O R D E R     S H E E T

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

                                                   Const. Petition No. 105    of 2010

Date	Order with signature of the Judge

For Katcha Peshi.

15.3.2010

Miss Razia Sultana Rajput, advocate for the petitioner alongwith petitioner.

Mr. Qurban Ali Malano, advocate for Respondent No.3.

Miss Rubina Dhamrah, State counsel.

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            Petitioner married respondent No.3 about ten years ago and from the wedlock, it is stated in the petition, five children were born : Moazim (nine years), Miss Falak (seven years), Miss Kashish (six years), Miss Iqra (two years) and master Maisam (ten months). It is stated by the petitioner that she was turned out of her house by respondent No.3 because respondent No.3 contracted second marriage 1 ½ years ago. However, the petitioner was turned out of the house six months ago and only Miss Kashish is with the petitioner while four other children have been forcibly kept by the respondent No.3 with him. Respondent No.3 has denied that he has turned the petitioner out of his house. He states that the petitioner had herself gone away and he in fact has filed suit for restoration of conjugal rights as well as suit for custody which are pending in the Court of Family Judge, Mirpur Mathelo and the petitioner for malafide reasons is not attending that Court although notice has been published in the press.

            Learned counsel for the petitioner submits that mother has right of Hizanat of the minor children. Learned counsel for the respondent No.3 has submitted that welfare of the children lies with the father.  On 05.3.2010 the matter was adjourned because the parties stated that there are possibilities of compromise.

             The marriage still subsists and it is unfortunate that the parties have not been able to affect a compromise and the petitioner insists that appropriate orders be passed.

            Under Islamic Law prima facie, Hizanat of minor children are strictly regulated. As far as boys are concerned mother has right of Hizanat till the boy attains age of seven years. As far as the girls are concerned, mother has right of Hizanat of a girl till she attains puberty. Of course if the mother marries out of prohibitory decree, she forfeits her right of Hizanat. In this case, the petitioner’s marriage with her husband is still intact.

            It cannot be said that custody of the children with their natural father is in violation of  any law. However the Court in constitutional jurisdiction has to act in the aid of justice and justice demands that children’s custody at this stage be with person entitled to Hizanat under the Islamic Law.

            It need not be said that primary consideration in deciding custody of the minors is always welfare of the minors and the Court dealing with the matter exercises parental jurisdiction. As to where welfare of the minor lies can only be decided by the Family Court where according to learned counsel for respondent No.3 application under Guardians and Wards Act is pending. However,  respondent No.3 frankly concedes that no interim order has been passed by the Family Judge.

            In the above circumstances, it is ordered that custody of Miss Falak, Miss Iqra and Master Misam be handed over to petitioner while custody of Master Moazam shall be retained by respondent No.3.

            Needless to say that the Family Court where an appropriate application is stated to be pending or may be filed shall decide on the basis of welfare of the minors and in accordance with the law.

                                                                                                Judge