Md. Abu Baker Siddique Vs. S.M.A Bakar and others, 38 DLR (AD) (1986) 106

Case No: Civil Appeal No. 78 of 1985

Judge: F.K.M.A. Munim,

Court: Appellate Division ,,

Advocate: Nurul Huq,Mr. Fazlul Karim,,

Citation: 38 DLR (AD) (1986) 106

Case Year: 1986

Appellant: Md. Abu Baker Siddique

Respondent: S.M.A Bakar

Subject: Family Law, Mohammedan Law,

Delivery Date: 1985-12-3

 
Supreme Court
Appellate Division
(Civil)
 
Present:
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
 
Md. Abu Baker Siddique
.....................Appellant
Vs.
S.M.A Bakar & others
……………Respondent
 
Judgment
December 3, 1985.
 
Muhammadan Law—Hizanat (custody of child)
Different schools of Muslim thought (Sunni) have difference of opinion about Hizanat. According to Superior Courts in the sub-continent, Hizanat is justified to fit in with the attending circumstances of the case in exercise of the discretion exercised by the Court………………(21)
 
Child’s welfare is of paramount importance in appointing guardian.
Welfare of the child is to be considered while appointing guardian of the minor consistent with personal law to which the minor is subject to. Deviation from Hanafi School of Law is permissible for appointment of guardian, on the paramount consideration of the Child’s welfare. The Appeal is dismissed….(23)
 
Cases Referred to-
Muhammad Bashir Vs. Mst. Ghulam Fatima, PLD 1953 Lah 73, Zainab Bibi Vs. Feroze-ud-Din, PLD 1954 Lah 704, Ali Akbar Vs. Most. Kaniz Maryam, (1956) 8 DLR Lah 43, Most. Sultana Begum Vs. Muhammad Shafi, (19,65) 17 DLR Kar 119 Mst. Munawar Jan Vs. Master Muhammad Afsar Khan, PLD 1962 Lah 142 and Rahimullah Chowdhury Vs. Mrs. Sayeda Helali Begum, (1968) 20 DLR 1 SC.
 
Lawyers Involved:
Fazlul Karim, Senior Advocate instructed by Sharifuddin Chaklader Advocate-on-Record. —For the Appellant.
Md. Nurul Huq, Advocate-on-Record —Nos. the Respondent Nos. 1-4.
 
Civil Appeal No. 78 of 1985
(From the Judgment and Order dated 29.5.85 passed by the High Court Division, Dhaka, in F.M.A No. 184 of 1984.)
 
JUDGMENT
 
Fazle Munim CJ.
 
1. This appeal arises from F.M A. No. 184 of 1984 decided by a Single Judge of the High Court Division, Dh­aka (Mr. Justice Sultan Hussein Khan) on 29th May, 1985.
 
2. Appellant filed an application under section 25 of the Guardian and Wards Act, (Act VIII of 1890) in the court of District Judge, Dhaka for custody of his minor son named Suja. The boy then about 8 years old, was born on 22nd May 1976. He married respondent No.3 who is an M.B.B.S. Doctor on 10th June 1973. On 16th July 1977 resp­ondent No.3 on getting a job left for Saudi Arabia leaving the boy with tha appellant. In July, 1978 she came back home and after two months again left for Saudi Arabia. This time she took the boy with her. Appellant also went so Saudi Arabia and lived with responded Bt No.3 but came back in April 1981 leaving the boy with respondent No.3. In a suit for dissolution of marriage filed at the instance of respondent No.3, her marriage with the appellant was dissolved in June 1982. In May 1984 respondent No. 3 returned with her son to Bangladesh sad went back to Saudi Arabia keeping the boy with her relations, namely, respondent No. 1 and her sister res­pondent No. 4.
 
3. At this stage appellant filed an applica­tion under section 25 of the Guardian and Wards Act for the custody of the boy. Resp­ondent No. 1 and his wife respondent No. 2 filed a written objection denying allegations made in the aforesaid application. It was stated that the boy has been suffering from sev­ere ailments called ‘Hirshtring'. Steps were taken to take the boy to U.K. where he might require operation. Welfare of the boy would be best served if he was allowed to live with his mother's relations besides examining the appellant and respondent Nos. 1 and 4 the boy was also asked several questions by the Court. On hearing the case and on consideration of the evidence the learned District Judge dismissed the application. Appellant preferred the above mentioned appeal in the High Cou­rt Division which was, however, dismissed.
 
4. Being aggrieved, appellant moved this Court and obtained special leave to appeal on the following terms:
 
"Mr. Fazlul Karim, learned Advocate for the petitioner, contends than the petitioner is a Superintending Engineer and he has sufficient means to look after his minor son and that he is also in a position to arrange his son's medi­cal treatment wherever if is available, and as such, rejection of his application for custody of, his son is clearly arbi­trary. Mr. Karim contends that the welfare of the petitioner's son cannot be expected at the hand-of the divorc­ed wife who may re-marry at any time. The question raised merits consideration. Leave prayed for is granted,"
 
5. Mr. Fazlul Karim, Counsel for the appellant, submitted that since the boy is over 7 years of age, appellant, his father, was entitled to his custody. Besides, appel­lant who is a Superintending Engineer had su­fficient means to provide for the boy's medi­cal treatment and, therefore, the refusal to order the custody of the son to the appel­lant was arbitrary.
 
6. Appellant's Counsel mentioned that since respondent No.3 may take to a second husband there is clear possibility of the boy being neglected by her. Moreover, the very fact that she left the boy with her relations amounted to cruelty. Also, the mother, being divorced, would teach him disrespect for appellant.
 
7. Mr. Md.Nurul Huq, Advocate-on-Record, who appeared for the respondents submitted that respondent No. 4 has been tak­ing utmost care in looking after the boy and providing him all necessary treatment in Bangladesh and abroad. On the advice for the doctors she took the boy to U.K. where he has already undergone operation Doctors in U.K. expressed the opinion that the boy may need another operation. Appellant never looked after the boy nor spent money over his treatment. She was even beaten up by the appellant in pre­sence of the boy. On the other hand, respondent No. 4 spent a huge amount of money in taking the boy to U.K. and in bearing his entire medical and other expenses there. Fur­ther, the boy being stricken with a critical disease as mentioned above is very much de­pendent on her mother who alone can give him tender affection and take proper care, both medically, and otherwise. It was never true that the boy was ever maltreated by her brother or brother's wife, respondent Nos. 1 and 2, or that they were creating hatred in the mind for the appellant, Also, the boy, being quite intelligent, expressed his preference to live with his mother and her rela­tions when asked by the learned District Jud­ge. This being an intelligent preference has been regarded, and quite rightly, by the court. It is only for the sake of love and affection for the boy that respondent No. 4 gave up her highly remunerative job in Saudi Arabia and came back to Bangladesh to live with her boy and take all necessary care, both medical and otherwise. So, the allegations of cruelty, irresponsibility and neglect made against her are false and malicious.
In this background the only question for determination is whether appellant or respon­dent No.1 is entitled to the custody of the person of the minor boy.
 
8. Mr. Fazul Karim, Appellant's Counsel, referred to the principles of Muslim Law regar­ding the custody of the person of minor children, male and female, and asserted that having regard to these principles which have been enunciated with a view to securing the welfare of minor children, it would have been just and proper if appellant father was given the custody of the boy. Principles as stated in Mullah's Principles of Mohammadan Laws are:
 
“352. Right of mother to custody of infant children. The mother is entitled to the custody (Hijanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.

357. Right of father and paternal male relations to custody of boy over seven of girl who has attained puberty. The father is entitled to the custody of boy over seven years of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given is sec. 355 above, and sub­ject to the proviso to that section. If there be none of these it is for the Court to appoint a guardian of the person of the minor."
 
9. Quite emphatically, the learned Counsel asserted that these principles cannot be departed from, but conceding, however, that the custody of a boy above 7 years of age can be taken away from the father only upon the ground of welfare of the boy. In support on his contention that the rule of Islamic law should be regarded and, in so regar­ding it, the custody of the boy should be given to the father who is entitled to it under Muslim Law. Appellant’s Counsel referred to the following cases, namely, Muhammad Bashir Vs. Mst. Ghulum Fatima PLD 1953 Lah 73, Zainab Bibi vs. Feroze-ud-din, PLD 1954, Lah 704 Ali Akbar Vs. Mst. Kaniz Mariyam, (1956) 8 DLR Lah 43, Mst. Sultana Begum Vs. Muhammad Shofi, (1965) 17 DLR Kar 119, Mst. Munawar Jan Vs. Master Muhammad Afsar Khan, PLD 1962 Lah 142 and Rahimullah Chowdhury Vs. Mrs. Sayeda Helali Begum, (1968) 20 DLR 1 SC.
 
10. These decisions, while recognising the principle of Islamic Law as to who is entitled to the custody of a minor son with reference to his or her age and sex. Simultaneously took into consideration the welfare of the minor child in determining the question. Courts in all these cases, seem reluctant to give automatic effect to the rules of Hijanat enunciated by Islamic jurists, if circumstances existed which justified the deprivation of a party of the custody of his child to whose custody he was entitled under Muslim Law, courts did and hesitate to do so. It may be argued, as the appellant's Counsel did, that the welfare of the child would be best served if his custody is given to a person who is entitled to such custody. Nevertheless, court's power to determine the entitlement of a party to the Hijanat is not limited to mere observance of age rule so as to exclude the consideration of the interest of the child which would, however, depend on the facts and circumstances of a given case.
 
11. Rules of hizanat as formulated in Isl­amic Law find place in Hedaya. There, the following tradition of the Holy Prophet (upon whom be peace) is quoted:
 
''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 she Prophet replied, "thou has a right in the child prior to that of thy husband, so long as thou doest not marry with a stranger:" (Chap­ter XIV on Hizanat).
 
In the Hedaya there is also mention of the reason as to why the mother should hive the hizanat of an infant child. Thus, it is seated 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".
 
12. Muslim jurists appear to have consi­dered the reasons for different age limits for boys and girls with respect to their hizanat. In Hedaya, it is stated:
 
"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 on her 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 the menstrual discharge, that is to say, until she attains the age of puberty, because a girl has occasion to learn such masers 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."
 
13. As against his submissions, Mr.Md. Nurul Huq, Advocate-on-Record for the res­pondents, contended that the main considera­tion in determining who is entitled to the custody of the person of the minor child, in other words, when there is contest regarding his guardianship is his welfare. Facts of this case show that the boy is suffering from a serious ailment, namely, "Hirsh ring", whose proper treatment required him to be taken to U. K where he underwent operation in the hands of expert surgeons involving consider­able expenses which were entirely borne by the mother, the need for a second operation which may, according to doctor's opinion, also have to be done there and the argent necessity for his constant care which only the mother could give, specially when she is herself u doctor, the determination of custody should be decided in favour of the mother.
 
14. Referring to the principle of guardian­ship or entitlement to the custody of a minor male child under Islamic Law, the learned Advocate cited a few cases on this point, namely, Mst. Zohra Begum Vs. Sh. Latif Ahmed Munawar, (1965) 17 DLR(WP) 134; PLD 1965 Lah. 695, Mst. Rashida Begum Vs. Shahab Din, PLD 1960 Lah 1142, Mst. Fahmida Begum Vs. Habib Ahmed, PLD 1968 Lah 1112 and Jamshed Sultan Taimoori Vs. Mst. Anisa Begum, PLD 1980 Kar 299. He submitted that in all these cases, the concept of the welfare of the minor would appear to be the deciding factor.
 
15. In these cases as well as those cited by the appellant's Counsel the concept of the welfare of the minor child, whether below or above the age limit, seems to have been of paramount importance.
In appointing the mother, respondent No. 4, the guardian in the instant case the Court has been satisfied that the welfare of the boy requires that the order should be made in her favour.
 
16. It appears that the mother who has been away to Saudi Arabia in connection with a job in a hospital came back to Bangladesh on 17th May 1985, presumably to live here permanently. The learned Single Judge of the High Court Division, after considering all the facts and circumstances of the case and hearing the arguments of the parties Counsels, con­cluded as follows:
 
"In view of the changed circumstances that the mother has come to Bangladesh and the minor is with the mother should the father be refused custody in preference to the mother. The mother being a doctor, she is better suited to look after the minor than the father in view of the peculiar illness of the minor and therefore the present position regarding custody of the minor should not be disturbed."
 
17. As regards reference to the binding nature of Islamic Law regarding custody of a minor child which was repeatedly empha­sised by the learned Counsel for the appel­lant, it will be admitted on all bands that there is absolutely no reason to differ from this position as long as the particular role of law to be applied is found either in the Quran or Sunnah, nor is there any reason to differ from a clear interpretation of any rule of the Quran or formulation of principle based on Quranic text represented by the do­minant opinion of a particular school of law, such as Hanafi, one of the four major schools of law governing Sunnis in Bangladesh. Needless to mention that so far as personal laws of Muslims are concerned when legal dispute arises between Muslims, rules enuncia­ted in the Hanafi School of law are applied.
 
18. Other reasons also led to the departure from the rule regarding the guardianship of minor children. Rules of hizanat or custody are seen to differ from school to school, namely, Hanafi, Shafei, Maliki and Hanbali. This shows that there was no consensus among the Jurists of these schools on the question of guardianship of minor children leaving scope for difference of opinion, there being no defi­nite rule in the Quran of Sunnah on the matter.
 
19. It appears that superior Courts m the Indian Sub-continent considered if permissible for Courts to depart, from such rule, that is to say, when there is no uniformity among the jurists of these schools of law and facts and circumstances of the particular case justified such departure.
 
20. During British rule in India also this was the position. Courts used to take gui­dance regarding these rules from the standard translations of two very distinguished classical compilations on Sunni Law, namely, the Hedaya and the Fatawa-Alamgiri. Thus, the Judicial Committee of the Privy Council reco­gnised the value and importance of these two books. It was observed:
 
"The Hedaya and the Fatawa-Alamgiri are recognised as standard authori­ties in India on the Hanafi branch of the Sunni Law. The English versions of the Hedaya and of the Fatawa-Alamgiri by Hamilton and Neil Bailies respectively are valuable works on Mohammedan Law." (Vide, Imambandi vs. Haji Mutsaddi AIR 1918 PC 11).
 
21. It is true that, according to Hanafi School, father is entitled to the hizanat or custody of the son over 7 years of age. Indis­putably, this rule is the recognition of the prima facie claim of the father to the custody of the son who has reached 7 years of age, but this rule which is found neither in the Quran nor Sunnah would not seem to have any claim to immutability so that it cannot be departed from, even if circumstance justified such departure. For example, on proof of the unfitness of the father to the custody of a male child over 7 years of age, courts are seem to exercise the discretion against his en­titlement according to the Hanafi rule.
 
22. Mr. Nurul Huq, respondents’ Advo­cate, in supporting this view referred to the case of Zohra Begum vs. Latif Ahmed Munawar. (1965) 17 DLR (WP) 134; PLD 1965 Lah 695. Here, the Court observed as follows:
 
“.....it would be permissible for Courts to differ from the Rule stated in the Text Books on Muslim Law for there is no Quranic or Tradi­tional Text on the point. Courts which have taken the place of Qazis can, there­fore, come to their own conclusions by process of Ijtihad which, according to Imam-al-Shafei is included in the doc­trine of Qiyas. It has been mentioned earlier that the rule propounded in diffe­rent text books on the subject of Hizanat is not uniform. It would, therefore, be permissible to depart from the rule stated therein, if, on the facts of a given case, its application is against the welfare of the minor, I am fortified in this view by the instance in which a Qazi finding hardship in the application of a rule of law to which the parties belonged sent the case to the Qazi of another school of law which took a liberal view of the matter.”
 
23. In cases involving the question of guardianship their decisions are seen to be influenced by the concept of welfare of the minor child concerned. In his connection it may be mentioned that under the provisions of Guardians and Wards Act, the Court to whom an application is made under that Act is to be satisfied that the welfare of the minor required the appointment of a particular per­son as his guardian, but the court is to make the appointment consistently with the law to which the minor is subject. Indeed, the prin­ciple of Islamic Law (in the instant case, the rule of hizanat or guardianship of a minor child as stated in the Hanafi School) has to be regarded, but deviation therefrom would seem permissible as the paramount consideration should be the child's welfare. We think in the present case the learned Single Judge, while considering the welfare of the boy, has rightly determined the question which need not be disturbed. Facts as mentioned above clearly point out that the welfare of the boy requires that his custody should be given to the mother or that she should be appointed as his guardian.
 
For the reasons staged above, the appeal is dismissed. There will, however, be no order as to costs.
 
Ed.