PLJ 2021 SC 50
[Appellate Jurisdiction]
Present: Mushir
Alam and Qazi Faez Isa, JJ.
Mst. BEENA--Petitioner
Versus
RAJA MUHAMMAD and others--Respondents
C.P. No. 4129 of 2019 and C.M.A. No. 10406 of 2019,
decided on 17.7.2020.
(On appeal against the judgment dated 16.09.2019 passed by the
Peshawar High Court, Peshawar in Writ Petition No. 1903-P of 2019).
Contract Act, 1872 (IX of
1872)--
----S. 25--Constitution of
Pakistan, 1973, Arts. 9, 14, 25 & 212(3)--Guardian and Wards Act, (VIII of
1890), S. 25--Application for custody of minor--Agreement between husband and
wife--Physical disability of mother--Concurrent judgments--Mother was give up
custody of minor--Public policy--Principles of policy--Right to hizanat--Rules
of hizanat--Determination for custody of minor--Direction
to--Constitutional mandate--Muslim personal law prescribes rules of hizanat
(custody); a mother in whom hizanat vests cannot be compelled to
surrender it nor can such surrender constitute consideration for an agreement
of khula--Custody of a child or rights to his/her custody cannot be
surrendered to obtain khula nor can husband demand such surrender--Agreement
to extent that mother surrendered custody of her child or which stopped mother
to claim his custody is not lawful consideration; it is contrary to Islamic
principles governing hizanat and law determining custody of minors and
thus forbidden--Welfare of minor cannot be relegated to personal interest of father
and such a clause or condition is against public policy--Father dragged out proceedings
and then unnecessarily invoked constitutional jurisdiction of High Court--There
was no reason for High Court to exercise its constitutional jurisdiction in
terms of Art. 199 of Constitution and to set aside perfectly well-reasoned and
legal judgments--Appeal allowed. [Pp. 54,
55 & 59] A, B, D & E
Contract Act, 1872 (IX of 1872)--
----S. 23--Public policy--Object of agreement--What
considerations and objects are lawful and what not--consideration or object of
an agreement is lawful, unless - it is forbidden by law; or is of such a nature
that, if permitted, it would defeat provisions of any law; or is fraudulent; or
involves or implies injury to person or property
of another; or Court regards it as immoral, or opposed to public policy--Consideration
or object of an agreement is said to be unlawful--Every agreement of which
object or consideration is unlawful was void. [P.
54] C
Ms. Jamila Jahanoor Aslam, Advocate Supreme Court and Syed
Rifaqat Hussain Shah, Advocate-on-Record for Petitioner.
Mr. Arshad Hussain Yousafzai, Advocate Supreme Court
along with Respondent No. 1 in person.
Child, Muhammad Rayan, produced
pursuant to Court order.
Date of hearing: 9.7.2020.
Order
Qazi Faez Isa, J.--The petitioner was married to the Respondent
No. 1 (‘the mother’ and ‘the father’ respectively) and they had
one son, Muhammad Rayyan, born in October 2012 (‘the child’). The mother
sought the physical custody of her son and the learned Family Judge granted it
to her. The father challenged the decision by filing an appeal, which was
dismissed. The learned Chief Justice of the Peshawar High Court exercising
jurisdiction under Article 199 of the Constitution of the Islamic Republic of
Pakistan[1]
(‘Constitution’) set aside the judgments and decrees of the learned Judges of
the Family Court and of the Appellate Court.
2. The High Court set aside two concurrent judgments by a pithy
three-page judgment and the reason for doing so is contained in its paragraph
4, reproduced hereunder:
Perusal of the record
reveals that marriage between the parties was solemnized some seven (07) years
ago, out of the wedlock, minor Rehan was born. Record further reveals that Respondent
No. 1 is a crippled / disable lady, who took ‘Khula’ from the petitioner at her
own will by waiving off her dower, coupled with the fact that the minor Rehan
would also remain in the custody of Respondent No. 1/father and in this regard,
a deed was executed on 16.03.2018, which is available on file, but this fact
has been overlooked by both the Courts below while deciding application of Respondent
No. 1. The only reason given by Respondent No. 1 for taking custody of minor is
that petitioner is a bad character person but this fact has not been proved
through cogent evidence. Moreover, Respondent No. 1 is a crippled/disabled lady
having no source of income except receiving special investment package, which
had been given to the widow of the village as alleged in para-5 of the
application/ suit while the petitioner is a Rikshaw driver and having earned
enough would take care of his son very well; hence, keeping in view the above
facts and circumstances of the case, both the Courts below have wrongly allowed
the custody of minor Rehan to Respondent No. 1 and the same are, thus, liable
to be set aside.
3. Ms. Jamila Jahanoor Aslam, the learned counsel representing
the petitioner-mother, submits that the mother was compelled to obtain khula
(dissolution of marriage) from her husband by foregoing her haq mehr,
which comprised of a house constructed on 5 marlas of land and 4 tolas of gold
by signing on the dotted line of an agreement dated 16 March 2018 (‘the
agreement’). This agreement also provided that the mother would not claim
the custody of her son. The learned counsel states that the clause of the
agreement whereby the mother gave up the custody of her child is contrary to
public policy and without consideration, therefore, void under the Contract
Act, 1872[2]
(‘the Contract Act’). She also relies on the judgment of this Court in
the case of Razia Rehman v. Station House Officer.[3]
The learned counsel next submits that in the impugned judgment the physical
disability of the mother was mentioned to deprive her of the child’s custody
which is contrary to law. Mere disability is not a ground to disentitle a
mother to raise her child and deny the child of the love, care and upbringing
that only a mother can provide, submits the learned counsel. The mother at the
time of her marriage and when the child was born was suffering from a physical
disability, yet carried her child for nine months and nurtured him. It is
further submitted that the resilience and determination of the lady is such
that she rose to the challenge life had thrown her way and supports herself by
working in an embroidery centre. In any event, learned counsel submits, ‘receiving
special investment package’ has nothing to do with a mother’s right to hizanat.
Concluding her submissions, the learned counsel states that since in law the
primary responsibility for maintaining a child is of the father it is
immaterial whether the mother is financially capable to maintain the child.
4. The learned counsel for the father submits that the parties
had entered into the agreement which the father abided by but which the mother
violated in seeking the custody of the child, and in doing so unnecessarily
dragged the father into different Courts. The learned counsel states that as a
consequence of the agreement the mother obtained khula from the father
and having done so cannot be permitted to violate the other terms of the
agreement, including, for the purposes of the present case, seeking the child’s
custody. It is further submitted by the learned counsel that the paramount
consideration in custody matters is the child’s welfare which in the present
case lies with the father as the mother is not physically able to take care of
the child’s needs as she is wheelchair bound. The learned counsel concluding
his submissions states that, the child was unwilling to go to his mother and
pointed out in Court that the child clung to the father and did not want to
even look at his mother, which self-evident reason was sufficient to deny the
mother custody of the child.
5. We have heard the learned counsel for the parties and with
their assistance examined the documents on record. It has come on record and
confirmed by the father that he has three children, two elder children aged
nine and ten years from a previous marriage who, we were told, reside in his
father’s house. The Respondent No. 1 lives in a separate house which is at some
distance from his father’s.
6. The learned Family Judge, Ms. Sidra Jalal, recorded the
evidence of both the parties and after hearing them came to a considered
decision that, the child’s welfare lay in the mother having his physical
custody. She further held that the mother’s disability was not a factor that
could deprive her of custody. And, even if the mother was financially incapable
to provide for the child, it was not her responsibility to do so but that of
the father to maintain the child. On each of these three points the learned
Family Judge was factually and legally correct. The judgment of the learned
Family Judge was upheld by the learned Judge of the Appellate Court. However,
these two concurrent judgments were set aside by the High Court by relying on
the agreement between the parties, and the clause therein stipulating that the
mother could not claim the custody of her son. The High Court held that the
mother’s physical condition meant that she was not able to look after her child
and further held that she was not financially independent. All three of the
reasons which prevailed with the learned Judge these were extraneous to the law
and shariah, pertaining to the personal law of Muslims.
7.
Through the agreement the mother obtained her release from her matrimonial bond
by foregoing her dower (haq mehr) and obtained khula. Muslim
personal law prescribes rules of hizanat (custody); a mother in whom hizanat
vests cannot be compelled to surrender it nor can such surrender constitute
consideration for an agreement of khula. The custody of a child or
rights to his/her custody cannot be surrendered to obtain khula nor can
the husband demand such surrender. The Constitution mandates[4]
that all laws must conform with the Injunctions as laid down in the Holy Qur’an
and Sunnah and no law shall be enacted which is repugnant to such Injunctions.
The Holy Qur’an, which enables khula,[5]
does not contemplate surrendering a child’s custody to secure khula nor
that it can constitute valid consideration for it. To insert such a condition
in an agreement of khula is contrary to the law and the Injunctions of
Islam.
8.
In the agreement under consideration the petitioner in order to obtain khula
not only surrendered her dower (haq mehr) but also agreed to forego the
custody of her son. The agreement to the extent that the mother surrendered the
custody of her child or which stopped the mother to claim his custody is not
lawful consideration; it is contrary to the Islamic principles governing hizanat
and the law determining the custody of minors and thus forbidden. An agreement
the object or consideration of which is against public policy is void, as
stipulated in Section 23 of the Contract Act, reproduced hereunder:
What
considerations and objects are lawful and what not. The consideration or
object of an agreement is lawful, unless - it is forbidden by law; or
is
of such a nature that, if permitted, it would defeat the provisions of any law;
or
is fraudulent; or
involves or implies
injury to the person or property of another; or the Court regards it as
immoral, or opposed to public policy.
In each of these
cases, the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
The
welfare of the minor cannot be relegated to the personal interest of the father
and such a clause or condition is against public policy. The clause in the
agreement whereby the mother agreed to give up her son’s physical custody
and/or not claim it is also without consideration. The welfare of a minor
cannot be subsumed by the interest of his father, and if this is done it will
be against public policy, and such clause or condition will be void. Such a
stipulation will also be void under Section 25 of the Contract Act because it
is without consideration.
9. We are indeed surprised that the High Court overturned two
concurrent decisions, and did so without quoting law, shariah or
precedent to support the decision. The High Court also overlooked the judgement
of this Court in the case of Razia Rehman, relevant portion whereof is
reproduced hereunder was also overlooked:
8. ... It is also an
un-deniable fact that according to the law of the land, any agreement reached
between the two parents, inter alia, regarding the custody of the minor
children is neither valid in law nor even enforceable. Therefore, even if it be
presumed that the petitioner-lady had, through some alleged compromise which
she is however, denying, waived her right of HIZANAT, the said compromise or
agreement had no binding force in the eyes of law.[6]
10. It also pains us to state that the High Court was not very
sensitive in dealing with the case. By referring to the petitioner as a, ‘crippled/disabled
lady having no source of income’. In determining the welfare of the child
and his custody neither the mother’s physical condition nor her income were
determinative factors. It was also inappropriate to refer to the mother as
crippled or disabled. The petitioner has a physical disability; she should not
be called a cripple or disabled. The mother has not resorted to beggary; she
works and earns an honest living. To denigrate such a lady was wholly
inappropriate. Instead she should be admired for demonstrating remarkable
determination and perseverance. Chief Justice Syed Mansoor Ali Shah, as his
lordship then was, in the case of Asfandyar Khan Tareen v Government of
Punjab,[7]
held:
13. Dignity has its
roots in the simple idea that justice consists of the refusal to turn away from
suffering. Most central of all human rights is the right to dignity. Dignity
unites the other human rights into a whole. The right to dignity reflects the ‘recognition
that a human being is a free agent, who develops his body and mind as he
wishes, and the social framework to which he is connected and on which he
depends. Human dignity is therefore the freedom of the individual to shape an
individual identity. It is the autonomy of the individual will. It is the
freedom of choice. Human dignity is infringed if a person’s life or physical or
mental welfare is harmed’.
16. The use of the
terms or words like “disabled”, “physically handicapped” and “mentally retarded”
characterize and label a person on the basis of an impairment, which negates
reasonable accommodation as they deny persons with disabilities the enjoyment
or exercise on an equal basis with others of all human rights and fundamental
freedoms. These words also amount to discrimination on the basis of
disabilities as they have the effect of impairing or nullifying the
recognition, enjoyment or exercise of persons with disabilities, on an equal
basis with others, of all human rights and fundamental freedoms. These words,
labels and characterization seriously offend the right to be a person thereby
infringing constitutional guarantees like right to life, right to human dignity
and right to non-discrimination of persons with disabilities, thereby violating
Articles 9, 14 and 25 of the Constitution.
20. In addition to the
above the Federal Government, as well as, the Government of the Punjab is
directed to discontinue the use of these words in official correspondence, directives,
notifications and circulars and shift to persons with disabilities or persons
with different abilities.
We endorse and approve his lordship’s
observations that pejorative words, like crippled or disabled, ‘seriously
offend the right to be a person thereby infringing constitutional guarantees
like right to life, right to human dignity and right to non-discrimination of
persons with disabilities, thereby violating Articles 9, 14 and 25 of the
Constitution.’ We may add that the Constitution permits ‘the State from making
any special provision for the protection of women and children’[8]
but does not permit discrimination.
11. The Principles of Policy[9]
(‘the Principles’) set out in the Constitution is the path, and the
destination, that the nation has set for itself. The Principles require that, ‘Steps
shall be taken to ensure full participation of women in all spheres of national
life’.[10]
If women with physical disabilities are considered not able to take care of
their children they would stand excluded from participation in family life and
excluded from the much higher proclaimed objective of participation in all
spheres of national life. The Principles also require that the State shall
protect ‘the mother and the child’.[11]
If a child is taken away from the mother, deprived of her love and the benefit
of her upbringing the mother and the child’s relationship is fragmented.
12. Another of the Principles provides that Muslims must be
enabled to live their lives ‘in accordance with the fundamental principles
and basic concepts of Islam’[12]
and ‘to promote unity and the observance of the Islamic moral standards’.[13]
The religion of Islam gives a high status to expectant ladies and mothers. When
performing the Hajj and Umrah pilgrimages, Muslims run between the mounts of Safa
and Marwah (Sa’ee) in the footsteps of the lady Haajar to emulate
her when she desperately searched for water for her child, Ismail (peace be
upon him). Haajar the esteemed mother is commemorated in perpetuity by
incorporating her actions as an integral component in the performance of Hajj
and Umrah of the Islamic Faith. A mother-child bond and a mother’s agony
instituted a religious obligation, a rare if not the only example, in world
religions. The mother of Islam’s progeny, lady Haajar is buried next to her
son, the Prophet Ismail (peace be upon him), in the Hateem, the crescent shaped
enclosure adjacent to one of the walls of the Holy Ka’ba, also known as Hijr
Ismail, the shelter constructed by Prophet Ibrahim (peace be upon him) for
his wife and child. Pilgrims from all over the world circumambulate the Holy Ka’ba,
including the Hijr/Hateem.
13. The high status of motherhood is reflected in the naming of
a chapter of the Holy Qu’ran after Maryam[14]
(Mary), peace be 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,[15]
a sign (ayatan) of God,[16]
truthful (siddiqatun)[17]
and devoutly obedient (qanitina).[18]
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.
14. In regards to the rights of the mother and child the law,
Islam and the Constitution are often violated. However, it is inexcusable when
constitutional office holders, who take an oath to uphold the Constitution and
are paid to do so, undermine such rights. Disregarding the Principles is
contrary to the express language of the Constitution, which provides that, ‘it
is the responsibility of each organ and authority of the State, and of each
person performing functions on behalf of an organ or authority of the State, to
act in accordance with those Principles in so far as they relate to the
functions of the organ or authority’.[19]
15. The Principles of Policy are contained in ten Articles[20]
and these were given by the people to themselves through their chosen
representatives when the Constitution was written. The importance of the
Principles is such that the President of Pakistan is required to submit an
annual report to Parliament and similarly the Governors to their respective
Provincial Assemblies,[21]
‘on the observance and implementation of the Principles of Policy’.[22]
16. During the hearing the learned counsel for the father
submitted that the right of hizanat of the child vesting in the mother
is nearly over. In response to our query we were told that the judgments of the
learned Family Judge and the learned Appellate Judge were not abided by, as the
father retained the custody of the child. Therefore, we cannot accept such a
preposterous contention because in doing so we will be rewarding those who take
the law into their own hands and violate the decisions of Courts vested with
jurisdiction. Every judgment must be abided by unless it is suspended and/or
set aside by
