammadan
Law, are neither final nor binding upon the superior
Courts of Pakistan. While discussing paragraphs 352 and
354 of Mulla's book the Supreme Court held:
“It has been construed by the Courts in Pakistan that
this may not be an absolute rule but it may be departed
from, if there are exceptional circumstances to justify
such departure and in making of such departure the
only fact, which the Court has to see where the welfare
of minor lies and there may be a situation where despite
second marriage of the mother, the welfare of minor
may still lie in her custody.” (2014 SCMR 343 para 13)
(ii) It is clearly mentioned in number of judgments that the
book of D.F. Mulla is just a reference and not a statutory
law applicable in Pakistan, so it is optional upon the
Courts to consult this book while examining any matter in
issue related to Muslim Personal Law. While dilating upon
paragraph 113 of the Mulla's book it was held:
CIVIL PETITION NO.3718 OF 2023
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“The Quranic Command, as reflected here-in-above, in
Verse No.12 of Surah Nisa has completely been ignored
in the case, in hand, rather a totally contrary view is
being preferred. The main sources of Shariat are; Holy
Qur'an, Sunnah, Ijma and Qias and the Hon'ble Federal
Shariat Court in case titled "Muhammad Nasrullah
Khan v. The Federation of Pakistan and another"
(Shariat Petition No.06/I of 2013) has held that, if
something in any Book is proved to be different from
Quran and Sunnah, that would be invalid.
Muhammadan Law by D.F.Mulla, not only in the
present case, but other cases also is oftenly quoted for
a reference. The Hon'ble Federal Shariat Court, in the
referred judgment, has held that, said law is in fact only
a reference book and not a statutory law applicable in
Pakistan, in the sense that the legislature has not
enacted the same. It is just an option of the Court to
consult the same on the basis of equity and refer to the
principles mentioned in paragraphs of the said book, at
times, and that too casually in some matters only.
Moreover, the rules quoted in Muhammadan Law are
not at all applicable, if in the opinion of the Court, they
are found opposed to justice, equity and good
conscience. These rules are not even referred to in
situations directly covered by the Holy Quran or
Sunnah or by binding Ijma and Qias. According to Para-
113 of Muhammadan Law by D.F. Mulla, a childless
widow takes no share in her husband's lands, but she
is entitled to her one-fourth share in the value of trees
and buildings standing thereon, as well as in his
movable property including debts due to him though
they may be secured by a usufructuary mortgage or
otherwise.” (PLD 2016 Lahore 865 para 6)
(iii) The superior Courts also very clearly pointed out one
of the core reasons why in many cases the text books (like
book of Mulla) do not give a comprehensive and clear
answer to any proposition of Muslim Personal Law
because it suffers from over simplification.
“The rule enunciated in para.354 of Principles of
Muhammadan Law by Mulla suffers from over
simplification. Similarly the statement of law from
textbooks on Muslim Law ‘made by the learned Single
Judge is not comprehensive. Similarly he has ignored
many relevant portions of the textbooks on the subject
of Hizanat.” (Ref: 2000 SCMR 838).
For these reasons, as discussed earlier, a whole set of
jurisprudence of Muslim Personal Law has been evolved in
Pakistan by the superior Courts. A few examples are as follows:
i) A rule of custody of minor as mentioned in a paragraph-
352 in Mulla's book that a son has to remain with his mother
till the age of 07 is not absolute (Ref: 1989 CLC 604). There
is no bar on mother or father to have custody of a minor
according to Quran and Sunnah nor it is any body's
preferential right. It is a question of fact and in all cases the
prime consideration is the welfare of child (2000 MLD 1967,
2002 YLR 2548, PLD 2002 Lahore 283, 2004 SCMR 1839
etc.)
ii) …
iii) …
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iv) …
Mulla's “Principles of Muhammadan Law” is a reference or a text
book as some times referred in our judgments like other books
of this category and not a statutory book. Usually, when the
Courts consult it, this exercise is just like consulting a book
where the opinions of the great Muslim jurists are easy to get
because opinions are mentioned in English language in an over
simplified language and paragraphs of the book are numerically
marked. The very style of composition of this book often create
a confusion amongst the reader that it is a statute book which
it is not. Perhaps this is the reason why the petitioner states in
his petition that the book of D.F. Mulla comes within the
purview of custom and usage which is absolutely wrong and
incorrect ...”
28.
We are, therefore, of the view that the law has been
settled on the point that a mother remarrying does not
automatically bar her under the law from the custody of her
children; that the forum empowered under the law to
determine a child’s custody is the Guardian Court set up under
the GW Act; and that the High Court cannot arrogate unto itself
the power to determine the matter of the custody of a child in
the exercise of its constitutional jurisdiction unless the
parameters spelt out earlier by us (infra) are met and such
power can only be exercised by the High Court in exceptional
and limited circumstances, and that too for the limited purpose
by letting the Guardian Court to decide the matter in
accordance with the law. For the sake of clarity, these
parameters are:
I. A writ petition seeking issuance of a writ of Habeas Corpus
for production and custody of a child may be filed by:
a. One or both parents of the child/minor; or
b.The guardian(s) of the child/minor; or
c. A friend of the child/minor provided the friend proves:
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i. That no person legally entitled to the custody of the
child is present or available; or
ii. The person legally entitled to the custody of the
child is present and available but incapable of filing
a writ petition; and
iii. The friend is doing so in the best interests of the
child.
II. The High Court is satisfied that seeking remedy under the
GW Act, or any other law for the time being in force, would
not be an adequate remedy.
III. The production of the child before the High Court is in the
best interests of the child/minor, subject to the caveats
spelt out in Paragraphs No. 22 & 23 above.
IV. Handing over custody of the minor/child to the person
petitioning the High Court is in the best interests of the
child/minor.
29.
Even otherwise, no ground has been pointed out by
the learned counsel for Respondent No.3 to show how the
minor being in the custody of the Petitioner was without lawful
authority, in an unlawful manner or against the welfare of the
minor.
THE
OBJECTIVES RESOLUTION, CONSTITUTIONAL
COMMANDS AND INTERNATIONAL OBLIGATIONS
30.
The Objectives Resolution8 of 1949 states that the
purpose of a Pakistani Constitution would be to ensure that “…
the people of Pakistan may prosper and attain their rightful
and honoured place amongst the nations of the World and
8 Which is now a substantive part of our Constitution by virtue of Article 2A.
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make their full contribution towards international peace and
progress and happiness of humanity.”9 This is why the
Constitution recognises and protects as fundamental rights the
security and equality of all citizens in Articles 9 and 25 which
are reproduced for ease of reference:
“Article 9 Security of person.
No person shall be deprived of life or liberty save in accordance
with law.
25. Equality of citizens.
(1) All citizens are equal before law and are entitled to equal
protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) …”
(Underlining is ours)
The people of Pakistan are not limited to a single gender but
also include its women who are just as entitled to be a part of
the nation’s collective struggle towards international peace,
progress and happiness striving for in their lives. In
endeavouring to achieve these noble aspirations, the mothers
of the nation must always be accorded the highest degree of
respect for they mould the generations which will continue
Pakistan’s collective struggle. To justify divesting custody of a
child from their mother on the basis of antiquated, parochial
and patriarchal constructs and customs is in stark conflict
with the blessed titles given to Mothers in the Holy Quran. In
fact, this Court in Beena v. Raja Muhammad (PLD 2020 SC
508) has held:
“13. The high status of motherhood is reflected in the naming
of a chapter of the Holy Qu'ran after Maryam (Mary), peace be
9 Point 11 of the Objectives Resolution, 1949.
CIVIL PETITION NO.3718 OF 2023
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upon her, the only chapter named after a woman. Almighty
Allah recalls her qualities and bestows on her a number of titles:
a purified (tahharaki) and chosen (istafagi) one, a sign (ayatan)
of God, truthful (siddiqatun) and devoutly obedient (qanitina).
The lady Maryam (peace be upon her) is mentioned 34 times in
the Holy Qur'an. The mother of the Prophet Isa (peace be upon
him) faced the pangs of childbirth alone. She, like the lady
Haajar, overcame formidable odds to care for her child. These
great ladies are acknowledged and incorporated into the Faith,
enriching Islam's glorious tradition. It is for believers to ponder
and reflect upon their lives, and to derive lessons from it. To be
financially underprivileged, to be weighed down with a child, to
give birth or to have a disability is not something to be derided.
For a mother to bear the pain of childbirth, the greatest human
natural pain, but then to have her child wrested away from her
on the pretext that she is incapable of taking care of the child
is insensitive in the extreme, and may also be characterized as
hypocritical.”
(citations omitted)
31.
Even on the international legal plane, women’s
rights have attained the status of obligations erga omnes which
have since been codified in the Convention on the Elimination
of All Forms of Discrimination against Women (“CEDAW”) with
Article 16 of CEDAW explicitly stating that:
“1. States Parties shall take all appropriate measures to
eliminate discrimination against women in all matters relating
to marriage and family relations and in particular shall ensure,
on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into
marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and
at its dissolution;
(d) The same rights and responsibilities as parents,
irrespective of their marital status, in matters relating to their
children; in all cases the interests of the children shall be
paramount;
(e) The same rights to decide freely and responsibly on the
number and spacing of their children and to have access to
the information, education and means to enable them to
exercise these rights;
(f) The same rights and responsibilities with regard to
guardianship, wardship, trusteeship and adoption of
children, or similar institutions where these concepts exist in
national legislation; in all cases the interests of the children
shall be paramount;
(g) The same personal rights as husband and wife, including
the right to choose a family name, a profession and an
occupation;
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(h) The same rights for both spouses in respect of the
ownership, acquisition, management, administration,
enjoyment and disposition of property, whether free of charge
or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be
taken to specify a minimum age for marriage and to make the
registration of marriages in an official registry compulsory.”
(Underling is ours)
It is important to also note that discrimination in CEDAW is
defined in Article 1 as:
“For the purposes of the present Convention, the term
"discrimination against women" shall mean any distinction,
exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human
rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.”
(Underlining is ours)
32.
The nations of the world have also recognised that
children have rights by virtue of being children. These
obligations are also obligations erga omnes and have since
been codified in the United Nations Convention on the Rights
of the Child (the “CRC”). Article 9 of the CRC, which is relevant
to this Petition, is reproduced for ease of reference:
“1. States Parties shall ensure that a child shall not be
separated from his or her parents against their will, except
when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures,
that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular case
such as one involving abuse or neglect of the child by the
parents, or one where the parents are living separately and a
decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present
article, all interested parties shall be given an opportunity to
participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is
separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular
basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by a
State Party, such as the detention, imprisonment, exile,
deportation or death (including death arising from any cause
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while the person is in the custody of the State) of one or both
parents or of the child, that State Party shall, upon request,
provide the parents, the child or, if appropriate, another
member of the family with the essential information concerning
the whereabouts of the absent member(s) of the family unless
the provision of the information would be detrimental to the
well-being of the child. States Parties shall further ensure that
the submission of such a request shall of itself entail no adverse
consequences for the person(s) concerned.”
(Underlining is ours)
Article 9 must be read with Article 37 of the CRC which clearly
states that:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment. Neither
capital punishment nor life imprisonment without possibility
of release shall be imposed for offences committed by persons
below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully
or arbitrarily. The arrest, detention or imprisonment of a
child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest
appropriate period of time;
(c) Every child deprived of liberty shall be treated with
humanity and respect for the inherent dignity of the human
person, and in a manner which takes into account the needs
of persons of his or her age. In particular, every child
deprived of liberty shall be separated from adults unless it is
considered in the child's best interest not to do so and shall
have the right to maintain contact with his or her family
through correspondence and visits, save in exceptional
circumstances;
(d) Every child deprived of his or her liberty shall have the
right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a
prompt decision on any such action.”
(Underlining is ours)
33.
The State of Pakistan acceded to CEDAW on
12.03.1996 without any reservations and ratified the CRC on
12.11.1990 with its only reservation being that the CRC’s
Articles will be interpreted in light of Islamic principles and
values. However, a holistic reading of the relevant Islamic
principles, the CRC and CEDAW lead us to the conclusion that
there is no legal justification for separating a mother from her
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child if the mother remarries. We frequently hear cases (the
instant matter being one such case) where litigants seek to
divest mothers from their children on no other ground than the
fact that they have remarried. This practice must end. Our
children, their mothers and both the welfare of the mother and
the child are paramount. To cite and rely on antiquated,
parochial and patriarchal constructs of dignity and honour in
order to distance and deprive children of their own mothers has
no basis in law.
34.
We are clear in our minds that the ordering of the
divestment of custody by the impugned judgement/order is
without lawful authority. No ground, basis or justification in
support of the impugned judgement/order has been shown or
posited by the learned counsel for Respondent No.3.
CONCLUSION
35.
An upshot of our discussion is that in the presence
of an adequate remedy, the High Court was constitutionally
barred from exercising jurisdiction under Article 199 of the
Constitution. As a result, all proceedings in Respondent No.3’s
writ petition are declared to be without lawful authority.
36.
We have also arrived at the conclusion that the very
writ petition filed by Respondent No.3 was bereft of merit and
was liable to be dismissed.
37.
We were also sanguine that the concerned
Guardian Court, seized of the guardian petition filed by the
Petitioner, would proceed with the matter expeditiously, with
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all due diligence, and conclude the matter as soon as possible
without granting any unnecessary adjournments. We were also
assured by the Petitioner, who was present in person, that she
would retain custody of the child and she would not transfer
the child to any other relative, subject to the decision of the
Guardian Court.
38.
We, however, observe that since the matter of
custody requires the recording of evidence and findings of fact
to be recorded by a Court of competent jurisdiction, our
observations shall be treated as tentative and confined only to
the impugned order/judgement of the Lahore High Court,
Lahore before us and will not, in any manner whatsoever,
influence the Guardian Court/Family Court, Gujrat seized of
the guardian petition filed by the Petitioner, which shall decide
the matter by independent application of mind to the facts,
circumstance, and evidence produced before the same.
39.
These are the detailed reasons for our short order
reproduced above, whereby the petition was converted into an
appeal and allowed, and the impugned judgement/order dated
21.09.2023 was set aside.
Judge
J
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