Entitlement of Father to Custody of Male Child
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This case involved a custody dispute over an eight-year-old boy named Rehan, whose parents Tahira Zaib and Ghaffar Ahmed had divorced. Both parents had since remarried. The father applied for custody of the child, while the mother sought to cancel his guardianship certificate and have herself appointed guardian instead. The Guardian Judge at Kotli ruled in favor of the father, and the mother appealed to the Azad Jammu and Kashmir High Court.
The mother argued the child had lived with her since birth and barely knew his father, and that under Islamic law a mother is entitled to custody of a male child until he turns seven. The father countered that both he and the child were British nationals, and that it would benefit the child's education and upbringing to live with him in the UK.
The High Court dismissed the mother's appeal and upheld the father's guardianship. It reasoned that the welfare of the child is the most important consideration in custody cases, that the mother had no shown means to financially support the child, and that the UK, being a welfare state, would help ensure the child's wellbeing even if the father struggled to pay maintenance. The court also noted the boy was of school-going age and would benefit from better educational opportunities in the UK, concluding that his welfare lay with his father.
یہ مقدمہ ایک آٹھ سالہ بچے ریحان کی سرپرستی کے تنازعے سے متعلق تھا، جس کے والدین طاہرہ زیب اور غفار احمد طلاق لے چکے تھے۔ دونوں والدین نے طلاق کے بعد دوسری شادیاں کر لی تھیں۔ والد نے بچے کی سرپرستی کے لیے درخواست دی، جبکہ والدہ نے والد کے سرپرستی سرٹیفکیٹ کو منسوخ کرنے اور خود کو سرپرست مقرر کرنے کی درخواست کی۔ کوٹلی کے گارڈین جج نے والد کے حق میں فیصلہ دیا، جس کے بعد والدہ نے آزاد جموں و کشمیر ہائی کورٹ میں اپیل دائر کی۔
والدہ کا کہنا تھا کہ بچہ پیدائش سے ہی اس کے ساتھ رہ رہا ہے اور اپنے والد کو تقریباً نہیں جانتا، اور اسلامی قانون کے مطابق ایک ماں کو لڑکے کی سرپرستی کا حق سات سال کی عمر تک حاصل ہوتا ہے۔ والد نے جواب میں کہا کہ وہ اور بچہ دونوں برطانوی شہری ہیں، اور بچے کی تعلیم و پرورش کے لحاظ سے یہ بہتر ہوگا کہ وہ برطانیہ میں اس کے ساتھ رہے
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PLJ 2016 Sh.C . (AJ&K) 12 Present : Azhar Saleem Babar, J. TAHIRA ZAIB--Appellant versus GHAFFAR AHMED and others--Respondents Family Appeal No. 58 of 2015, decided on 26.6.2015. Guardians and Wards Act, 1890 (VIII of 1890)-- ----S. 17(4)--Mohammedan Laws, S. 352--Custody of minor--Minor was aged 8 years--Mother was entitled to custody of male child until he had completed age by 7 years--Minor was british nationals--Interest of minor to take father to UK for education--Maintenance of son was legal obligation of father--Validity--Although, father of minor, was under obligation to pay maintenance of child, yet it would be difficult to manage payment of maintenance on regular basis, particularly when amount of maintenance allowance had yet not been ascertained by a Court of competent jurisdiction--United Kingdom is a welfare state and it can be legally presumed that State is responsible for welfare of its citizens--So, even if a father fails to fulfill his responsibility to maintain his child, state is there to fulfill its obligations--Minor, had attained age of 08 years, which was obviously school going age--Minor has a prospectus of getting better education in UK--So, welfare of minor son lies in guardianship of his father. [Pp. 13 & 14] A, B & C Raja Raza Ali Khan, Advocates for Appellant. Mr. Bashir Ahmed Mughal , Advocate for Respondents. Date of hearing: 26.6.2015. Order Written arguments on behalf of the parties have been filed. The above titled appeal has been filed against the order passed by Guardian Judge Kotli dated 17.06.2015.
2. Facts of the case are that out of wedlock of Tahira Zaib and Ghaffar Ahmed, a child named Rehan was born. The wedlock came to a legal end and custody of minor son is now disputed between the parties. Ghaffar Ahmed, father, filed an application for custody of minor son whereas Mst . Tahira Zaib filed an application for cancellation of Guardianship Certificate in the name of Ghaffar Ahmed and another application for appointing herself as guardian of the minor son. After hearing the parties, learned Guardian Judge Kotli decided the case in favour of Ghaffar Ahmed by holding that he is the eligible/legal guardian of the minor child Rehan . It has further been concluded that Ghaffar Ahmed being father of the minor son has a better legal right for guardianship as compared to Tahira Zaib , the mother.
3. Arguments heard, record perused. It has been contended on behalf of Tahira Zaib , appellant, that her minor son has been living with her since his birth and is not even familiar with the father. It has further been contended that Ghaffar Ahmed, respondent, has contracted a second marriage, so, welfare of the minor son lies in custody of the minor to mother. It has also been emphasized that although appellant has also contracted another marriage but her husband has consented to take care of her minor son. While relying on Section 17(4) of Guardian and Wards Act, it has been argued that the conditions apply when parents of the minor are British national and father is entitled to custody of the minor if it is necessary for imparting education to the minor.
4. On the other hand, learned counsel for the respondent in his written arguments has stressed that minor is aged 08 and under Section 352 of Mohammedan Law, a mother is entitled to custody of her male child until he has completed the age of 7 years. It has been urged that respondent and the minor are British nationals and it is in the interest of the minor son to take him to UK for his education and further brought up. PLD 2011 Lahore 362 referred.
5. I have considered the arguments. Ghaffar Ahmed, respondent, has been appointed as guardian of his minor son by the Guardian Judge Kotli . Tahira Zaib , appellant, filed an application for cancellation of guardianship in the name of Ghaffar Ahmed. Learned Guardian Judge framed issues on the application and decided that Ghaffar Ahmed is better entitled to guardianship and custody of his minor son. While deciding a case of guardianship and custody of a ward, welfare of the minor is the supreme object which has to be kept into consideration. Maintenance of a son is a legal obligation of a father. It has not been brought on record that Tahira Zaib is a working lady. Obviously, she has no means to maintain her minor son. Although, respondent being father of the minor, is under obligation to pay maintenance of the child, yet it would be difficult to manage payment of maintenance on regular basis, particularly when amount of maintenance allowance has yet not been ascertained by a Court of competent jurisdiction. Ghaffar Ahmed, respondent as well as his minor son Rehan is British national. United Kingdom is a welfare State and it can be legally presumed that the State is responsible for welfare of its citizens. So, even if a father fails to fulfill his responsibility to maintain his child, the State is there to fulfill its obligations. After divorce, Ghaffar Ahmed and Tahira Zaib both have married spouses of their choice, so, the appellant has no edge of herself being mother of the minor child. It is worth mentioning here that Rehan the minor, has attained the age of 08 years, which is obviously school going age. The minor has a prospectus of getting better education in UK . So, in my view, learned Guardian Judge has rightly concluded that welfare of the minor son lies in guardianship of his father. Upshot of the above discussion is that appeal being devoid of force is hereby dismissed. Learned Guardian Judge Kotli is at liberty to get his order implemented. Order Announced (R.A.) Appeal dismissed