child custody in Pakistan

Child Custody in Pakistan, FAQs, and relevant case law on Section 491 CrPc, Section 100 CrPc Section 12 and Section 25 of the Guardians and Wards Act, Pakistan (including other procedural considerations) Guardians and Wards Act, Custody of Minors, Visitation Rights, Welfare of Minor, Modification of Visitation Schedule, Jurisdiction of Guardian Court.

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Complex Terrain of Child Custody Laws in Pakistan

In Pakistan, the legal landscape governing child custody remains fraught with ambiguities and inconsistencies, primarily due to the deficiencies within the Guardians and Wards Act 1890. This Act, which is pivotal in custody disputes, has been subject to criticism for its inability to clearly demarcate between custody and guardianship, leading to varied judicial interpretations and inconsistent judgments.

Guardians and Wards Act 1890: A Closer Look

The Act conflates the concepts of custody and guardianship, often leading to their interchangeable use in legal proceedings. Custody, which involves the day-to-day care and emotional nurturing of the child, is often viewed under the broader umbrella of guardianship, which pertains to legal transactions and contracts on behalf of the minor. This overlap in definitions has led to a scenario where mothers typically assume custody, while fathers take on guardianship responsibilities, though this traditional allocation is subject to change based on the child’s welfare.

Judicial precedents further illustrate this conflation. Over the years, courts have attempted to define custody within the parameters of guardianship, yet no uniform standard has emerged. This has resulted in an overreliance on case law to navigate custody disputes, leading to a patchwork of rulings that often contradict one another.

The Predicament of Custodial Rights and Welfare of the Minor

The primary consideration in custody cases is the welfare of the minor, a notion that is paramount in Pakistani jurisprudence. However, the application of this principle varies greatly. For instance, courts have differed in their interpretation of the child’s religion’s impact on custody decisions. Additionally, the mother’s custodial rights can be challenged under certain circumstances, such as refusal to breastfeed, based on interpretations of Islamic law and principles of fairness to both parents.

The Intersection of Islamic Law and Judicial Discretion

Pakistani courts, while adhering to Islamic principles, have shown flexibility in interpreting custody laws. This flexibility, however, often leads to disparate rulings that can affect the rights of both the custodian and the child. The lack of detailed statutory rules on custody means that judges exercise significant discretion, which, while necessary in some cases, can lead to unpredictability and inconsistency in judicial outcomes.

Efforts Towards Legal Reforms

Efforts to reform child custody laws in Pakistan have been ongoing. Proposals have included amendments to the Guardians and Wards Act 1890 to address gender disparities and the introduction of bills focusing on child welfare and protection. However, these efforts have yet to culminate in a comprehensive, consolidated statute that specifically addresses child custody issues in detail.

 The Need for Consolidated Custody Legislation

The existing legal framework in Pakistan, with its reliance on an antiquated colonial-era law and varied interpretations of Islamic law, underscores the urgent need for a consolidated child custody statute. Such legislation should prioritize the child’s welfare, provide clear and detailed rules on custody, and reduce judicial discretion to ensure consistency and stability in legal decision-making. This approach would not only streamline the custody process but also align Pakistan’s legal system more closely with international child rights standards, ensuring that the best interests of the child are always at the forefront.

You will find this resource helpful  if you are :

(a) a parent

(b) a grandparent

(c) grandparent taking care of a child when either one or both (the mother or father) are dead.

(d) a step parent

(e) an Aunt or an Uncle

(f) A non-custodial parent looking for fair visitation rights and access to your children

Update December 2023: 

(1) The cases of 2023 PLD 433 Lahore-High-Court-Lahore and 2017 CLC 1747 Lahore-High-Court-Lahore address the issue of the appealability of interim orders under Section 12 of the Guardians and Wards Act, 1890, in the context of family law disputes in Pakistan. In the first case, it was held that a constitutional petition against an interim custody order is maintainable as the remedy of appeal against such an order is not available. In the second case, the High Court observed that an order passed under Section 12 by the Family Court/Guardian Court was appealable under Section 14 of the Family Courts Act, 1964. These cases collectively suggest that while traditionally interim orders under Section 12 might not be appealable, there are circumstances under the Family Courts Act where such appeals are considered valid.

(2) 2023 PLD 433 Lahore-High-Court-Lahore: This case clarifies the jurisdiction of Family Courts in custody disputes involving minors with mental disabilities. It establishes that the Family Courts Act, 1964, retains jurisdiction over such cases, and the Mental Health Ordinance, 2001, does not override this despite its broader scope concerning the management of mentally disabled persons.

(3) 2022 PLD 32 Supreme-Court: This ruling underscores the paramountcy of the welfare of minors in custody decisions. It demonstrates that factors like a parent’s failure to fulfill duties, the circumstances of a parent’s death, the child’s preferences, and the current guardian’s ability to provide for the child are crucial considerations. The case also highlights the impact of a parent’s involvement in adverse events on the child’s welfare.

(4) 2021 YLR 2127 Lahore-High-Court-Lahore: The central principle in this case is the focus on the welfare of the minor in custody decisions. It emphasizes that a parent’s lack of interest in the child’s welfare, failure to exercise visitation rights, and the child’s comfort with the current guardian are significant factors in determining custody. The ruling reinforces that a parent’s detachment and negligence are critical in custody determinations.

(5) 2021 YLR 2030 Lahore-High-Court-Lahore: Emphasizes the Guardian Court’s jurisdiction to modify visitation schedules for the welfare of minors. Highlights the court’s authority to alter previous orders to safeguard minors’ interests.

(6) 2021 YLR 1915 Lahore-High-Court-Lahore: Upholds the importance of both parental roles, asserting that a father’s right to access his child cannot be denied, emphasizing the need for emotional balance from both parents.

(7) 2021 YLR 1299 Lahore-High-Court-Lahore: Focuses on the discretion of the court in visitation rights, considering the minors’ preferences while guarding against potential parental influence. Advocates for maintaining a bond with both parents for the minors’ welfare.

(8) 2021 CLC 1089 Islamabad: States that constitutional petitions are not maintainable against interim orders in family matters, respecting the specific exclusions in the Family Courts Act, 1964. This respects the legislative intent and prevents circumventing the law.

Common FAQs

Question (1) : I am an overseas Pakistani.My wife in Pakistan has deserted our two small children and left for her parent’s house. They were living at their Grandparents house. Today I have received summons that that a petition of Habeas Corpus under section 491 Criminal Procedure in the Islamabad district court and Sessions Judge Lahore, has been filed against my parents. Basically she wants to take away my two children and live with her parents. I am aware of her parent’s rather vile nature as they have made us fight since day 1 of our marriage and I feel helpless losing my sons.

Follow up question: How old are your children? 

Response: They are 9 and 10 years old. Both boys.I also want them to come live and get educated at my current country of residence.

Answer:  It is relatively easy for your parents to defend the petition based on proper evidence.The main challenge will be to prove that she has never been denied the right to collect the children from the grandparents house and the children were left there voluntarily.It will be better if you can share a copy of the 491 application.However considering a review of the case law where 491 is used by mothers against in-laws and fathers, the court will still make an interim custody order for the children to leave with their mother, and we do understand the heartbreak it may bring to your parents.

I wanted to add that there is a case from 2013 (citation) 2013  MLD  1640 where in a Section 491 CrPc action there  the plea of wife (petitioner) was that the husband (respondent) had turned her out from his abode and kept custody of minors forcibly, whereas plea of respondent was that she had voluntarily abandoned minor.The court took the view that such disputed facts could not be decided without evidence, which High Court would not record in exercise of jurisdiction under S.491, Cr.P.C. for being summary procedure.It was held that the High Court in exercise of inherent jurisdiction could pass an appropriate order while keeping in view welfare of minors of such tender age and attending circumstances.The High Court however accepted petition and directed husband to hand over interim custody of minors to wife while directing Guardian Judge to decide case expeditiously while restrained parties to remove minors from jurisdiction of Guardian Judge without his express order and allowed husband to visit minors at specified time.Now you are abroad and the kids are with your parents.I would seem that her action under 491 may succeed to the extent of the kids being handed over to her for interim custody.

In the long term, based on the fact that your sons have crossed the age of 7 years and attained the age discretion and that now they need the direct supervision of their father, you can also claim permanent custody.If you claim custody as a resident Pakistani father, there may be better chances of getting custody. If however you want to take the kids abroad, it may end up becoming a long winded process.In such cases we often advise fathers to act tactfully and try to negotiate a custody agreement with the mother.Talking always helps.In some cases, the court may take the middle path, i.e. to hand over the custody of one child to each parent which has a risk of being detrimental to their mental well-being.In some cases courts have acted to keep the siblings united and in one place during custody battles.In your case however you are abroad so even this may not be passed as an order in your favour.

 For Custody you will be pleading under section 25 of the Guardian and Wards Act in the court Guardian Judge Lahore for the permanent custody of the minors on the ground that now the minors now need direct supervision of the father. The court generally looks at the ‘means’ test to judge the welfare of the minors, i.e. whether the father can maintain the children in terms of education and security and accommodation.But as the children are minors and were with their mother before she left, she will most likely become the custodial parent.

Also if you are planning to come back to Pakistan and she has taken the kids home with her and is not allowing you access to your children, you can apply under Section 12 of the Guardian and Wards Act for production of the children in court and to allow access to the children while any custody matters are being adjudicated.In our experience Section 12 is a better remedy for fathers and loving paternal grandparents to request access to children .If you are abroad and the wife starts shutting you down for contact with the kids via phones and video calls, you can still avail a section 12 order to get the court to direct her to allow you to regularly communicate with your children.

The court generally considers children who are over 7 years of age to have attained puberty and possible grounds of a successful application on your behalf can be as follows:

  • The boys need direct supervision of the father for their education and teaching.
  • The father has the financial means of maintaining his sons
  • The mother is dependent on her parents and because she is residing in her parents home herself,  and their accommodation is not appropriate for the children

Chances are that bearing in mind welfare of the minors the Guardian Court will hand over the custody of the minor sons to the father.However there are many challenges in proving that the mother is not a suitable custodian of the children and the home of her parents is not a good atmosphere for the children, especially when you are an overseas Pakistani and do not live here.

If the wife is just upset at you and has decided to live at her parents house and you do end up back in Pakistan to patch things up, a case for Restitution of Conjugal rights may be helpful to your situation.However if she has made up her mind for Khula or Divorce, then things may get complicated further.

Question 2: My husband and I divorced in 2013. I have three daughters and have been a single mom so far. I want to know at what age the daughters will be allowed by the court to be handed over to father who is paying child support to me nonetheless. I want him and his family to take responsibility for these children too as I work all day and am living hand to mouth taking care of their daily expenses through a private tutor job. I get no salary and my work is very much seasonal.I would like to take a break to pursue further studies so I can have better career options. Also if I get get well off in a few years, can I have my daughters back with me? I really need this break.

Answer: –

From the perspective of Islamic law the father can claim the custody of his minor daughters after they attain the age of puberty. Maybe you should approach him personally to take responsibility if he not keen on taking custody (especially because his parents may be willing to get him married again). As there is no hard and fast rule for taking the custody of a minor girl by the father; it basically depends on the facts and circumstances of every case. In many cases it is the mother refusing to let the daughters go to the father. In your case you seem pretty comfortable in allowing the daughter to go live with the father. So in your case a shared custody agreement or something exclusive in favour of the father can also take the burden off your shoulders so you can pursue your studies and career further.Be sure to have a well drafted agreement which details your visitation rights.

Regarding your last query, yes you can get custody of your daughters back  later on, even if you sign a private custody agreement to hand them over to your husband now, due to your bad financial circumstances.However if by that time your daughters have crossed puberty and court sees them as well settled with their father, you may not have a better recourse through the courts.

Question 3: I am an overseas Pakistani husband/father and a very successful business man married twice.My second wife in Karachi, Pakistan has blocked my phone number for unknown reasons and is not allowing me access to see and speak on Video Calls with my two year old son.I am devastated.I have proof I pay a lot of money into the account of my second wife for child support and maintenance.She has her own flat and overall our marriage has been amicable even though I am abroad.She has been passive aggressively asking me to buy property in her name for the last two months and I feel she may be boycotting me as I have refused to do this so far.How do I get access to see my son on video again as I am getting depressed now.I do not want to buy property in the lady’s name as I have other children to support as well and am saving up for their college.

Further question: Do I have a chance to take my kid abroad as I can give him a wonderful future there?

First of all, a valid question.The lady is living alone in a flat in Karachi, with a toddler.Have you raised an alarm with the police or relatives to do a welfare check on the wife if she is OK? What if she has been a victim of crime and is unable to reach out to you.How do you know her number is blocked? Are your mom/dad and or her parents living nearby? It would help to register an online police complaint while you are overseas to do a check on her whereabouts.This is especially so, if you do not have a history of restrained relations.

If you discover that she is OK and is just upset at you in general and things take the route for worse you do have an option to file for ‘production’ of minor under section 12 of the Guardians and Wards Act while you are still abroad asking the court to get your access to your child restored.

For the long run, you can offer the lady to come and live with you in Canada, maybe she is just alone and afraid for her future. Her coming overseas with the toddler can give you a better opportunity to bond with your son too.If she cannot make it to Canada for some reason it is worth concluding an agreement with her , depicting no objection from her in allowing the child to accompany you abroad on trips to your overseas Country.

As the child is young, and you are already married with children, getting full custody to get the child abroad is highly unlikely.After the Section 12 action and restoration of contact with your child, consider getting into a private custody agreement with the mother, addressing her financial insecurities and advising her to consider coming to Canada for higher education or a job, so you can be closer to your child.

Sometimes long-distance relationships can become stressed by bad communication, and instead of buying her a house, you can ask her if she wants to start a local business and you will happily give her financial assistance while she works through its establishment.

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The case notes below will allow the members of the public to better understand how interim custody, child production, access and visitation orders work.

Based on the cases we will discuss below, here are the key takeaways for child custody matters in Pakistan:

  1. Welfare of the Child: The paramount consideration in child custody cases is the welfare and best interests of the child. Courts consistently prioritize the child’s well-being and upbringing over other factors.
  2. Parental Rights: While parents have rights to custody of their children, those rights are not absolute. The court evaluates each case individually, considering the circumstances and what is in the child’s best interests.
  3. Mother’s Role: The mother’s role as a caregiver and her ability to provide for the child’s needs are crucial factors in custody decisions. Maternal custody is often favored, especially for younger children.
  4. Second Marriages: A parent’s decision to remarry, whether the mother or father, is taken into account. It may affect the court’s decision depending on how it influences the child’s environment and well-being.
  5. Financial Capacity: The ability of each parent to financially support and provide for the child is an important consideration. The parent’s financial stability and resources for the child’s upbringing are examined.
  6. Stability and Environment: The stability of the environment in which the child will be raised is significant. Courts assess factors such as the living conditions, family support, education, and emotional stability.
  7. Child’s Preference: The child’s preference, especially for children of a certain age, is taken into account while determining custody. However, the child’s choice is weighed against other relevant factors.
  8. Abduction and Snatching: Courts are cautious about cases involving alleged abduction or snatching of the child. If a child’s custody is lawfully with one party, the court may intervene to ensure the child is not wrongfully taken away.
  9. Foreign Jurisdiction: Custody orders from foreign courts may be recognized and enforced in Pakistan, especially if both parties have contested the matter in the foreign court.
  10. Petitions under Section 491 CrPC: Habeas corpus petitions (Section 491 CrPC) can be filed for custody of minors even during the pendency of applications before Guardian Courts.
  11. Change of Circumstances: A parent’s change of circumstances, such as returning from abroad or seeking to settle in Pakistan, can influence custody decisions, but the overall welfare of the child remains paramount.
  12. Preference for Maternal Grandparents: Courts tend not to interfere with maternal grandparents’ custody unless there is evidence of snatching or other compelling reasons.
  13. Multiple Children: Siblings are often considered together in custody matters to maintain family unity and provide stability.
  14. Judicial Discretion: The courts have significant discretion in making custody decisions, and their focus is on ensuring the child’s best interests are met.
  15. Communication and Documentation: Effective communication and providing evidence of the child’s well-being, care, and support can positively influence custody decisions.
  16. Please note if you cannot prove illegal and improper custody, Section 491 is not the correct remedy for your case.You should file under section 12 of Guardians and Wards Act.This is more so, if you are a father and will have a tough time proving illegal and improper custody if the kids are with the mother.As a parent, if the kids have been taken away by your in-laws and forcibly, by all means use the Section 491 remedy.Just be sure you have collated your evidence amicably and prove force and illegal detention of your minor child.

Case law and analysis on various issues of child custody, including interim child custody is discussed below.

The case  2013 MLD 562 revolves around a habeas corpus petition filed under S. 491 of the Guardians and Wards Act (VIII of 1890) for the recovery of a child. The child in question, aged approximately 13 years, was residing with his father, who is the respondent in the case. The petitioner, who is the mother of the child, sought the recovery of her child from the father without having previously sought custody through the appropriate Guardian Court channels. It is important to note that the petitioner did not allege any cruelty or maltreatment by the father.

The central issue raised in the case is whether the mother’s contention that she could not approach the Guardian Court due to threats of dire consequences from the father is a valid reason for not seeking custody through proper legal channels. The court found that the petitioner had not included any details about the alleged threats of dire consequences by the father in her petition. Therefore, the court held that this aspect of the petitioner’s claim lacked proper substantiation.

The court emphasized that the Guardians and Wards Act, 1890, provides the most efficacious remedy for matters related to child custody. The Act allows for applications seeking both interim and permanent custody of the child. In this case, the court noted that the petitioner had not exhausted this legal remedy before resorting to a habeas corpus petition under S. 491 of the Criminal Procedure Code.

It was further noted that the scope of a petition under S. 491, Cr.P.C, is limited to cases of “improper and illegal” custody. Since the petitioner did not provide evidence of maltreatment or cruelty by the father, the court concluded that the child’s custody with the father could not be deemed as illegal or improper based solely on the petitioner’s claims.In light of these considerations, the court dismissed the petition, emphasizing that the question of which parent could provide better welfare for the child should be determined by the Guardian Court. The court’s decision was grounded in the principle that the scope of the habeas corpus petition was constrained within the parameters of “improper and illegal” custody and did not extend to issues of child welfare and custody determination.

In the case of Roshni Desai v. Jahanzeb Niazi (2011 PLD 423 Lahore High Court), the Lahore High Court addressed the issue of custody of an illegitimate child under Islamic law in Pakistan. The key principles derived from this case are as follows:

  1. Legitimacy and Common Law Marriage: The court emphasized that the question of custody of a minor should be determined based on the child’s status under the applicable Pakistan law, particularly Islamic law. In this context, the court highlighted that Islamic law does not recognize a Common Law marriage or partnership as a valid marriage. Therefore, a child born to parents in a Common Law marriage is considered born outside of a valid marriage and, consequently, is not regarded as a legitimate child.
  2. Father’s Status: Under Islamic law, even though a father might be the biological parent of an illegitimate child, he has no legal tie or relationship with the child. Despite the biological connection, the father does not have any legal claim to custody or guardianship of the child.
  3. Mother’s Custody and Guardianship: Islamic law assigns both custody and guardianship of an illegitimate child to the mother. The mother is not only entitled to the custody of the child but also regarded as the sole guardian of the child. The father is excluded from any claim to custody or guardianship rights over the illegitimate child.
  4. Rights of Non-Muslim Mothers: Islamic law allows a non-Muslim mother to exercise the same rights of custody as a Muslim mother over an illegitimate child. This means that the custody and guardianship rights granted to a mother under Islamic law are extended to non-Muslim mothers as well.

In summary, this case highlights the principles governing the custody of an illegitimate child under Islamic law in Pakistan. It underscores that under Islamic law, an illegitimate child’s custody and guardianship rights primarily belong to the mother, while the father has no legal claim to such rights, regardless of his biological relationship to the child. Additionally, the rights of custody and guardianship extend to non-Muslim mothers as well.

 The case with the citation “2016 MLD 29 KARACHI-HIGH-COURT-SINDH” and involves the appellant, Karam Khatoon, as well as the opponent, Senior Superintendent of Police, District Khairpur.This case revolved around the restoration of custody of a minor child. The court highlighted the significance of S. 491, Cr.P.C., which offers a swift and effective remedy for individuals unlawfully held in custody. The court emphasized that the application of this provision does not prejudice the parties’ right to eventually have the matter conclusively adjudicated by a guardian judge. In this particular case, the mother, Karam Khatoon, sought the return of custody for her minor daughter, and the court ruled in favor of the mother, considering the child’s well-being and the necessity for appropriate legal proceedings.

The central issue of the case pertained to an application filed under S. 491 of the Criminal Procedure Code (Cr.P.C) for the restoration of custody of a minor.The facts of the case revolve around a minor girl, merely four years of age, who was forcibly removed from her mother’s care. The appellant, Karam Khatoon, who had been ousted from her husband’s residence and was residing with her parents along with her minor children, sought the restoration of custody of her four-year-old daughter. Karam Khatoon contended that her husband had forcibly taken away their minor daughter, and as the mother, she held a preferential right to the custody of the child, particularly given the tender age of the minor.

The opposing side, represented by the Senior Superintendent of Police, District Khairpur, argued that the father, being the legal guardian of the minor, possessed a superior right to retain custody. The father also asserted that Karam Khatoon lacked the resources to provide the child with a good education and ensure her overall welfare. In its analysis, the court considered the provisions of S. 491, Cr.P.C, which offer an efficacious and expeditious remedy for the release of individuals held in illegal or improper custody. The court noted that the application of S. 491 should not prejudice the parties’ right to have the matter finally adjudicated by a guardian judge. Given the circumstances, the court found the custody of the minor, who was approximately four years old, with the father to be irregular and improper. The court recognized the paramount importance of a child’s tender age and the necessity for constant love, care, and affection from the mother. It concluded that no person could substitute the mother’s role in providing these essential elements of upbringing. In light of these considerations, the court accepted Karam Khatoon’s application and issued a directive. The court ordered the father to hand over the custody of the minor to her mother, Karam Khatoon. Furthermore, Karam Khatoon was directed to ensure that the minor remained accessible to the father for periodical meetings, thereby upholding the child’s right to maintain a relationship with both parents.This decision reflects the court’s commitment to the well-being and best interests of the minor child, emphasizing the importance of maternal care and the child’s right to maintain a meaningful connection with both parents.

The case, cited as “2016 PCrLJ  78 KARACHI-HIGH-COURT-SINDH,” the appellant is Mst. Benish, and the opponent is Asif alias Atif Khan. This case concerns a habeas corpus petition pertaining to the custody of a minor. The applicant, who is the mother of a one-year-old minor boy, alleged that the father forcibly took the child from her custody. The mother argued that the child’s health was adversely affected by remaining in the respondent’s custody, and she sought custody as the mother, emphasizing the tender age of the child and the need for constant maternal care.

The court acknowledged the importance of a minor’s care, especially in their formative years, and noted that custody with the father could be deemed improper. The father contended that the child’s welfare might be compromised if placed in the mother’s custody, suggesting that this issue should be addressed through proper legal channels under the Guardians and Wards Act, 1890. The court agreed that the question of guardianship and the best interests of the child should be determined through a comprehensive legal process.

Consequently, the court allowed the mother’s application and granted her custody of the minor child. The court also facilitated visitation rights for the father, allowing him to see the child twice a month. This ruling reflects the court’s dedication to ensuring a child’s well-being and underscores the importance of a holistic legal approach in matters of custody and guardianship.

In the case, referenced as “2015 YLR 1765 LAHORE-HIGH-COURT-LAHORE,” Gull Arzoo is the appellant, and the opponent is the Station House Officer BZ, District Multan. This case involves a habeas corpus petition concerning the custody of a suckling minor. The court delineates the scope of paternal jurisdiction, emphasizing that the welfare of the minor child is of paramount consideration. The mother, Gull Arzoo, filed a petition for the recovery of her minor daughter who was in the custody of the father. The father’s contention was that he had sought an application under S. 25 of the Guardians and Wards Act, 1890, and the Guardian Court had restrained the mother from illegally taking the minor. The court uncovered the father’s mala fide intentions, as he did not produce the minor before the Sessions Court and provided misleading information. The High Court, acknowledging its paternal jurisdiction over matters of minor custody, performed its legal duty to ensure the child’s welfare. The court asserted that an order from the Guardian Court or the pendency of a custody petition does not bar the decision of an application under S. 491, Cr.P.C. The court found that no substitute for the real mother existed, and the minor’s proper upbringing could only be ensured by the mother. The court held that both the High Court and Sessions Court have concurrent jurisdiction under S. 491, Cr.P.C. The paramount consideration in matters of tender-age minor custody is the welfare of the child. Consequently, the constitutional petition was allowed, and custody was handed over to the mother.

The case, cited as “2015 YLR 2465 KARACHI-HIGH-COURT-SINDH,” involves Mst. Musarat Bibi as the appellant and Razzak Masih as the opponent. This case pertains to the right to custody of a minor and the determination of forum. The husband filed a petition under S. 491, Cr.P.C., seeking custody of the minor on the premise that the wife’s remarriage had forfeited her right of Hizanat (custody). The court accepted the petition and handed custody to the husband. However, the wife argued that the issue of Hizanat could not be decided under S. 491, Cr.P.C., and that custody by the mother could not be deemed illegal or wrongful, as she was the biological mother. She contended that the appropriate forum for such a question was the Guardian Court. The court determined that the custody and access to the minor fell under the exclusive jurisdiction of the Guardian Court. The court exercised its power to set aside the impugned order and restored the custody of the minor to the wife.

The first case, cited as “2015 YLR 2465 KARACHI-HIGH-COURT-SINDH,” involves Mst. Musarat Bibi as the appellant and Razzak Masih as the opponent. The case delves into the scope of S. 491, Cr.P.C. This provision empowers the court to direct a person within its appellate criminal jurisdiction to be brought before it and dealt with according to the law. The court can also order the release of a person illegally or improperly detained in public or private custody within its jurisdictional limits.

The second case, referenced as “2015 PCrLJ 875 KARACHI-HIGH-COURT-SINDH,” features Mst. Wafa and Aleeb as appellants and Imran Bhatti as the opponent. The case pertains to a habeas corpus petition and explores the scope of S. 491, Cr.P.C., specifically in relation to conditional orders. In this case, a minor girl around 4 years of age was living with her father. The Trial Court granted custody to the mother (applicant) and issued a conditional order that required the applicant to provide a personal recognizance bond, refrain from leaving a specific location without court permission, and ensure the father’s access to the minor.

The court analyzed the limited scope of S. 491, Cr.P.C., which is meant to provide immediate relief to individuals illegally or improperly detained within the court’s jurisdiction. It emphasized that the court must strictly adhere to the provisions of this section and not go beyond its intended scope. While the order for the recovery of the minor from the custody of the father to be handed over to the mother was deemed just and proper, the court clarified that imposing conditions on the applicant went beyond the authority granted by S. 491, Cr.P.C. The court modified the impugned order to eliminate the imposed conditions, asserting that proceedings under S. 491, Cr.P.C., are summary in nature and meant to offer efficacious relief.

In the case, cited as “2021 MLD 817 ISLAMABAD,” Ms. Shazia Akbar Ghalzai is the appellant, and the Additional District Judge, Islamabad (East), is the opponent. This case revolves around the interpretation of Section 17 of the Guardian and Wards Act, 1890, and the distinction between “custody” and “guardianship.” The court clarifies that “custody” pertains to the day-to-day upbringing, nurturing, and emotional care of a child. On the other hand, “guardianship” involves the responsibility of maintaining the child, conducting legal transactions on their behalf, and having a constructive custody over their person or property to fulfill the obligations of a guardian. The court emphasizes that the father retains natural guardianship even when the mother is granted custody of the child. Additionally, the court asserts that custody of a minor is not a prerequisite for being the guardian of their person or property.

In the case, cited as “2008 CLC 741 KARACHI-HIGH-COURT-SINDH,” Zafarin Iqbal is the appellant, and the State is the opponent. This case pertains to an application for a Letter of Administration under the Guardian and Wards Act, 1890. The court considers the appointment of a guardian ad litem and the application for the same under Order XXXII, Rule 3 of the Civil Procedure Code (C.P.C). The applicant, who is the mother of a minor and a widow, had demonstrated over the past decade that she had been caring for the minor without financial assistance from other family members. The applicant had become the single parent of the minor following her divorce from her second husband. Despite the minor having years to apply for the Letter of Administration, the court deemed the delay in applying as immaterial. Recognizing the applicant as the real mother of the minor, the court found her to be a suitable choice for the appointment as a guardian ad litem. The court granted the applicant’s application as prayed for under O.XXXII, R.3 C.P.C.

These cases provide valuable insights into the distinctions between custody and guardianship, as well as the considerations for appointing a guardian ad litem under the Guardian and Wards Act, 1890. If you require further elaboration or insights on these cases or related legal matters, please feel free to request additional information.

In the case cited as “2009 YLR 991 LAHORE-HIGH-COURT-LAHORE,” Nazan Bibi is the appellant, and the Additional District Judge, Jhang, is the opponent. This case centers around Section 25 of the Guardians and Wards Act, 1890, which pertains to the custody of a minor. The case underscores an essential principle that even though the father is a natural guardian, his right to “Hazanat” (custody) is secondary to the fundamental principle of the minor’s welfare. The welfare of the minor is the paramount criterion that should prevail in any case.

This principle signifies that while the father may have the legal status of a natural guardian, his claim to custody is subject to the overriding consideration of the child’s well-being. The court’s decision should prioritize what is in the best interests of the minor, regardless of the father’s natural guardian status.

This case note sheds light on the significance of the child’s welfare as the primary factor in determining custody matters. If you need further insights or analysis on this case or related legal topics, please feel free to request additional information.

In the case cited as “2021 YLR 1989 LAHORE-HIGH-COURT-LAHORE,” Sarosh Sikander is the appellant, and the Guardian Judge, Lahore, is the opponent. This case delves into the scope of Section 12 of the Guardian and Wards Act, 1890, and the issue of access for grandparents in matters of custody.

This case revolves around an application filed by the grandmother (respondent) for interim custody and visitation rights of a minor girl. The petitioner (mother of the minor) filed an application seeking the rejection of the grandmother’s application on the grounds of maintainability. The Guardian Court rejected the petitioner’s application.

The petitioner contended that the Family Courts Act, 1964, was enacted as a special law to address custody matters specifically between husband and wife. While the petitioner’s contention was valid, the court emphasized that the Guardians and Wards Act, 1890, also addresses situations involving grandparents as contestants. Therefore, the existence of the Family Courts Act does not preclude the Guardian Court from adjudicating on such matters.The court noted that the Schedule under Section 5 of the Family Courts Act initially prescribed “custody of the children” but was amended through the Family Court (Amendment) Ordinance, 2002. The amendment included the words “and the visitation rights of parents to meet them” after “custody of children.” This change extended the purview to include visitation rights of parents. The court concluded that the grandmother’s application was maintainable before the Guardian Court.

This case underscores the court’s recognition of the Guardians and Wards Act’s applicability even in cases involving grandparents as contestants. The court’s interpretation takes into account the evolving legal landscape and the welfare of the minor.

In the case cited as “2022 MLD 323 LAHORE-HIGH-COURT-LAHORE,” Muhammad Hassan Arif is the appellant, and the Additional District Judge is the opponent. This case centers around the scope of Section 12 of the Guardian and Wards Act, 1890, specifically pertaining to interlocutory orders for the production and temporary custody of minors.

Section 12 of the Guardian and Wards Act empowers the court to issue a direction for the production of a minor before the court, subsequently enabling the court to grant an order for the temporary custody of the minor. It’s essential to note that such orders are related to temporary custody, primarily passed when evidence has not been fully presented before the court. These interim orders must be guided by the best interests and welfare of the minor. However, it is crucial to avoid rendering a complete judgment without proper evidence. The court emphasizes that an order issued under Section 12 should not be treated as an order passed under Section 25 of the Guardian and Wards Act, which determines the long-term custody rights of the parties.

The language used in Section 12 clearly indicates that the nature of the order passed by the Guardian Judge is interlocutory, and any custody granted under this provision is of an interim nature. This underscores the temporary and provisional nature of custody granted under Section 12.

This cases highlights the provisional character of custody orders issued under Section 12 of the Guardian and Wards Act, emphasizing that they are temporary and intended to ensure the welfare of the minor while avoiding final determinations without sufficient evidence.

In the case cited as “2021 YLR 1267 PESHAWAR-HIGH-COURT,” Mst. Basri Irshad is the appellant, and Tauqir Hayat is the opponent. This case deals with the interplay between Section 491 of the Criminal Procedure Code (CrPC) and Sections 25 and 12 of the Guardian and Wards Act, 1890. The court clarifies that a petition under Section 491, CrPC, is maintainable even during the pendency of an application before the Guardian Judge for the custody of a minor. This highlights that the option of seeking habeas corpus relief is available concurrently with other legal avenues.

In the case cited as “2018 MLD 2001 PESHAWAR-HIGH-COURT,” Muhammad Ashar Malik is the appellant, and Sana Ashar is the opponent. This case revolves around issues of territorial jurisdiction and the scope of Family Courts Act, 1964, along with Sections 25 and 12 of the Guardian and Wards Act, 1890. The court emphasizes that for determining territorial jurisdiction, the Family Courts Act and Rules are to be considered rather than the provisions of Section 25 of the Guardian and Wards Act. The court highlights that the Family Courts Act includes custody of children and visitation rights of parents, allowing the mother to move the court within the local limits of her ordinary residence. The court notes that a plaintiff, besides seeking dissolution of marriage, can also claim custody of minors. In this case, the court determines that the Family Court at “P” has jurisdiction based on the permanent residence of both parties and the circumstances of the marriage.This case basically sheds light on the compatibility of Section 491, CrPC, with Sections 25 and 12 of the Guardian and Wards Act, as well as the determination of territorial jurisdiction based on the Family Courts Act and Rules.

In the case cited as “2018 MLD 727 KARACHI-HIGH-COURT-SINDH,” Mst. Eram Raza is the appellant, and Syed Mutaqi Muhammad Ali is the opponent. This case revolves around the interpretation of Sections 12 and 47 of the Guardian and Wards Act, 1890, in conjunction with the Family Courts Act, 1964. The petitioner, who is the mother, argued that an order of interim custody of a minor, being interlocutory in nature, can only be challenged through constitutional jurisdiction of the High Court. On the other hand, the respondent, the father, contended that matters of interim custody under the Family Courts Act are appealable before the District Court. The court held that matters related to guardianship, including custody, are exclusively triable by the Family Court created under the Family Courts Act, 1964. An appeal can be filed against an order passed under Section 12 of the Guardian and Wards Act, 1890, as it constitutes a “decision” given by the Family Court. The court clarified that such appeals lie before the District Court if the Family Court is not presided by a District Judge or Additional District Judge. Therefore, the constitutional petition was dismissed, and it was determined that appeals should be made through the appropriate appellate channels under the Family Courts Act.

In the case cited as “2010 CLC 1281 LAHORE-HIGH-COURT-LAHORE,” Muhammad Zulqarnain Satti is the appellant, and Mst. Ismat Farooq is the opponent. This case pertains to a custody dispute between parents. The mother’s application for custody of minors was dismissed by the Guardian Court, but the Appellate Court granted her interim custody on appeal. The father argued that custody had been granted to him at the time of divorce due to an agreement executed by the mother. The mother, however, contended that the father’s second marriage could negatively affect the minors. The court emphasized the paramount consideration of the welfare of the minors and upheld the grant of interim custody to the mother. The court dismissed the constitutional petition and directed the Guardian Judge to decide the main petition under Section 25 of the Guardian and Wards Act, 1890, within a stipulated timeframe.

In the case cited as “2006 YLR 2604 KARACHI-HIGH-COURT-SINDH,” the appellant is Ms. Quratulain Aleem, and the opponent is Muhammad Rehan Khan. This case centers around the interpretation of Sections 14 and 12 of the Guardian and Wards Act, 1890, and the Constitutional jurisdiction under Article 199 of the Constitution of Pakistan. The petitioner, Ms. Quratulain Aleem, filed a constitutional petition against an interim order passed by the Family Court. The Family Court had dismissed her application for interim custody of minors under Section 12 of the Guardian and Wards Act, 1890. The maintainability of the constitutional petition was challenged on the grounds that the petitioner had the remedy of filing an appeal before the District Judge instead of pursuing a constitutional petition.

The court delved into the nuances of Section 14 of the West Pakistan Family Courts Act, 1964, which referred to “decision given” or “decree passed.” The court observed that the legislature intended to convey two distinct meanings with these terms. While “decision given” would generally imply the conclusion of court proceedings, in this context, it indicated a declaration to be followed in subsequent proceedings of a case. The court clarified that an order under Section 12 of the Guardian and Wards Act, 1890, being of an introductory nature, would fall under the category of “decision given.”

The court emphasized that even though the term “decision given” was used, it did not necessarily imply a final determination. The court noted that no amendment had been made to the relevant section of the West Pakistan Family Courts Act, 1964, to alter the applicability of the terms “decision given” or “decree passed” to an order made on an interlocutory application like that under Section 12 of the Guardian and Wards Act, 1890.

Given these considerations, the court concluded that the remedy for the petitioner in this case was to file an appeal before the District Judge. The court held that a constitutional petition was not maintainable under these circumstances and dismissed the petition.

This case underscores the distinction between “decision given” and “decree passed” under the West Pakistan Family Courts Act, 1964, and emphasizes the importance of choosing the appropriate legal remedy based on the nature of the order.

Citation Name: 2021 MLD 817 ISLAMABAD (section 7 of the Guardian and Wards Act, 1890)

In this case, Ms. Shazia Akbar Ghalzai is the appellant, and the Additional District Judge of Islamabad (East) is the opponent. The case revolves around the distinction between “custody” and “guardianship.” The court clarified that “custody” refers to the day-to-day care, nurturing, and emotional needs of a child, while “guardianship” involves the obligation of maintaining the child, effecting legal transactions on their behalf, and retaining constructive custody for fulfilling guardian responsibilities. The court further emphasized that being granted custody does not necessarily mean being appointed as the guardian of a minor’s person or property. The judgment establishes that the father remains the natural guardian even if the mother has custody of the child.

Citation Name: 2010 MLD 42 LAHORE-HIGH-COURT-LAHORE

In this case, Mst. Muhammad Jan is the appellant, and the District Judge of Attock is the opponent. The case involves a custody dispute between the mother and the paternal grandmother over a minor child. The mother, after being expelled from her in-laws’ home by the paternal grandmother, filed a petition under S. 491 of the Criminal Procedure Code (CPC) for the recovery of the minor. The petition was dismissed after the minor expressed a preference to stay with his paternal grandmother. The mother then filed a petition under Section 7 of the Guardians and Wards Act, 1890, seeking to be appointed as the guardian of the minor’s person and property. This petition was also dismissed based on the minor’s preference. However, the Lahore High Court allowed the mother’s appeal, set aside the previous judgment and decree, and directed the Guardian Judge to hand over custody of the minor to the mother. The paternal grandmother challenged this decision in a constitutional petition.

The court’s analysis highlighted the mother’s sacrifices and commitment to her child, as she had not remarried despite being educated and employed. The court observed that the minor had been influenced to harbor negative feelings towards his mother, even making false allegations against her. The court noted that the tie between a mother and child was strong and irreplaceable. Furthermore, the court emphasized the significance of the welfare of the minor in custody matters and concluded that the minor’s welfare lay with his real mother. As a result, the constitutional petition filed by the paternal grandmother was dismissed.

Citation Name: 2021 YLR 1267 PESHAWAR-HIGH-COURT

In this case, Mst. Basri Irshad is the appellant, and Tauqir Hayat is the opponent. The matter revolves around the custody of minors under the Guardians and Wards Act (VIII of 1890). The court’s decision emphasizes that a petition under section 491 of the Criminal Procedure Code (CrPC) is maintainable even during the pendency of an application before the Guardian Judge for the custody of a minor. This implies that a party can seek habeas corpus relief under section 491 of the CrPC to recover custody of a minor, even if there is an ongoing application before the Guardian Judge.

Citation Name: 2019 MLD 1772 ISLAMABAD

In this case, Fizza Mai is the appellant, and Shahbaz Hassan Khan is the opponent. The case pertains to the custody of a minor and involves the maternal grandmother’s custody. The court’s analysis highlights that when it comes to exercising jurisdiction under section 491 of the CrPC, the court tends not to interfere with a maternal grandmother’s custody of a minor, especially when there is no element of snatching the minor. This suggests that the court may be cautious about intervening in cases where the maternal grandmother has custody, as long as there is no evidence of wrongful taking or snatching of the minor.

Dr. Mahreen Baloch versus the Province of Sindh through Secretary Home Department and others (Constitutional Petition No. S-854 of 2017). 

The case involved various legal considerations, including provisions from the Criminal Procedure Code (CrPC) and the Guardians and Wards Act, 1890.

Dr. Mahreen Baloch, the petitioner, sought the recovery of her two minor daughters who had been taken away from her. The court’s analysis emphasizes the distinction between the jurisdiction of courts under the Guardians and Wards Act, 1890, and the provisions of Section 491 of the CrPC in matters of custody and recovery of minors.

The court clarifies that the provisions of Section 491 of the CrPC provide a mechanism for speedy relief for the release of individuals kept under illegal or improper custody. When it comes to matters involving the custody of minors, especially those of tender age, the High Court has the authority to issue directions and pass orders under Section 491 of the CrPC. However, this authority does not negate or interfere with the rights of parties to seek the final determination of custody disputes in the Guardian Court.

The court exercises its inherent jurisdiction to ensure the full protection of the rights of minor children. In this case, the High Court converted the Constitutional petition into an application under Section 491 of the CrPC. It directed the Joint Investigation Team to locate the respondent and the minor girls and proceed further in the matter. The application was disposed of accordingly.

The additional cases cited, such as PLD 1997 Kar. 267, 2017 YLR Note 219, p.157, 2013 MLD 1640, 2014 MLD 38, 2014 YLR 705, PLD 2014 Sindh 598, 2015 MLD 833, 2016 MLD 29, and 2017 MLD 427, are likely relevant precedents or references that the court considered in making its decision.

Muhammad Mumtaz versus the Province of Sindh and others (Constitution Petition No. S-834 of 2019) decided on 2nd January 2020 by Khadim Hussain M. Shaikh, J, at the Sindh High Court’s Hyderabad Bench.

2020 M L D 1748

In this case, Muhammad Mumtaz, the petitioner, had filed a constitutional petition seeking the recovery and production of his wife and son, alleging their illegal detention. The petitioner had previously filed an application under Section 491 of the Criminal Procedure Code (Cr.P.C) before the Sessions Judge, which was subsequently disposed of. The petitioner then filed the constitutional petition before the High Court.

The court’s analysis focused on the scope of the constitutional petition and the allegation of illegal confinement. The court found that the alleged detainee, the petitioner’s wife, along with their minor son, was residing in the house of her parents. The court determined that this situation could not be characterized as “illegal confinement.”

Furthermore, the court took into account the statements made by the alleged detainee before the Judicial Magistrate, in which she affirmed that she had left the petitioner’s house and voluntarily appeared at a police station. This indicated that she was not being illegally confined when the petitioner had filed the application under Section 491 of the Cr.P.C.

The court also observed that the petitioner’s constitutional petition was not maintainable and was filed with mala fide intentions. The court held that the petitioner’s actions had needlessly wasted the court’s time and resources, without sufficient justification.

As a result, the court dismissed the constitutional petition with costs, emphasizing the lack of merit in the petitioner’s claims. The alleged detenues, Mst. Sajidan and Muhammad Hassan, were present during the proceedings.

  • Citation Name: 2022 CLC 2022 (Quetta High Court, Balochistan)
    • Appellant: Farooq Ahmed
    • Opponent: Muhammad Aqib Javed
    • Issue: Right of custody between father and maternal grandmother
    • Summary: The maternal grandmother of a minor challenged the lower courts’ decisions granting custody of the minor girl to her real father. The mother of the minor had passed away, and her natural guardian, the father, sought custody, which was allowed by the courts. The court found no disqualifications against the father and noted that he had been actively pursuing custody since the beginning. The petitioner’s claim that the father had no feelings for the child and had left her at the petitioner’s house after the mother’s death was not substantiated. The court dismissed the constitutional petition
    • Citation Name: 2021 MLD 957 (Lahore High Court, Lahore)
    • Appellant: Muneeza Nisa
    • Opponent: Ahmed Nawaz
    • Issue: Determination of the welfare of minors and custody arrangement
    • Summary: The petitioner, a mother, challenged orders issued under Section 491 of the Criminal Procedure Code (Cr.P.C) and Section 25 of the Guardians and Wards Act, 1890, that granted custody of her minor children to their father and stepmother. The petitioner contended that the minors’ welfare would be better assured if custody was granted to her. The court considered Islamic law and found no disqualifications against the mother. It noted that the father was living abroad and might not be able to care for the children adequately. The court emphasized the importance of a mother’s role and directed that custody be granted to the petitioner. The constitutional petition was allowed.

Citation Name: 2018 YLR 782 (Lahore High Court, Lahore)

  • Appellant: Ali Irtaza
  • Opponent: Additional District Judge, Multan
  • Issue: Custody of minor daughter and disqualification of the mother due to her second marriage
  • Summary: The petitioner, the father, contested the custody of his minor daughter with the respondent, the mother. The father disputed paternity and sought a DNA test. The mother, on the other hand, argued that the father’s lack of acceptance of the minor as his daughter disqualified him from permanent custody. The subordinate courts did not adequately evaluate the issue of disqualification due to the mother’s remarriage to a person within the prohibited degrees. The trial court also did not consider the effect of the mother’s remarriage on custody. The courts focused on the petitioner’s application for a DNA test, which the father denied making. The higher court found that the decision should not solely rely on a DNA test application, as DNA tests are not a conclusive determination of paternity. The court emphasized that custody decisions should be made in the best interest of the child. The case was remanded to the trial court for a proper evaluation of evidence and consideration of the disqualification due to the mother’s remarriage within prohibited degrees.

In this case, the Lahore High Court highlighted the importance of thoroughly evaluating evidence and considering the best interests of the child in custody matters. The court emphasized that disqualifications, such as a parent’s remarriage within prohibited degrees, must be considered in the custody decision-making process. The court’s decision to remand the case to the trial court reflects the principle of ensuring a comprehensive and just assessment of all relevant factors.

Citation Name: 2017 MLD 1116 (Shariat Court, Azad Kashmir)

  • Appellant: Muhammad Afzal
  • Opponent: Parveen Bibi
  • Issue: Custody of minor children and the welfare of the minors
  • Summary: The father, Muhammad Afzal, sought custody of his minor children, but his application was dismissed. The father argued that the mother, Parveen Bibi, was incapable of caring for the children. The court emphasized that the right of custody of a minor is not absolute and is subject to the welfare of the minor. The rule regarding custody, where the father is the natural guardian, is based on the age of the child and is subject to the child’s welfare. In this case, the minors had been living with their mother for a significant period and had developed a strong bond with her. The court considered the preference of matured minors in custody matters. The minors, in this instance, were deemed mature enough to express a preference. The court also emphasized that a minor’s preference could be rejected if it was found to be tutored or against the minor’s best interests. In this case, the minors expressed a preference to remain with their mother, and the court found this preference to be genuine. The court considered the mother’s ability to provide proper care, the absence of a second marriage, and the mother’s companionship with the children. The court concluded that separating the minors from their mother would not be in their best interest and that the welfare of the minors was with the mother. The father’s allegations regarding the mother’s acquaintances were insufficient to establish disqualification, as there was no evidence of any immoral relationship. The court held that the Trial Court’s judgment was in accordance with the law and dismissed the father’s appeal.

This case underscores the principle that the welfare of the minor is paramount in custody matters. The court considered the minors’ preferences, the mother’s ability to provide care, and the overall best interests of the children when making its decision. The analysis also highlights that allegations of disqualification must be substantiated by evidence, and a minor’s preference should be genuine and in their best interest.

Citation Name: 2017 YLRN 45 (Lahore High Court, Lahore)

  • Appellant: Ghulam Mustafa
  • Opponent: Shamim Akhtar
  • Issue: Custody of minor son and daughter against maternal grandmother
  • Summary: The father, Ghulam Mustafa, filed an application for custody of his minor son and daughter against their maternal grandmother, Shamim Akhtar. The Trial Court accepted the father’s application for custody, but the Appellate Court separated the minors and granted custody of the son to the father. The court considered various factors, including the welfare of the minors and the father’s intention to provide a conducive atmosphere for their upbringing. Despite the maternal grandmother’s preferential right to custody, the paramount consideration was the welfare of the minors. The court determined that the father had no disqualifications for obtaining custody and had demonstrated his ability to care for the minors. The court ruled that the father should leave the minors at the grandmother’s residence every Saturday at 4:00 pm and pick them up the next day (Sunday) at the same time. Additionally, the grandmother would have custody for the first half of each summer, winter, and spring vacation. The minors would spend the second day of both Eids with their maternal mother. As a result, the constitutional petition was allowed in accordance with the specified arrangements.

This case highlights the court’s commitment to the welfare of the minors and its consideration of various factors, such as the father’s intentions and abilities, in determining custody. The court’s decision emphasizes the importance of a conducive atmosphere for the minors’ upbringing and the shared responsibilities of natural parents. The specified custody arrangements demonstrate the court’s effort to balance the interests of both parties while prioritizing the minors’ well-being.

Citation Name: 2015 CLC 1260 (Lahore High Court, Lahore)

  • Appellant: Mst. Bakhat Bibi
  • Opponent: Bahadur Ali
  • Issue: Custody of minor daughter
  • Summary: The mother, Mst. Bakhat Bibi, filed an application for custody of her minor daughter who was staying with the father, Bahadur Ali. Similarly, the father also applied for custody of the minor daughter staying with the mother. Both applications for custody were dismissed concurrently by the courts. The Guardian Court placed emphasis on the statement of the minor daughter, who was 11 years old. However, both lower courts committed illegalities by relying on the minor daughter’s statement, which was recorded on oath. The Guardian Court was not authorized to record the statement of a minor as a witness and assess its legal implications. The minor daughter had been mentally influenced against her mother, and this poisoning of the minor’s mind against a parent was considered a disqualification for retaining custody. The court concluded that the welfare of the minor daughter was best served with her real mother, and her financial status did not give the father any preference. The impugned judgments were set aside, and the application for custody by the mother was accepted. The father was directed to hand over custody to the mother, and a schedule for meetings with the father was arranged.

Citation Name: 2013 CLC 1749 (Quetta High Court, Balochistan)

  • Appellant: Abdul Qadir
  • Opponent: Babi Sabira
  • Issue: Custody of minors
  • Summary: The father, Abdul Qadir, filed a guardian application for custody of his minor children, which was dismissed. The father argued that the mother of the minors was unemployed and had no source of income, and the minors’ education was not being properly attended to. The father had contracted a second marriage and had children from the second wedlock. The father’s job required him to be away from home frequently. The court observed that leaving the minors in the care of the step-mother, especially considering the father’s absence, was not in the best interest of the children. The court emphasized that the welfare of the minors was with their mother, who was their natural guardian and had no disqualifications. The court dismissed the plea of the father, highlighting his responsibility to maintain his children. The court declined to interfere in the custody arrangement, as there was no illegality or jurisdictional defect in the lower courts’ judgments.

Citation Name: 2008 CLC 654 (Karachi High Court, Sindh)

  • Appellant: Yaqoob Ahmed
  • Opponent: Mst. Shaista
  • Issue: Custody of minors
  • Summary: The father challenged concurrent judgments by the Trial Court and Appellate Court, which had granted custody of the minors to their mother. The central consideration in determining custody is the welfare of the minors. The evidence on record indicated that the father was residing in a rented house within a joint family system, often away from home due to work. His parents were not alive, and he lived with his married brothers. This situation suggested that the father’s house lacked suitable arrangements for the proper care of the minors. In contrast, the mother, as the natural guardian, was better positioned to care for the minors’ welfare. While the father’s duty included financial support, the mother’s potential financial limitations were not sufficient grounds to disqualify her from custody. The consent of minors to reside with the father held less significance when considering their welfare. The court dismissed the constitutional petition, upholding the lower courts’ judgments.

Citation Name: 2005 MLD 828 (Lahore High Court, Lahore)

  • Appellant: Mst. Kaneez Akhtar
  • Opponent: Abdul Qadoos
  • Issue: Custody of minor son
  • Summary: The minor son, around 12 years old, had been living with his mother since divorce. The father, serving in the Army, sought custody, which was granted by both the Guardian Judge and the Appellate Court. The mother argued that the father’s nature of duty prevented him from properly caring for the minor and that the courts had not considered the child’s intelligent preference. The High Court found that both lower courts did not adequately consider the intelligent preference of the child and ignored the fact that the child had been exclusively in the mother’s custody since the divorce. The High Court noted that the care provided by the mother was not lacking. The right of the mother to meet the child and the arrangements for this were not adequately addressed. The High Court set aside both lower court orders and remanded the matter to the Guardian Judge for a more thorough consideration of the minor’s welfare.

Citation Name: 2003 PLD 131 (Quetta High Court, Balochistan)

  • Appellant: Mst. Farah Iqbal
  • Opponent: Muhammad Anwar
  • Issue: Custody of female minor
  • Summary: The welfare of the minor is of paramount consideration in determining custody, regardless of the rights of the father or mother. A mother cannot be denied custody solely based on her lack of independent income. The father is responsible for providing maintenance, and the mother’s inability to provide maintenance does not disqualify her from custody. The court enumerated grounds for disqualification or loss of custody rights for a mother, none of which applied in this case. The High Court, considering the welfare of the minor, granted custody to the mother until the minor reached puberty. The father was directed to provide maintenance for the minor, including school fees and clothes.

Citation Name: 1994 MLD 150 (Lahore High Court, Lahore)

  • Appellant: Abdul Bari
  • Opponent: Khalida Parveen
  • Issue: Custody of minor children
  • Summary: In a custody dispute between the father and mother of minor children, the mother had been looking after the children since divorce. She provided them with shelter and education in a prestigious school. The father did not provide maintenance and had contracted a second marriage. The court recognized the irreplaceable care, love, and affection of a real mother. The minor daughter needed her mother’s company and guidance. Even though the son had crossed the age of seven, he was well cared for by the mother and received proper education. The court held that a step-mother could not match a real mother’s care, and poverty was not a disqualification for the mother to retain custody. The welfare of the minor children was the predominant consideration, and the order restoring custody to the mother was deemed proper.

Citation Name: 1984 PCRLJ 3088 (Lahore High Court, Lahore)

  • Appellant: Hidayat Bibi
  • Opponent: Noor Muhammad
  • Issue: Custody of minor girls
  • Summary: After the husband’s death, his two minor daughters were detained by the husband’s brother with the intention of compelling the mother petitioner to marry his cousin and depriving the daughters of their property. The court held that the uncle of the minor girls was not justified in having custody and that the mother had a better claim. The welfare of the minors demanded that they live with their mother. The minors were recovered and custody was delivered to their mother through a bailiff.

These cases underscore the court’s emphasis on the welfare of the minor children when deciding custody disputes. The financial capabilities of the parents, the presence of a real mother’s care, and the best interests of the child are central to the court’s considerations.

I

Citation Name: 2008 CLC 576 (Shariat Court Azad Kashmir)

  • Appellant: Muhammad Jamil
  • Opponent: Safina Bibi
  • Issue: Appointment of guardian and custody of minor daughter
  • Summary: The Family Court appointed the mother as the guardian of a minor girl and directed the father to hand over custody to the mother. The father challenged this decision. The court emphasized that the welfare of the minor must be considered, including the age, sex, and kinship of the minor. The mere fact that the minor had previously lived with the father and attended school did not prevent the mother from seeking custody. The mother, considering the minor’s age, sex, and personal law, was deemed the most suitable person to care for and raise the minor. The court highlighted the unique love and affection a mother provides. The father did not level allegations of corruption or bad character against the mother. The Family Court’s decision was upheld, as it was based on the welfare of the minor.

Citation Name: 2007 CLC 1612 (Lahore High Court, Lahore)

  • Appellant: Mst. Munira Bibi
  • Opponent: Additional District Judge, Sheikhupura
  • Issue: Custody of minors
  • Summary: The mother’s application for custody of minors was dismissed by both the Guardian Judge and the Appellate Court. The courts had appointed the deceased father’s brother as the guardian. The mother challenged this decision, but her claims were not supported by evidence. The respondent (uncle) alleged the mother had a bad character, was involved in her husband’s death, and had no income. The uncle, a teacher, was providing for the minors’ education. The trial court found it in the minors’ welfare to remain with the uncle due to the mother’s alleged associations and lack of income. The High Court upheld this decision, stating that the welfare of the minors, not illegitimate allegations, was the paramount consideration.

In both cases, the courts prioritized the welfare of the minor children. The mother’s character and financial status were considered alongside the minors’ needs. The court emphasized the importance of a mother’s role and affection while ensuring the best interests of the children.

Citation Name: 2002 CLC 1416 (Peshawar High Court)

  • Appellant: Mst. Abida Bibi
  • Opponent: Abdul Latif
  • Issue: Custody of minor son
  • Summary: The court emphasized that the paramount consideration for the appointment of a guardian and custody restoration was the welfare of the minor. The mother, even if poor, could provide unique love and affection to the minor that others could not match. The mother earned her livelihood from work and her brothers supported her, ensuring the minor’s education. The father failed to provide for the minor and neglected his duty to maintain both the minor and the mother. There was no evidence of the mother having a bad character. Thus, the court ruled in favor of the mother’s custody of the minor son.

Citation Name: 2000 PLD 23 (Peshawar High Court)

  • Appellant: Gulnaz Bibi
  • Opponent: Rafaqat Ali Shah
  • Issue: Appointment of guardian of minor children
  • Summary: The court highlighted that the welfare of the minors was the primary criteria for the appointment of a guardian. The father’s history of alcohol consumption and criminal cases, lack of income and property, and the mother’s respectable life and teaching profession were taken into account. The court stated that the right of parents regarding their children should be exercised in the interest and welfare of the children themselves. The mother’s remarriage did not disqualify her from custody. The Lower Appellate Court’s decision, which failed to consider the welfare of the minors and the criteria of the Guardians and Wards Act, was set aside, and the Guardian Judge’s decision was restored.

In both cases, the courts prioritized the welfare of the minors and considered the mother’s character, circumstances, and ability to provide care and love. The court decisions were based on the best interests of the children.

Citation Name: 1995 SCMR 1206 (Supreme Court)

  • Appellant: Munawar Bibi
  • Opponent: Muhammad Amin
  • Issue: Custody of minor children
  • Summary: The Trial Court found that the petitioner (mother) was living in an immoral union with her sister’s husband and thus ruled against her custody of the children. The Appellate Court partially reversed this decision and granted custody of the daughter to the mother. However, the High Court set aside the Appellate Court’s order and reinstated the Trial Court’s decision. The mother argued that the Trial Court’s finding was based on false allegations and that her acquittal in a related case reinforced her presumption of innocence. The High Court’s assertion that the mother couldn’t maintain her children was insufficient, as it was the father’s responsibility to provide maintenance. The Supreme Court granted leave to appeal to determine whether the High Court was justified in depriving the mother of custody.

Citation Name: 1961 PLD 768 (Lahore High Court)

  • Appellant: Khushi Muhammad
  • Opponent: Mst. Muhammad-un-Nisa
  • Issue: Custody of minors in the custody of the mother
  • Summary: The father filed an application under Section 25 of the Guardians and Wards Act for custody of minors, alleging the mother’s bad character. The court emphasized that the welfare of the minors was of paramount consideration. The mother’s right to custody under Muhammadan Law was considered, and it was noted that unless she was otherwise disqualified, her lack of means to maintain the minors was not a ground for depriving her of custody.

In both cases, the courts highlighted the importance of the welfare of the minors and considered the mother’s character and circumstances in determining custody. The courts recognized the significance of the mother’s role in the upbringing of the children and weighed various factors to make their decisions.

Citation Name: 2022 YLR 1125 (Karachi High Court – Sindh)

  • Appellant: Mst. Rabia
  • Opponent: Station House Officer, Police Station Waleed, Larakana
  • Issue: Custody of minors under section 491 and territorial jurisdiction
  • Summary: The applicant, who was the mother of minor children, sought recovery of her children from the respondent (father) who had custody. The court emphasized that the Guardian Court was the final arbiter for adjudicating custody matters, and the legal course for obtaining custody of a child was through the Guardian Court under Section 25 of the Guardians and Wards Act, 1890. However, in exceptional situations, where there was an illegal removal of a child from lawful custody, the court could invoke its jurisdiction under Section 491 of the Cr.P.C. as an interim measure until the Guardian Court made a final decision. In this case, the minors were residing with their father and did not exhibit the abnormality of illegal removal. Therefore, the High Court declined to interfere, and the application was dismissed.
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Citation Name: 2021 YLR 1267 (Peshawar High Court)

  • Appellant: Mst. Basri Irshad
  • Opponent: Tauqir Hayat
  • Issue: Custody of minor under section 491 and right of hizanat
  • Summary: The petitioner challenged an order of the Sessions Judge that dismissed her application under Section 491 of the Cr.P.C. for custody of her minor child, citing the minor’s comfort in the company of his father. The court emphasized the inherent right of a mother to keep her children close to her and noted the significance of a mother’s love and affection in a child’s life. The petitioner had the right of hizanat under Islamic Law, and her right to interim custody was upheld until decided otherwise by the Guardian Judge. The Constitutional petition was allowed, and custody of the minor was handed over to the petitioner/mother.

Both cases highlight the importance of a mother’s role and affection in a child’s life and consider the legal avenues available for obtaining custody. The courts balance the immediate welfare of the child with the overall legal process to ensure a fair and just resolution.

Citation Name: 2020 YLR 1256 (Lahore High Court – Lahore)

  • Appellant: Mst. Iffat Yaqoob
  • Opponent: R.P.O., Faisalabad
  • Issue: Habeas corpus petition for custody of minor and father’s right to retain custody
  • Summary: The petitioner, a divorcee mother, sought recovery of her minor daughter. Although the parties had different stances on the change of custody, it was acknowledged that the minor had not been residing with her father for a month prior to filing the petition and had not been maintained by him for the last four years. The respondent (father) claimed that the minor was handed over by the petitioner’s brother with their mother’s consent. However, this claim did not entitle the father to retain custody when the mother was unwilling to hand over the minor. The court emphasized that the father had the right to approach the Guardian Court for custody. The Constitutional petition was allowed, and interim custody was handed over to the petitioner.

Citation Name: 2019 PCrLJN 10 (Karachi High Court – Sindh)

  • Appellant: Mohammad Hassan
  • Opponent: State
  • Issue: Habeas corpus petition for custody of minor and grant of bail
  • Summary: The petitioner (father) and co-accused were accused of abducting minor children from the complainant (ex-wife) on gunpoint. The court noted that there was a dispute over custody between the complainant and petitioner. The petitioner had filed applications under the Guardians and Wards Act for custody. The offence under Section 363 of the P.P.C. was apparently misapplied, and the court granted bail to the petitioner based on the non-applicability of the prohibitory clause of Section 497 of the Cr.P.C. Interim pre-arrest bail was confirmed.

Citation Name: 2018 SCMR 427 (Supreme Court)

  • Appellant: Mirjam Aberras Lehdeaho
  • Opponent: SHO, Police Station Chung, Lahore
  • Issue: Habeas corpus petition for recovery of children and parental jurisdiction
  • Summary: The petitioner, residing abroad, sought recovery of her children from Pakistan. She believed that her children had been removed from her custody through deception and trickery. The Supreme Court emphasized its jurisdiction under Sections 491 and 561-A of the Cr.P.C. to provide relief to the mother in cases where there was a real and imminent danger to the minors. The court’s powers in its parental jurisdiction were exercised to safeguard and secure the interests of the minors.

These cases underscore the court’s commitment to ensuring the welfare and safety of minors in custody disputes, considering the circumstances and the best interests of the child.

Citation Name: 2018 YLR 1467 (Karachi High Court – Sindh)

  • Appellant: Mst. Noor Jehan
  • Opponent: Muhammad Khan Khoso
  • Issue: Habeas corpus petition for recovery of minor and jurisdiction of the court
  • Summary: The petitioner, maternal grandmother, sought recovery of her minor granddaughter who was residing with her since birth after the mother’s death. The father had contracted another marriage and occasionally met the minor. He requested the petitioner to allow him to take the minor to visit his parents but did not return her custody. The court emphasized that custody matters should be decided by the Family Court based on the “welfare of the minor” principle. The Family Court should issue directions in favor of the mother as interim measures, which would not preclude the Family Court from deciding the matter on merits. The court dismissed the petition, stating that the proper forum for deciding custody matters was the Family Court.

Citation Name: 2017 YLR 2456 (Gilgit-Baltistan Chief Court)

  • Appellant: Halima
  • Opponent: Sift Khan
  • Issue: Habeas corpus petition for recovery of minor and jurisdiction of the court
  • Summary: The petitioner, a mother, sought recovery of her suckling minor sons who were about two years and fifteen days old. The court noted that minors of such tender age required constant protection and care, and no one but the real mother could provide it. While the Guardians and Wards Act provided a remedy, section 491 of the Cr.P.C. offered an efficacious, speedy, and appropriate remedy in such cases. The court emphasized the paramount consideration of the welfare of the minors and directed the father to hand over custody to the mother.

Citation Name: 2015 YLR 1765 (Lahore High Court – Lahore)

  • Appellant: Gull Arzoo
  • Opponent: Station House Officer BZ, District, Multan
  • Issue: Habeas corpus petition for custody of suckling minor and jurisdiction of High Court and Sessions Court
  • Summary: The mother filed a petition for recovery of her suckling minor daughter from the custody of the father. The father claimed to have filed an application under Section 25 of the Guardians and Wards Act. The mother also filed a petition under Section 491 of the Cr.P.C. The court found that the father’s actions indicated mala fide intent, as he made false statements about the minor’s whereabouts. The court highlighted the welfare of the minor as the paramount consideration and noted that the real mother’s care was essential. Both the High Court and Sessions Court had concurrent jurisdiction under Section 491. The custody of the minor was handed over to the mother.

These cases emphasize the courts’ commitment to safeguarding the welfare and best interests of minors in custody matters, especially when dealing with suckling infants and young children.

Citation Name: 2015 PCrLJ 875 (Karachi High Court – Sindh)

  • Appellant: Mst. Wafa and Aleeb
  • Opponent: Imran Bhatti
  • Issue: Scope of Section 491, Cr.P.C., and conditional order in a habeas corpus petition
  • Summary: The minor girl, about 4 years old, was living with her father. The Trial Court handed over custody to the mother (applicant) with certain conditions. The High Court emphasized that Section 491, Cr.P.C., has a limited scope to provide immediate relief and should be strictly adhered to. While the court can issue directions for recovery of minors from custody, it cannot impose conditions or restrictions. The impugned order was modified to only impose conditions on the applicant.

Citation Name: 2014 MLD 38 (Lahore High Court – Lahore)

  • Appellant: Mst. Saima Bibi
  • Opponent: Raheel Butt
  • Issue: Habeas corpus petition for recovery of minor and jurisdiction of the court
  • Summary: The petitioner-wife sought recovery of the minor-detainee, her daughter, from the respondent-husband. The petitioner filed an application under Section 491, Cr.P.C., which was dismissed by the Additional Sessions Judge due to the pendency of the matter before the Guardian Court. The court emphasized that the Guardian Court’s order did not prevent the application under Section 491, Cr.P.C., from being decided on merit. The minor-detainee needed constant care and affection of the mother. The High Court accepted the constitutional petition and granted custody to the petitioner-mother.

Citation Name: 2014 YLR 705 (Karachi High Court – Sindh)

  • Appellant: Mst. Abida
  • Opponent: S.H.O., Ratodero Police Station (District Larkana)
  • Issue: Habeas corpus petition and jurisdiction of the High Court
  • Summary: The mother sought custody of her minor children who had been removed by their father. The father argued that the matter fell under the jurisdiction of the Guardian Court. The court emphasized the importance of a mother’s care for minor children, especially those in tender age. The High Court, as an interim measure, could grant custody to the lawful guardian even if a case was pending in the Guardian Court. The High Court directed the father to hand over custody of the minors to their mother.

These cases highlight the importance of the court’s jurisdiction and the welfare of minors when deciding habeas corpus petitions for custody. The court’s focus remains on ensuring the well-being and best interests of the children involved.

Citation Name: 2014 MLD 1333 (Karachi High Court – Sindh)

  • Appellant: Mst. Rabia Noor
  • Opponent: Shahzad Shah
  • Issue: Maintainability of a constitutional petition for recovery of children
  • Summary: The petitioner, a divorced wife, sought the recovery of her children who were in the custody of their father, their natural guardian. The court ruled that the custody of the children with their father, in this case, could not be treated as illegal since he was responsible for their upbringing as their natural guardian. The petitioner was advised to file a petition under the Guardians and Wards Act, 1890, to claim custody or visiting rights for her children. The court emphasized that the extraordinary circumstances required for invoking the constitutional jurisdiction of the High Court were not present. The petitioner had an equally efficacious and alternate remedy under the Guardians and Wards Act, 1890.

Citation Name: 2013 MLD 823 (Lahore High Court – Lahore)

  • Appellant: Mst. Jameela Bibi
  • Opponent: Station House Officer
  • Issue: Jurisdiction of the High Court under section 491 for recovery of minors
  • Summary: The court noted that the jurisdiction of the High Court under section 491, Cr.P.C., for recovery of minors should be exercised sparingly and only in exceptional and extraordinary cases of real urgency. It was highlighted that a Guardian Judge also possessed the power to recover minors and regulate their interim custody.

Citation Name: 2013 YLR 954 (Karachi High Court – Sindh)

  • Appellant: Ali Hayat
  • Opponent: Kholod Shafi
  • Issue: Habeas corpus application and parenting agreement for custody
  • Summary: The case involved a parenting agreement between the divorced parents of minor children. The father sought to enforce the agreement, alleging that the mother had violated its terms. The High Court directed both parties to follow the parenting agreement, allowing the father to meet the children for specified times each week. The court also encouraged renegotiation of the agreement if necessary, with the best interest of the children in mind.

These cases underline the importance of considering the legal options available, the best interests of the children, and the specific circumstances when seeking recovery of custody through habeas corpus petitions.

Citation Name: 2013 YLR 583 (Karachi High Court – Sindh)

  • Appellant: Mst. Seema
  • Opponent: Aftab Ahmed
  • Issue: Dismissal of habeas corpus petition for recovery of minors
  • Summary: The petitioner, a mother, alleged that her sons were in the illegal custody of their father. However, the court found that the children had been with their father for several months, and the petition was filed belatedly without explanation. The court dismissed the petition, but as an interim arrangement, directed the father to allow the children to stay with their mother every week from Friday evening to Sunday evening.

Citation Name: 2013 MLD 562 (Karachi High Court – Sindh)

  • Appellant: Mst. Sadaf
  • Opponent: Shah Nawaz
  • Issue: Dismissal of habeas corpus petition for recovery of child
  • Summary: The mother sought recovery of her child from the father without first seeking custody from the Guardian Court and without alleging maltreatment or cruelty. The court ruled that the proper remedy for the mother was to file an application for interim and permanent custody under the Guardians and Wards Act, 1890, as the scope of a petition under section 491, Cr.P.C., was limited to improper and illegal custody. The court dismissed the petition.

Citation Name: 2011 PCrLJ 1835 (Lahore High Court – Lahore)

  • Appellant: Parveen Bibi
  • Opponent: S.H.O. Police Station Sadar Mian Channu District Khanewal
  • Issue: Dismissal of habeas corpus petition for recovery of minor son
  • Summary: The petitioner, a mother, sought recovery of her four-year-old son from his father, alleging illegal detention and confinement. The court highlighted that section 491, Cr.P.C., could entertain a petition for custody of a minor child if the child was of very tender age and the circumstances were exceptional. However, in this case, the alleged detenu was four years old and not of very tender age. The court emphasized that any order passed by the High Court would be interim in nature and subject to final adjudication by the Guardian Judge. The petition was dismissed.

Citation Name: 2010 YLR 1665 (Lahore High Court – Lahore)

  • Appellant: Kamran Hanif
  • Opponent: Bilqees Bano
  • Issue: Concealment of facts in custody case
  • Summary: The petitioner, the father of a minor child, sought custody from his maternal grandmother. However, the petitioner did not disclose the order passed by the Guardian Court restraining him from taking the minor from the maternal grandmother. The court ruled that the petitioner’s concealment of this fact disentitled him from discretionary relief under Article 199 of the Constitution. The petitioner was required to first set aside the Guardian Court’s order before seeking relief from the High Court. The petition was dismissed.

Citation Name: 2010 MLD 143 (Karachi High Court – Sindh)

  • Appellant: Mst. Sana Parvaiz
  • Opponent: Muhammad Sajawal Butt
  • Issue: Custody of minor son
  • Summary: The petitioner, a mother, sought custody of her minor son who had been taken away by the father. The court, considering the welfare of the minor, ordered that the custody of the minor son be handed over to the petitioner/mother in exercise of its inherent jurisdiction. The interim custody of the minor son was delivered to the petitioner.

Citation Name: 2009 YLR 1678 (Lahore High Court – Lahore)

  • Appellant: Samra Zaman
  • Opponent: Station House Officer, Police Station Ghulam Muhammad Abad, Faisalabad
  • Issue: Custody of minors
  • Summary: In a case where the petitioner-wife had been expelled from her husband’s house, the minors were residing with their father. The court emphasized the importance of a mother’s love and affection and the inherent right of a mother to keep her children close to her. The court ordered that the interim custody of the minors, aged 5 years (male) and 2.5 years (female), be handed over to the petitioner/mother until decided otherwise by the Guardian Judge based on the welfare of the minors.

Citation Name: 2007 MLD 512 (Lahore High Court – Lahore)

  • Appellant: Zubaida Shehzadi
  • Opponent: Muhammad Aslam
  • Issue: Custody of minor girls, domestic violence
  • Summary: The petitioner, a mother seeking custody of her minor girls, was living separately from her husband/respondent due to alleged violence. Both minors had been in the custody of the mother until she was allegedly expelled by the respondent from his house. The court, considering the welfare of the minors, ordered that both minors, who had not attained puberty, be given interim custody to the mother. The final decision on custody would be made by the Family Judge/Guardian Judge.

Citation Name: 2006 YLR 2946 (Lahore High Court – Lahore)

  • Appellant: Mst. Irshad Bibi
  • Opponent: S.H.O., P.S. R.A. Bazar, Rawalpindi
  • Issue: Custody of male child
  • Summary: In a case where the petitioner, a mother, sought custody of her two-year-old male child, the court acknowledged the mother’s entitlement to custody (Hizanat) until the child completed the age of seven years. The minor was given interim custody to the petitioner until final adjudication by the Guardian Judge.

Citation Name: 2006 YLR 221 (Karachi High Court – Sindh)

  • Appellant: Dr. Ambreen
  • Opponent: State
  • Issue: Interim custody of minor
  • Summary: The High Court, in cases of emergency, has the power and jurisdiction to pass orders for the interim custody of minors. Such orders are tentative and subject to the final adjudication by the Guardian Court under the provisions of the Guardian and Wards Act, 1890. The court emphasized that detailed investigation and resolution of factual controversies would require evidence and should be addressed in the Guardian Court. The interim custody granted by the High Court would remain in operation until the Guardian Court’s final decision.

These cases highlight the courts’ consideration of the welfare of the minors in custody matters and the temporary nature of orders passed under S. 491, Cr.P.C., with the ultimate jurisdiction lying with the Guardian Court.

Citation Name: 2005 YLR 1047 (Lahore High Court – Lahore)

  • Appellant: Mst. Nayyara Naureen alias Shazia
  • Opponent: Muhammad Arif Butt Sabri
  • Issue: Custody of minor children, illegal custody
  • Summary: The petitioner claimed that her minor children were in the illegal custody of the respondent (father). However, the petitioner’s own version stated that the children were in the respondent’s house, and she had been turned out by him. The court noted that the children had been living with the respondent for about 1-1/2 years, and the petitioner admitted that the children were more familiar with him. Since the petitioner had also filed applications under S.25 and S.12 of the Guardians and Wards Act, 1890, for custody, the court dismissed the petition, finding no case of illegal custody.

Citation Name: 2001 PLD 197 (Karachi High Court – Sindh)

  • Appellant: Mst. Rubia Ayaz Khan
  • Opponent: The State and Another
  • Issue: Custody of minor, custody with mother
  • Summary: The High Court, under S.491 Cr.P.C., has jurisdiction to hand over the custody of a minor to the mother, who is entitled to interim custody. Custody with the father may not be legal and proper.

Citation Name: 2000 YLR 1171 (Lahore High Court – Lahore)

  • Appellant: Aisha Bibi
  • Opponent: Naeem Umar Qadri
  • Issue: Custody of minor daughter, divorce
  • Summary: The minor daughter was removed from the lawful custody of the petitioner/mother by the respondent/father after their divorce. The court held that the respondent/father should have sought custody through the Court of Guardian Judge, the proper forum. As the petitioner/mother was entitled to interim custody, the Constitutional petition was allowed.

Citation Name: 1993 PCRLJ 2058 (Lahore High Court – Lahore)

  • Appellant: Amina Sultana
  • Opponent: Amanat Ali
  • Issue: Custody of minor son, custody under Guardian and Wards Act
  • Summary: The mother filed an application for the production of her minor son who was in the custody of the father. The father produced the child in compliance with the court’s direction and pointed out that he was keeping custody in accordance with an order from the Guardian Judge under Ss.12 & 25, Guardians and Wards Act, 1890. The court allowed interim custody to the petitioner mother until the decision of the father’s application for the appointment of the minor’s guardian by the Guardian Judge.

Citation Name: 2022 YLR 2482 (Peshawar High Court)

  • Appellant: Abdul Ghaffar
  • Opponent: Shoukat
  • Issue: Custody of minor, welfare of minor, influence on minor’s choice
  • Summary: The petitioner (father) sought custody of his minor biological son. The petitioner’s wife was murdered, and he was acquitted of the charges. The custody of the minor was initially with the maternal grandfather and later with the maternal uncle, who lived abroad. The minor’s statement accused the father of the murder, indicating a hostile environment influenced by the respondents. The court found that the minor’s choice was influenced, and his best interest lay with the father. The Constitutional petition was allowed, and custody was granted to the petitioner.

Citation Name: 2022 PLD 171 (Karachi High Court – Sindh)

  • Appellant: Syed Reza Ali Shah
  • Opponent: XII Model Civil Appellate Court, District South, Karachi
  • Issue: Custody of minor residing abroad, territorial jurisdiction
  • Summary: The petitioner (mother) filed for custody of a minor residing abroad. The respondent (father) filed an application under S.9 of the Guardians and Wards Act, 1890. The Trial Court allowed the respondent’s application, and the petitioner’s appeal was dismissed. The petitioner’s case was that the respondent had gone abroad for education and would return after two years. The respondent did not deny this assertion. The court held that the minor’s stay abroad was temporary, and the ordinary residence was in Pakistan. The matter was remanded to the Trial Court for decision afresh.

Citation Name: 2021 YLR 743 (Quetta High Court – Balochistan)

  • Appellant: Tauk Ali
  • Opponent: The Additional District Judge-VI, Quetta
  • Issue: Custody of minor, guardian appointment
  • Summary: The petitioner (father) and the respondent (maternal grandmother) sought custody of the minor. The petitioner’s wife, the minor’s mother, was murdered, and he was nominated in the FIR. The petitioner had handed over custody to the respondent but later sought custody. The Trial Court dismissed both petitions, and the appellate court accepted the respondent’s appeal. The petitioner was a businessman living abroad, and the stepmother was an absconder in the murder case. The petitioner’s case was dismissed, and the appellate court’s decision on guardian appointment was set aside.

Citation Name: 2021 YLR 1989 (Lahore High Court – Lahore)

  • Appellant: Sarosh Sikander
  • Opponent: Guardian Judge, Lahore
  • Issue: Interim custody of minor, ‘parent’, grandparent’s application
  • Summary: The respondent (grandmother) filed for interim custody and visitation rights of a minor girl. The petitioner (mother) sought rejection of the application. The Guardian Court rejected the petitioner’s application. The petitioner argued that only parents could request visitation rights. The court found that in the circumstances, the application by the grandmother was competent. The Constitutional petition was dismissed.

Citation Name: 2021 MLD 957 (Lahore High Court – Lahore)

  • Appellant: Muneeza Nisa
  • Opponent: Ahmed Nawaz
  • Issue: Custody of minors, welfare of minors, Islamic Law, mother’s rights
  • Summary: The petitioner mother challenged orders under S.491, Cr.P.C. and S.25 of Guardians and Wards Act, 1890, which gave custody of her minor children to the father and stepmother. The petitioner argued that the welfare of the minors would be best assured if custody was given to the mother. The court held that no ground for disqualification of the mother under Islamic Law was present, and the father lived abroad, making it uncertain if he could adequately care for the children. The court emphasized the importance of a mother’s role and directed custody to be handed over to the petitioner mother. The Constitutional petition was allowed.

Citation Name: 2021 YLR 39 (High Court Azad Kashmir)

  • Appellant: Muhammad Jameel
  • Opponent: Muhammad
  • Issue: Custody of minor, welfare of minor, father’s second marriage
  • Summary: The father and grandmother of the minor challenged an order dismissing their application for custody. The minor’s mother had passed away, and the father had been living abroad and remarried. The minor had been with his maternal grandmother. The court considered the minor’s preference and found it in his best interest to remain with the maternal grandmother. The father’s appeal was dismissed.

Citation Name: 2020 CLC 879 (Islamabad)

  • Appellant: Sana Aizad
  • Opponent: Additional District Judge VII/Guardian Appellate Court, Islamabad
  • Issue: Custody of minor, doctrine of clausula rebus sic stantibus
  • Summary: The mother filed for custody and entered into a compromise to take the minor son to the UK. Her visa application was rejected, and she went abroad without the minor. The father sought custody, and the petitioner’s application was dismissed while the father’s was accepted. The court held that the mother’s change in circumstances and her inability to take the child abroad justified the father seeking custody. The doctrine of clausula rebus sic stantibus applied due to the fundamental change in circumstances. The court affirmed the custody decision, but the declaration that the mother wouldn’t be entitled to permanent custody upon return to Pakistan was set aside.

Citation Name: 2019 CLC 1352 (Peshawar High Court)

  • Appellant: Mujeeb Ur Rehman
  • Opponent: Mst. Mehroon Nisa alias Tanzil Begum
  • Issue: Temporary custody of minor, father working abroad
  • Summary: The petitioner father challenged an order giving interim custody of the minor child to his mother. The petitioner was working abroad, and the minor was in the custody of his paternal grandfather and cousin. The court acknowledged the importance of a mother’s presence but found that the minor was not experiencing paternal love in his current arrangement. While the petitioner was abroad, the court emphasized the mother’s responsibility for the child’s maintenance. The court upheld the order of temporary custody with the mother, subject to the decision in the main case.

Citation Name: 2019 MLD 1772 (Islamabad)

  • Appellant: Fizza Mai
  • Opponent: Shahbaz Hassan Khan
  • Issue: Habeas corpus, custody of minor, legality of custody, welfare of minor
  • Summary: The maternal grandmother challenged an order temporarily granting custody to the father. The court considered the minor’s upbringing, the petitioner’s care, and the lack of urgency. The minor had been with the grandmother for eight years, and the court found no evidence of deficient care. The petitioner’s residency in a different district and the minor’s school attendance were also factors. The court declined to return custody to the grandmother and disposed of the petition accordingly.

Citation Name: 2019 YLR 2018 (High Court Azad Kashmir)

  • Appellant: Nadeem Afzal
  • Opponent: Nazia Yasmeen
  • Issue: Custody of minor, private settlement, welfare of minor
  • Summary: The father appealed a decision to grant custody to the mother based on a private agreement between the parents. The court found the agreement void and not enforceable under law. However, the minor had been with the mother, receiving proper education and care. The court allowed a change in custody, with directions not to take the minor out of the court’s jurisdiction without permission.

Citation Name: 2018 SCMR 590 (Supreme Court)

  • Appellant: Nasir Raza
  • Opponent: Additional District Judge, Jhelum
  • Issue: Custody and guardianship of minor children after mother’s death
  • Summary: The petitioner father sought custody of his minor children after the mother’s death. The court considered the father’s status as the natural guardian, his willingness and financial ability to care for the children, and the presence of the paternal grandmother in his house. The court determined that the minors’ welfare and best interest lay with their father. The court directed the custody to be handed over to the father within one week, with provisions for visitation with their maternal grandmother.

Citation Name: 2018 SCMR 427 (Supreme Court)

  • Appellant: Mirjam Aberras Lehdeaho
  • Opponent: SHO, Police Station Chung, Lahore
  • Issue: Habeas corpus petition for recovery of children, parental jurisdiction
  • Summary: The mother, residing abroad, sought the return of her children alleging their removal from her custody by deception and force. The Supreme Court emphasized its jurisdiction to safeguard the interests of minors in cases where harm could come to them. The court restored custody to the mother as an interim measure to secure the children’s well-being.

Citation Name: 2018 MLD 870 (Peshawar High Court)

  • Appellant: Mst. Basmina
  • Opponent: Imran
  • Issue: Suit for dissolution of marriage, recovery of dower, and custody of minor
  • Summary: The petitioner sought dissolution of marriage, dower, and custody of a minor child. The court considered issues of cruelty, maintenance, and custody. The petitioner’s claim of cruelty was not substantiated, and the court observed that she left the marital home of her own accord. The court determined the amount of dower and considered the petitioner’s request for khula. The court granted past maintenance and dealt judiciously with custody, modifying certain aspects of the lower court’s decision.

Citation Name: 2018 PLD 377 (Karachi High Court – Sindh)

  • Appellant: Scherazade Jamali
  • Opponent: Hisham Gillani
  • Issue: Restriction on movement of ward/minor, custody, welfare of minor
  • Summary: The Trial Court had directed both parties not to remove the minor from the jurisdiction and deposit the minor’s passport. The Appellate Court upheld this order, emphasizing the father’s visitation rights. The High Court observed that while visitation is important, the welfare of the child must consider other factors such as better upbringing, education, and environment. The High Court set aside the restriction on movement, allowed travel and admission to educational institutions, and established visitation rights for the father during vacations.

Citation Name: 2018 CLCN 56 (Karachi High Court – Sindh)

  • Appellant: Dr. Indu
  • Opponent: Additional District and Sessions Judge
  • Issue: Interim custody of minor, permission for taking ward abroad
  • Summary: The petitioner/mother sought permission to take the minor abroad during summer vacation. The father argued against this, pointing out that the custody claim was pending and the mother hadn’t yet applied for the minor’s visa. The court dismissed the petition, considering the pending custody claim and the time required for obtaining a visa.

Citation Name: 2018 YLR 1891 (Islamabad)

  • Appellant: Mst. Fatima Ali
  • Opponent: Mst. Rubina Ehtesham
  • Issue: Custody of minor, visitation rights, court premises as visitation place
  • Summary: The petitioner/mother sought to restrict the grandmother’s visitation to within the court premises, fearing the minor might be taken out of the jurisdiction. The court declined this request, noting that the grandmother resided within the jurisdiction and her visitation rights were important. The court emphasized the welfare of the minor and dismissed the petitioner’s suggestion of visitation within the court premises.

Citation Name: 2017 PLD 265 (Supreme Court)

  • Appellant: Imran Ahmad Khan Niazi
  • Opponent: Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly
  • Issue: Disqualification of Prime Minister, ownership of offshore properties, money laundering
  • Summary: The case involved allegations against the Prime Minister for acquiring wealth through corrupt practices, misuse of authority, and money laundering. Properties owned abroad by the Prime Minister’s children through offshore companies were revealed in the Panama Papers. A Joint Investigation Team (JIT) was formed to probe these allegations. The Supreme Court directed the constitution of a JIT to investigate the matter further, including identifying the source of funds for the properties and foreign businesses. The court would examine the issue of disqualification based on the JIT’s report.

Citation Name: 2017 YLR 994 (Karachi High Court – Sindh)

  • Appellant: Faraz Alamgir
  • Opponent: Additional District and Sessions Judge VIII
  • Issue: Custody of minor, territorial jurisdiction
  • Summary: The father sought custody of the minor after the mother took the child abroad. The issue was whether the minor’s “ordinary place of residence” had changed due to the mother’s relocation. The court clarified that a new place could become the ordinary residence only after the minor had settled there for a reasonably long period. The court set aside previous orders and directed the Family Court to rehear the case and decide the question of territorial jurisdiction.

Citation Name: 2016 SCMR 1287 (Supreme Court)

  • Appellant: Mst. Tanveer Bibi
  • Opponent: SHO Police Station Mandi Bahauddin
  • Issue: Habeas corpus petition, recovery and custody of minor children
  • Summary: The mother alleged that her in-laws turned her out of the house and snatched her minors while their father was working abroad. The minors appeared happy with their mother in court. The court ruled in favor of the mother, considering the welfare and best interest of the minors, and delivered custody to her.

In the case of Mst. Marium Tariq v. SHO of Police Station Defence (2015 PLD 382), the following issues were addressed:

  • The petitioner, Mst. Marium Tariq, and the respondent, the SHO of Police Station Defence, were involved in a case regarding the custody of a minor girl.
  • The parents of the minor girl were divorced, and the father filed an application for custody of the minor girl in the Family Court.
  • During the pendency of the custody application, the mother left the country to pursue further studies and took the minor girl, who was 2-½ years old, with her.
  • The Family Court eventually ruled in favor of the mother and allowed her to retain custody of the minor girl.
  • The father lodged an FIR against the mother for abducting the minor girl, alleging that the mother denied him access to his daughter and took her to a foreign country.
  • The central issue revolved around whether the mother’s actions constituted kidnapping and whether the FIR should be quashed.

The court’s analysis and conclusions were as follows:

  • The Family Court had not disturbed the custody arrangement, and the mother’s custody rights had been affirmed by the Family Court, Appellate Court, and High Court.
  • The mother’s decision to leave for a foreign country for post-graduation studies with her daughter was based on circumstances that necessitated her absence and was not motivated by mens rea for kidnapping.
  • The minor girl had been in the custody of her mother since birth, and there was no evidence that the mother snatched custody from the father.
  • Both parents were natural guardians, and one natural guardian could not lodge an FIR of kidnapping against the other natural guardian.
  • The main allegation in the FIR was related to traveling abroad without the father’s permission, which led to the charge of kidnapping. However, under the circumstances, no offence of kidnapping was made out.
  • The court emphasized that the purpose of Section 363 of the Penal Code was to protect and espouse the rights of parents and not to exploit them against each other after divorce.
  • The father’s visitation rights had been affirmed by the courts, but if they were not implemented, the appropriate remedy was to approach the Family Court for their implementation.
  • The High Court quashed the FIR under Sections 363 and 34 of the Penal Code, directed that INTERPOL intervention was not necessary, and advised the father to seek redress through the Family Court for the implementation of visitation rights.

Attiq Ahmed v. Adla Noreen (2013 CLC 568):

  • The case involved a contest between a divorced mother and the father of a minor child, aged 2 years, who was living abroad and had contracted a second marriage.
  • When determining custody, the court took into account the welfare of the minor, considering factors such as age, sex, and personal law.
  • The court found that the mother was better suited to look after the child and provide full-time care and attention, especially given the child’s young age.
  • Since the minor had been living with his mother since birth and required constant care, the court concluded that the mother, as a natural guardian under Islamic Law, was better equipped to meet the child’s needs.
  • The father’s claim for custody of the minor was dismissed, and custody was awarded to the mother.

Muhammad Nadeem Qadir v. Additional District Judge, Lahore (2012 SCMR 609):

  • The case involved an application by a father seeking custody of minors and restraining the mother from removing them from the jurisdiction of the court.
  • The Guardian Judge and the first Appellate Court had dismissed the father’s application.
  • The father filed a constitutional petition challenging the judgments of the lower courts, which was also dismissed by the High Court.
  • The High Court’s observations included points such as the minors’ disassociation from their father and residing in a better atmosphere than the one existing in the father’s country of residence.
  • The father had continuously sought custody and visiting rights but had not been successful.
  • The father’s deposition of maintenance amounts was established through evidence, yet visiting rights were denied.
  • During the Supreme Court proceedings, the mother’s counsel expressed willingness to ensure visiting rights for the father.
  • The Supreme Court allowed the father’s petition for leave to appeal, set aside the lower courts’ judgments, and directed the parties to appear before the Guardian Judge, where the application for custody of minors was deemed pending.

Mrs. Ingrid Pereira v. VIth Additional District Judge, Karachi South (2012 PLD 208):

  • The petitioners were close relatives of the father of minor children and were settled abroad.
  • The petitioners had adopted the minors with the consent of their father and sought a guardianship certificate to take the minors abroad.
  • The Family Court and the Lower Appellate Court declined to issue a guardianship certificate in favor of the petitioners.
  • The High Court held that the welfare of the minors was of paramount importance in all cases involving custody, adoption, or guardianship.
  • The court observed that the well-being of the minors was safeguarded with the petitioners, who were Roman Catholic Christians and wanted to adopt the minors, not governed by Muslim Personal Law.
  • Taking into account the minors’ welfare and the fact that the orders of the lower courts were based on conjectures and surmises without proper appreciation of the legal position, the High Court allowed the petitioners to take the minors outside the jurisdiction for the purposes of adoption in the United States of America, setting aside the orders of the lower courts.

Dr. Aisha Yousuf v. Khalid Muneer (2012 PLD 166):

  • The case involved a custody dispute between a father with a second wife and the real/divorced mother of a minor daughter.
  • The Family Court ordered custody of the minor to the mother while allowing the father custody on specified occasions.
  • The Appellate Court upheld this order with a modification, allowing the father custody for a fortnight during summer vacation.
  • The mother, who was a doctor by profession, sought permission to take the minor with her to Dubai where she had a job offer.
  • The High Court held that just as a father could not be asked to abandon his career, a mother could not be deprived of custody if she wanted to pursue her career abroad.
  • The court allowed the mother to take the minor abroad subject to her furnishing a Personal Recognizance Bond for Rs.1 million with one surety to the satisfaction of the court’s Nazir.

Suo Motu Case for Recovery of Minor Kids of Mst. Tahira Jabeen (2010 SCMR 1804):

  • The case involved the misuse of visitation rights by the father of minor children during the pendency of proceedings before the Guardian Court, leading to the removal of the minors to a foreign country.
  • Despite the registration of an FIR against the father and others, the minors could not be recovered.
  • The Supreme Court took suo motu notice of the matter while hearing a bail application of a co-accused.
  • The authorities eventually recovered the minors from abroad and handed them over to their mother, who was entitled to retain custody, subject to the decision of the Guardian Judge.
  • The Supreme Court appreciated the efforts of the Provincial Police Officer in tracing the minors and directed further action to bring the culprits to trial.
  • The mother was allowed to take the minors to her city, and the police were directed to provide protection to her if needed.
  • The case was disposed of accordingly.

Mst. Bisma Safdar v. Additional District Judge (2010 YLR 1309):

  • The case concerned a constitutional petition for custody of a minor.
  • An earlier application under S.25 of the Guardians and Wards Act, 1890 for permanent custody had resulted in a compromise, with the minors staying with the father and spending time with the mother on specified terms.
  • The plaintiff (mother) filed another application under S.25, alleging a violation of the compromise terms, which was dismissed by the Guardian Court.
  • The appeal filed by the plaintiff was also dismissed by the Appellate Court.
  • The High Court upheld the presumption in favor of the father’s guardianship of a minor boy of more than two years old, according to Shia Law.
  • Despite certain shortcomings on the father’s part, the court ruled that the presumption of the child’s welfare lying in being given custody to the father at his present age had not been rebutted.
  • The High Court found no legal basis for interference and dismissed the constitutional petition.

Josip Stimac v. Melitta Syed Shah (2009 PLD 393):

  • The case involved the arrest of the mother of minor children (an Austrian national) at the airport, where a significant amount of heroin was recovered from her luggage.
  • The mother requested to keep her children with her in judicial lock-up due to her foreign status and lack of local support.
  • The maternal-grandparents of the minors sought custody through a constitutional petition, asserting that the minors were improperly confined and should be released to them in Austria.
  • The minors’ maternal grandparents had obtained a custody order from Austrian Courts.
  • The High Court, considering the welfare of the minors and potential risks, ordered that custody be given to the maternal grandparents, with arrangements made by the Austrian Embassy.
  • The minors were released from jail and were to be sent to Austria under the custody of the Deputy Head of Mission, Austrian Embassy.

Mst. Barkat Bibi v. Mst. Rubina Kausar (2009 YLR 1106):

  • The petitioner (paternal grandmother) sought custody of a minor female based on the welfare of the minor.
  • The respondent (mother) had contracted a second marriage and had the custody of the minor.
  • The court held that the conduct of the petitioner, her lack of independent income, and the minor’s attachment to her mother favored the mother’s custody.
  • The court emphasized the importance of the minor’s welfare, considering her age and attachment, and upheld the custody with the mother.

Abdul Majeed v. Additional District Judge, Talagang (2009 CLC 1143):

  • The petitioner sought custody of his minor son.
  • The Guardian Judge initially granted custody to the father, which was later set aside by the Appellate Court.
  • The court stressed the importance of emotional welfare over monetary considerations in custody decisions.
  • The court highlighted the emotional well-being of the minor, the practical aspects of parenting, and the potential negative impact of separating siblings.
  • The Appellate Court’s decision to award custody to the mother was upheld, considering the minor’s emotional stability and well-being.

In the cases of Bashir Ahmad v. Shazia Kausar (2009 MLD 736), Mariam Khan v. Mehryar Salim (2008 YLR 2647), Imran Ali v. Mst. Iffat Siddiqui (2008 PLD 198), and Sharifan Bibi v. Judge, Guardian Court, Daska (2005 CLC 529), the following legal considerations were addressed:

Bashir Ahmad v. Shazia Kausar (2009 MLD 736):

  • After divorce, the father contracted a second marriage and was living abroad, while the mother had not remarried.
  • The minors were living with their mother, receiving education, and being well-cared for.
  • The court determined that the welfare of the minors was best served by remaining in the custody of their mother.

Mariam Khan v. Mehryar Salim (2008 YLR 2647):

  • Due to differences between the parents, the petitioner settled abroad with her son.
  • Both parties filed custody suits in superior courts abroad, with the petitioner winning custody.
  • Despite court orders, the father kidnapped the child and brought him to Pakistan.
  • The court found that the father’s actions were in violation of foreign court orders and that the child’s best interests were with the mother.
  • The court considered the child’s age, potential well-being, and previous conduct of the father in making its decision.

Imran Ali v. Mst. Iffat Siddiqui (2008 PLD 198):

  • The petitioner, a Shia father, sought custody of his minor children who were about 8 and 5.5 years old.
  • The court considered the father’s financial means, religious background, family environment, and potential for providing proper education.
  • The court concluded that the minors’ welfare would be better served in the custody of their father, who had suitable means and support for their upbringing.

Sharifan Bibi v. Judge, Guardian Court, Daska (2005 CLC 529):

  • The father, working abroad and remarried, sought custody of his minor child from the maternal grandmother.
  • The maternal grandmother had been caring for the child since the mother’s death.
  • The court remanded the case to the Guardian Judge for a fresh decision, considering the absence of the father and the best interests of the child.
  • The court found that in the absence of a clear arrangement for the child’s care in the father’s custody, the custody decision should be revisited to ensure the child’s welfare.

In the cases of Mst. Kouri v. Jhando (2005 YLR 121), Sardar Hussain v. Mst. Parveen Umar (2003 YLR 3054), and Astasab Hussain v. Sarfraz Khan Jhawari (2001 CLC 357), the courts addressed various aspects related to the custody of minors:

Mst. Kouri v. Jhando (2005 YLR 121):

  • The father of the minor had proceeded abroad for employment.
  • The grandfather of the minor assured the court in writing that he would ensure the well-being of the minor.
  • The mother also undertook to care for the minor and not engage in actions that could harm the minor’s welfare.
  • Both parties agreed that the minor’s best interests would be served by remaining with the mother, and paternal relations were granted reasonable access.

Sardar Hussain v. Mst. Parveen Umar (2003 YLR 3054):

  • The petitioner had divorced the respondent and the respondent had entered into a second marriage and was living happily.
  • The petitioner sought custody of the minors based on their age and the respondent’s second marriage.
  • The court emphasized the paramount consideration of the welfare of the minors and rejected the notion of an absolute right based solely on the age of the minors.
  • The respondent’s second marriage was not a sufficient ground to deny her custody, as she had taken steps to secure her future and that of the minors.
  • The court found that the minors were well-cared for in the respondent’s household and upheld the decision to grant custody to the mother.

Astasab Hussain v. Sarfraz Khan Jhawari (2001 CLC 357):

  • The petitioner (father) who was living abroad sought custody of the minor.
  • The court considered the fact that the father had decided to settle in Pakistan and evaluated his past conduct.
  • The court found that the custody of the minor, who had been living with the mother since birth, should not be granted to the father who only recently decided to settle in Pakistan.
  • The court also took into account the father’s lack of knowledge about the minor’s education and educational qualifications of the mother.
  • Given the circumstances, the court upheld the decision to grant custody to the mother.

In the cases of Zahoor Ahmed v. Rukhsana Kausar (2000 SCMR 707) and Zahoor Ahmed v. Rukhsana Kausar (1999 MLD 1580), the courts dealt with custody disputes involving a minor child:

Zahoor Ahmed v. Rukhsana Kausar (2000 SCMR 707):

  • The father sought custody of the minor child who was living with his maternal grandparents.
  • The father had contracted a second marriage and was working abroad.
  • The father did not appear in person to provide details about his living conditions abroad for the court to determine the best interest of the child.
  • The minor child was summoned to court and expressed a desire to remain with his maternal grandparents, indicating his happiness with them.
  • The High Court inferred that the father had filed the custody petition as a counterclaim to a maintenance petition.
  • The Supreme Court upheld the conclusion of the High Court that the child should remain with the maternal grandparents, given the well-adjusted environment and the child’s own preference.

Zahoor Ahmed v. Rukhsana Kausar (1999 MLD 1580):

  • The petitioner (father) sought custody of a minor child aged about 9 years, who was currently living with maternal grandparents.
  • The father had divorced the child’s mother, contracted a second marriage, and was settled abroad.
  • The father did not personally appear in court to testify about the circumstances surrounding his request for custody.
  • The minor child appeared before the court and expressed his desire to continue living with his maternal grandparents.
  • The courts concluded that it would not be safe to uproot the child from his current family environment and place him under the care of a stepmother.
  • Both the lower court and the High Court determined that the custody of the minor child should remain with the maternal grandparents.

In the case of Faiz Rasool v. Nousheen Aslam (1999 MLD 943), the Lahore High Court addressed the issue of temporary custody of a minor girl:

Faiz Rasool v. Nousheen Aslam (1999 MLD 943):

  • The case involved the temporary custody of a minor girl who was a suckling baby.
  • The minor girl was in the custody of her paternal grandfather as her father was abroad.
  • The mother of the minor girl sought custody, and the court considered her the most suitable and appropriate guardian for the child.
  • The fact that the father had returned to Pakistan from abroad with the intention to reside permanently was not sufficient to nullify the welfare of the child and the value of the custody of the mother.
  • The court upheld the concurrent orders of the lower courts granting custody to the mother and declined to interfere in the exercise of its Constitutional jurisdiction.

In the case of Noor Safia v. S.P., Sialkot (1997 PCRLJ 84), the Lahore High Court dealt with a habeas corpus petition concerning the custody of minors during the Hazanat period:

Noor Safia v. S.P., Sialkot (1997 PCRLJ 84):

  • The case involved minors who had allegedly been taken away forcibly from the lawful custody of their mother by their paternal grandfather and uncles.
  • The court clarified that the case was not one of improper custody but of the illegal detention of the minors.
  • The mother, being the petitioner, had a legal right to the custody of the minor detenus during the Hazanat period.
  • The court directed the respondents to deliver the custody of the minors to the petitioner, emphasizing that even the welfare of the minors required that they be placed in her custody until the matter of their regular custody could be decided by a court of competent jurisdiction under the Guardians and Wards Act, 1890.

In the case of Mst. Basri Irshad v. Tauqir Hayat (2021 YLR 1267), the Peshawar High Court addressed the issue of the scope of filing a habeas corpus petition under Section 491 of the Criminal Procedure Code (CrPC) during the pendency of an application before the Guardian Judge for the custody of minors:

Mst. Basri Irshad v. Tauqir Hayat (2021 YLR 1267):

  • The case involved a custody dispute concerning minors.
  • The court determined that a petition under Section 491 of the CrPC is maintainable and can be filed during the pendency of an application before the Guardian Judge for the custody of minors.

In the case of Fizza Mai v. Shahbaz Hassan Khan (2019 MLD 1772), the Islamabad High Court discussed the scope of a habeas corpus petition in the context of the custody of a minor and the role of maternal grandmother:

Fizza Mai v. Shahbaz Hassan Khan (2019 MLD 1772):

  1. The case involved the custody of a minor child and the role of the maternal grandmother.
  2. The court highlighted that in the exercise of jurisdiction under Section 491 of the CrPC, the court tends not to interfere with a maternal grandmother’s custody over a minor unless there is an element of snatching of the minor.

Understanding the difference between Section 100 of the Code of Criminal Procedure (CRPC), 1898 and Section 491 of the Code of Criminal Procedure (CRPC), 1898

Section 100 of the Code of Criminal Procedure (CRPC), 1898, pertains to the discovery of persons wrongfully confined. This section addresses situations where a Magistrate of the first class has reason to believe that an individual is being confined under circumstances that amount to an offense. In such cases, the Magistrate is empowered to issue a search warrant to investigate the matter further.

Under this provision, the person to whom the search warrant is directed is authorized to conduct a search for the individual who is believed to be wrongfully confined. This search must be conducted in accordance with the warrant’s specifications. If the person is indeed found, they are to be immediately taken before a Magistrate. The Magistrate then has the authority to make an appropriate order based on the circumstances of the case.

This section of the CRPC is significant in cases involving potential wrongful confinement. It provides a legal mechanism for addressing situations where a person’s freedom is curtailed without proper justification. By allowing a Magistrate to intervene and issue a search warrant, the law seeks to ensure that individuals who are being unlawfully confined can be discovered and their rights protected. The provision emphasizes prompt action and fair treatment through the involvement of a Magistrate in making a just order based on the case’s specific circumstances.

In the context of child custody matters, Section 100 CRPC could have relevance if there are concerns that a child has been wrongfully confined or withheld from the custody of a rightful guardian. If a Magistrate of the first class has reason to believe that a child is being confined in a manner that constitutes an offense, they can initiate the process outlined in Section 100 to investigate the situation and take appropriate action to ensure the child’s well-being and proper legal custody arrangements.

Section 100 CRPC outlines several fundamental aspects that guide its application in cases of wrongful confinement. Here’s an analysis of the points you’ve mentioned:

  • Magistrate’s Empowerment: It’s important to note that this section is applicable to Magistrates of the First Class, giving them the authority to issue search warrants for situations involving wrongful confinement.
  • Judicial Power: While Section 100 does not confer judicial power in the traditional sense, it serves as an enabling provision for the enforcement of due process of law. This underscores its role in safeguarding individual rights and ensuring proper legal procedures.
  • Search Warrant Issuance: The section primarily revolves around the issuance of search warrants, providing a mechanism for investigating and addressing potential cases of wrongful confinement.
  • Enforcement of Due Process: As you rightly pointed out, this provision aims to enforce due process of law and prevent unlawful confinement by authorizing Magistrates to intervene.
  • Competence of Authorities: This section specifically designates Magistrates as the competent authorities to act under Section 100 CRPC. Any other authority invoking this section without lawful authority is deemed void ab initio.
  • Grounds for Issuing Search Warrant: A Magistrate can issue a search warrant under this section if they have reason to believe that a person is wrongfully confined, and the confinement amounts to an offense.
  • Judicial Exercise of Discretion: The discretion granted to the Magistrate should be exercised in a judicial fashion, adhering to well-accepted norms and principles.
  • Limited Inquiry Requirement: While a formal inquiry isn’t mandatory before issuing a search warrant, it may be advisable for the Magistrate to conduct some inquiry or provide notice to the opposing party.
  • Territorial Jurisdiction: The Magistrate can issue a search warrant only when the search is to be conducted within the local limits of their jurisdiction. Failure to observe territorial jurisdiction can render the order invalid.
  • Police Officer’s Role: The duty of a police officer executing the search warrant is to search for the person mentioned and recover them if found. The decision about the legality of detention lies with the Magistrate who issued the warrant.
  • Magistrate’s Disposition: The Magistrate has discretion to decide how to handle a person recovered under this section in an appropriate manner, based on the interests of justice and public policy.
  • Scope of Jurisdiction: The intentionally broad language of the section allows the Magistrate to make just and equitable decisions without prescribing specific outcomes.
  • Protective Detention: The power granted by this section doesn’t extend to ordering protective detention of a person who is sui juris (of legal age) and not accused of an offense. The Magistrate’s focus is on addressing wrongful confinement, not ordering protective custody.

An  analysis of the case cited from PLD 1985 AJ&K 11 demonstrates the court’s approach in determining suitable outcomes based on individual circumstances, highlighting the consideration of the person’s best interests and the principles of justice.

Comparison between Section 100 and Section 491 of the Code of Criminal Procedure (CrPC)- scope, nature, and purpose. 

  • Scope and Nature:
    • Section 100 CrPC: This section pertains to the discovery of persons wrongfully confined and is primarily concerned with situations where a Magistrate of the First Class has reason to believe that a person is confined under circumstances amounting to an offense. It focuses on issuing search warrants to locate such persons and ensuring their prompt presentation before a Magistrate.
    • Section 491 CrPC: In contrast, Section 491 CrPC grants the High Court the power to issue directions in the nature of habeas corpus. This section is broader in scope as it allows the High Court to address cases involving unlawful detention or confinement, whether wrongful or not, and not limited to a specific class of Magistrates.
  • Nature of Power:
    • Section 100 CrPC: As you correctly pointed out, Section 100 does not confer a judicial power in the traditional sense. It enables the issuance of search warrants for the enforcement of due process of law and aims to rectify situations of wrongful confinement through a specific legal mechanism.
    • Section 491 CrPC: This section, on the other hand, grants the High Court the power to issue directions in the nature of habeas corpus. Habeas corpus is a fundamental legal remedy that focuses on ensuring personal liberty by addressing cases of unlawful detention. The High Court’s power under Section 491 is more judicial in nature, allowing it to directly intervene in matters of detention and confinement.
  • Enforcement and Judicial Power:
    • Section 100 CrPC: While this section provides a mechanism for enforcement through search warrants, it does not confer broader judicial powers upon the Magistrate beyond addressing wrongful confinement through search and presentation.
    • Section 491 CrPC: Section 491 empowers the High Court to issue writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. These writs serve to protect individual rights, ensure due process, and supervise the actions of lower authorities. In this sense, Section 491 grants the High Court more extensive and direct judicial authority.

In summary, Section 100 CrPC is specifically focused on addressing situations of wrongful confinement through the issuance of search warrants by Magistrates of the First Class. It is limited in scope and serves as an enabling provision for the enforcement of due process of law.

On the other hand, Section 491 CrPC provides the High Court with a broader set of powers, including the issuance of writs in the nature of habeas corpus. This section allows the High Court to intervene in cases of unlawful detention and ensure personal liberty, making it a more comprehensive and judicially empowered provision.

Powers of the High Court under Section 491 of the Code of Criminal Procedure, 1898, and under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973

The section pertains to the difference between the powers of the High Court under Section 491 of the Code of Criminal Procedure, 1898, and under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Both of these legal provisions play significant roles in ensuring individual rights and addressing issues related to detention and custody. Let’s examine the distinctions between them:

Section 491 of the Code of Criminal Procedure (CrPC), 1898:

This section grants the High Court the power to issue directions in the nature of a “habeas corpus,” which primarily involves matters related to the liberty and unlawful detention of individuals. The key points to note include:

  • Scope of Powers: The High Court’s powers under Section 491 of the CrPC are mainly directed toward issues of detention and custody, including matters of illegal or improper detention, bringing up prisoners for examination, transferring prisoners for trial, and examining prisoners as witnesses.
  • Criminal Jurisdiction: The powers granted under Section 491 are within the realm of the High Court’s appellate criminal jurisdiction.
  • Procedures: The High Court has the authority to frame rules to regulate the procedure in cases falling under Section 491.
  • Applicability: Section 491 does not apply to persons detained under other laws providing for preventive detention.

Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973:

Article 199 of the Constitution confers upon the High Courts the power to issue orders and directions for the enforcement of fundamental rights, including the right to personal liberty. Some key aspects of Article 199 are:

  • Scope of Powers: Article 199 grants the High Court broader powers to ensure the enforcement of fundamental rights. These rights encompass various aspects beyond just detention, including issues related to liberty, freedom of expression, and due process.
  • Constitutional Jurisdiction: The powers under Article 199 are rooted in the Constitution and relate to matters of fundamental rights.
  • Writs and Orders: The High Court can issue writs such as habeas corpus, certiorari, mandamus, prohibition, and quo warranto, to safeguard constitutional rights.
  • Procedures: The Court can determine its own procedures for the enforcement of fundamental rights through Article 199.

In summary, while both Section 491 of the CrPC and Article 199 of the Constitution address matters related to individual rights and detention, there are notable differences in their scope, applicability, and breadth of issues they address. Section 491 is more focused on detention-related matters, while Article 199 provides the High Court with broader authority to ensure the enforcement of fundamental rights, including personal liberty. Both provisions serve as crucial tools for upholding justice and safeguarding individual rights within the legal framework of Pakistan.

If you require further analysis or clarification on any specific aspects of these provisions, please feel free to let me know. I’m here to assist you as your legal assistant and colleague.

History of Habeous Corpus 

The section is an overview of the historical development of the jurisdiction vested in the High Court regarding habeas corpus, tracing its evolution from pre-1954 to the present day. There have been several legislative changes and constitutional provisions that have shaped the authority of the High Courts in issuing writs of habeas corpus. 

Pre-1954 Habeas Corpus Jurisdiction:

    • Before July 1954, the jurisdiction for issuing writs of habeas corpus vested in the High Court under the provisions of Section 491 of the Code of Criminal Procedure (CrPC).
  • Introduction of Habeas Corpus Jurisdiction:
    • The High Courts were initially conferred the authority to issue writs in the nature of habeas corpus through the insertion of Section 223-A in the Government of India Act, 1935.
    • The Government of India (Amendment) Act, 1954, continued and expanded this jurisdiction.
  • Constitutional Incorporation:
    • The jurisdiction for issuing writs in the nature of habeas corpus was retained and formalized by Article 170 of the Constitution of 1956.
    • The Constitutional jurisdiction, similar to but wider than the jurisdiction conferred by Section 491, was established by Article 98 of the Constitution of 1962.
  • Continuation in the 1973 Constitution:
    • The Constitutional jurisdiction for habeas corpus was continued in the 1973 Constitution and is presently vested in superior courts under Article 199.
  • Comparison between Section 491 and Article 199:
    • Article 199 is similar to the jurisdiction granted by Section 491 but has a broader scope.
    • While Section 491 is a provision of the Code of Criminal Procedure (a statute), Article 199 is a provision of the Constitution itself.
  • Nature of Statutory and Constitutional Powers:
    • Section 491 CrPC grants statutory powers, which are specific and must be gathered from the language of the section itself.
    • Article 199 of the Constitution, being a part of the supreme law, establishes the constitutional authority of the High Courts to issue writs in the nature of habeas corpus.
  • Implied Powers:
    • The power to issue interim orders or powers implied in the context of habeas corpus must be derived directly from the language of the relevant provision (Section 491 or Article 199).
    • Statutory powers are conferred explicitly, and implied powers are limited to what is essential for the exercise of the main power itself.

Habeas Corpus

A writ of habeas corpus is a legal remedy used to bring a person before a court in order to determine the legality of their imprisonment or detention. This writ, often referred to as “habeas corpus and subjiciendum,” is a fundamental tool for safeguarding personal liberty. Its primary purpose is to ensure that an individual’s detention is not illegal or improper. The writ serves as a mechanism to challenge the lawfulness of an arrest, commitment, or confinement. In addition to examining the legality of detention, a writ of habeas corpus can also be used for various other purposes:

  • Review of Extradition Process: The writ can be employed to review the regularity of the extradition process, ensuring that it is in accordance with the law.
  • Bail Matters: It can be utilized to determine the right to bail or the appropriateness of the bail amount set by a court.
  • Jurisdiction Review: The writ can be invoked to question the jurisdiction of a court that has imposed a criminal sentence.

The jurisdiction granted to the High Court under Section 491 of the Code of Criminal Procedure (CrPC) encompasses two main aspects:

  • Dealing with Persons within Jurisdiction: The High Court has the authority to deal with individuals within its jurisdiction in accordance with the law.
  • Ensuring Proper Detention: If a person is found to be illegally or improperly detained, the High Court can order their release to ensure that their detention is lawful.

The proceedings under a writ of habeas corpus are typically conducted in a summary manner. The focus of the proceedings is on matters directly relevant to the alleged detention. The key questions include whether the detenue (the detained person) should be set at liberty and allowed to go with a person of their choice, or whether the proceedings should be dropped if the detention is found to be legal. The court does not engage in a comprehensive trial of counter claims or delve into controversies surrounding the status or relationship of parties.

It’s important to note that controversies are not fully tried, and extensive evidence is not recorded as it would be under ordinary substantive and procedural laws. Instead, a tentative view is taken based on the information presented during the summary proceedings.

Overall, a writ of habeas corpus plays a crucial role in protecting individual freedoms and ensuring that detentions are lawful.

An overview of the different courts and the provisions of law that empower them to recover detainees. 

Section 100 of the Code of Criminal Procedure (CrPC):

    • This provision empowers a Magistrate of the first class to issue a search warrant if they have reason to believe that a person is wrongfully confined.
    • The executing officer, upon receiving the search warrant, can recover the confined person and produce them immediately before the Magistrate.
    • The Magistrate then makes an appropriate order based on the circumstances of the case.
  • Guardian Judge/Judge Family Court:
    • A Guardian Judge or a Judge of the Family Court also has the authority to proceed under Section 100 of the CrPC, enabling them to issue search warrants for the recovery of wrongfully confined individuals.
  • Section 552 of the Code of Criminal Procedure, 1898:
    • This provision allows a District Magistrate, upon receiving a complaint under oath about the abduction or unlawful detention of a woman or a female child under the age of sixteen, to issue an order for their immediate restoration to liberty or lawful charge.
    • The District Magistrate can compel compliance with this order, using necessary force if required.
  • Section 491 of the Code of Criminal Procedure (CrPC):
    • Under this section, the High Court has the power to issue directions in the nature of habeas corpus for the release of a person who is illegally and improperly detained by any individual, including the police or public.
  • Article 199 (1) (b) (i) of the Constitution:
    • This constitutional provision grants the High Court the authority to set at liberty a person who has been detained in a manner that is without lawful authority.

General Provisions Relating to Searches:

  • Section 101 of the Code of Criminal Procedure, 1898: Mandates that the provisions of various sections (43, 75, 77, 79, 82, 83, and 84) are to be observed even when conducting searches under Section 100 of the CrPC.
  • Section 102: Imposes the obligation on the person in charge of a closed place to allow a search when authorized by law.
  • Section 103: Requires that two independent and reliable persons from the locality must witness the search, and a list of all seized items must be prepared.
  • The underlying objective of these provisions is to ensure that searches are conducted fairly, honestly, transparently, and with integrity.

Difference between a search under Section 103 of the Code of Criminal Procedure, 1898, and a search under Article 40 of the Qanun-i-Shahadat Order, 1984. 

Let’s explore these two concepts and their distinctions:

Search under Section 103 of the Code of Criminal Procedure, 1898:

Section 103 of the Code of Criminal Procedure (CrPC) pertains to searches conducted by a police officer under Chapter VII of the CrPC. This section outlines specific requirements for conducting searches, such as the presence of two independent and reliable witnesses from the locality during the search and the preparation of a list of all items seized.

Search under Article 40 of the Qanun-i-Shahadat Order, 1984:

Article 40 of the Qanun-i-Shahadat Order, 1984, pertains to the admissibility of evidence of a statement leading to the discovery of a fact. It allows for the introduction of evidence related to the recovery or discovery of any fact made at the instance of an accused during interrogation. This evidence is admissible in court proceedings.

Key Difference:

The fundamental difference between a search under Section 103 of the CrPC and a search under Article 40 of the Qanun-i-Shahadat Order lies in their focus and applicability:

  • Section 103 of the CrPC: This pertains to the procedure for conducting searches by police officers, emphasizing the need for transparency, witnesses, and documentation during the search. It is relevant when the police are conducting a search in the context of a criminal investigation.
  • Article 40 of the Qanun-i-Shahadat Order: This pertains to the admissibility of evidence related to statements leading to the discovery of facts made by an accused during interrogation. When an accused person provides information that leads to the recovery or discovery of evidence, this information and the subsequent recovery can be admitted as evidence in court proceedings.

Hence when an accused person voluntarily provides information that leads to the recovery or discovery of a fact, the evidence of such recovery can be admissible under Article 40 of the Qanun-i-Shahadat Order. In this context, strict compliance with the requirements of Section 103 of the CrPC (regarding witnesses and documentation) may not be necessary, as the focus is on the admissibility of the evidence itself.

In summary, while Section 103 of the CrPC pertains to the procedure for conducting searches, Article 40 of the Qanun-i-Shahadat Order deals with the admissibility of evidence related to statements leading to the discovery of facts made by an accused during interrogation.

Citation Name: 2000 YLR 2635 (Lahore High Court)

  • Side Appellant: AASIA BIBI
  • Side Opponent: FATIMA BIBI
  • Legal Provisions: Criminal Procedure Code (Cr.P.C), Sections 561-A & 100
  • Summary: The petitioner, who was the grand-mother of a minor, challenged the order of the Guardian Judge that issued warrants for the production of the minor. She argued that she did not have custody of the minor and was being subjected to unnecessary harassment. The court directed the petitioner to appear before the Guardian Judge and demonstrate that she neither had custody of the child nor control over her son for the minor’s production in court. The Guardian Judge was instructed to pass a detailed order after considering the petitioner’s contentions. The petition was dismissed as meritless. 
  • Analysis of  2000 YLR 2635 (Lahore High Court):
  • In this case, Aasia Bibi, the petitioner and grand-mother of a minor, challenged the issuance of warrants for the production of the minor by the Guardian Judge. She contended that she lacked custody of the minor and was being subjected to undue harassment. The court’s approach was balanced and practical. The court directed the petitioner to appear before the Guardian Judge to demonstrate her lack of custody and control over the minor. This requirement ensured that the petitioner’s claims were thoroughly evaluated. The court also emphasized that the Guardian Judge should provide a detailed, reasoned order after considering the petitioner’s contentions. This highlights the importance of transparent and well-reasoned decisions. The court’s dismissal of the petition suggests that it found no merit in the petitioner’s claims of harassment. Overall, the court focused on ensuring a fair process and reasoned decision-making.

Citation Name: 2018 PLD 30 (Quetta High Court, Balochistan)

  • Side Appellant: AMINULLAH MANDOKHAIL
  • Side Opponent: GOVERNMENT OF BALOCHISTAN
  • Legal Provisions: S. 25 of the Family Courts Act (XXXV of 1964), S. 13 of the Guardians and Wards Act, 1890, Criminal Procedure Code (Cr.P.C), Section 100, Constitution of Pakistan, Article 199
  • Summary: The petitioner, the father, sought the recovery of his minor child after the custody had been awarded to him by a Guardian Court’s decree. The father filed an execution of the decree, but the mother did not produce the minor in response to the process. The father approached the High Court, seeking the production of the minor and placement of the minor’s name on the Exit Control List. The High Court declined to exercise its jurisdiction under Article 199 of the Constitution, as adequate remedies were available under the Family Courts Act and the Guardians and Wards Act. The court held that the Executing Court had sufficient powers to implement the order, issue directions for placing the minor’s name on the Exit Control List, and execute the decree. The constitutional petition was disposed of accordingly.
  • Analysis of 2018 PLD 30 (Quetta High Court, Balochistan):
  • In this case, Aminullah Mandokhail, the father, sought the recovery of his minor child after being awarded custody by a Guardian Court’s decree. The court demonstrated a clear understanding of the legal landscape. It recognized that adequate remedies were available through the Family Courts Act and the Guardians and Wards Act. As such, the court declined to exercise its extraordinary jurisdiction under Article 199 of the Constitution. This decision highlights the principle of not bypassing available legal remedies. By emphasizing that the Executing Court possessed sufficient powers to implement orders, the court reinforced the role of specialized courts in executing their own decisions. The court’s disposition suggests a commitment to preserving the hierarchical structure of legal remedies.

Citation Name: 2013 CLC 470 (Lahore High Court)

  • Side Appellant: MUHAMMAD HAFEEZ
  • Side Opponent: JUDGE FAMILY COURT
  • Legal Provisions: Criminal Procedure Code (Cr.P.C), Section 7, Section 100, Constitution of Pakistan, Article 199
  • Summary: The petitioner raised an issue regarding the jurisdiction of the Guardian Judge to issue a search warrant under Section 100 of the Cr.P.C for the handing over of custody of minor children. The petitioner argued that the Guardian Judge lacked the power to appoint anyone as a guardian of a ward without a specific application. The High Court held that the Guardian Judge had exceeded his jurisdiction by issuing directions beyond the scope of his powers. The court set aside the order passed by the Guardian Judge, and the constitutional petition was allowed.
  • Analysis of 2013 CLC 470 (Lahore High Court): The case involving Muhammad Hafeez highlights the importance of jurisdiction and due process. The petitioner challenged the jurisdiction of the Guardian Judge to issue a search warrant under Section 100 of the Cr.P.C for handing over custody of minor children. The court’s analysis delved into the boundaries of the Guardian Judge’s authority. It underscored that the Guardian Judge lacked the power to appoint a guardian without a specific application. This analysis emphasizes the principle of adhering to statutory authority and the requirement for proper applications. The court’s decision to set aside the order suggests a commitment to maintaining the integrity of jurisdictional boundaries. This case underscores the significance of adherence to legal procedures and respecting the limits of authority.
See also  Legal Remedies for Sealing of Premises

In summary, these case notes reflect a judiciary that prioritizes fair processes, adherence to legal frameworks, and the preservation of available remedies. The courts’ decisions showcase a commitment to maintaining transparency, reasoned decision-making, and the hierarchical structure of legal remedies.

Section 25 Guardians and Wards Act 1890:  

In the realm of family law, the matter of guardian custody is of utmost importance, particularly when it concerns the welfare of a minor. The legal landscape in Pakistan provides a framework to address such situations, with the goal of ensuring the best interests of the child. This blog post delves into the provisions outlined in the law, highlighting key aspects related to the custody of minors and the responsibilities of guardians.The legal framework surrounding guardian custody is defined by the Guardians and Wards Act 1890 Section 25 of this Act addresses the issue of a ward leaving or being removed from the custody of a guardian. In such instances, the Court holds the authority to intervene if it deems that the return of the ward to the custody of the guardian is in the best interest of the child’s welfare.

According to subsection (1) of Section 25, the Court can make an order for the return of the ward to the guardian’s custody. To ensure compliance with the Court’s order, the Court is empowered to use enforcement mechanisms, including arresting the ward if necessary. This power aligns with the principles of safeguarding the child’s welfare and ensuring that the order is effectively implemented.

Furthermore, subsection (2) of Section 25 grants the Court the authority to utilize the powers conferred upon a Magistrate of the First Class under Section 100 of the Code of Criminal Procedure, 1898. This provision underscores the seriousness with which the Court approaches matters related to guardian custody and the enforcement of its orders.

The Paramountcy of Welfare: Cornerstone of Guardian Custody Decisions

Central to any decision concerning the custody of a minor is the principle of the child’s welfare as the paramount consideration. This foundational criterion is emphasized by the Guardian Court when deliberating on custody matters. As established by legal precedents, the welfare of the minor is the primary yardstick by which all decisions are measured.

The Guardian Court is tasked with assessing, examining, and measuring the circumstances surrounding the custody of the minor based on the welfare principle. This approach ensures that the Court takes into account the child’s best interests above all else, making its determination after a thorough evaluation of the facts and circumstances presented.

The Continuation of Guardianship: Addressing Residency 

Additionally, the legal framework clarifies that the residency of a ward with a person who is not the guardian does not, by itself, terminate the guardianship. This provision ensures that even if a ward is residing with a person who is not the designated guardian, the guardianship remains intact. This element safeguards the child’s legal and protective rights, reinforcing the importance of maintaining the guardian-child relationship despite changes in residence.

Upholding the Best Interests of Minors

Moreover, the overarching principle that the welfare of the child is of paramount importance resonates throughout the legal discourse on guardian custody. Courts are mandated to assess custody matters through the lens of the child’s best interests, as exemplified by established legal precedents.By recognizing that the mere residency of a ward with a non-guardian does not terminate guardianship, the law provides an additional layer of protection for the child’s rights and relationships.In the realm of determining the custody of a minor, the central principle that stands unwavering is the paramount consideration of the minor’s welfare. This notion takes precedence even over the statutory rights, as highlighted by the case law cited. The specific case reference emphasizes that the mere passage of time, such as the father’s right to claim custody of a male minor child after the child reaches seven years of age, does not supersede the principle of the child’s best interests(P.L.J. 2000 SC 1094 (also reported as 2000 SCMR 838)

It is established that the right of a father to claim custody is not an absolute right. This means that the father’s entitlement to custody can be affected by his own conduct and actions. The case reference underlines that a father’s conduct must be evaluated in the context of the circumstances of each case. In instances where the father has neglected the child or disentitled himself to custody due to his behavior, the courts are mandated to consider these factors in determining custody arrangements (P.L.J. 2000 SC 1094 (also reported as 2000 SCMR 838)

In the case discussed, the evidence presented before the courts pointed to a situation where the father had neglected the minor child since the separation of the spouses. The father’s voluntary decision to leave the custody of the child to the mother played a significant role in the custody determination. The mother, as the petitioner, had taken on the responsibility of raising and educating the child. Even after her second marriage, the mother continued to fulfill her maternal duties and ensured the child’s well-being by entrusting his care to her parents. This diligent care extended to providing the child with proper education in a local school (P.L.J. 2000 SC 1094 (also reported as 2000 SCMR 838)

One of the critical considerations in this case was the father’s subsequent marriage and the living conditions of his second wife in a village. The courts recognized that allowing the custody of the minor child to remain with the father would expose the child to the possibility of step-motherly treatment, given the circumstances in the village. This factor further underscored the necessity to prioritize the child’s welfare and well-being in the custody decision (P.L.J. 2000 SC 1094 (also reported as 2000 SCMR 838)

The case law cited reaffirms the principle that courts must exercise their jurisdiction with the child’s best interests at heart. In this particular case, the High Court’s intervention was deemed inappropriate, as it contradicted the concurrent findings of the lower courts. These findings had already established that the minor’s welfare was best served by allowing the child to remain in the custody of the mother. The Supreme Court upheld the lower courts’ decisions, restoring the order that recognized the mother’s entitlement to retain custody, thereby ensuring the child’s continued well-being and proper care.

In the context of guardianship over both the person and property of minors, a case emerges wherein the Trial Court initially decreed the mother as the guardian of both aspects. However, a subsequent decision by the District Judge resulted in the declaration of the minor’s father as the guardian of their person and property, accompanied by a directive for the custody of the minors to be handed over to him. Central to this case were various considerations, primarily revolving around the fitness of the guardians and the welfare of the minors involved (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

A significant element brought forth by the petitioner (mother) was a comprehensive list of cases in which the respondent (father) had been registered and convicted. This list outlined the legal issues that the father had faced, without any refutation from his side regarding his involvement, conviction, or ongoing trials. The respondent’s silence on this matter raised questions regarding his credibility and capacity to serve as a suitable guardian (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

The respondent’s financial standing was also brought into question during the legal proceedings. The court noted that the respondent had not provided any information regarding his income, the source of his income, property ownership, or any other proof of financial stability. In contrast, the petitioner demonstrated her income by presenting certified copies of educational institution certificates showcasing her teaching role. She further substantiated her financial stability with a tuition fee certificate for her minor children and evidence of a substantial balance in her bank account (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

The petitioner’s dedication to the children’s education and well-being was evident. She not only taught at a reputable school but also engaged in providing private tuition to students, thus enhancing her financial capacity. The children’s enrollment in high-quality schools and their proper care highlighted the petitioner’s commitment to their upbringing (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

In the case, it was acknowledged that the respondent, as the natural guardian, held certain rights over the minors. However, these rights were held as secondary to the overarching principle of the minors’ welfare. The courts stressed that the welfare of the children was paramount and should guide any decisions made. The evidence provided in the case indicated that the petitioner, the mother, had consistently supported and looked after the children since their birth, whereas the respondent had not demonstrated a similar level of involvement (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

Furthermore, no evidence suggested that the petitioner had a questionable character. In fact, she held an impressive academic background and was employed as a teacher at a reputable institution. These aspects supported the conclusion that her lifestyle and conduct were of high standing (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

The case references cited also contributed to the legal reasoning. The courts noted that a woman of good character, like the petitioner, who had consistently cared for and supported the minors, should be prioritized in custody decisions. The principle of prioritizing the welfare of minors was reaffirmed through these references (P.L.J. 2000 Pesh. 175 (also cited as PLD 200 Q Pesh. 23)

In conclusion, this case underscores the critical nature of guardianship decisions involving minors. It emphasizes that while natural guardianship holds relevance, it should not overshadow the paramount consideration of the children’s welfare. The evidence presented plays a pivotal role in determining guardianship, and factors such as financial stability, character assessment, and dedication to the children’s well-being all contribute to the final judgment.

The concept of “hizanat” in the context of minors’ custody presents complex legal considerations, particularly in cases where a mother remarries. While it is true that a mother may lose her claim to “hizanat” (custody) after entering into a second marriage, it is important to clarify that the loss of “hizanat” does not automatically revert custody to the father. Instead, the Guardian Judge retains the discretionary authority to determine the minor’s welfare, which remains the paramount consideration (P.L.J. 1998 Lah. 1635 (also cited as PLD 1998 Lah. 67); P.L.J. 1998 Lah. 884 (also cited as 1998 MLD 1003)

In a specific case cited, the father’s circumstances post-dissolution of marriage were detailed. He was employed in Pakistan International Airlines (PIA) and lived alone, lacking close relatives to provide suitable accommodation for his minor daughter. Furthermore, the father had also remarried. On the other hand, the minor’s real mother, with whom she had been living since birth for a period of seven years, demonstrated a supportive environment. This mother had a stable family setup, as her other children from her second husband were married, thus indicating the potential for the minor to receive comprehensive care. The court concluded that the minor might not receive benevolent treatment from the stepmother (P.L.J. 1998 Lah. 1635 (also cited as PLD 1998 Lah. 67); P.L.J. 1998 Lah. 884 (also cited as 1998 MLD 1003)

The balance between personal law and the welfare of the child emerges as a critical issue in such cases. While personal law might grant a preferential right to the father to obtain custody of a male child once the period of “hizanat” is over, the courts have consistently upheld the principle that the welfare of the child is the overriding concern. It is crucial to avoid blindly following personal law, and instead, to objectively decide based on the child’s best interests. The Guardian Judge must meticulously assess where the paramount consideration of the child’s welfare lies, taking into account the child’s character development and future prospects (P.L.J. 1998 Lah. 1635 (also cited as PLD 1998 Lah. 67); P.L.J. 1998 Lah. 884 (also cited as 1998 MLD 1003)

The cited cases further reinforce these principles. The courts emphasize that the welfare of the child is the foremost consideration in custody determinations. Personal law cannot be applied in an automatic or unquestioning manner; instead, it must be analyzed objectively. The courts uphold the view that the child’s custody should be placed in the hands of the parent who best serves the child’s welfare until the child reaches an age of discretion (P.L.J. 1998 Lah. 1635 (also cited as PLD 1998 Lah. 67); P.L.J. 1998 Lah. 884 (also cited as 1998 MLD 1003)

In conclusion, the intricate interplay between “hizanat,” personal law, and the welfare of the child in custody cases requires a nuanced approach. The courts’ consistent stance is that the welfare of the child takes precedence, and personal law should be evaluated objectively in light of this principle. The cited cases serve as a testament to the courts’ dedication to ensuring the child’s well-being and future prospects in custody decisions.

The consideration of custody arrangements for minor children often involves intricate evaluations of the living conditions and relationships within a family. In one case, it was highlighted that the respondent, who was vying for custody, lacked a woman in his household who could adequately care for the children if they were placed under his custody. While the respondent claimed that his sister could fulfill this role, it was recognized that a sister cannot serve as a substitute for a mother’s love and affection. The court emphasized that a mother’s embrace is akin to a divine cradle for children, underscoring the unique bond between a mother and her children. Consequently, the mother was deemed entitled to the custody of the minor children (P.L.J. 2000 Pesh. 175 (also cited as PLD 2000 Pesh. 23)

In another instance, the children’s capability to express their preferences regarding custody was brought to the forefront. The District Judge’s decision had been made without obtaining the children’s opinion, a crucial aspect of custody determination. The High Court, cognizant of the children’s presence and their capacity to make informed decisions, solicited their opinions. The children, having been educated in reputable schools, intelligently conveyed their desire to live with their mother. The court recognized that the children’s preferences held weight and reflected their understanding of the situation.

Addressing the issue of the mother’s second marriage, the court affirmed that contracting a second marriage with an unrelated person should not disqualify her from retaining custody of the minors. The court’s focus remained steadfast on the interests and welfare of the minors. The mother’s marital choices did not inherently undermine her capacity to provide a suitable environment for her children. The court maintained that custody decisions should be guided by the principle of serving the best interests of the children (P.L.J. 2000 Pesh. 175 (also cited as PLD 2000 Pesh. 23).

In light of these considerations, the court’s decisions were marked by the preservation of the mother’s custody rights. The impugned order of the District Judge was set aside, and the order of the Guardian Judge was modified. The children’s father was granted visitation rights, ensuring that their educational schedules remained undisturbed. The court established a structured arrangement wherein the children could spend time with their father, primarily on weekends and special occasions (P.L.J. 2000 Pesh. 175 (also cited as PLD 2000 Pesh. 23).

In conclusion, the cases discussed illuminate the complexity of custody determinations, where various factors come into play. The courts’ focus remains resolutely on the children’s well-being and best interests. The emotional and practical aspects of parenting are weighed, acknowledging the distinct role of both parents while prioritizing the children’s preferences and welfare.

The process of reaching a compromise or agreement between parties in guardianship cases holds significant weight, but it does not release the Guardian Court from its fundamental duty to prioritize and safeguard the interests and welfare of the minor involved. The court’s responsibility in these matters transcends private arrangements, as the welfare of the minor remains its foremost concern. This principle is emphasized by legal precedent (PLD 2001 Kar. 371)

When it comes to modifying or altering an earlier guardianship order, the court should approach the situation with the presumption that the previous compromise, agreement, or consent order was established in the best interest and welfare of the minor. Subsequent developments and allegations that form the basis for seeking modifications should be thoroughly examined in light of this presumption (PLD 2001 Kar. 371) This approach ensures that any changes to the custody arrangement are grounded in the evolving needs and circumstances of the minor while maintaining a balance between the earlier agreement and the minor’s well-being(PLD 2001 Kar. 371)

In matters of custody, private compromises alone cannot effectively settle the issue. The court’s powers in determining the custody of a minor are rooted in a parental-like jurisdiction, requiring it to act in a manner akin to a wise parent. The term “welfare” is understood in a comprehensive sense, encompassing all the crucial factors that contribute to the genuine well-being of the minor(PLD 2002 S.C 267). In such cases, the court prioritizes the child’s best interests over strict legal technicalities (PLD 2002 S.C 267)

A specific scenario involving a grandmother’s agreement to hand over custody of a minor to the father upon reaching seven years of age underscores the court’s jurisdiction. Despite the agreement, the father’s subsequent second marriage and the birth of a child from his second wife complicated the situation. The question raised was whether the Guardian Judge was legally bound to decide the custody of the minor solely based on the previous settlement between the parties. The Supreme Court (S.C) intervened to consider whether the Guardian Judge’s discretion should be tied to the child’s welfare, regardless of prior agreements. S.C’s involvement highlights the paramount importance of considering the minor’s well-being in custody decisions(PLD 2002 S.C 267)

In conclusion, while compromises and agreements between parties have their place in guardianship cases, the court’s role in ensuring the welfare of the minor remains pivotal. The court must navigate the complexities of evolving circumstances while maintaining a focus on the child’s best interests. This approach reflects the essence of its parental jurisdiction, which is geared towards securing the well-being of the minor above all else.

In guardianship cases involving minors, the presence of a compromise or agreement between the parties does not exempt the Guardian Court from its primary duty to ensure the protection and well-being of the minor/ The court’s responsibility to prioritize the interests and welfare of the minor remains paramount, regardless of any agreements between the parties.. This principle is underscored by legal precedents, such as the case cited from PLD 2001 Kar. 371.

A case involving a grandmother’s agreement to transfer custody of a minor to the father upon her attaining the age of seven presents an interesting scenario. Subsequent to this agreement, the father contracted a second marriage and had a child from his second wife. The father’s application for custody based on this compromise was approved by the Guardian Judge and upheld by the Appellate Court and High Court. However, the Supreme Court granted leave to appeal to examine whether, despite the agreement, the Guardian Judge was still obligated to decide the custody question based on the welfare of the minor (PLD 2002 S.C 267.) This case underscores the courts’ commitment to prioritizing the welfare of the minor over pre-existing agreements or settlements(PLD 2002 S.C 267)

In a situation involving the custody of a female suckling child, the courts assessed the appropriateness of the parents’ roles. The father of the minor was residing in the United States, leading the court to determine that the mother was the most suitable guardian for the female suckling child under such circumstances. The fact that the father intended to permanently reside in Pakistan upon his return did not automatically nullify the impugned order. While the father had the opportunity to demonstrate his intention to reside in Pakistan and promote the minor’s welfare, the court emphasized that the ultimate concern was the child’s well-being (P.L.J. 1998 Lah. 1671 (also cited as 1999 MLD 943). This case reflects the courts’ nuanced evaluation of the custodial arrangements, centered on the child’s best interests.

The custody of a minor boy became the focal point of legal deliberation in a case where the respondent, the father, sought to lodge the minor as a boarder at Aitchison College under his care. Initially, the Guardian Judge dismissed this application. However, the subsequent scenario unfolded differently when the respondent’s application for a review/recall of the earlier order was accepted, leading to the withdrawal of the initial directive to admit the minor as a boarder at Aitchison College (P.L.J. 2000 Lah. 2305)

The court highlighted that an order concerning the custody of a minor could be modified until the matter was definitively determined, with the welfare of the minor remaining the paramount consideration. The principle emerged that an order of custody issued by a Court of Competent Jurisdiction could not be changed or reviewed as a matter of right, unless a material change had occurred. Such a change might arise, for instance, when a woman marries a stranger(P.L.J. 2000 Lah. 2305.)

A pivotal aspect of this case was the minor’s perspective, especially considering his age of discretion and demonstrated intelligence. The minor unequivocally expressed his unwillingness to be lodged as a boarder at Aitchison College. He revealed that he was content with his current education arrangement, which provided a favorable atmosphere while residing with his mother and maternal grandparents. The court recognized the significance of the minor’s viewpoint, given his mature understanding and ability to articulate his preferences(P.L.J. 2000 Lah. 2305)

The court’s decision was further guided by the potential consequences of lodging the minor as a boarder. The court noted that such an arrangement could lead to the deprivation of the minor’s mother’s love and affection, as well as his maternal grandparents’ care. Additionally, the minor’s younger sister would be separated from her only brother, despite no fault of her own. Considering these factors, the court took a stance against uprooting the minor from his current educational and familial environment (P.L.J. 2000 Lah. 2305)

In conclusion, this case (P.L.J. 2000 Lah. 2305) underscores the careful balancing act that courts must engage in when determining custody arrangements for minors. While the welfare of the child remains paramount, the minor’s perspective, age, and intelligence are pivotal factors. The court’s decision ultimately hinges on providing the best possible environment for the child’s growth and well-being.

The custody of a minor boy who has surpassed the age of seven years becomes a matter of distinct consideration. In such cases, there is a presumption that the minor’s welfare lies in favor of the appellant, who is the father (P.L.J. 1996 SC (AJK) 230 (also cited as 1996 CLC 1534). The court’s evaluation centers on whether there is any evidence suggesting that the father has neglected the care and maintenance of his minor son and the child’s mother (P.L.J. 1996 SC (AJK) 230 (also cited as 1996 CLC 1534) In the absence of any such evidence, the court observes that the appellant has consistently fulfilled his responsibilities towards his minor son and the child’s mother.

It’s noteworthy that the appellant’s application for custody of the minor was initiated after proceedings were initiated against him for maintenance under section 488 of the Criminal Procedure Code (Cr.P.C) The court clarified that the mere fact of an order for maintenance in favor of the minor does not inherently disqualify an individual from seeking custody if they are entitled to it under personal law The court emphasized that custody decisions must be assessed independently and guided by the welfare of the child (P.L.J. 1996 SC (AJK) 230 (also cited as 1996 CLC 1534). This case reinforces the principle that the welfare of the minor remains the driving force in custody matters. The presumption that the welfare of a minor boy over the age of seven lies with the father underscores the importance of assessing the child’s best interests and the parent’s involvement in their care and upbringing.

The custody of a minor male child hinges on the determination of what is in the best interests of the child’s welfare. In such cases, a crucial factor to weigh is whether it is more beneficial for the minor to be under the care of a stepmother or remain with his biological mother, even in the presence of a stepfather (P.L.J. 1996 Lah. 407) The court’s assessment involves considering the minor’s emotional attachment to both his real mother and his stepfather. The minor’s age becomes a pivotal factor, as he is at an age where he can express an intelligent preference(P.L.J. 1996 Lah. 407)

In P.L.J. 1996 Lah. 407 the court acknowledged the deep attachment the minor had towards his real mother and also his expressed fondness for his stepfather. Given the minor’s capacity to convey his preference and his age, his choice becomes a significant consideration in determining his welfare. The court was guided by the understanding that depriving the minor of his mother’s company would be harsh and unjust, indicating a sensitivity towards preserving the emotional bond between mother and child.

The custody of a minor girl became a matter of legal contention in a case where the Trial Court and the First Appellate Court awarded custody to the mother. However, the High Court, in the exercise of its Constitutional Jurisdiction, overturned the decisions of the lower courts and granted custody to the father. The central question was whether the High Court was justified in employing its Constitutional Jurisdiction to overturn the concurrent judgments of two competent lower courts (P.L.J.1997 SC 1160 also cited as 1997 SCMR 425.)Leave to appeal was granted to address this issue, and execution proceedings pursuant to the High Court’s judgment were stayed

In another case (P.L.J. 1998 Qta. 137 (also cited as 1998 MLD 1697) the minors in question were living under the care of their stepmother following the death of their real mother, with whom their father had contracted a second marriage. Upon the father’s death, the minors’ paternal uncle sought custody, which was granted. The petitioner, who was the stepmother, appealed the decision through a constitutional petition. The crux of the matter was the welfare of the minors

It was emphasized that in matters related to applications under section 17 and 25 of the Guardian and Wards Act, the paramount consideration should be the welfare of the minors, combined with their own wishes. The petitioner was the stepmother of the female minors, and they had been living with her for more than eight years following the demise of their real mother. The minors were examined multiple times by the trial and appellate courts, and on each occasion, they expressed their preference to stay with their stepmother rather than their real uncle. The minors’ familiarity with and attachment to the stepmother were evident, and given their status as female minors, it was deemed necessary for them to reside with a female guardian (P.L.J. 1998 Qta. 137 (also cited as 1998 MLD 1697).

Notably, the findings of the lower courts were criticized for not being founded on a correct application of the law and for a misappreciation of the evidence on record. The court’s decision in this case hinges on the principles of the welfare of the minors, their expressed preferences, and their established relationships, highlighting the sensitive nature of custody determinations and the need to prioritize the best interests of the children involved.

The principle of not interfering in findings of facts was underscored in a legal context, referring to the case of Mst. Mehmooda Begum vs. Taj Din, as discussed by the Honorable Supreme Court. The core assertion in this principle is that findings of facts made by a Tribunal of special jurisdiction, particularly in matters exclusively within its domain, should generally remain untouched unless there is a serious misreading or misappreciation of evidence, failure to consider material facts, or a failure to apply statutory law or relevant principles (P.L.J. 1998 Qta. 137 (also cited as 1998 MLD 1697). This legal stance is grounded in recognizing the expertise and authority of such specialized Tribunals.

In the present case, both the lower courts issued judgments that are challenged for not adequately considering the intelligent preference of the minors and the evidence on record. The petitioner contends that she is better suited to care for the minors’ welfare compared to respondent No. 1. It is argued that respondent No. 1, being an older male, may not be in a position to adequately care for female minor children (P.L.J. 1998 Qta. 137 (also cited as 1998 MLD 1697)

The court invokes the principle discussed in the earlier mentioned case to highlight the need for courts to exercise caution before interfering in findings of facts made by specialized Tribunals. The focus should be on whether there has been a clear misinterpretation of evidence, a disregard of material facts, or a failure to apply relevant legal principles. In this case, the petitioner asserts that the lower courts’ judgments lacked proper consideration of key factors, including the minors’ preference and the petitioner’s ability to provide better care (P.L.J. 1998 Qta. 137 (also cited as 1998 MLD 1697)

In summary, the case underscores the principle of non-interference in findings of facts made by specialized Tribunals, highlighting that such interference should only occur in cases of substantial misinterpretation or neglect of relevant evidence or legal principles. The focus remains on ensuring the accuracy and fairness of the decision-making process, especially in matters of custody and welfare of minors.

In  PLD 2002 S.C267 there was an issue of the interim custody of a minor girl who lost her mother at the time of her birth. The minor’s grandmother secured her custody from her father through a habeas petition. Subsequently, a compromise was reached during proceedings before the Guardian judge, stipulating that the custody of the minor would be transferred to the father when she reached the age of seven. The father later contracted a second marriage and had a child from his second wife. The deceased mother of the minor was employed, and her share of the estate was placed in the father’s account, leading to legal action and the recovery of the funds through a court decree. Amidst ongoing legal proceedings for the father’s appointment as the guardian of the minor’s person and property, he applied for the implementation of the earlier compromise, seeking custody of the minor. The Guardian judge granted his application, instructing the grandmother to surrender custody. The grandmother appealed this decision, but both the Appellate Court and the High Court ruled against her.

In assessing such cases, the paramount consideration is the welfare of the minor. While the parties initially resolved the matter through a compromise, a subsequent material change in circumstances prompted a reevaluation of the minor’s welfare. In this context, the question of the minor’s best interests arose in a more significant manner than before. The minor had been under her maternal grandmother’s care since birth. Disrupting this established arrangement and requiring her to adjust to a different environment would be challenging, if not impossible. The Supreme Court (S.C) allowed the appeal, setting aside the impugned order and permitting the minor to remain with her grandmother until the pending petition before the Guardian judge was conclusively resolved after the evidence of the parties was recorded (PLD 2002 S.C 267.)

This case underscores the courts’ commitment to evaluating the welfare of the minor as the primary consideration. The courts recognized the complexity of uprooting the minor from her current living situation and emphasized the importance of stability and familiarity in her upbringing. The decision highlights the dynamic nature of custody arrangements and the necessity to adapt to changing circumstances in the best interests of the child.

In the realm of jurisdiction, a critical aspect came into play wherein a District Judge was deemed incompetent to address and decide a matter due to a fundamental lack of jurisdiction. Despite the fact that the impugned order was issued by the District Judge, the appropriate avenue for appeal was determined to be under Section 14 of the Family Courts Act 1964 rather than Section 47 of the Guardians and Wards Act 1890. It was established that the Court of a Civil Judge functioning as a Family Court would possess jurisdiction over guardianship matters, including custody of children. This Court of Civil Judge was considered to be the principal Court of Civil jurisdiction within the district (PLD 2003 Quetta 44. )

In the context of a minor child’s custody, the key consideration was whether the presence of a stepmother would contribute to a conducive environment for the child’s upbringing. The court emphasized that this factor alone could not be grounds for denying custody to the father if he is otherwise entitled to it. The court asserted that with appropriate safeguards in place, the mere presence of a stepmother should not inherently disqualify the father from obtaining custody. Absent adverse circumstances, the court was unwilling to presume that the father would not provide the child with love, care, and proper upbringing. The court highlighted the potential for future circumstances to impact the child’s welfare, and if any substantial evidence emerged to demonstrate harm to the child’s interests, the respondent was free to approach the Court of competent jurisdiction. The court concluded that the father should ensure that the child spends at least two days each week with the mother until the child reaches the age of majority (P.L.J. 1996 SC (AJK) 230 (also cited as 1996 CLC 1534).

These cases underline the significance of jurisdiction and the appropriate avenues for legal proceedings. They also emphasize the necessity of a holistic evaluation of custody decisions, considering both immediate factors and the potential impact on the child’s long-term welfare.

In the realm of custody disputes involving minor daughters, the central consideration is the welfare of the child. While the courts below had primarily focused on the fact that the father had contracted a second marriage and the mother had not, it was highlighted that the paramount legal consideration must always be the welfare of the minor. The superiority of claims is relevant, but the ultimate determining factor is the well-being of the child. In a specific case, the minor daughter was being raised by her paternal aunt and was properly cared for. The judgments rendered by the lower courts, which seemed to lack sufficient attention to the welfare of the child, were deemed to be without lawful authority and were deemed to have no legal effect. Consequently, the petition was accepted, and the custody of the minor was granted to the petitioner, the father(P.L.J. 1994 Note 77 at p. 51.)

In another context involving a modification of an earlier order passed on a compromise by the Guardian Court, the mother of the minors was granted custody with the agreement of periodic meetings between the father and the minors. However, the mother raised serious allegations against the father concerning the period of meetings with the minors. The Guardian Court refused to modify the order without an inquiry into the matter, and this decision was upheld by the Appellate Court. The father argued that the Constitutional petition was not filed with clean hands. However, the court pointed out that a finding regarding the truthfulness of the allegations made by the mother was not recorded. Without such a finding, it could not be concluded that the mother had approached the High Court without clean hands or was not entitled to equitable relief. The orders of the lower courts were set aside by the High Court, drawing on a range of legal references (PLD 2001 Kar. 371.)

These cases highlight the significance of the welfare of the child as the core consideration in custody disputes involving minor daughters. Courts are urged to give due attention to this principle and to make thorough inquiries when modifying orders or assessing the veracity of allegations, to ensure that the best interests of the child are upheld.

P.L.J. 2000 Lah. 2419 (also cited as 2000 MLD 1967): In this custody dispute, a critical factor emerged where the mother’s past involvement in a certain profession was questioned. All lower courts ruled in favor of the father, deeming him entitled to custody of the minors. However, the validity of this decision was brought into question due to the mother’s previous circumstances and her subsequent efforts to change her life.

The issue revolved around whether the mother, who had engaged in a certain lifestyle, had forfeited her right to custody based on legal principles and the welfare of the child. The courts’ decisions were based on the premise that the mother’s past profession was incompatible with her role as a custodial parent. Nonetheless, an essential aspect of the case was ignored by the lower courts: the mother’s marriage and her attempts to leave her previous lifestyle behind. She had married an individual referred to as “B” and had filed a writ petition against her own mother, asserting that “B” had helped her break away from her previous lifestyle.The lower courts’ rulings were deemed unsustainable due to their failure to consider this critical aspect. Additionally, evidence indicated that the mother had been maintaining and educating her children, leading to good academic results. After her marriage to “B” and subsequent divorce, she had married again and sought forgiveness from her past life. Her children were being raised in a healthy environment, receiving both educational and fatherly support from her husband. The courts’ decisions to deny custody to the mother were questioned in light of these circumstances.The court observed that “B” had made a conscious decision to marry the mother despite her past, with the intention of providing her with protection and a stable family environment. As a result, he was considered an unsuitable guardian for the minors. Similarly, other relatives were also disqualified from obtaining custody.

Ultimately, the judgments and decrees of the lower courts were overturned. The minors were allowed to remain under the mother’s custody, direct supervision, and care as before. The case underscores the complex interplay between legal principles, personal circumstances, and the welfare of the child in custody disputes.

The consideration of paramount importance in determining the custody of minors has been a central theme in the legal proceedings. The status of the respondent, who is the father, has been weighed against that of the petitioner, who is the mother. The father holds a senior position in the Federal Government and currently serves as an Assistant Collector of Central Excise and Sales Tax in Rawalpindi. This implies that he is financially capable of providing for the schooling, boarding, and lodging of the minors in a prestigious institution. On the other hand, the petitioner works as a teacher in a private institution. The court has considered the potential impact on the minors’ education if their custody is transferred at this stage. It is deemed that keeping the minors in their present institution in Murree, where they are performing well academically, would be in their best interest.

The court acknowledges that maintaining the unity of the family unit is crucial for the welfare of the minors. It is highlighted that the family provides a natural and harmonious environment for siblings to grow up together, sharing affection, love, and their joys. Therefore, it is considered against the minors’ interest to be separated and raised in different environments due to disputes and animosity arising from broken homes.

In the context of modifying or altering earlier custody orders, the court recognizes the need for flexibility. An earlier order that may have been in the best interest of the minor at the time might not be suitable due to changing circumstances or subsequent developments. The Guardian Court is granted the authority to modify, set aside, or alter earlier custody orders to ensure the ongoing welfare of the minor. The principle is established that an earlier order does not serve as an absolute bar to the Guardian Court’s jurisdiction to make changes in the future based on the evolving needs and circumstances of the minor.

In conclusion, the paramount consideration of the welfare of the minors is central to the determination of custody arrangements. The status, financial capability, and potential impact on the minors’ education and unity of the family are all taken into account when making custody decisions. The court also acknowledges the need for flexibility in modifying custody orders to align with changing circumstances and the evolving needs of the minors.

( See P.L.J. 1996 Lah. 577 (also cited as 1996 CLC 1603) and PLD 2001 Kar. 371)

In “Ayesha Tahir Shafiq v. Saad Amanullah Khan and 2 others” (PLD 2001 Karachi 371), it has been held that “the Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context will not operate as a bar of jurisdiction for the Guardian Court for all future time to come”.The case PLD 2001 Kar. 371  revolved around a custody dispute between the parents of the minors. Initially, the mother was granted custody of the minors, and arrangements were made for periodical meetings between the father and the minors. However, a significant development occurred when the mother raised serious and derogatory allegations against the father about sexual abuse of the Minors. These allegations pertained to the periods when the minors were meeting with their father. The Guardian Court, in response, declined to modify the earlier custody order without conducting a thorough inquiry into the allegations. The Appellate Court upheld this decision.

The father contended that the constitutional petition filed by the mother was not filed with clean hands, as the allegations were not proven to be true. The Court emphasized the importance of assessing the truthfulness of these allegations before making judgments about the mother’s conduct.In the context of legal principles, the courts underscored the paramount consideration that must be given to the welfare of the minors in custody cases. This principle reflects the courts’ commitment to prioritizing the best interests of the children involved.

The scope of the Guardian Court’s authority was also discussed. It was established that the Guardian Court has the power to grant relief that ensures and safeguards the interest and welfare of the minor, even if the specific relief sought in the application might not strictly fall within its jurisdiction. The focus should be on the substance of the application rather than its strict form.

Throughout the case, the courts emphasized the need to examine allegations thoroughly, uphold the welfare of the minors as a primary consideration, and exercise flexibility in granting relief to ensure the best interests of the children.

Some relevant  cases 

  • PLD 2001 Kar. 371
  • PLD 1967 SC 402
  • PLD 1970 Kar. 619
  • 1983 SCMR 606
  • 1985 SCMR 2066
  • PLD 1986 SC 14
  • 1989 MLD 3427
  • 1993 CLC 736
  • PLD 1996 Kar. 174
  • AIR 1936 Lah. 1019
  • AIR 1930 Lah. 250
  • AIR 1954 SC 82
  • PLD 1963 Dacca 816
  • 2004 C L C 228

Another recent case which has cited PLD 2001 Kar. 371 is as follows :

Title: Amna Nawaz v. District Judge and others. 2021 Y L R 2030 (Lahore) : Writ Petition No. 68971 of 2019

Date of Decision: 24th May, 2021

The petitioner, Amna Nawaz, invoked constitutional jurisdiction before the High Court, alleging that her visitation rights were being violated due to the absence of a proper visitation schedule for meeting her children, who were in the custody of their father. The matter pertained to the custody and visitation rights of the minors.

The main issue was whether the Guardian Court had the jurisdiction to modify a visitation schedule that had attained finality due to a reported judgment of the High Court, and whether the welfare of the minor was the paramount consideration in such cases.

The court held that in cases involving the custody of minors and related matters, the welfare of the minor was of primary importance. The Guardian Court, being the final arbiter of matters concerning the custody of minors, was empowered to assess and examine any issue related to the welfare of the minor. The earlier order in the matter would not bar the jurisdiction of the Guardian Court to issue an amended visitation schedule to safeguard the interests of the minor.

In this case, despite the petitioner’s efforts to secure visitation with her children according to the High Court’s order, the respondent father had filed multiple miscellaneous applications, resulting in the absence of a proper visitation schedule. Furthermore, the father did not comply with specific orders and notices from the High Court to appear and produce the children. This indicated a deliberate evasion by the father.

The High Court set aside the impugned order passed by the Guardian Judge in 2019 and directed the petitioner to approach the Guardian Court to obtain a fresh schedule for visitation with her children. The court emphasized that the welfare of the minor should guide the Guardian Court’s decisions in such matters.The Constitutional Petition was allowed by the High Court, highlighting the importance of the welfare of the minor in cases involving custody and visitation rights. The court emphasized the authority of the Guardian Court to modify or set aside earlier orders to ensure the best interests of the minor. The petitioner was directed to approach the Guardian Court for a revised visitation schedule.

In the context of the Hizanat (custody) rights of a mother, it is recognized that there is no substitute for a mother, particularly when the father has remarried. The special bond between a mother and her children is unparalleled, and a stepmother cannot provide the same level of affection and love that a biological mother can. This factor becomes even more significant when the mother demonstrates a strong commitment to raising her children through hard work, providing them with education, care, love, and affection. Such dedication often leads a mother to be willing to forgo her right to claim maintenance for the minors.

The natural sense of safety, protection, and understanding that prevails in the mother-child relationship is a significant factor in custody decisions. This deep connection is exemplified by the way even a one-day-old child can feel secure when placed next to a sleeping mother. The custody of a mother is usually only taken away in cases where strong grounds for such a decision exist.

However, there are instances where the mother’s right to custody might be affected. For example, if a mother has contracted a second marriage with a person who is not related to the minors within prohibited degrees, it can result in her losing her right of Hizanat. This can lead to custody decisions being made in favor of another party.

In conclusion, the welfare of the children and the strong bond between a mother and her children are key considerations in custody matters. While the mother’s rights are typically upheld due to the unique role she plays in a child’s life, certain circumstances, such as prohibited marriages, can impact her right to custody.

  • P.L.J.1996 Lah. 571 (also cited as 1997 MLD 520)
  • P.L.J.1998 Lah. 146 also cited as 1998 CLC 846)

Although the economic status of the mother plays a significant role in custody decisions, in cases where the mother is determined to dedicate her life to raising her children despite facing financial challenges and is resolute in her commitment to their well-being, this commitment can be a strong factor in her favor. This dedication is contrasted with the father’s situation, especially if he has remarried and is advocating for someone else to have custody of the minors. Arguments that the mother lacks a source of income should not automatically deprive her of custody, as the father has a legal duty to support his children, ensuring they have access to education, a promising future, and good health.

In the context of legal proceedings, such as an appeal with an application to produce additional evidence, the court’s interference is typically limited unless there is a jurisdictional defect in the lower court’s order. Evidence that has already been presented and recorded during proceedings carries significant weight. Additional evidence can only be introduced if the court deems it necessary due to a lack of sufficient evidence to make a fair decision. The allowance of additional evidence is not a right and is subject to the discretion of the court. The refusal to permit the introduction of additional evidence by the appellate court, if it is not necessary for a just decision, does not constitute an illegality (See P.L.J.1996 Lah. 571 also cited as 1997 MLD 520 and P.L.J.1999 Lah. 938)

 Custody and Visitation rights for Fathers and Paternal Grandparents specifically 

In the case with citation 2022 PLD 32 in the Supreme Court of Pakistan, the issue revolved around the custody and visitation rights for minors, specifically considering the rights of the father and paternal grandparents. The appellant, Rashid Hussain, sought custody of his minor children after the suspicious death of their mother, and he was in opposition to the Additional District Judge, Islamabad (East), who had granted custody to the maternal grandfather of the minors.The central question in this case was whether the father had a preferential right to custody over the maternal grandfather, given the circumstances. The Court’s analysis of the situation revealed significant factors that influenced its decision. The father was working as a cab driver in a foreign country, which meant that he was often away from home. During his absence, the mother suffered critical burns, and an FIR was lodged against the parents of the father, alleging that they intentionally caused her death. The father’s statement before the Family Court highlighted that he had not fulfilled his duties as a father towards his minor children or his deceased wife. He seemed reluctant to care for them, believing that they were already under the care of their maternal grandfather.The minor children’s demeanor during the proceedings was significant. They appeared well-dressed and displayed mature manners. Importantly, they refused to accompany their own father and expressed a desire to reside with their maternal grandparents. Their body language conveyed a sense of resentment towards their father, possibly due to their awareness of the circumstances surrounding their mother’s death.

The maternal grandfather of the minors presented his case by stating that he owned substantial agricultural land, which could support the minors’ expenses, and they were already leading a reasonable life under his care. Additionally, the minors were cognizant of the unnatural circumstances of their mother’s death, and it might have influenced their perception of their father’s involvement in the incident.

Considering these factors, the Supreme Court emphasized the principle of the “welfare of the minor” enshrined in the Guardians and Wards Act, 1890. The Court acknowledged that any abrupt change in custody at this stage could adversely affect the minors’ mental well-being and future personality development. Therefore, the Court refused the father’s petition for leave to appeal, upheld the custody arrangement with the maternal grandfather, and considered the visitation schedule made by the Family Court for the grandparents as applicable to the father.

In case 2022 MLD 1506 in the Karachi High Court (Sindh), the issue pertained to custody and visitation rights, with a focus on the welfare of the minor. The appellant, Mst. Fatima Zahra, and the respondent, Muhammad Sheroz, were the parties involved. The respondent, who was the father of the minor, had entered into a second marriage. He filed an application under Section 12 of the Guardians and Wards Act, 1890, seeking temporary custody of the minor during winter and summer vacations. The Court granted this application.

The key consideration for the Court in this case was the welfare of the minor, which encompassed moral, spiritual, and material well-being. The Court highlighted that the welfare of the minor was of paramount importance, irrespective of age, sex, or religion. Several factors were taken into account while determining the minor’s welfare, including the character and capacity of the proposed guardian, the minor’s age, sex, and religion, the guardian’s kinship proximity to the minor, and the minor’s preference if they were capable of expressing it.

Given the circumstances, the Court concluded that it would not be suitable for the minor to shuttle between the petitioner (mother) and the respondent (father) frequently. The Court allowed the respondent father visitation rights during specific occasions such as birthdays, Eid celebrations, and summer and winter vacations. The Court directed that these arrangements should be subject to the payment of maintenance for the minor.

In case 2021 MLD 1610 in the Quetta High Court (Balochistan), the matter revolved around interim custody and the jurisdiction of the Guardian Court. The appellant, Muhammad Tufail, and the opponent, Samina Tabasum, were the involved parties. The case’s context was the demise of the minor’s father.The Guardian Court had granted interim custody of the minor girl to her mother, which was contested by the paternal grandparents, leading them to invoke the constitutional jurisdiction of the High Court. The key legal provision considered was Section 12(1) of the Guardians and Wards Act, 1890, which empowered the Guardian Judge to issue interlocutory orders for the production of the minor and interim protection of their person and property. The Court emphasized that the power could be exercised even in the absence of urgency.

The Court recognized that the company of the grandfather could not replace that of the mother. It concluded that the custody of the minor should not oscillate between parties and that once the Guardian Judge had exercised its jurisdiction in granting interim custody, that decision should be upheld unless compelling circumstances warranted a change. The Court directed the Trial Court to facilitate appropriate arrangements for the production and visitation of the minor to the grandparents without disrupting her education.

In case 2021 YLR 2127 from the Lahore High Court (Lahore), the matter involved the custody of a minor daughter. The appellant, Muhammad Azeem, was the father seeking custody, and the respondent was the Additional District Judge of Sialkot. The father’s request for custody had been rejected by two lower courts. The central consideration in this case was the welfare of the minor.

The Court emphasized that the welfare of the minor was of utmost importance when determining custody arrangements. It was noted that the petitioner (father) had not shown any interest in the welfare of the minor. He had not availed visitation rights during the trial or the appeal proceedings, nor had he expressed a desire to meet the minor despite being permitted by the Court to do so. The minor appeared to be comfortable with her maternal grandmother. Over the course of approximately nine years, the father had not attempted to meet the minor even once, either during proceedings related to her maintenance allowance or in the Trial Court.

Given these circumstances, the Lahore High Court declined to interfere with the decisions of the lower courts, as those decisions were not suffering from any misreading of the record or errors of law or jurisdiction. The Court’s decision underscored the importance of actively participating in the welfare of the minor and adhering to visitation rights when seeking custody.

In case  2021 YLR 2030 from the Lahore High Court (Lahore), the matter pertained to custody and visitation rights. The appellant, Amna Nawaz, was the mother seeking to modify a visitation schedule. The respondent was the District Judge. The case revolved around the modification of an earlier visitation schedule set by the Guardian Court, which had gained finality due to a reported judgment of the High Court.

The Court emphasized that the welfare of the minor was the paramount consideration in custody matters. The Guardian Court was tasked with assessing and measuring all issues related to the minor’s custody based on this principle. In this case, the High Court had set aside the Appellate Court’s judgment, leaving the decision of the Guardian Judge as the final arbiter for custody matters. The Guardian Court had the authority to modify, set aside, or alter an earlier order to ensure the interest and welfare of the minor.

The petitioner (mother) had faced difficulties in exercising her visitation rights, and the respondent (father) had not complied with the Court’s orders to produce the children for visitation. The High Court set aside the impugned order passed by the Guardian Judge and directed the petitioner to approach the Guardian Court for a fresh schedule of meetings with her children.

In case  2021 YLR 1989 from the Lahore High Court (Lahore), the matter involved the application for interim custody and visitation rights of a minor girl. The appellant, Sarosh Sikander, contested the maintainability of the respondent’s application, which was filed by the grandmother of the minor. The Guardian Court had rejected the petitioner’s application.

The petitioner argued that the Family Courts Act, 1964, was intended for disputes between husband and wife regarding custody and therefore the application by the grandmother was not maintainable. The Court acknowledged that while the contention was correct, the Guardians and Wards Act, 1890, also dealt with situations where grandparents were involved. The Court highlighted that the amendment to the Family Court Act in 2002 expanded its scope to include “visitation rights of parents to meet them” in the schedule. Given this, the Court deemed the respondent’s application maintainable before the Guardian Court.

In case  2021 YLR 1989 from the Lahore High Court, the matter also revolved around the application for interim custody and visitation rights of a minor girl. The petitioner, Sarosh Sikander, contested the maintainability of the respondent’s application on the grounds that only parents could request visitation rights and that ‘grandmother’ was not covered in the definition of ‘parent.’

The Court ruled that the term ‘parent’ in the context of Section 5 and the Schedule of the Family Courts Act, 1964, had a broader meaning that was not confined to its literal interpretation. This interpretation was especially relevant when considering that a grandchild could inherit from a grandparent. The Court concluded that the grandmother’s application was maintainable before the Guardian Court.

In  case  2008 PLD 198 from the Karachi High Court (Sindh), the matter pertained to the appointment of a guardian and custody of minors. The appellant, Imran Ali, sought custody of his two minor children. The Court considered various factors to determine the best arrangement for the minors.The Court considered the father’s Shia sect and his financial capability to provide for the minors’ welfare. It was noted that the minors had previously attended school before temporary custody was granted to the mother. The father’s family environment was deemed conducive for the minors’ growth, as his family members were actively involved in education. The Court also observed that the father had sufficient income to provide for the minors’ needs.The Court determined that the welfare of the minors lay with the father, given the better family atmosphere, religious considerations, financial capability, and the need for love, affection, education, and mental and physical health. The Court set aside the previous judgments and appointed the father as the guardian of the minors until they reached the age of majority.

In case  2021 YLR 1989 from the Lahore High Court (Lahore), the matter involved an application for interim custody and visitation rights of a minor girl. The appellant, Sarosh Sikander, challenged the maintainability of the respondent’s application, which was filed by the grandmother of the minor. The Guardian Court had rejected the appellant’s application, and she subsequently invoked constitutional jurisdiction.

The petitioner argued that only parents could request visitation rights, and ‘grandmother’ was not covered in the definition of ‘parent.’ However, the Court considered the circumstances and noted that the real father of the minor had not come forward with any definitive plea or effort to be involved. The Court interpreted the term ‘parent’ more broadly and concluded that the application filed by the grandmother for visitation rights was indeed competent in this case.

In  case  2021 YLR 1989 from the Lahore High Court, the appellant, Sarosh Sikander, filed a constitutional petition against an interlocutory order of the Guardian Court. The impugned order did not decisively rule on the application for interim custody/visitation rights filed by the grandmother but allowed it to proceed. The Court deemed the constitutional petition not maintainable as an appeal could be filed against the final order.

In case 2021 YLR 1915 from the Lahore High Court (Lahore), the petitioner, Shahida Adnan, was aggrieved by the issuance of a visitation schedule for her minor daughter to meet her father. The petitioner contended that the minor had no attachment to her father and that he did not regularly maintain her.

The Court recognized that while the minor needed the love, affection, and care of her mother, she also required the presence and guidance of her father. Denying the father’s right to access his daughter would lead to emotional deprivation. The Court dismissed the constitutional petition, highlighting the importance of maintaining a balance between the roles of both parents in the child’s life.

In case 2021 YLR 1299 from the Lahore High Court (Lahore), the petitioner, Ehangir Siraj Dogar, challenged the visitation rights provided to the respondent-mother for the minors. The petitioner, the father of the minors, claimed that the minors did not want to meet their mother.

The Court emphasized that custody matters could not be solely determined by deduction from the rule of law but required judicial discretion based on the relevant facts and circumstances. The Court recognized the possibility of brainwashing and undue influence, particularly when the parents were in conflict. The Court declined to interfere with the visitation schedule, highlighting the importance of allowing children to maintain connections with both parents while also considering their welfare and interests.

These cases underscore the Courts’ efforts to balance the rights and interests of various parties involved in custody and visitation disputes. The decisions reflect the consideration of children’s welfare, emotional well-being, and the unique circumstances of each case.

In case 2021 CLC 1089 from Islamabad, the petitioner, Mst. Isbah Rashid, challenged an order passed by the Judge Family Court that allowed the respondent, the father of the minor, to meet the minor once a month for half an hour. The petitioner argued that the Family Court lacked jurisdiction to fix a visitation schedule as the pending matter was about the recovery of maintenance allowance and not a guardian petition. The petitioner also cited the respondent’s chronic skin disease as a reason for restraining the visitation.

The Court ruled that the Family Court indeed had jurisdiction to decide matters included in Part I of the Schedule attached to the Family Courts Act, 1964, which covered “custody of children” along with “visitation rights of parents to meet them.” The Court highlighted that both parents had equal rights to see their children, and that the petitioner could not prevent the father from meeting his daughter. The constitutional petition was dismissed.

In  case 2020 YLR 401 from the Lahore High Court (Lahore), the petitioner, Mst. Ayesha Abdul Maleek, filed a petition for custody of her minor daughter, while the father applied for the appointment of guardian. The petitioner’s petition for custody was dismissed, and the father’s application was allowed.

The Court emphasized that the paramount consideration while deciding custody matters was the welfare of the minor. The intelligence preference of the minor was considered, and she expressed a willingness to reside with her father rather than her mother. The Courts concluded that the petitioner mother was not entitled to custody, and the respondent father was allowed to retain custody. The petitioner was granted visitation rights. The Court found no illegality or jurisdictional error in the impugned orders and dismissed the constitutional petition.

In case  2020 CLC 1353 from the Karachi High Court (Sindh), the petitioner, Mst. Muniba Raheel, challenged an order from the Family Court regarding the interim custody of her minor daughter and the visitation rights of the father.The Court emphasized that the real father could not be deprived of his right to meet his daughter, and such deprivation could lead to emotional hardship for the child. The Court noted that children needed both the love and care of their mother and the presence of their father. The Court highlighted that an ‘interim custody’ order during litigation was not unjustified and that the father had an equal right to spend time with his daughter. The constitutional petition was dismissed.

In  case  2020 CLC 879 from Islamabad, the petitioner, Sana Aizad, filed an application for custody of her minor son, but a compromise was reached that she would take the minor to the United Kingdom. However, her application for the minor’s visa was rejected, and she proceeded abroad without him. The father sought custody, and his application was accepted, while the mother’s petition was dismissed.

The Court noted that the petitioner mother was in the United Kingdom, the minor was with his maternal grandparents, and the minor’s visa application had been rejected. The father’s request for custody was justified under the circumstances, and the doctrine of “clausula rebus sic stantibus” (fundamental change of circumstances) was applied. The Court found no irregularity in the judgments granting custody to the father and dismissed the constitutional petition.

In case  2019 SCMR 116 from the Supreme Court, the appellant, Ms. Shazia Akbar Ghalzai, filed a habeas corpus petition seeking the recovery of her minor child who had been forcibly taken away by the father from her lawful custody. The minor was about one year old and needed his mother for survival. The Court ruled that the mother had a prima facie right to have custody of the child. The custody was awarded to the mother, subject to any other orders passed by a court of competent jurisdiction in appropriate proceedings. The father was allowed to approach the Guardian Court for visitation rights, and the mother was not allowed to remove the minor out of Pakistan without court permission.

In case  2019 CLC 1352 from the Peshawar High Court, the appellant, Mujeeb Ur Rehman, challenged the order of the Guardian Judge that granted interim custody of his minor child to the child’s mother. The petitioner was working abroad and was not residing in Pakistan. The Court noted that the minor child was under the care of his paternal grandfather and cousin, and for practical purposes, he lacked paternal love. The Court ruled that the mother’s custody was necessary, even if the father was abroad. The Court directed the Trial Court to pass an appropriate order for the production and visitation of the minor.

In case  2019 YLR 785 from the Lahore High Court, the appellant, Zahida Tahira, sought interim custody of her minor sons. The Court noted that the mother was a household lady who could provide proper care and attention to the minors, while the father was often away due to his job. The Court granted interim custody to the mother and provided a visitation schedule for the father.

In the case  2019 CLC 1787 from the Karachi High Court (Sindh), the appellant, Mst. Noor Afshan, challenged an Appellate Court order granting permanent custody of her minor child to the father. The Appellate Court had cited the mother’s remarriage as a reason for awarding custody to the father. However, the Court found that the conduct of the father, including his absence during visitation, non-payment of maintenance, and mala fide actions, weighed against granting him permanent custody. The father was granted visitation rights subject to certain conditions.

In the case cited as 2019 CLC 1478 from the Karachi High Court (Sindh), the appellant, Mst. Abeera Khan, challenged the order of the Family Court that granted custody of her two minor daughters to their father. The Court noted that the mother’s right of “hizanat” (custody) was disregarded, and the Family Court did not even grant a visitation order. The Family Court’s decision was based on factors such as the petitioner’s lack of male relatives in the city and her application to withdraw the minors from school. The petitioner had provided details of her income and efforts to enroll the minors in a school closer to her residence. The High Court allowed the petition and directed the Family Court to redecide the custody matter in accordance with the law, after considering both parties’ arguments. The Court also emphasized the inherent right of real parents to meet and visit their children.

In the case cited as 2019 MLD 659 from the Karachi High Court (Sindh), the appellant, Mst. Bushra Ameen Alvi, sought guardianship of her minor child who was residing with the father. The Trial Court granted interim custody to the mother for periodic visitation and directed her to pay traveling charges. The mother argued that she should not be compelled to pay charges to the father for the child’s production. The High Court highlighted the legal and moral obligations of parents toward their children, regardless of marital status. It stated that the law favored the right of visitation of a parent even if custody was awarded to the other parent, subject to terms set by the Guardian Judge. The Court ruled that requiring the mother to pay fare charges was not justified and went against the basic principle of law. The impugned finding regarding fare charges was set aside.

In the case cited as 2018 SCMR 1991 from the Supreme Court, the appellant, Mst. Madiha Younus, and the respondent, Imran Ahmed, had a custody dispute over their minors. A compromise/agreement was reached between the parents, and the custody was with the mother. The Supreme Court issued a comprehensive plan that detailed custody, visitation rights, maintenance, and obligations of both parents in relation to the minors.

These cases highlight the Courts’ attention to the rights of mothers and fathers in custody matters, as well as the consideration of visitation rights and the overall welfare of the minors involved. The Courts emphasize the importance of the child’s well-being and the inherent rights of parents to maintain relationships with their children.

In the case cited as 2018 SCMR 1385 from the Supreme Court, Ch. Iftikhar Ahmed, the Inspector General of Islamabad Police, was alleged to have physically prevented the then Chief Justice of the Supreme Court from walking to the Supreme Court building as a protest during a contempt proceeding. While the accused persons submitted unconditional apologies, the Court found that these apologies were submitted after the charges had been framed against them. The Court emphasized the gravity of the incident, where police personnel physically stopped the Chief Justice and pushed him into an official car. The Court stated that such conduct required exemplary punishments to uphold the sanctity of the judiciary and the authority of the Court. The accused contemnors were found guilty of contempt and were sentenced to imprisonment. The Court directed that the accused other than those sentenced to imprisonment till the rising of the Court be taken into custody to serve their respective sentences.

In the case cited as 2018 PLD 79 from the Supreme Court, the petitioner, Mst. Laiba Sultan, sought habeas corpus relief to recover the custody of her minor children from her husband. The petitioner was an Afghan refugee with no strong ties to Pakistan, raising concerns that she might remove the minors from the country. Additionally, the attitude of the minors towards the mother and the apprehension that they could not live happily with her at the moment led the Court to dismiss the petition. The Court noted that the mother could approach the Guardian Court for seeking custody and directed that her visitation rights continue.

In the case cited as 2018 PLD 44 from the Quetta High Court (Balochistan), the petitioner, Abdul Khaliq, sought visitation rights to his minor daughter. The dispute was about whether the meetings between the father and the minor should be held within the court premises or elsewhere. The Court emphasized the importance of a congenial environment for the minor’s meetings with the father. It stated that meetings within the court premises were not conducive to the minor’s welfare. The Court set aside the order requiring meetings within the court premises and rescheduled a more flexible arrangement for meetings at the father’s residence, with a representative from both parties present during the transfer of the minor. This arrangement was to continue until the minor turned five years old or was admitted to school.

These cases illustrate the courts’ consideration of the welfare of minors in custody and visitation matters, the gravity of contempt of court incidents, and the need for exemplary punishments to uphold the authority of the judiciary.

In the case cited as 2018 YLR 20 from the Peshawar High Court, Haseeb Ahmad sought custody of his minor children from his ex-wife, Mst. Wajiha Wakeel. The trial court granted custody to the mother and allowed the father visitation rights. The father contended that despite his second marriage, he was entitled to custody since his mother was also living with him. The mother alleged physical torture by the father. The High Court found that the trial court and appellate court had wrongly decided the issue of physical torture against the mother. The High Court emphasized the welfare of the minors and noted that the father’s second marriage and failure to think about the children’s future were significant factors. The Court allowed the father to meet the minors once a month and on both Eids. The constitutional petition was disposed of accordingly.

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In the case cited as 2018 MLD 2001 from the Peshawar High Court, Muhammad Ashar Malik sought custody of his minor children from his ex-wife, Sana Ashar. The issue was whether the Family Court at “P” had jurisdiction over the matter as the father claimed that both parties last resided at “K.” The Court determined that the parties were permanent residents of “P” based on the Nikah Nama and marriage registration certificate. Despite the husband’s claim of permanent residence at “K,” he failed to prove that he had abandoned his permanent residence at “P.” The Court stated that for the purpose of determining territorial jurisdiction, the Family Courts Act and Rules were relevant, not the Guardians and Wards Act. Since the suit did not include a prayer for dissolution of marriage, the Family Court at “P” had jurisdiction over the matter. The constitutional petition was dismissed.

In the case cited as 2018 MLD 1793 from the Lahore High Court, Haroon Rashid sought to modify a visitation schedule between his minor child and the child’s maternal grandmother. The father contended that the grandmother’s request for overnight stays aimed to poison the child against him. The Court emphasized the welfare of the minor and the importance of maintaining relationships with both paternal and maternal relatives. The Court ruled that the minor should not be deprived of the love and affection of either side and should have maximum interaction with both. The Court dismissed the father’s petition, highlighting that he should not hinder the child’s healthy relationship with the maternal side.

In the case cited as 2018 MLD 1592 from the Lahore High Court, Mst. Ayesha Shahid appealed against an order related to the interim custody of a minor child and the visitation schedule with his father. The mother objected to the overnight stay of the minor with the father, expressing concerns about adverse effects on the child’s growth and potential unpleasant situations. The father argued that proper growth required the love and affection of both parents. The High Court emphasized the welfare of the minor, stating that the separation of parents should not permanently deprive the child of the love and affection of either parent. The Court emphasized that the minor, being over six years old, should have maximum interaction with the father, even if custody remained with the mother. The Court ruled that meetings in court premises were not conducive and ordered that the minor’s welfare was better served by meetings at the father’s residence. The Court dismissed the mother’s apprehension about the child’s removal from the jurisdiction by highlighting the condition of submitting surety bonds by the father. The constitutional petition was dismissed.

In the case cited as 2018 MLD 448 from the Lahore High Court, Dr. Samina Anayat appealed against an order concerning the interim custody of a suckling minor and the review of visitation hours with the father. The mother contended that it would be difficult to bring the very young child to court for meetings with the father. The father argued that meetings were necessary to develop affiliation with him. The Court observed that the Guardian Court had exercised its jurisdiction properly and noted that the parties confirmed compliance with the order. The Court highlighted that Section 14(3) of the Family Courts Act barred appeals or revisions against interim orders, and entertaining a constitutional petition would circumvent the intent of the law. The constitutional petition was dismissed.

In the case cited as 2018 YLR 649 from the Karachi High Court, Imran Ahmed appealed a decision to grant custody of his male minors above the age of seven to their mother, Mst. Madiha Younus. The father contended that custody was wrongly granted to the mother. The mother argued that there was no substitute for a mother’s care. The minors had been living with the father and stepmother since their birth. The High Court considered the minors’ preference and their living situation. The minors expressed a preference to live with their father, as they were well taken care of by their father, stepmother, and grandmother. The Court emphasized that the minors’ welfare lay with the father, given their age and circumstances, and set aside the orders of the lower courts. The constitutional petition was allowed.

In the case cited as 2018 MLD 1361 from the Karachi High Court, Imdad Ali appealed against an order granting guardianship to the mother of a minor daughter and the visitation rights of the father. The father alleged that the mother couldn’t provide proper education to the child. The High Court emphasized the welfare of the child and noted that the mother had been taking care of her other two daughters properly. The Court observed that it would be better for the sisters to live together and emphasized that proper education depended on the maintenance provided by the father. The Court stated that if the father was willing to provide better education, he could bear the cost. The High Court directed the Trial Court to arrange meetings between the father and the minor twice a month, considering the safety and security of the minor.

In the case cited as 2018 MLD 574 from the Karachi High Court, Amir Bashir appealed an order granting the mother the right of visitation for minors while he had custody. The father argued that the mother hadn’t filed a proper suit for guardianship. The High Court emphasized that the mother was the natural guardian and had the right to meet her children. The Court found the arrangement made by the Family Court fair and equitable and serving the interest of the minors. The constitutional petition was dismissed.

In the case cited as 2018 PLD 377 from the Karachi High Court, Scherazade Jamali appealed a restriction placed by the Trial Court on the movement of a minor ward. The father requested permanent custody and restrictions on the minor’s movement. The High Court emphasized the welfare of the minor and set aside the movement restrictions, allowing the minor to travel and be admitted to educational institutions as desired by the mother. The Court also set visitation terms for the father. The Court highlighted the need to consider the welfare of the minor beyond parental visiting rights.

In the case cited as 2018 YLR 1891 from Islamabad, Mst. Fatima Ali appealed against a decision related to custody and visitation. The paternal grandmother sought visitation rights within the court premises. The High Court emphasized that the grandmother resided within the territorial jurisdiction of the court and that court premises were not suitable for visitation. The Court emphasized the welfare of the child and dismissed the constitutional petition.

In the case cited as 2017 CLC 1747 from the Lahore High Court, Memoona Ilyas appealed against an order regarding visitation rights and interim custody of her children during school summer vacations. The Court emphasized the jurisdiction of the Family Court in guardianship matters and the appealability of orders under the Family Courts Act, 1964. The Court stated that the later statute would prevail, and thus, the Family Court’s decision under the Guardians and Wards Act, 1890, was appealable under the Family Courts Act, 1964. The Court underlined the Family Court’s parental jurisdiction and its ability to modify or review orders in the interest of justice. The constitutional petition was dismissed.

In the case cited as 2016 MLD 242 from the Lahore High Court, Shamim Akhtar filed a suit for recovery of bridal gifts that was partially decreed by the Family Court but dismissed by the Appellate Court. The Court clarified that claims related to dowry, maintenance, dower, personal property, belongings of the wife, custody of children, and visitation rights could be included in a dissolution of marriage suit. The Court found that the wife hadn’t claimed bridal gifts earlier and concluded that her claim seemed to be an afterthought. The constitutional petition was dismissed.

In the case cited as 2015 SCMR 731 from the Supreme Court, the Court dealt with a custody dispute involving a guardianship certificate obtained through ex parte proceedings by the paternal grandfather. The mother filed a habeas corpus petition claiming custody of the minor. The High Court allowed the petition despite the guardianship certificate. The Supreme Court exercised its jurisdiction under Article 187(1) of the Constitution and directed the Guardian Judge to reconsider the guardianship matter after hearing all parties concerned. The Supreme Court further directed that custody remain with the mother during the interregnum and that the Guardian Judge address any requests for visitation rights. The petition was disposed of accordingly.

In the case cited as 2015 PLD 382 from the Karachi High Court, Mst. Marium Tariq appealed against an FIR filed by the father against her for allegedly kidnapping their minor daughter. The Court emphasized that a natural guardian cannot be held liable for kidnapping their own child. The Court quashed the FIR and directed the father to address the Family Court for the implementation of visitation rights. The Court highlighted that the purpose of Section 363 of the Penal Code is to protect parental rights rather than exploit them as a tool of victimization. The Court stated that fathers also have the right to access and visitation rights, which should be sought through the Family Court. The Constitutional petition was disposed of accordingly.

In the case cited as 2014 PLD 39 from the Quetta High Court, Abdul Hameed appealed against the dismissal of his appeal for custody of his minor son on jurisdictional grounds. The Court clarified that while entertaining custody matters under the Guardians and Wards Act, 1890, the provisions of the West Pakistan Family Courts Act, 1964 should be read jointly. The Family Court under the Family Courts Act, 1964 has exclusive jurisdiction over custody matters. The Court highlighted that appeals in custody matters should be filed under the relevant provisions of the Family Courts Act, and the forum of appeal depends on the rank and status of the presiding officer. The Court set aside the order of the Appellate Court and directed it to decide the appeal on merit.

In the case cited as 2014 PLD 17 from the Lahore High Court, Dr. Kiran Qadir appealed against the dismissal of her constitutional petition against an order denying her custody of her minor son. The Court clarified that orders related to visitation rights passed by the Family Court are appealable. The Court highlighted that the mother’s appeal filed under the West Pakistan Family Courts Act, 1964 was dismissible, and she had the right of appeal under Section 47 of the Guardians and Wards Act, 1890. The Court emphasized the importance of maintaining consistency in one’s position. The Court dismissed the intra-court appeal for being not competent.

In the case cited as 2014 CLC 1168 from the Lahore High Court, Shahbaz Aftab Khan appealed against an order by the Family Court that imposed a condition of submitting surety bonds for visitation rights. The Court held that the condition was arbitrary and illegal, and modified the order to allow the father to meet his children twice a month when he was in Pakistan, with 72 hours’ advance notice to the mother. The Court warned the father that misuse of this concession could lead to contempt of court proceedings. The Constitutional petition was accepted.

In the case cited as 2013 YLR 954 from the Karachi High Court, Ali Hayat filed a habeas corpus application seeking the recovery of his minor children. The Court emphasized the importance of following parenting agreements and directed both parties to follow the agreement and renegotiate it if necessary. The mother was ordered to allow the father to meet the children three times a week for two hours each, as an interim measure for 30 days. The Court also restricted both parties from removing the children from the city without court orders. The application was disposed of accordingly.

In the case cited as 2012 PCrLJ 1433 from the Lahore High Court, Dr. Saima Malik filed a habeas corpus petition for the recovery of her minor child, while a petition for custody was pending before the Guardian Judge. The Court noted that the father had violated the terms of an agreement by not returning the child after visitation. The Court determined that the father’s argument that the application was not maintainable due to the pending custody petition was misconceived. The Court awarded “Hizanat” (custody) of the minor to the mother, emphasizing the child’s need for constant love and care. The parties were directed to abide by the agreement regarding visitation rights, unless varied by the Guardian Judge.

In the case cited as 2012 MLD 1755 from the Lahore High Court, Bushra Asghar appealed for custody of her minor sons. The sons were living with their father, and the mother’s application for custody was dismissed by the trial court and lower appellate court. The High Court emphasized the importance of allowing two brothers to enjoy each other’s company and noted that while the children needed their father’s guidance, they should not be denied the companionship of equals. The Court acknowledged the mother’s better understanding with her children and her superior right of custody. The Court considered the preference made by the minors and found that the welfare of the minors would be best served by granting custody to their mother. The father retained the right of visitation as agreed upon. The Constitutional petition was allowed accordingly.

In the case cited as 2012 MLD 670 from the Lahore High Court, Iftikhar Ahmad Chishti appealed for custody of his minors. The father’s suit was dismissed by the Guardian Court and the Appellate Court. The High Court noted that the father had failed to pay maintenance and had been detained in civil prison. Given the circumstances, the Court presumed that the father was not interested in the welfare of the minors. The Court recognized that step-mothers cannot provide the same love and affection as real mothers. The Court upheld the decisions of the lower courts and dismissed the Constitutional petition, suggesting that the father could apply for visitation rights.

In the case cited as 2012 CLC 517 from the Lahore High Court, Mumaraz Khan filed a second suit for specific performance of an agreement between spouses related to visitation rights. The Court determined that the principle of res judicata applied, as the right of visitation was deemed to have been in issue in a previous suit for custody that was dismissed. The Court also found the second suit not maintainable under the Specific Relief Act, as it was based on an agreement for an indefinite period of visitation. The suit and appeal were dismissed by the lower courts and the revision was also dismissed by the High Court.

In the case cited as 2010 SCMR 1804 from the Supreme Court, a suo motu case was initiated for the recovery of minor children. During the pendency of proceedings before the Guardian Court, the father of the minor children misused the visitation rights and took the minors to a foreign country. Despite efforts, the minors could not be recovered. The Supreme Court took notice of the situation and directed the authorities to recover the minors. The minors were eventually recovered from abroad and handed over to their mother, who was entitled to retain their custody. The Supreme Court appreciated the efforts of the Provincial Police Officer and directed that the mother be provided protection if needed.

In the case cited as 2010 YLR 556 from the Lahore High Court, Muhammad Ishfaq Qureshi appealed for custody of his minor daughter. Initially, the custody was given to the father by the trial court, but on appeal, it was handed over to the mother. The High Court considered the welfare of the minor and the potential harm in having the minor girl in an environment with unrelated males due to the mother’s remarriage. The Court directed that both minors be given six weeks to establish a bond and then handed custody of the minor girl to the father, with regular visitation for the mother.

In the case cited as 2010 MLD 340 from the Lahore High Court, the contest was over the custody of an 8-year-old minor son. The father was financially stable, employed as a school teacher, and owned agricultural land. The mother and her new husband were illiterate and lacked a stable income. The order of the Guardian Judge giving custody to the mother was set aside by the Appellate Court. The High Court emphasized the importance of the minor’s welfare and concluded that the father’s stable financial position and ability to provide a better educational environment made him a more suitable guardian. The mother was granted visitation rights.

In the case cited as 2010 MLD 42 from the Lahore High Court, a constitutional petition was filed by Mst. Muhammad Jan, the grandmother of a minor child. The child’s mother had been expelled from her in-laws’ home by the grandmother, who then retained custody of the minor. The mother filed a petition for recovery of the minor under S. 491, Cr.P.C., which was dismissed after the minor expressed a preference to live with his paternal grandmother. The mother later filed a petition under S. 7 of the Guardians and Wards Act, 1890, seeking to be appointed as the guardian of the minor. The appeal filed by the mother was accepted, and the custody of the minor was ordered to be handed over to her. The grandmother challenged this order in a constitutional petition. The High Court observed that the minor had been influenced against his mother and that the grandmother had not adhered to the visitation schedule. Considering the welfare of the minor and the importance of the mother-child bond, the High Court dismissed the constitutional petition.

In the case cited as 2010 YLR 776 from the Karachi High Court, Muhammad Shoaib, the father of a minor girl, appealed for custody. Both the Family Court and the Appellate Court had dismissed his application for custody. The minor girl, aged about 14 years, expressed her desire to live with her mother in court. The High Court upheld the judgments of the lower courts, maintaining that the best interest of the minor girl was to remain with her mother. The High Court also established a visitation arrangement.

The case cited as 2009 CLC 1443 from the Lahore High Court discusses the considerations for settling custody issues and visitation schedules of minors.

In the case cited as 2008 SCMR 527 from the Supreme Court, Altaf Akhter Alvi appealed for custody of minors. The Guardian Judge/Family Court had ordered permanent custody of the minors to remain with the petitioner (father) with visitation rights granted to the mother. The Appellate Court partly allowed the appeal, modifying the visitation rights of the mother. The High Court upheld this decision, permitting the mother to meet the minors on the first Sunday of each month. The Supreme Court dismissed the petitioner’s plea, affirming the High Court’s judgment and emphasizing the importance of allowing the mother access to her minor children.

In the case cited as 2008 PLD 499 from the Karachi High Court, Saad Amanullah Khan appealed against the IVth Senior Civil Judge’s decision. The matter involved the custody of minor children, and the Supreme Court had previously made a decision based on a compromise filed by the parties. According to the compromise, custody of the minors was given to their mother, while their father was granted visitation rights. The father complained that the mother was not complying with the Supreme Court’s decision. The High Court appointed a Deputy Registrar (Judicial) to oversee the implementation of the order and granted the official the authority to seek police assistance if needed. The High Court emphasized the importance of upholding the order for the welfare of the children and warned that measures would be taken if the order was not followed.

The same case, 2008 PLD 499, also explores the scope of visitation rights. It states that the law supports the idea that a parent’s right to visitation remains intact even if custody is awarded to the other parent.

In the case cited as 2006 MLD 135 from the Karachi High Court, Irfan Ahmed appealed against the II-Judicial Magistrate East in Karachi. The case involved the custody of minors. The West Pakistan Family Courts Act, 1964, as amended by the Family Courts Act (Amendment) Ordinance (LV of 2002), provided no appeal or revision against an interim order of the Family Court. As a result, a constitutional petition was considered the only remedy, and in this case, it was deemed maintainable. The parties agreed to work towards an amicable settlement, and the petitioner agreed to comply with the impugned order subject to the outcome of the constitutional petition. The respondent also agreed to provide visitation rights to the petitioner for a specific duration.

In the case cited as 2005 PLD 22 from the Supreme Court, Muhammad Iqbal appealed against Parveen Iqbal. The husband’s argument was based on Rule 6 of the West Pakistan Family Courts Rules, 1965, which stipulated that a suit for dissolution of marriage or dower could only be filed before the Family Court where the wife ordinarily resided. However, the court held that, regardless of suits for dissolution of marriage and dower, under the proviso to Section 7(2) of the West Pakistan Family Courts Act, 1964, suits related to maintenance, personal property, belongings of the wife, custody of children, and visitation rights of parents to meet their children could also be instituted before the Family Court where the wife resided.

In the case cited as 2002 SCMR 371 from the Supreme Court, Badruddin Roshan appealed against Mst. Razia Sultana. The matter pertained to the custody of a minor child. The father had forcibly taken custody of the minor child from the mother during the pendency of the case before the Guardian Court. The Appellate Court directed the Guardian Court to restore the custody of the minor to the position it was at the time of filing the case and decide the matter on its merits while considering the welfare of the minor. The High Court, in the exercise of its constitutional jurisdiction, declined to interfere with the order of the Appellate Court. The Supreme Court observed that the custody of the minor must be regulated by the Guardian Court in accordance with the consistent practice and laws of the land, taking into account the supreme interest of the minor’s welfare and well-being. The High Court’s decision not to interfere with the discretionary order of the Appellate Court was upheld, and the impugned order was found to be legally sound, without any jurisdictional errors.

In the case of Jahan Ara vs. Province of Sindh through Secretary, Home Department, Karachi (2019 MLD 1722 Karachi High Court Sindh), the court dealt with a habeas corpus petition filed by the petitioner, who was the mother of minors. The petitioner contended that her right of “hizanat” (custody) should control the jurisdiction under habeas corpus. The central issue was whether the habeas corpus jurisdiction should be exercised during the pendency of a guardianship application under the Guardians and Wards Act.

The court clarified that the mere pendency of a guardianship application or the availability of such jurisdiction does not automatically prevent the exercise of habeas corpus jurisdiction. However, the habeas corpus jurisdiction is not a substitute for a proper guardianship application and can only be invoked under specific criteria or exceptional situations. The court emphasized that the absolute and exclusive jurisdiction of the Guardian Court in matters of custody remains intact, and habeas corpus can only be used in exceptional circumstances for temporary arrangements.

In this specific case, the petitioner had filed a suit for maintenance of one minor (who was with her) almost a year prior to the petition. However, she had not moved to any lawful forum for the custody of the present minors (the alleged detenues) who were still with the respondent (father). This fact indicated that the urgency or recent removal of the present minors was not established at the time of the legal dispute. The petitioner filed the habeas corpus petition after about two months without detailing the exceptional circumstances that would justify invoking habeas corpus jurisdiction.

The court noted that habeas corpus jurisdiction is available in exceptional situations and cannot be exercised without demonstrating such circumstances. The petitioner had already filed an application before the Family Court under Section 7 of the Guardians and Wards Act, 1890. The court observed that the case did not involve recent removal of minors from lawful custody, nor was there a demonstrated urgency. The minors were school-going children, and no harm or legal injury had been shown if they stayed with their father during the pendency of the legal proceedings.

The court further highlighted that the minors were not very young children and were not at risk of being removed from the country. The continuous custody of the minors with the father was not disputed, and no harm to the minors’ welfare had been established. The court concluded that exercising habeas corpus jurisdiction in this case, without sufficient exceptional circumstances, would disrupt the minors’ education and emotional well-being by separating them from their friends, school, and teachers. As a result, the petition for habeas corpus was dismissed.

In the case of Salam Din vs. Mst. Sameena (2018 YLRN 288 Quetta High Court Balochistan), the issue pertained to the custody of minors, where the mother had filed an application for custody. The father argued that the mother did not have sufficient resources to properly care for the minors. The courts below had granted custody to the mother. However, the High Court set aside the impugned orders and judgments of the lower courts.

Section 17 of the Guardians and Wards Act, 1890 stipulates that the right of custody of a minor is not an absolute right; it is always subject to the welfare of the minor. The record revealed that during the proceedings, the minors were produced before the Family Court and stated that they loved their father and did not want to go to their mother because she was careless about them and used to beat them. The mother, during cross-examination, admitted that she was dependent on her brothers after divorce and had no independent source of income.

The High Court observed that the mother’s financial status and her ability to care for the minors were important factors in determining their welfare. On the other hand, the father was a government servant and in a better position to provide for the children’s needs. Additionally, the children were receiving education in a reputable school. Taking all these factors into account, the High Court concluded that the mother was not able to properly care for the minors and that the father was in a better position to do so. Thus, the impugned orders were set aside.

In another case, Imran Ahmed vs. Mst. Madiha Younus (2018 YLR 649 Karachi High Court Sindh), the issue was the custody of male minors above the age of seven by the mother. The father argued that both courts below had wrongly granted custody to the mother. The mother argued that there was no substitute for a mother’s care.

The record revealed that the minors had been living with their father and step-mother since birth. The father had moved an application under Section 17(3)(5) of the Guardians and Wards Act before the Family Court and the appellate court to record the statements of minors, but the request was disallowed. The High Court emphasized that while deciding custody issues, all circumstances must be considered.

In this case, the minors had been living with their father since 2015, and both were above the age of seven. The minors were given an opportunity to express their preference, and they repeatedly expressed their wish to live with their father, as they were being properly looked after by their grandmother, step-mother, and father. The High Court recognized the importance of the minors’ preference and determined that their welfare lay with the father. The impugned orders were set aside, and a visitation schedule for the mother to meet the minors occasionally was charted out. The constitutional petition was allowed accordingly.

In the case of Mst. Rukhsana Begum vs. Additional District Judge, Multan (2011 YLR 2796 Lahore High Court Lahore), the issue concerned the custody of a minor son. The minor son was living with his mother, who had contracted a second marriage with a person already having seven children. The father of the minor claimed custody on the grounds that the welfare of the minor was with him and that the stepfather of the minor was involved in criminal cases. Both the courts below decided in favor of the father.

The High Court emphasized that the welfare of the minor was the paramount consideration in such cases. In this case, it was found that the welfare of the minor was with the father. The stepfather had a criminal record, had seven children from a previous marriage, and the minor had already reached the age of ten. Additionally, the mother was unable to get the minor admitted to school, while the father was providing proper education to his other son who had been residing with him since the separation of the couple. Given these circumstances, the courts below had rightly determined that the welfare of the minor lay with the father. The High Court declined to interfere with the concurrent judgments and decrees passed by the lower courts and dismissed the petition.

In the case of Imran Ali vs. Mst. Iffat Siddiqui (2008 PLD 198 Karachi High Court Sindh), the issue was the appointment of a guardian and custody of minors. The petitioner, who was the father of the minors, sought custody. One minor was about 8 years old, while the other was about 5.5 years old. The petitioner was a Shia and had sufficient means to look after the welfare of the minors according to his own sect.

The record revealed that the minors had been going to school before temporary custody was handed over to the mother. The mother was residing with her three brothers, one of whom was a convicted person and was residing abroad. On the other hand, the family atmosphere of the father was deemed better for the future growth of the minors. The father had a better financial situation, with his mother being a retired principal of a school and his brother involved in education. The father had the means to provide for the minors’ welfare.

The High Court emphasized that both parents had equal love for the children, and the minors needed love, affection, better education, mental and physical health, and a suitable civil and social atmosphere. The High Court set aside the impugned judgments that granted temporary custody to the mother, as the courts below had not properly considered the facts and circumstances. The father was appointed as the guardian of the minors until their majority, as their welfare lay with him.

In matters of custody and visitation involving a father’s remarriage, it is established that a father’s remarriage does not automatically disentitle him from obtaining custody of a minor daughter. In Islamic law, while the mother may become disentitled to custody if she remarries, the father’s right to custody of his minor daughter remains intact. The custody of the minor in such a scenario would belong to the biological father, and there must be exceptional circumstances to disentitle him from custody (2014 SCMR 343 Supreme Court).

The term “welfare of the minor” should be interpreted broadly to encompass all relevant factors that contribute to the actual welfare of the minor. Technical legalities should not be used to suspend visitation rights of non-custodial parents, and in such cases, the paramount consideration should be the well-being of the child. The principle of focusing on the welfare of the child and avoiding rigid adherence to legal technicalities is underscored in precedents such as 2002 PLD 267 Supreme Court.

An important aspect to consider is the issue of visitation rights. An appellate court’s decision to suspend visitation rights based solely on an affidavit presented by the appellant, without prior notice to the non-custodial parent, could infringe upon visitation privileges. Visitation rights, which are often restricted to court premises and limited hours, should be carefully considered to ensure that both parents can maintain a meaningful relationship with their children (PLD 1958 SC 41).

It’s important for all parties involved in these proceedings to recognize the importance of allowing the mother to have complete custody of the minor, while also ensuring that the father is not discouraged from having contact with and seeing his children (2009 CLC 1443 Lahore).

In these custody matters, the central figure is the child, who should ideally benefit from the warmth and care of both parents, in line with the natural law (2019 MLD 804 Karachi).

Overseas Custody for father declined when children are minor 

In a case cited as 2010 MLD 544 Karachi High Court Sindh, a contest arose between a mother and a father over the custody of their two minor daughters and one son. The father, who was a Pakistani born citizen of France, alleged that if the children were sent with him to France, they would receive allowances and free education from the French Government. However, the appellate court set aside the Guardian Judge’s order that had favored the father’s application for custody.

The court’s decision to decline sending the children to France was based on various factors. Sending the children abroad would have deprived the mother of her ability to maintain a relationship with her own children. The court noted that enforcing an undertaking by the father to ensure the children’s annual return to Pakistan for visits with the mother would be challenging. Furthermore, the father’s history of compliance with court orders, especially in regard to maintenance payments, was called into question.

The court also considered the cultural and religious context, highlighting that while French schools might offer a superior education, the children’s upbringing as Muslims in the Islamic society of Pakistan was an important consideration. The children were thriving under the care of the mother, receiving quality education and exhibiting a positive demeanor. The mother’s living arrangement, protected by her brother and residing in a separate section of her sister’s house, was deemed suitable.

In the end, the court determined that the best interests of the children would be served by allowing them to remain with their mother in Pakistan. The father retained the right to meet the children in Pakistan, subject to his fulfilling the court-ordered maintenance payments. A provision was also made for the children, upon reaching the age of 16, to visit their father in France during their summer vacation.

The constitutional petition was disposed of in accordance with these terms, ensuring that the children’s well-being and best interests were at the forefront of the custody arrangement.

Latch key child reasoning by court

In a case titled 2009 CLC 1143 Lahore High Court Lahore, the issue of custody of a minor son aged 11 years was at stake. The petitioner, the father, filed a constitutional petition seeking custody of his minor son, which was initially granted by the Guardian Judge. However, the appellate court set aside this order, leading to a constitutional petition.

The court’s decision revolved around the welfare of the minor, which remained the predominant consideration regardless of the minor’s personal law. Welfare was not confined solely to monetary matters but encompassed emotional well-being as well. The court emphasized that the emotional welfare of the minor held more significance than the monetary aspect. The father, being the natural and legal guardian, was obligated to provide maintenance to his minor child, an obligation that could not be evaded under any circumstances.

The court highlighted the importance of providing a stable and nurturing environment for the minor. Traumatizing the minor by subjecting him to emotional upheaval could lead to irreversible damage. The court used the term “Latch key child” to illustrate the potential consequences of placing a minor in a situation where he fends for himself after school because his parents are at work. The emotional stability and proper upbringing of the minor were deemed crucial to his development as a stable individual and a valuable member of society.

The court took into account the father’s work obligations, both in Pakistan and abroad, which would limit his ability to provide constant supervision for the eleven-year-old boy. The minor also had two siblings who were in the custody of the mother, and the court recognized that separating the minor from his mother and siblings would cause additional emotional distress.

Considering these factors, the court upheld the decision of the appellate court to set aside the initial order granting custody to the father. The emotional welfare and stability of the minor were deemed of paramount importance in determining the custody arrangement.

Maternal Grandmother and Hizanat for Minors 

In a case titled 2011 CLC 1912 Lahore High Court Lahore, the issue of custody of a minor boy and girl aged 2 and 3 years, respectively, was under consideration. The contest for custody was between the father and the maternal grandmother of the minors.

The court took into account several important factors in making its decision. The father had murdered the mother of the minors in their presence, which raised serious concerns about his suitability for custody. Additionally, the father had contracted a second marriage and had children from his second wife. Despite having a maintenance decree in favor of the minors, the father had not paid their maintenance and showed a lack of interest in their welfare.

The father’s intentions were further brought into question as he filed an application for custody only after the minors filed a suit for maintenance against him. The court also considered the statement of the father’s brother in other proceedings, where it was noted that the minors were studying in a Madrassa and a school.

The maternal grandmother, on the other hand, was shown to be actively involved in the minors’ lives. She and her sons owned land, and she was bearing the expenses of the minors from her own resources and contributions from her sons. The court found no evidence to support the claim that the maternal grandmother had engaged the minors in beggary, nor that the minors were not attending school.

Under Islamic Law, in the absence of the real mother, the maternal grandmother had the right of “Hizanat” (custody) over the minor girl until she attained the age of puberty, and over the minor son until he attained the age of seven years. The court emphasized that the paramount consideration in such cases would always be the welfare of the minors. Therefore, the court examined all available material and prevailing circumstances of the case to make an informed decision.

Considering the circumstances and the well-being of the minors, the court dismissed the father’s application for custody. The court recognized the maternal grandmother’s role in the minors’ lives and prioritized the welfare of the children.

Deceitful conduct of father :

 

In a case titled 2018 SCMR 427 Supreme Court, the matter revolved around a guardianship certificate issued in favor of the father of minors. The court took into consideration the father’s deceitful conduct and lack of bona fides in the case.

The background of the case revealed that the mother and minors were sent to a foreign country and obtained citizenship there at the father’s behest. The father, however, did not seek citizenship for himself due to professional reasons but obtained permanent resident status, which allowed him to freely enter and exit the foreign country. The family had an understanding where the father would occasionally visit the family in the foreign country, or alternatively, the mother and children would visit Pakistan during holidays. This arrangement lasted for about seven years.

The father’s intentions took a turn when he decided to bring the family back to Pakistan. However, by this time, the mother had secured employment in the foreign country, and the children were already attending schools and colleges there. Despite the settled life of the mother and children, the father employed deceitful methods to force his minor sons to return to Pakistan.

The father manipulated the situation by promising the children a short holiday with the assurance that they would be allowed to return to the foreign country. Under this premise, the children came to Pakistan in good faith. The father then approached the Guardian court with a petition for guardianship without fully disclosing the facts. He concealed the correct address of the mother, omitted mentioning that their daughter was already an adult, and withheld the fact that he had granted written permission for the children to return to the foreign country.

Furthermore, the father used the purchase of property in joint names with his sons to create grounds for his appointment as the guardian of their property, intending to postpone their age of majority from 18 to 21 years. The father obtained ex parte orders from the Guardian court without contest and behind the back of the mother. The mother was initially shown as residing at the father’s house, and her foreign address was disclosed at a later stage.

The Supreme Court found these actions to be manipulative, deceitful, and lacking bona fides on the part of the father. The minors themselves, in the presence of the Supreme Court, expressed their difficulty adjusting in Pakistan and their desire to return to the foreign country for their education and social life. They also mentioned that they were willing to spend time with their father during his visits to the foreign country.

In light of these circumstances, the Supreme Court set aside the ex parte judgment of the Guardian court. It directed that the guardian petition would be deemed pending before the court, giving the mother a reasonable opportunity to file her written statement. As an interim measure, the custody of the minors was granted to their real mother. The appeal was allowed accordingly, prioritizing the welfare and well-being of the minors.

In the case of 2020 MLD 1118 Quetta High Court Balochistan, the issue of where to file a petition for appointment as a guardian was discussed. The petitioner’s petition for appointment as a guardian of a minor was dismissed by the Guardian Judge, and an appeal filed against this decision was dismissed by the District Judge. The court clarified that for matters pertaining to guardianship and custody of minors, the exclusive jurisdiction lies with the Family Court. The Family Court, as per the Family Courts Act, 1964 and Guardians and Wards Act, 1890, is deemed to be a District Court for these purposes. Therefore, the Family Court adopts the procedure laid down in the Guardians and Wards Act, 1890, while dealing with such matters. The court emphasized that the order passed by the Family Court does not have the status of an order of a District Judge. Appeals in such cases must be preferred under Section 14 of the Family Courts Act, 1964, which designates the forum of appeal. The appeal should be filed before a District Judge. In this particular case, a constitutional petition was allowed, and the appellate court was directed to decide the appeal on its merits.

In the case of 1986 PLD 14 Supreme Court, the court addressed the issue of appellate and revisional jurisdiction in the context of guardianship matters. It was clarified that Section 25 of the West Pakistan Family Courts Act, 1964 excludes the application of the Guardians and Wards Act, 1890 at a certain stage in the proceedings. The word “matter” in Section 25 of the Family Courts Act, 1964 signifies that it applies to the Family Court when conducting a trial, adopting the procedure prescribed in the Guardians and Wards Act, 1890. However, Section 25 of the Family Courts Act, 1964 does not extend to higher forums, particularly the High Court, when dealing with appeals or revisions. The revisional forum under Section 41 of the Guardians and Wards Act, 1890 was excluded from the scope of Section 25 of the Family Courts Act, 1964. As a result, the High Court does not possess revisional jurisdiction in cases under either the West Pakistan Family Courts Act, 1964 or the Guardians and Wards Act, 1890 due to the provisions of Section 25. Appeals provided under Section 14 of the West Pakistan Family Courts Act, 1964 continue to cover the field of remedy, apart from the constitutional jurisdiction of the High Court.

Preference of Minor under 17(3) of the GWA 1890

In the case of 2019 MLD 1502 High Court Azad Kashmir, the issue of the preference of a minor under Section 17(3) of the Guardians and Wards Act, 1890 (GWA) was discussed. The appellant, who was the father, challenged an order passed by the Family Court dismissing his application for custody of the minors. The court emphasized that the welfare of the minor is a crucial consideration in such cases. Subsection (3) of Section 17 of the GWA states that if a minor is old enough to form an intelligent preference, the court can take their preference into account. In this case, the minors had a stronger bond and familiarity with their mother due to their upbringing. The minors themselves preferred to live with their mother, and it was determined that it was not in their best interest to be placed in the custody of their father. The court also considered practical aspects, such as the father’s work schedule and the availability of caretakers in his house. The mother was found to be looking after the minors in an appropriate manner, and they were attending a reputable school. As there was no evidence indicating that the minors were being neglected or mistreated, the appeal filed by the father was dismissed.

In the case of 2018 YLRN 288 Quetta High Court Balochistan, the court addressed the custody of minors and the consideration of their welfare. The mother had filed an application for custody of the minors, but the father contended that she did not have sufficient resources to care for them properly. The court emphasized that the right of custody of a minor under Section 17 of the GWA is always subject to the welfare of the minor. The minors in this case expressed a preference for their father during the proceedings, stating that they loved him and did not want to live with their mother due to her alleged carelessness and mistreatment. The court noted that the mother’s financial status was not strong, and she admitted to being dependent on her brothers with no independent source of income. On the other hand, the father was a government servant with a better financial position and the ability to provide for the minors. The court ultimately set aside the lower court’s decision and granted custody to the father, considering the minors’ well-being and educational prospects. The court accepted the constitutional petition accordingly.

In both cases, the court demonstrated its commitment to prioritizing the welfare and preferences of the minors when making custody decisions under the Guardians and Wards Act, 1890.

Concurrent jurisdiction of Family Courts under the West Pakistan Family Courts Act, 1964, and the Guardians and Wards Act, 1890, and the specific forums of appeal in matters related to custody and guardianship

In the case of 2015 CLC 706 Lahore High Court Lahore, the issue of jurisdiction and transfer of family cases was discussed. The appellant, Zill-e-Huma, had filed a constitutional petition challenging the transfer of her suit for recovery of maintenance allowance for children before the Guardian Court. The Guardian Court was already hearing an application for custody of the minor children filed by the husband. The court considered the provisions of the West Pakistan Family Courts Act, 1964, which conferred exclusive jurisdiction upon the Family Court for matters falling within the ambit of the attached Schedule. This included matters related to maintenance and guardianship. The court clarified that a Civil Judge, under Section 4 of the West Pakistan Family Courts Act, could act as a Guardian Judge and also hear family cases. The court found no jurisdictional error or legal infirmity in the District Judge’s decision to transfer the cases. The constitutional petition was dismissed in limine.

In the case of 2014 PLD 39 Quetta High Court Balochistan, the court addressed the forum of appeal in matters related to custody of minors. The appellant, Abdul Hameed, had filed an application for custody of a minor under Section 25 of the Guardians and Wards Act, 1890. The Family Court accepted the application, but the appeal before the Additional District Judge was dismissed for lack of jurisdiction. The court clarified that the provisions of the West Pakistan Family Courts Act, 1964, and the Guardians and Wards Act, 1890, were to be read co-jointly. The Family Court, established under the Family Courts Act, had exclusive jurisdiction over matters enumerated in its attached Schedule, including custody of children and guardianship. The court emphasized that any order passed by the Family Court while entertaining an application for custody of a minor did not amount to an order of the District Court. Instead, the right of appeal lay under Section 14 of the West Pakistan Family Courts Act, 1964. The court accepted the constitutional petition, set aside the order of the Additional District Judge, and directed the Appellate Court to decide the appeal on merit.

Fathers second marriage can revert custody to Mother even when she agreed to his custody before 

In the case of 2011 CLC 1062 Quetta High Court Balochistan, the issue of appointing a guardian of a minor was discussed. The appellant, Ganj Bibi, had applied to be appointed as the guardian of her minor son, who was already in her custody. The respondent was the father of the minor. Despite having custody of the child, the mother sought to become the official guardian. The court emphasized that the main consideration in appointing a guardian of a minor is the welfare of the child. The court found that there was no evidence or assertion that the father had taken any steps to deprive the mother of custody. The court held that the mother failed to establish any reason why the father should be considered unfit to be the guardian of their minor son. As per Islamic Law, the mother is entitled to custody of her minor son until he reaches the age of 7 years. However, in this case, the mother was already in custody of the child and was now seeking to become his guardian. The court found no reason to disqualify the father from being the guardian and upheld the decision of the trial court.

In the case of 2010 CLC 1281 Lahore High Court Lahore, the issue of custody of minors was discussed in the context of the father’s second marriage. The appellant, Muhammad Zulqarnain Satti, challenged the granting of interim custody of minors to the mother by the Appellate Court. The father argued that custody had been given to him at the time of divorce as a result of an agreement. However, the mother argued that the father’s second marriage meant that the minors would be left to the mercy of their stepmother. The court considered the welfare of the minors as the overriding and paramount consideration. The court noted that the mother had not remarried and was devoting her attention and affection to the upbringing of the minors. Given the father’s second marriage, the court found that it was in the minors’ best interest to grant interim custody to the mother. The court dismissed the constitutional petition and directed the Guardian Judge to decide the main petition under Section 25 of the Guardians and Wards Act, 1890, within a specific timeframe.

Bad character of mother as a basis of ouster from Custody 

In the case of 2007 CLC 1612 Lahore High Court Lahore, the issue of custody of minors was discussed. The mother of the minors had applied for custody of her children under Section 25 of the Guardians and Wards Act, 1890, challenging the appointment of her deceased husband’s brother as the guardian of the minors. Both the Guardian Judge and the Appellate Court had dismissed her application. The mother claimed that it was in the welfare of the minors to live with her. On the other hand, the respondent, who was the uncle of the minors, argued that the petitioner (mother) had a bad character and was allegedly involved in her husband’s death. The respondent also claimed that the petitioner had no source of income. The court noted that the petitioner failed to produce substantial evidence in support of her claim for custody. The uncle, who was a teacher, testified that he could provide better care for the minors and that they did not want to meet their mother. The trial court and the Appellate Court concurred that it was in the minors’ welfare to remain with their paternal uncle. The court upheld the decision of the lower courts, emphasizing that the paramount consideration in determining custody is the welfare of the minor.

In the case of 2002 CLC 1416 Peshawar High Court, the issue of custody of a minor son was discussed. The mother, Mst. Abida Bibi, had applied for custody of her minor son. The court emphasized that the paramount consideration and basic criteria for appointing a guardian and restoring custody are the welfare of the minor. The court recognized the unique love and affection that a mother can provide to her child. Even though the mother was earning a livelihood by working in an embroidery school and her brothers were mechanics, the court noted that their combined effort could provide a good education for the minor. The court rejected the notion of refusing custody to the mother based solely on her economic status. The court also highlighted the father’s duty to provide for the minor’s necessities and maintenance. The court found no evidence indicating that the mother had a bad character. Since the father had neglected the minor and failed to maintain his wife (the mother), the court concluded that the mother was entitled to custody of her minor son.

In the case of 2000 PLD 23 Peshawar High Court, the issue of appointing a guardian for minor children was discussed. The parents of the minors had divorced, and the minors were living with their mother. The father had a history of alcohol consumption and was facing numerous criminal cases. He lacked a source of income and property. On the other hand, the mother was a graduate and a teacher in a reputable school, leading a respectable life with no evidence of bad character. The father’s application for appointment as the guardian was rejected by the Guardian Judge, but the Lower Appellate Court accepted it on appeal. The father contended that the mother had remarried, which he deemed unfavorable for the minors’ well-being.

The court highlighted that the paramount criterion for appointing a guardian and determining custody is the welfare of the minors. The court must consider the conditions outlined in Sections 17 and 25 of the Guardians and Wards Act, 1890. While the father is a natural guardian, his rights are subordinate to the welfare of the minors. The court ruled that the mother’s remarriage did not disqualify her from having custody of her children. The court held that factors related to a woman’s remarriage and custody of minors are not reciprocal under the Guardians and Wards Act, 1890. The order of the Lower Appellate Court was set aside, and the decision of the Guardian Judge was reinstated.

In the case of 1961 PLD 768 Lahore High Court, the case involved a father’s application under Section 25 of the Guardians and Wards Act, 1890, for the custody of minors based on the alleged bad character of the mother. The court emphasized that the welfare of the minors is of paramount consideration. The mother’s right to custody under Islamic law was also taken into account. The court noted that the mother’s lack of means to maintain the minors was not sufficient grounds to deprive her of custody, unless she was otherwise disqualified.

Both cases underscore the importance of prioritizing the welfare of the minors when making decisions about their custody. The court examines various factors, including the character of the parents, their ability to provide for the minors’ needs, and the best interests of the children involved.

Problems faced by non-custodial parents in Pakistan

In the evolving landscape of matrimonial relationships in our society, the past two decades have witnessed a significant increase in divorce cases. This surge in divorce rates, particularly among middle and lower-middle class couples, has led to a rise in bitter child custody battles. Unfortunately, in many of these cases, innocent children are being used as pawns to seek revenge by vindictive litigants. This often results in severe emotional and psychological abuse inflicted on the child, causing lasting damage to their development and well-being. The consequences of divorce, especially for the children of divorced couples, are multifaceted and far-reaching.

The distressing practice of using children as tools in this emotional conflict between parents is a form of irresponsible parenting. This manipulative behavior not only scars children emotionally in the short term but also has profound implications for their long-term psychological and emotional health. While parents may move on to new relationships and partners, the trauma experienced by these children persists, leading to personality disorders, substance abuse, criminal behavior, and anti-social traits later in life.

In the legal context of Pakistan, the Guardians and Wards Act, 1890, is the governing legislation that addresses matters of guardianship and child custody. The primary consideration in guardian courts when determining custody is the welfare of the minor. The Act plays a central role in determining custody arrangements during divorce or separation proceedings. In such cases, there are three key parties involved: the Custodial Parent, the Non-Custodial Parent, and the Minor.

The Holy Quran also addresses the rights of non-custodial parents. Quranic verse 2:233 emphasizes that no parent should be subjected to torture or mistreatment solely for being the parent of a child. This verse underscores the importance of treating both parents fairly and justly, even in the context of separation or divorce. The Quranic perspective encourages mutual respect and cooperation between parents for the well-being of their children. It is imperative for society, families, and legal institutions to work together to protect the emotional and psychological well-being of children caught in the midst of divorce and custody disputes.

Parental child abuse is unfortunately a common form of child abuse that often emerges when parents separate or initiate divorce proceedings. In these situations, one parent may engage in actions that harm the child’s well-being, either to gain an advantage in anticipated or ongoing child custody proceedings or due to fears of losing custody during the lengthy legal process. These actions can include removing or retaining the child from the other parent’s custody, refusing to return the child after visitation, or even fleeing with the child to prevent access visits. 

The psychological impact on the child resulting from such actions is significant but often overlooked.

For a child, the most distressing experience, aside from losing a parent, can be getting caught in the midst of a divorce and custody battle between parents. While the spouses and their families engage in accusations and conflicts, the child’s trauma may get overshadowed by the emotional turmoil of the parties involved.

Cases related to custody and visitation issues are not ordinary legal matters like property disputes. They hold distinct dimensions and consequences, grounded in human emotions and sentiments. Resolving and adjudicating these cases requires a unique perspective, focusing on the welfare of the child while also acknowledging the natural feelings of the parents. A parent’s importance to a child is reciprocal, and the child’s significance to the parents is equally profound.

In the context of custody litigation, three main stakeholders emerge: the mother, the father, and the child. In certain cases, siblings of the minor are also stakeholders. Decisions about custody should consider the emotions and feelings of each party, alongside the legal and welfare considerations for the child. A balanced visitation schedule should aim to ensure that neither parent is entirely deprived of the child’s custody, and both parents have the opportunity to maintain a meaningful relationship with the child.

Ultimately, the child’s welfare is of paramount importance. It is a natural right for a child to receive love and affection from both parents. Even if parents are separated due to discord, the child should not be denied the opportunity to receive the maximum love and care from each parent. While parents may have personal conflicts, they should not seek exclusive control over the child as one might in a property dispute. The child’s well-being and emotional health should always remain the primary focus in custody matters.

The duration of a family or custody case under the Guardian and Wards Act typically spans approximately three to five years in the guardian courts. Unfortunately, during this lengthy period, due to limited interaction between the non-custodial parent and the child, the parent-child relationship often deteriorates and can even completely dissolve over time. In many cases, custodial parents engage in efforts to manipulate and brainwash the children against the non-custodial parent. Regrettably, the guardian courts, by not granting adequate visitation schedules, inadvertently contribute to the custodial parent’s vengeful motives. This situation leads to the non-custodial parent eventually giving up on the litigation out of frustration, moving on with their life, and starting anew, while the children ultimately lose the opportunity to maintain a meaningful relationship with one of their parents.

In these matters, it is crucial for family courts to prioritize the welfare of the child above procedural technicalities. Family court judges are required to assume a role similar to that of a parent and consider various factors while adjudicating guardian and custody cases. 

Unfortunately, the practice in many guardian courts in Pakistan tends to abuse and victimize non-custodial parents, especially during divorce and custody proceedings. A prevailing and deeply flawed practice is to grant non-custodial parents extremely limited visitation rights – often once a month for a mere two hours within the court premises. Astonishingly, this template has become a widely accepted norm in the guardian courts over decades, perpetuating a cycle of restricted parental access.

Furthermore, custodial parents often exploit procedural loopholes, such as providing fake medical certificates to avoid complying with even these limited visitation orders. The guardian courts frequently fail to address such excuses, leaving non-custodial parents with no recourse but to wait for the next scheduled meeting. This casual approach by the guardian courts exacerbates the issue and contributes to the systemic problem.

The phenomenon of parental alienation syndrome (PAS) is a deeply concerning consequence of this flawed system. As a law firm we have witnessed firsthand how parents manipulate the court system to exact revenge on non-custodial parents, often fathers, by obstructing their access to their children. The tactics employed include filing frivolous applications and appeals that lead to extended delays in proceedings. This delay in justice adversely impacts children’s well-being. Children’s minds are malleable and can be easily influenced over time. Constant lack of interaction with the non-custodial parent and manipulation by the custodial parent can cause children to forget and even develop negative feelings toward the once-loved non-custodial parent. This psychological phenomenon is termed Parental Alienation Syndrome (PAS) by psychiatrists.

Non-custodial parents can be categorized into two groups: those who are unfit to have custody or visitation due to harm they may cause to their children, and those who are loving parents but are separated from their children due to marital issues. Statistics overwhelmingly support that the majority of non-custodial parents fall into the latter category, deserving fair and regular access to their children.

In Pakistan, the process leading up to a non-custodial parent’s first official meeting with their children within the court setting is often riddled with delays due to issues in serving notices. The court system’s inefficiencies contribute to these delays, as claiming non-receipt of notices becomes a common practice. Additionally, there’s a prevalent reluctance within guardian courts to allow non-custodial parents to have unsupervised visits with their children outside the court premises. This hesitation is based on the concern that the non-custodial parent might unlawfully take the child out of the court’s jurisdiction. However, this fear has often evolved due to the frustration of not being able to have regular access to the children.

It’s worth noting that running away with minors is a last resort action taken out of desperation, as it requires upending one’s entire life and living in constant fear of being caught. This drastic measure typically results from immense dissatisfaction with the delayed and problematic judicial system. Granting reasonable visitation schedules to both parents could deter the impulse to resort to such actions. In many cases, keeping minors away from non-custodial parents exacerbates the animosity between both parents. What might have started as a dispute over the welfare of the children often becomes a matter of vengeance over visitation rights, even as the initial reasons for separation are forgotten over time.

Ultimately, the legal system must recognize that children’s well-being is paramount, and custody and visitation decisions should reflect that. A more efficient and child-centered approach to visitation scheduling could prevent unnecessary emotional turmoil for all parties involved and create an environment where the child’s best interests are truly served.

Indeed, the family unit plays an indispensable role in shaping the well-being and comprehensive development of children. It encompasses not only parents but also their values, beliefs, aspirations, and shared history. However, the dynamics of families have evolved, shifting from extended to nuclear arrangements, and marriages are no longer lifelong commitments but rather partnerships to explore life’s journey together. This shift in societal norms has contributed to a surge in divorce cases, particularly over the last two decades. The outcome has been a rise in contentious child custody battles, where innocent children are often exploited as pawns to exact vengeance by embittered litigants. This manipulative behavior inflicts severe emotional and psychological distress on children, leaving lasting scars that hinder their later-life development.

Amid the implications of divorce on individuals, families, and society at large, it is the children of divorced couples who bear the greatest burden. A disturbing practice has emerged, where separated couples employ their children as tools in an emotional struggle, resembling a game of chess. Such actions reflect irresponsible parenting and cause enduring emotional trauma to children. Parents move on with their lives, establishing new relationships, while the children continue to bear the emotional toll of being manipulated and torn apart, a trauma that reverberates throughout their lives. This pattern of manipulation often leads to a myriad of negative outcomes in these children, including personality disorders, substance abuse, criminal behaviors, and anti-social traits.

The Pakistani guardian court system, however, appears to be a flawed mechanism that is exploited to exact revenge from non-custodial parents, typically fathers, by denying them access to their children. The court system can be subject to delays through the filing of frivolous applications and appeals, a strategy employed to prolong proceedings and deny non-custodial parents their rightful visitation with their children. In this context, the distinct nature of child custody cases, which require expedient resolutions for the sake of the child’s well-being, is often overlooked. Delays in such cases only perpetuate injustice, as a child’s mind is highly malleable and subject to change with time. The lack of interaction with the non-custodial parent, combined with the custodial parent’s influence, can result in children losing memory of and even developing aversion towards the parent they once held dear. This psychological phenomenon, referred to as Parental Alienation Syndrome (PAS) by psychiatrists, highlights the critical importance of timely resolution in custody cases.

In essence, addressing the challenges within the guardian court system is essential to ensuring the welfare of children in such cases. Recognizing the unique nature of child custody disputes and their potential long-term impacts on children’s emotional and psychological well-being is crucial for promoting more effective and compassionate solutions within the legal framework.

The  Quran emphasizes that neither parent should be harmed through their child, highlighting the importance of maintaining a balanced approach in custody cases. Our observations indicate that a significant number of non-custodial parents, both fathers and mothers, often find themselves struggling to maintain meaningful relationships with their children due to legal complexities and obstacles that hinder their access. These obstacles can include financial burdens, legal procedures, and even deliberate tactics by custodial parents.

The discrepancy between constitutional guarantees and the actual experiences of non-custodial parents is evident in the limited visitation schedules that are often imposed by guardian courts. Despite the Quranic principle and the constitutional framework supporting fairness and due process, the prevailing practice of granting non-custodial parents as little as two hours per month within court premises for visitation appears to disregard these principles. This practice, compounded by the potential for custodial parents to manipulate visitation through fake medical certificates, further obstructs the rights of non-custodial parents to meaningful and consistent contact with their children.

Our exploration of the duration of custody cases is particularly significant and highlights the prolonged timelines that many families endure within the guardian court system, leading to a deterioration of the parent-child bond. The extended litigation period, coupled with the custodial parent’s attempts to influence the children against the non-custodial parent, underscores the need for swifter and more effective solutions in custody cases. The consequence of such prolonged legal battles is often the alienation of one parent from their children, leaving a lasting impact on both the parent and the child.

The interaction between visitation rights, financial responsibilities, and the well-being of the children is a multifaceted issue that requires a holistic approach for resolution.

The denial of visitation rights to non-custodial parents often leads to them discontinuing financial support for the family, as they feel that they are being denied their rightful role as parents. This situation creates a cycle of conflict and retaliation, where the custodial parent uses the denial of visitation as leverage for financial support, while the non-custodial parent sees withholding financial support as a response to their lack of access to their children. This dynamic further exacerbates the strained relationship between the two parents and negatively impacts the overall welfare of the children.

We believe that the guardian courts should act as a bridge between estranged parents and their children is significant. You highlight the importance of allowing both parents reasonable access to the children throughout the year, as this promotes the children’s well-being and ensures that both parents continue to play an active role in their lives. The concept of “welfare of the minor” should be the guiding principle in custody cases, transcending procedural technicalities and focusing on the child’s best interests.

The call to consider the emotional well-being of both the child and the non-custodial parent is reinforced by legal precedents. The doctrine of acting “in loco parentis” is central, indicating that the court should step into the parental role to ensure the child’s welfare and betterment. This principle recognizes that technicalities must not outweigh the realities of the situation, emphasizing the need for a balanced approach that addresses the emotional, psychological, and financial aspects of custody disputes.

By highlighting the need for a holistic approach that prioritizes the child’s well-being and maintains a child-centered perspective, you provide valuable insights into the challenges of custody cases in Pakistan. Your analysis underlines the importance of reforming the guardian court system to ensure that custody decisions consider the long-term impact on the child’s emotional and psychological development, and to prevent the manipulation of visitation rights for retaliatory purposes.

The case of Umer Farooq Vs Khushbakht Mirza (2008 PLD 527 Lahore) underscores the critical role of the guardian courts in ensuring the welfare of the minor and promoting a healthy parent-child relationship, especially in cases of custody and visitation disputes. This case highlights the idea of exercising quasi-parental jurisdiction and emphasizes the importance of creating an environment that fosters positive interactions between the non-custodial parent and the child.The case acknowledges that the ultimate consideration in guardianship matters should be the welfare of the minor, and the courts are granted unfettered powers to achieve this purpose. The recognition of the non-custodial parent’s inherent right to seek visitation is crucial, particularly given the role they play in the upbringing of the child. The case emphasizes that fathers, as natural guardians, have not only the responsibility to provide for their children but also to develop a loving and strong bond with them. Furthermore, the case challenges the effectiveness of holding visitation meetings within the courtroom premises. It argues that courtrooms lack the necessary homely and friendly environment that is essential for fostering a healthy parent-child relationship. Instead, the case suggests that visitation meetings should preferably take place at the premises of the contesting parent. This approach aims to familiarize the child with the environment of the non-custodial parent and promote a more natural and comfortable interaction between the child and the parent.

The case also acknowledges that the mechanical approach of providing limited and infrequent visitation, such as two hours once a month, might not be conducive to the well-being of the child. It suggests that such limited interaction may not serve the purpose of building a strong parent-child bond and could actually hinder the relationship between the non-custodial parent and the child.

By The Josh and Mak Team

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