The principle of intelligent preference or determination of choice by a minor in custody proceedings is recognised under Pakistani law, particularly within the framework of the Guardians and Wards Act, 1890 (Section 17 (3)). However, the weight given to a minor’s preference is contingent upon factors such as their age, maturity, and whether external influences have compromised their ability to make an independent choice.
The Peshawar High Court in Abdul Ghaffar v. Shoukat (2022 YLR 2482) held that the choice of a minor is a relevant but not absolute factor in custody cases. Where there is evidence that a minor has been unduly influenced or manipulated into making a particular choice, such preference is disregarded. In this case, the minor was being raised in a hostile environment and had been influenced against his father. The court, emphasising the minor’s welfare, found that his preference was not formed independently and therefore could not be relied upon. The court ruled in favour of the father, who had been acquitted of criminal charges, and granted him custody.
The Lahore High Court in Mst. Tahira Parveen v. District Judge, Layyah (2022 MLD 1693) reaffirmed that while the minor’s preference is a factor in determining custody, it must be an intelligent preference. If a parent has failed to maintain the minor or develop a close relationship, the minor’s choice to stay with the more nurturing parent is given weight. In this case, the father had neglected his parental responsibilities, and the minor’s preference to stay with the mother was deemed an intelligent choice that aligned with his welfare. Consequently, the court overturned the appellate court’s decision and restored the trial court’s ruling in favour of the mother.
In Mst. Safia Bibi v. Additional District Judge (2022 CLC 762), the Lahore High Court highlighted that the intelligent preference of minors aged 16 and 15 years was a key consideration in custody matters. The court recognised that at this stage, minors possess the maturity to make a reasonable and informed choice regarding their guardianship. The court ruled that any forced custody arrangement against their wishes could negatively impact their welfare.
The Karachi High Court in Mst. Fatima Zahra v. Muhammad Sheroz (2022 MLD 1506) reaffirmed that a court must consider the minor’s age and maturity when determining whether their preference should influence custody decisions. The court noted that while a minor’s choice is relevant, it must align with their overall welfare, encompassing moral, spiritual, and material well-being.
Similarly, in Muhammad Jameel v. Muhammad (2021 YLR 39), the Azad Kashmir High Court ruled that while Islamic law generally grants custody of a male child above seven years to the father, this right is not absolute. The court held that if a minor is capable of forming an intelligent preference, their opinion must be considered, particularly when their welfare is better served by someone other than the father.
In cases where a minor’s preference is disregarded, the courts often find that the child has either been influenced or lacks the maturity to form an independent choice. For instance, in Mst. Sarwar Kalhoro v. Mukhtiar Ali Kalhoro (1999 PCRLJ 1711), the Karachi High Court determined that a minor’s preference could not be deemed independent where the possibility of brainwashing or coercion existed. The court granted custody to the mother, finding that the minor had been unlawfully removed from her care.
In Najma Yasmin v. Javed Akhtar (2003 CLC 729), the Peshawar High Court considered the intelligent preference of a minor son who had remained with his mother for twelve years. The court found that the father’s long absence and failure to maintain the child disentitled him from custody, and the minor’s preference to remain with his mother was upheld as intelligent and valid.
The Supreme Court of Azad Kashmir in Zainab Bibi v. Zaffar Iqbal (2012 MLD 762) affirmed that where minors are intelligent enough to express a reasoned preference, courts must consider their wishes unless there is evidence that such preference is contrary to their welfare.
Moreover, the Lahore High Court in Dr. Ruqia Shaukat v. Additional District and Sessions Judge (2003 CLC 1310) interpreted Section 17(3) of the Guardians and Wards Act, 1890, stating that courts may consider a minor’s preference but are not strictly bound to do so. This indicates judicial discretion in evaluating whether a minor’s choice aligns with their best interests.
Conversely, in Miss Fauzia Iqbal v. Farhat Jahan (2015 PLD 401), the Lahore High Court mandated that a 12-year-old’s preference be considered, as she was intelligent enough to express an independent choice. Since the minor had been raised by her paternal aunt since infancy and preferred to remain with her, the court upheld her preference.
Overall, courts in Pakistan apply a case-by-case approach in determining whether a minor’s preference should influence custody decisions. The guiding principle remains the welfare of the minor, which supersedes parental rights. The court will consider an intelligent preference when:
- The minor has attained sufficient maturity to form an independent choice (2022 CLC 762).
- The minor’s preference is not the result of undue influence, coercion, or hostility from one party (2022 YLR 2482).
- The minor’s preference aligns with their overall welfare, including their physical, emotional, educational, and moral well-being (2021 YLR 39).
- The preference is considered in conjunction with other factors such as parental conduct, ability to provide a stable home, and fulfilment of financial responsibilities (2022 MLD 1693).
By contrast, a minor’s preference will be disregarded where:
- The minor has been subjected to parental alienation or external influence (1999 PCRLJ 1711).
- The minor is not of sufficient age or maturity to make a reasoned choice (2009 YLR 2339).
- The minor’s choice is contrary to their well-being, such as exposure to an unstable or neglectful environment (2003 CLC 729).
Thus, while the preference of a minor can be a significant factor in custody disputes, it is neither absolute nor determinative. Courts retain the discretion to assess whether the expressed preference constitutes an intelligent choice aligned with the paramount consideration of the minor’s welfare.
Situations Where Intelligent Preference/Determination of Choice of Minor Cannot Be Pleaded in Custody Proceedings
In custody proceedings, the welfare of the minor is the paramount consideration, and while the intelligent preference of a minor may be relevant, it is not always determinative. There are specific situations where the intelligent preference of the minor cannot be pleaded or relied upon as a decisive factor in custody determinations. These situations are outlined based on the legal references cited in case law:
1. When the Minor is Unduly Influenced or Coerced
- Case Reference: Abdul Ghaffar v. Shoukat (2022 YLR 2482 – PESHAWAR HIGH COURT)
- Legal Principle: The court rejected the minor’s preference where it was evident that the minor had been influenced by the respondents and brought up in a hostile environment that fostered hatred against the biological father.
- Holding: The minor was not in a position to form an intelligent preference as his statements were influenced by external factors, and therefore, his preference could not be considered.
2. When the Minor is Below an Age Where Intelligent Preference is Formable
- Case Reference: Mst. Tahira Parveen v. District Judge, Layyah (2022 MLD 1693 – LAHORE HIGH COURT)
- Legal Principle: A child’s choice is only relevant if they are capable of forming an independent and intelligent preference. A minor’s preference was not taken into account when the mother had remarried, and the father had not been involved in the minor’s upbringing.
- Holding: The exercise of choice by the minor was not relevant, particularly when the petitioner (mother) was married to a stranger. The welfare of the minor was the primary factor, and the minor’s preference was disregarded.
3. When the Preference is Contrary to the Welfare of the Minor
- Case Reference: Mst. Safia Bibi v. Additional District Judge (2022 CLC 762 – LAHORE HIGH COURT)
- Legal Principle: While the minor’s choice is relevant, the court is not bound to decide based solely on the minor’s preference if it is not aligned with their welfare.
- Holding: The intelligent preference of the minor is not a “sine qua non” for the court to decide custody. The court must ensure the choice aligns with the welfare of the minor.
4. When the Minor’s Preference is the Result of Brainwashing or Parental Alienation
- Case Reference: Mst. Sarwar Kalhoro v. Mukhtiar Ali Kalhoro (1999 PCrLJ 1711 – KARACHI HIGH COURT)
- Legal Principle: If a minor has been removed from the custody of one parent and their preference appears to be a result of brainwashing, coercion, or prolonged separation, their choice is not considered valid.
- Holding: The court found that the minor had been kept away from the mother for over nine months, which may have influenced the child’s choice, making the preference invalid.
5. When the Parent Seeking Custody Has Been Neglectful or Failed to Maintain a Relationship with the Minor
- Case Reference: Muhammad Nazir v. Additional District Judge, Mianwali (2009 CLC 1010 – LAHORE HIGH COURT)
- Legal Principle: If a parent has failed to develop a bond with the minor or has been neglectful in fulfilling their parental duties, their claim for custody cannot be supported solely by the minor’s preference.
- Holding: Since the father had already remarried and was unavailable for the minor’s daily needs, the minor’s preference to live with the mother was given precedence over the father’s request.
6. When the Preference is Expressed Due to Fear or Dependency on the Current Guardian
- Case Reference: Zar Bibi v. Abdul Ghaffar (1998 MLD 1697 – QUETTA HIGH COURT)
- Legal Principle: If a minor expresses a preference due to a dependent relationship (such as living with a stepmother for years), the preference cannot override the welfare of the child.
- Holding: The minors’ preference to stay with the stepmother was disregarded as they had no alternative support, and their statements may have been a result of dependency rather than true preference.
7. When the Parent Seeking Custody Cannot Provide a Stable Home Environment
- Case Reference: Mst. Kaneez Akhtar v. Abdul Qadoos (2005 MLD 828 – LAHORE HIGH COURT)
- Legal Principle: If a parent’s occupation or circumstances make it impractical for them to provide direct care for the minor, the minor’s preference is disregarded in favor of stability.
- Holding: The father was in military service, making it unlikely that he could provide direct care for the minor, and therefore, the court dismissed the minor’s preference in favor of the mother.
8. When the Minor’s Preference is Not Based on Rational Considerations
- Case Reference: Mst. Nafeesa v. Mir Bahadur (2013 CLC 1784 – PESHAWAR HIGH COURT)
- Legal Principle: The mere fact that a minor prefers one parent does not automatically justify awarding custody to that parent. Courts must ensure the choice is based on rational grounds.
- Holding: The court cannot disqualify a party solely based on the minor’s preference unless it is proven to be rational and in the minor’s best interest.
9. When the Minor is Immature and Not Capable of Making an Intelligent Decision
- Case Reference: Mst. Farzana Kausar v. Muhammad Tufail (2009 YLR 2339 – LAHORE HIGH COURT)
- Legal Principle: A minor must have attained the mental maturity to make an independent choice regarding their custody. If a minor is too young, their preference is irrelevant.
- Holding: The court ruled that a seven-year-old minor was not mature enough to determine their own welfare, and preference was disregarded.
10. When the Minor’s Preference is Based on Temporary Attachments
- Case Reference: Miss Fauzia Iqbal v. Farhat Jahan (2015 PLD 401 – LAHORE HIGH COURT)
- Legal Principle: If a minor expresses a preference to remain with a person due to long-term custody or temporary attachment, it does not automatically override the welfare principle.
- Holding: The minor had been raised by the paternal aunt since infancy and showed preference for her, but since this was based on attachment rather than the child’s long-term welfare, the court intervened.
Conclusion
The intelligent preference of a minor cannot be pleaded in custody proceedings in the following circumstances:
- When the minor is unduly influenced or brainwashed (2022 YLR 2482, 1999 PCrLJ 1711).
- When the minor is too young to form an independent preference (2009 YLR 2339).
- When the preference is contrary to the minor’s welfare (2022 CLC 762).
- When the minor’s preference results from fear, dependency, or external pressure (1998 MLD 1697).
- When the seeking parent has been neglectful or absent from the minor’s life (2009 CLC 1010).
- When the seeking parent cannot provide a stable environment (2005 MLD 828).
- When the minor’s preference is not based on rational considerations (2013 CLC 1784).
- When the minor is immature or incapable of making an intelligent decision (2009 YLR 2339).
- When the preference is based on temporary attachments rather than long-term welfare (2015 PLD 401).
In all such cases, the court prioritizes the welfare of the minor over their expressed preference, ensuring that custody decisions align with the best interests of the child rather than subjective choices influenced by external circumstances.
Legal Q&A on Intelligent Preference of Minors in Custody Cases
- Q: What is the significance of a minor’s preference in custody disputes under the Guardians and Wards Act, 1890?
A: Section 17(3) of the Guardians and Wards Act, 1890 provides that if a minor is old enough to form an intelligent preference, the court may consider that preference when determining custody. However, the minor’s welfare remains paramount (2013 CLC 1784 Peshawar High Court; 2003 CLC 1310 Lahore High Court). - Q: Can the court disregard a minor’s preference in custody matters?
A: Yes, courts have the discretion to disregard a minor’s preference if it is found to be influenced, not intelligent, or contrary to their best interests (2022 YLR 2482 Peshawar High Court; 2009 YLR 2339 Lahore High Court). - Q: Under what circumstances can a minor’s preference be considered unreliable?
A: If there is evidence of manipulation or hostile influence from one party, the minor’s preference may be disregarded. For instance, in 2022 YLR 2482, the High Court rejected the minor’s statement against his father due to evident external influence. - Q: Does the age of the minor impact their ability to express an intelligent preference?
A: Yes, courts generally consider the maturity and age of the minor when determining whether their preference is intelligent. For instance, in 2022 CLC 762, the court emphasized that a 16-year-old minor’s preference should be given weight. - Q: Is a father’s natural guardianship right absolute under Islamic law?
A: No, the father’s right to custody is not absolute and is subject to the welfare of the minor (2021 YLR 39 High Court AJK; 2018 YLR 649 Karachi High Court). - Q: Can a father be denied custody despite Islamic law favoring him after a certain age?
A: Yes, if the father fails to provide maintenance or develop closeness with the child, courts can refuse custody (2022 MLD 1693 Lahore High Court; 2003 MLD 1306 Lahore High Court). - Q: Can a stepmother or grandmother serve as a valid guardian instead of the father?
A: If the welfare of the minor is better served, courts have awarded custody to stepmothers or grandmothers (2012 MLD 762 Supreme Court AJK; 1998 MLD 1697 Quetta High Court). - Q: What factors does the court consider while determining the welfare of the minor?
A: Courts assess age, sex, religion, kinship, character, financial status, and the child’s preference if they are mature enough (2021 PCrLJ 1753 Karachi High Court; 2023 YLR 3245 Supreme Court AJK). - Q: Can a minor’s preference override legal guardianship rights?
A: No, courts balance the minor’s preference with legal rights and welfare (2009 CLC 1010 Lahore High Court; 2009 MLD 33 Lahore High Court). - Q: Does the remarriage of a mother affect her custody rights?
A: Yes, but not absolutely. If the child prefers to live with the mother and she provides a stable environment, custody may not be transferred to the father (2022 MLD 1693 Lahore High Court). - Q: Is a father’s financial status enough to claim custody?
A: No, financial strength alone is not a decisive factor. Emotional bonding and welfare are prioritized (2003 CLC 729 Peshawar High Court). - Q: Can a child under 7 years choose their guardian?
A: Generally, younger children are not considered capable of forming an intelligent preference (2009 YLR 2339 Lahore High Court). - Q: Does a court always have to record the minor’s preference?
A: No, recording a minor’s preference is discretionary under S.17(3) (2003 CLC 1310 Lahore High Court). - Q: Can a minor’s preference be ignored if expressed under pressure?
A: Yes, courts disregard coerced or tutored statements (2022 YLR 2482 Peshawar High Court). - Q: Can a minor refuse to live with a parent due to emotional neglect?
A: Yes, courts have upheld a minor’s refusal to live with a neglectful parent (2022 MLD 1693 Lahore High Court). - Q: Can a father’s remarriage impact custody decisions?
A: Yes, particularly if the child would be under the care of a stepmother instead of the father (2009 CLC 1010 Lahore High Court). - Q: What is the legal stance on frequent relocation of a minor?
A: Courts discourage frequent movement between parents if it disrupts the child’s stability (2022 MLD 1506 Karachi High Court). - Q: Does the duration of custody impact the determination of welfare?
A: Yes, long-term bonding with a guardian strengthens custody claims (2012 MLD 762 Supreme Court AJK). - Q: Can a working parent be denied custody?
A: If the parent is too busy to care for the child, custody may be denied (2019 MLD 1502 High Court AJK). - Q: Can a court refuse custody to a father due to past negligence?
A: Yes, years of neglect can disqualify a father from custody (2003 CLC 729 Peshawar High Court). - Q: How does the court verify if a minor’s preference is intelligent?
A: Courts conduct in-camera interviews or appoint welfare officers (2018 YLR 649 Karachi High Court). - Q: Can a father regain custody if he proves he is reformed?
A: Yes, if he proves his ability to provide a better environment (2021 YLR 39 High Court AJK). - Q: Is a minor’s preference decisive in every case?
A: No, it is only one factor among many (2003 MLD 1306 Lahore High Court). - Q: How does a court assess the living environment of each parent?
A: Courts may order home investigations or welfare reports (2003 CLC 729 Peshawar High Court). - Q: What happens if both parents remarry?
A: Courts evaluate which household offers greater stability (2003 MLD 1306 Lahore High Court). - Q: Does a minor’s education impact custody decisions?
A: Yes, courts prefer continuity in schooling (2012 MLD 762 Supreme Court AJK). - Q: Can a minor’s preference change over time?
A: Yes, courts review custody periodically if necessary (2005 MLD 828 Lahore High Court). - Q: Is a mother’s custody stronger if she has not remarried?
A: Yes, unless evidence suggests she is unfit (2017 MLD 1116 Shariat Court AJK). - Q: Can a child’s preference override documented evidence?
A: No, courts weigh preference against material evidence (2009 YLR 2339 Lahore High Court). - Q: What role do step-siblings play in custody?
A: Emotional attachment with half-siblings is a factor (2022 MLD 1693 Lahore High Court). - Q: Can a minor’s preference be ignored if it contradicts their best interests?
A: Yes, the court can override the minor’s preference if it deems that preference to be against the minor’s welfare (2017 MLD 1116 Shariat Court AJK). - Q: How does the court determine if a minor has been manipulated?
A: Courts look for inconsistencies in statements, influence from guardians, and conduct psychological evaluations if necessary (2022 YLR 2482 Peshawar High Court). - Q: Can a minor’s testimony in a criminal case against a parent affect custody decisions?
A: Yes, but only if it is determined to be independent and uninfluenced. In 2022 YLR 2482, the minor’s preference was disregarded due to external influence. - Q: Can a minor be forced to live with a parent against their will?
A: If the minor is old enough to form an intelligent preference, courts generally avoid coercion (2022 CLC 762 Lahore High Court). - Q: Does the court consider a minor’s religion while deciding custody?
A: Yes, religious upbringing is a factor in assessing the moral and spiritual welfare of the child (2021 PCrLJ 1753 Karachi High Court). - Q: Can a minor’s preference outweigh a father’s legal right after the age of seven?
A: Yes, if the father fails to demonstrate his suitability as a guardian (2021 YLR 39 High Court AJK). - Q: Is a father’s right to custody stronger than a stepmother’s if the child prefers the stepmother?
A: Not necessarily. Courts prioritize welfare over technical guardianship claims (2012 MLD 762 Supreme Court AJK). - Q: Can a minor choose to live with a non-parent guardian?
A: Yes, if the minor is mature enough and the guardian is suitable (2015 PLD 401 Lahore High Court). - Q: Can a mother’s financial instability affect custody decisions?
A: Not necessarily. Courts consider bonding and caregiving abilities over financial status (2009 CLC 1010 Lahore High Court). - Q: Can a stepmother or aunt be granted custody over a biological parent?
A: Yes, if the minor’s welfare is better served with them (2015 PLD 401 Lahore High Court). - Q: Can a child be removed from a stable environment based on a biological parent’s claim?
A: No, if the status quo is in the child’s best interests (2012 MLD 762 Supreme Court AJK). - Q: Can a child’s preference be disregarded if they have been alienated against one parent?
A: Yes, courts do not recognize preferences influenced by parental alienation (2022 YLR 2482 Peshawar High Court). - Q: Can a minor’s education be a deciding factor in custody cases?
A: Yes, stability in education is a key factor in determining welfare (2003 CLC 729 Peshawar High Court). - Q: Can a working parent be denied custody for lack of time?
A: If the parent cannot personally care for the minor, courts may rule against them (2019 MLD 1502 High Court AJK). - Q: Can a parent lose custody for failing to pay maintenance?
A: Yes, failure to provide maintenance is a significant factor against the parent (2022 MLD 1693 Lahore High Court). - Q: Can a mother regain custody if the child prefers her over a neglectful father?
A: Yes, a mother can reclaim custody based on welfare considerations (2009 MLD 33 Lahore High Court). - Q: Does the mother’s right to custody always expire after the age of seven for boys?
A: No, the rule is not absolute and courts prioritize welfare over legal presumptions (2018 YLR 649 Karachi High Court). - Q: Can a court grant custody to a parent who abandoned the child for years?
A: No, courts take past neglect into serious consideration (2003 CLC 729 Peshawar High Court). - Q: Can a child be separated from a caregiver with whom they have bonded for years?
A: Only if the separation is necessary for their welfare (1998 MLD 1697 Quetta High Court). - Q: Can courts revisit custody decisions as the child grows?
A: Yes, courts retain jurisdiction to modify custody orders based on changed circumstances (2005 MLD 828 Lahore High Court).
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