The family court system in Pakistan is fraught with inconsistencies and judicial misapplications when determining the intelligent preference of a minor in custody proceedings. The doctrine of intelligent preference, while recognized in theory, is often applied arbitrarily, leading to contradictory outcomes. Take the case of Abdul Ghaffar v. Shoukat (2022 YLR 2482 Peshawar High Court), where the court rightly identified that the minor’s preference had been influenced by the custodial maternal uncle who instilled hostility against the father. The court concluded the minor could not form an independent choice. Now, contrast this with Mst. Safia Bibi v. Additional District Judge (2022 CLC 762 Lahore High Court), where the court ruled that minors aged 16 and 15 were mature enough to make an intelligent choice. The glaring inconsistency here is evident—some courts dismiss a minor’s preference outright due to alleged external influence, while others accept it without scrutiny. There is no standardized process for assessing whether a minor’s choice is indeed intelligent or the product of coercion. The Guardians and Wards Act, 1890, Section 17(3), states that if a minor is old enough to form an intelligent preference, the court “may” consider it, but the use of “may” gives unchecked discretion to judges, creating wildly divergent rulings based on personal interpretations rather than legal certainty.
Courts also fail to properly assess the minor’s maturity and capacity to form an intelligent preference. The decision in Mst. Fouzia alias Waziran v. SSP, District Jamshoro (2021 PCrLJ 1753 Karachi High Court) acknowledges that a minor’s moral, spiritual, and material well-being must be considered, including their age, sex, and capacity to choose. However, in Muhammad Jameel v. Muhammad (2021 YLR 39 Azad Kashmir High Court), the court defaulted to the father’s claim based on Islamic principles rather than a genuine evaluation of the minor’s preference. This judicial double standard leads to unpredictability, where a child’s preference is upheld when convenient and dismissed when it contradicts entrenched biases. In Mst. Farzana Kausar v. Muhammad Tufail (2009 YLR 2339 Lahore High Court), a seven-year-old’s preference was disregarded, yet in Mst. Naseem Kausar v. Muhammad Saleem (2003 MLD 1306 Lahore High Court), a ten-year-old’s preference was deemed binding. There is no uniform threshold for when a minor is considered capable of forming an intelligent choice, and the courts do not employ child psychologists or standardized assessment tools to make this determination.
Another fundamental flaw in the system is the bias against mothers due to rigid applications of Islamic custody norms. Courts often assume that custody should automatically shift to the father after the age of seven for a male child, regardless of his ability to provide emotional stability or parental care. In Mst. Tahira Parveen v. District Judge, Layyah (2022 MLD 1693 Lahore High Court), the court acknowledged that the father had failed to maintain the child and develop a close relationship, yet custody was still a point of contention. In contrast, Mst. Fatima Zahra v. Muhammad Sheroz (2022 MLD 1506 Karachi High Court) stressed that the welfare of the minor is paramount over parental entitlement. The inconsistencies between these cases demonstrate the judicial reluctance to move beyond rigid custody norms and truly evaluate the child’s best interests. The case of Muhammad Nazir v. Additional District Judge, Mianwali (2009 CLC 1010 Lahore High Court) further highlights this prejudice, where the court ruled that a stepmother could never substitute for a real mother, yet in Imran Ahmed v. Mst. Madiha Younus (2018 YLR 649 Karachi High Court), a father’s custody was prioritized simply because the mother had remarried. The courts use the mother’s marital status as a disqualifying factor, even though no clear link exists between remarriage and the inability to care for a child.
Beyond this, courts fail to recognize the influence of external factors such as parental alienation and manipulation, which can corrupt the minor’s independent judgment. The 1999 PCrLJ 1711 Karachi High Court ruling correctly pointed out that a minor who has been in the custody of one parent for an extended period can be brainwashed against the other. Yet, in 2015 PLD 401 Lahore High Court, the court disregarded this concern and upheld a minor’s preference to stay with their paternal aunt despite clear evidence of long-term influence. This selective acknowledgment of manipulation is a recurring issue, where courts entertain claims of coercion only when it suits their predetermined conclusions. In 2003 CLC 729 Peshawar High Court, the father was granted custody after 12 years without considering that the minor had developed a stable life with the mother and had not received maintenance from the father. Courts are too quick to disregard long-standing custodial arrangements in favor of outdated legal presumptions.
The lack of clear guidelines on determining a minor’s welfare is another core problem. The decision in 2009 MLD 33 Lahore High Court ignored the financial position of the mother when awarding custody, while 2009 CLC 1010 Lahore High Court placed heavy emphasis on the father’s superior financial status. Similarly, 2003 MLD 1306 Lahore High Court ruled that a minor should be placed with the mother due to the father’s work schedule, while 2020 CLC 1489 Karachi High Court dismissed similar concerns. This inconsistency proves that the concept of “welfare” is applied at the court’s convenience rather than through an objective, legally defined framework. The 2005 MLD 828 Lahore High Court ruling failed to consider that the father’s military service made him incapable of providing hands-on parental care, yet custody was still transferred to him based on technical guardianship rights. The failure to examine practical caregiving realities results in children being placed in environments where their well-being is secondary to legal formalities.
The flaws in the family court system can only be remedied through judicial reform. There must be a uniform, standardized procedure to evaluate a minor’s intelligent preference, including mandatory psychological assessments to determine whether their preference is genuine or the result of undue influence. Judges must undergo training on child psychology and welfare principles to ensure custody determinations are based on objective criteria rather than traditional biases. Furthermore, courts must apply the welfare principle consistently, evaluating all aspects of a child’s life—including financial security, emotional stability, historical caregiving, and educational continuity—rather than allowing arbitrary rulings based on subjective interpretations of parental entitlement. Protection against parental alienation must be strengthened to prevent minors from being used as pawns in custody disputes, and mandatory mediation should be introduced to prevent prolonged litigation from damaging the child’s well-being.
Pakistan’s family court system is currently a battlefield of conflicting precedents, where intelligent preference is either weaponized or ignored based on the court’s inclinations. The same legal principles that should protect a minor’s welfare are being distorted to fit judicial convenience. Until the judiciary establishes a clear and consistent methodology for assessing a minor’s preference, custody disputes will continue to be decided in a manner that is neither legally sound nor in the best interest of the child.
Flaws in the Family Court System in Pakistan Regarding Intelligent Preference of Minor in Custody Proceedings
1. Misapplication of “Intelligent Preference” in Custody Decisions
One of the primary issues with the family court system in Pakistan is the inconsistent application of the doctrine of intelligent preference in custody cases. Courts frequently overlook, misinterpret, or selectively apply the minor’s choice depending on the circumstances, often leading to contradictory outcomes.
Case: 2022 YLR 2482 (Peshawar High Court)
The court rightly recognized that the minor’s preference was influenced by the custodial party (maternal uncle) who had created hostility against the father. The minor was, therefore, deemed incapable of forming an intelligent preference.
This case exposes a common flaw: Courts often fail to conduct an independent assessment of whether the minor’s choice is free from undue influence, leading to erroneous custody determinations.
Case: 2019 MLD 1502 (High Court Azad Kashmir)
In contrast, the court fully considered the minors’ preference to stay with their mother and found that the father’s busy schedule and lack of bonding made him an unsuitable guardian.
This demonstrates judicial inconsistency, where sometimes the minor’s preference is accepted, and at other times, it is dismissed under claims of external influence.
2. Failure to Assess the Minor’s Maturity and Capacity to Form an Intelligent Preference
Courts frequently assume a minor’s preference is intelligent or dismiss it outright without an adequate psychological or developmental assessment.
Case: 2022 CLC 762 (Lahore High Court)
The court acknowledged the importance of intelligent preference, stating that at the ages of 16 and 15, minors were old enough to form an opinion, and their wishes should not be ignored.
This is in contrast to 2022 YLR 2482, where a minor’s opinion was deemed invalid without conducting a proper inquiry.
Case: 1987 MLD 3311 (Karachi High Court)
The court’s failure to record the preference of a 16.5-year-old minor was deemed fatal to the case.
This highlights how lower courts arbitrarily ignore the maturity of minors when their preference does not align with the court’s preconceived notions.
Case: 2003 CLC 729 (Peshawar High Court)
The minor was not given an opportunity to express his preference despite being of sufficient age.
This indicates that procedural safeguards to ascertain the true choice of the minor are often absent.
Legal Standard:
The Guardians and Wards Act, 1890, Section 17(3) states that if a minor is old enough to form an intelligent preference, the court “may” consider it. However, the term “may” gives discretion to the court, leading to inconsistent interpretations across different judgments.
3. Judicial Bias Against Mothers Due to Islamic Custody Norms
Islamic law provides that a mother has custody of a male child until the age of seven, after which the father is entitled to custody. Courts often rigidly apply this rule without considering whether the father is capable of ensuring the child’s welfare.
Case: 2022 MLD 1693 (Lahore High Court)
The court rightly ruled that the welfare of the minor overrides the father’s right to custody, especially when he failed to maintain the child.
However, in other cases, such as 2022 YLR 2482, the father’s right was prioritized over the maternal uncle’s custody.
The inconsistency shows that courts do not always give weight to the minor’s intelligent preference when a father’s claim is at stake.
Case: 2009 YLR 2339 (Lahore High Court)
The court overturned an appellate decision that had given custody to the grandfather based on the minor’s consent.
The court stated that a seven-year-old was too young to make an intelligent preference, yet in other cases, older minors’ preferences are ignored.
4. Influence of External Factors (Brainwashing & Hostility)
Many custody cases involve one party manipulating the child against the other, leading to biased or coached preferences.
Case: 2022 YLR 2482 (Peshawar High Court)
The maternal uncle influenced the minor against his father, leading the court to conclude that the minor’s preference was not intelligent.
This aligns with 1999 PCrLJ 1711 (Karachi High Court), where the minor was in the custody of the father for over nine months and was potentially brainwashed.
Case: 2020 CLC 1489 (Karachi High Court)
The father argued that the minor’s preference was immaterial, which the court rightly rejected.
However, this contrasts with 2003 MLD 1306 (Lahore High Court), where a 10-year-old’s preference was accepted without evaluating whether it was influenced by the mother.
Judicial Discretion Creates Disparities
There is no uniform standard for evaluating whether a minor has been coached or brainwashed, leading to inconsistent decisions.
5. Lack of Clear Guidelines on Determining Minor’s Welfare
Family courts in Pakistan lack a structured framework for evaluating the welfare of the minor beyond the intelligent preference doctrine.
Case: 2015 PLD 401 (Lahore High Court)
The minor had been with their paternal aunt since infancy, and the court ruled in favor of maintaining continuity.
However, in 1998 MLD 1697 (Quetta High Court), a stepmother was allowed custody over the biological un3ty to external influence, and lack of standardized welfare guidelines. Legal reforms, including structured assessments, judicial training, and protection against parental alienation, are essential to ensure that custody decisions genuinely reflect the welfare of the minor rather than arbitrary judicial interpretations.
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