IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT
Mr. Justice Syed Hasan Azhar Rizvi
Ms. Justice Musarrat Hilali
Mr. Justice Shakeel Ahmad
Civil Petition No. 3920 OF 2024
[Against the judgment dated 01.07.2024 passed by the Lahore High Court, Lahore in W.P.No. 6032/2020]
Asjad Ullah …Petitioner(s)
Versus
Mst. Asia Bano and others …Respondent(s)
For the Petitioner(s) : Ch. Afrasiab Khan, ASC
a/w petitioner in-person
For the Respondent(s) : N.R.
Date of Hearing : 22.04.2025
JUDGMENT
Syed Hasan Azhar Rizvi, J.- Through this petition, the petitioner
has challenged the judgment dated 01.07.2024 (“Impugned Judgment”)
passed by the Lahore High Court, Lahore (“the High Court”) whereby the
constitutional petition (W.P.No.6032/2020) filed by petitioner was dismissed.
- Brief facts of the case are that the marriage between the
petitioner and respondent No.1 was solemnized on 18.03.2012. Out of
the said wedlock, one daughter, namely Abiha Zainab (minor), was born
on 20.12.2012, who is presently residing in the custody of respondent
No.1 (mother of the minor). Thereafter, the petitioner pronounced divorce
upon respondent No.1 on 10.11.2015. At the time of pronouncement of
divorce, the petitioner was residing in Greece. Subsequently, the
petitioner filed an application (Application No.18/2018 dated 10.04.2018) under
Section 25 of the Guardian and Wards Act, 1890 (“the Act”), seeking
custody of the minor before the Court of Ms. Sobia Shahnawaz, Judge
Family Court/Guardian Judge, Gujrat (“Trial Court”). It is pertinent to
Civil Petition No. 3920 OF 2024 2
observe that the application for custody was filed after a lapse of more
than five years from the birth of the minor. During this entire period, the
petitioner neither made any effort to seek visitation rights nor even
attempted to meet the minor. The learned Trial Court, after recording the
evidence of both parties and providing them ample opportunity of
hearing, dismissed the said application by an order dated 19.10.2019.
However, the learned Trial Court, while doing so, fixed a visitation
schedule, allowing the petitioner to meet the minor during his visits to
Pakistan. Even though the petitioner neither filed an application under
Section 12 of the Act nor sought any specific relief for visitation in his
custody application. - Being dissatisfied with the decision of the learned trial
Court, the petitioner preferred Guardian Appeal No.172/2019 before the
Court of Saima Husnain, Additional District Judge, Gujrat (“Appellate
Court”), however, the findings of the trial Court were upheld and the
appeal was dismissed vide judgment dated 20.11.2019. Thereafter, the
petitioner filed a constitutional petition before the High Court, which also
met with the fate of dismissal through the impugned judgment. Hence,
the present petition. - Learned counsel for the petitioner contends that the
impugned judgments and orders concurrently passed by the learned
courts below are illegal, unjustified, and in violation of the injunctions of
Islam; that respondent No.1 has contracted a second marriage with one
Faisal Munir, who is a complete stranger to the minor daughter of the
petitioner; that the petitioner, being the natural guardian, has a vested
right to claim custody (Hizanat), particularly as the minor has attained
the age of 12 years, therefore, prays that impugned judgment may be set
aside.
Civil Petition No. 3920 OF 2024 3 - We have heard the arguments advanced by the learned
counsel for the petitioner and perused the material available on record. - The central issue raised in this petition is whether a father,
who has never met his minor daughter and resides abroad since her birth,
can claim custody of minor on the sole ground of being natural guardian
when natural mother of minor has contracted a second marriage? - Section 25 of the Act deals with the matters of custody of
minors and is reproduced below:-
“‘25. Title of guardian to custody of ward.— (1) If a ward leaves or
is removed from the custody of a guardian of his person, the
Court, if it is of opinion that it will be for the welfare of the ward
to return to the custody of his guardian, may make an order for
his return, and for the purpose of enforcing the order may cause
the ward to be arrested and to be delivered into the custody of the
guardian.”
In the same vein, the determination of custody of a minor is also
governed by Section 17 of the Act, which provides as follows:
“17. Matters to be considered by the Court in appointing
guardian.—
(1) In appointing or declaring the guardian of the minor, the
Court shall, subject to the provisions of this section, be guided by
what, consistently with the law to which the minor is subject,
appears in the circumstances to be for the welfare of the minor.
(2). In considering what will be for the welfare of the minor the
Court shall have regard to the age, sex and religion of the minor,
the character and capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if any, of a deceased
parent, and any existing or previous relations of the proposed
guardian with the minor or his property.
(3). If the minor is old enough to form an intelligent preference,
the Court may consider that preference.”
Bare perusal of Section 17 of the Act reveals that, in determining the
appointment of a guardian for a minor, the courts must primarily take
into consideration the welfare of the minor. - It is a settled principle of law that the welfare and best
interests of the minor(s) shall be the prime and overriding consideration
in determining an application for custody, with no other factor taking
precedence as noted by this Court in the case of Khan Muhammad v. Mst.
Surayya Bibi and others (2008 SCMR 480). Now determination that what
Civil Petition No. 3920 OF 2024 4
constitutes welfare of a minor is a question of fact that must be
established through cogent and reliable evidence in each case rather
than presumptions as observed earlier by this Court in the case of
Rahimullah Choudhary v.Mrs. Sayeda Helali Begum and others (1974
SCMR 305). - The expression “welfare of the minor” includes the minor’s
moral, spiritual, physical, psychological, educational, and material wellbeing. It further encompasses considerations relating to the minor’s
health, academic progress, religious upbringing, and overall emotional
development. In determining welfare, due weight must also be given to
the minor’s happiness and emotional attachment to the proposed
custodian. Reference may be made to the case of Feroze Begum
v.Muhammad Hussain (1978 SCMR 299) wherein it has been held that:-
“8. The question, therefore, that arises for consideration is as to
whether it would be at all in the welfare of the minors to up‑root
the two students from their respective local Government schools
in which they are studying in the hope that they shall do better in
a more promising institution away from their home town. This
question has escaped the attention of the trial Court as well as
the High Court and has remained unanswered in their impugned
orders.
Under the Shariat Law, the mother is entitled to the custody
(hizanat) of her male child until he has completed the age of seven
years and of her female child until she has attained puberty. The
‑right continues though she is divorced by the father of the child.
Needless to mention here that the father is the natural guardian
of his minor children and the mother’s custody is a subordinate,
custody and is subject to the control of the father. But the mere
inability to maintain the children is not a ground for depriving the
mother of the custody of her children. In Harbai v. Usman (P L D
1963 Kar. 88 ) it ‘ was held that mother’s poverty is no hindrance
to the custody of her minor daughter. Indeed in law it is for the
father to provide for their maintenance.
…
The welfare of a minor means his material, intellectual, moral and
spiritual well‑being. The High Court accepted the offer made by
the respondent herein in putting the two minors in a good school
at Rawalpindi or at Murree as boarders. But, in doing so, it did
not even consider whether or not it would be at all advisable for
Mst. Sajida minor, who is about to, attain puberty, to admit her
in a hostel away from her parents.”
[Emphasis supplied]
Thus, while determining the welfare of the minor, the Court shall take
into account the age, sex, religion, and other relevant circumstances of
the minor, the character and capacity of the proposed guardian, as well
Civil Petition No. 3920 OF 2024 5
as the preference of the minor, provided the minor is of sufficient
maturity to express an intelligent preference. - It is the duty of the Court to ensure that the welfare of the
minor is of paramount concern, and that the actions of the litigating
parties are not motivated by personal vendettas, vanity, or emotional
desires for affection, but solely in the best interest of the minor. In
matters concerning the custody of a child, the Family Court is not
obliged to delve into the intricacies or technicalities of the case but must
focus on determining what is in the best interest of the minor. Reference
may be made to the case of Mehmood Akhtar v. District Judge, Attock and
2 others (2004 SCMR 1839) wherein this Court has categorically held
that:-
“4. The right of custody of minor is not an absolute right rather it
is always subject to the welfare of the minor. The Court in the
light of law, on the subject and facts and circumstances of each
case considers the question of custody on the basis of welfare of
minors and there can be no deviation to the settled principle of
law that in the matter of custody of minor the paramount
consideration is always the welfare of minor. No doubt general
principle of Muhammadan Law is that a Muslim father being the
natural guardian of the minor, has the preferential right of
custody of minor but this rule is always subject to the welfare of
the minor which is the prime consideration in determination of
the question of custody….”
[Emphasis added] - Under Islamic law, the father is generally entitled to custody
of a boy after the age of seven years and of a girl after puberty. This
Court, however, in the case of Tahira v. Additional District Judge,
Rawalpindi and others (1990 SCMR 852) has categorically held that this
entitlement is subject to the overriding consideration of the minor’s
welfare. Even where custody would otherwise shift to the father upon
attainment of the prescribed age, the Court may refuse custody if the
welfare of the minor so demands. It was further observed that in case of
any conflict between the rights of the parents and the welfare of the
minor, the welfare of the minor shall prevail. The Court is not bound by
Civil Petition No. 3920 OF 2024 6
any agreement between the parents if it is contrary to the interests of the
minor. - The concept of the welfare of the child is internationally
recognized as being embodied in the principle of the “best interests of the
child.” This principle, affirmed under Article 3(1) of the United Nations
Convention on the Rights of the Child, 1989 (“UNCRC”) serves as a
paramount consideration in all actions concerning children, whether
undertaken by public or private institutions, courts of law, or
administrative authorities. - Even internationally, it is a well-established principle among
all civilized nations that children possess rights by virtue of being
children. These obligations are of an erga omnes character and have been
codified in the UNCRC. The UNCRC constitutes an international treaty
that sets forth the rights guaranteed to children. The Islamic Republic of
Pakistan ratified the UNCRC on 12.11.1990, initially subject to a
reservation that its provisions would be interpreted in the light of Islamic
injunctions. However, said reservation was withdrawn in 1997, thereby
rendering Pakistan’s ratification absolute and unconditional. Article 27 of
the UNCRC is reproduced below:_ - States Parties recognize the right of every child to a standard of
living adequate for the child’s physical, mental, spiritual, moral
and social development. - The parent(s) or others responsible for the child have the
primary responsibility to secure, within their abilities and
financial capacities, the conditions of living necessary for the
child’s development. - States Parties, in accordance with national conditions and
within their means, shall take appropriate measures to assist
parents and others responsible for the child to implement this
right and shall in case of need provide material assistance and
support programmes, particularly with regard to nutrition,
clothing and housing.”
Said Article must be read with Article 3 paragraph 1 of the UNCRC,
which reads as under;
“1. In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests
of the child shall be a primary consideration.”
Civil Petition No. 3920 OF 2024 7 - The concept of the “child’s best interests” is not novel.
Indeed, it pre-dates the UNCRC and was already enshrined in the 1959
Declaration of the Rights of the Child,1 the Convention on the
Elimination of All Forms of Discrimination against Women, 1979,2 as
well as in regional instruments and many national and international
laws.3 In assessing and determining the best interests of the child, the
State is under an obligation to ensure the provision of such protection
and care as is necessary for the child’s well-being.4 The term “wellbeing,” when interpreted broadly, encompasses the child’s fundamental
material, physical, educational, and emotional needs, in addition to
his/her requirements for affection and security.5 - With regard to the contention raised by the learned counsel
for the petitioner that the father, being the natural guardian, is entitled
to the custody of the minor, it is correct that the petitioner is indeed the
natural guardian of the minor. However, the law draws a clear distinction
between the concepts of custody and guardianship and the respective
rights and obligations arising therefrom under the Act. The definition of
“guardian” as provided under Section 4(2) of the Act appears to
encompass the concept of custody, unless custody has been exclusively
awarded by the Court to a party other than the natural guardian.
Custody, within the meaning of the Act, primarily involves the right to
the upbringing of the minor, whereas guardianship entails an
overarching responsibility for the welfare of the minor, including in
situations where the guardian does not have actual physical possession
1 Declaration of Rights of Child, 1959, para.2.
2 Article 5(b) and 16(1)(d).
3 UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on
the right of the child to have his or her best interests taken as a primary consideration
(art. 3, para. 1), 29 May 2013, CRC /C/GC/14, para.2.
4 UN Convention on Rights of Children, 1969, Article 3 para 2.
5 UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on
the right of the child to have his or her best interests taken as a primary consideration
(art. 3, para. 1), 29 May 2013, CRC /C/GC/14,para 71.
Civil Petition No. 3920 OF 2024 8
of the minor. A father, by virtue of being the natural guardian, remains
obligated to provide financial support for the minor even after separation
from the mother and even when the custody of the minor is granted to
the mother. It is well-settled that the liability of the father to maintain
the minor is not only religious and moral but is also a legal obligation. It
has been consistently held that the right to custody is subordinate to the
paramount consideration of the welfare of the minor. The inability of the
mother to financially maintain the minor cannot, by itself, deprive her of
custody, as the primary duty to provide maintenance rests upon the
father. This principle was affirmed in Mst. Feroze Begum v. Lt.-Col.
Muhammad Hussain (1983 SCMR 606), Munawar Bibi v. Muhammad
Amin and another (1995 SCMR 1206), Mst. Razia Bibi v. Riaz Ahmad
and another (2004 SCMR 821), and further reinforced in Mst. Beena v.
Raja Muhammad and others (PLD 2020 SC 508).
- Insofar as the contention of the learned counsel for the
petitioner that respondent No.1 has contracted a second marriage with a
person who is a stranger to the minor and, therefore, is not entitled to
the custody of the minor, it is by now a settled principle of law that the
mere fact of a mother’s remarriage does not ipso facto disentitle her from
the custody of the minor. - As per D.F. Mulla’s Principles of Muhammadan Law
(Paragraphs 352 and 354), a mother’s right of custody continues after
divorce but may be forfeited upon remarriage, particularly if she marries
a person not related to the minor within the prohibited degrees. However,
Section 17 of the Act requires that the welfare of the minor must be of
the paramount consideration. This Court has consistently held that the
rules in Muhammadan Law regarding disqualification of a mother upon
remarriage are not absolute. In Shabana Naz v. Muhammad Saleem
(2014 SCMR 343), it has been affirmed that if the welfare of the minor
Civil Petition No. 3920 OF 2024 9
lies with the mother, custody may be granted to her notwithstanding her
second marriage. - Therefore, each case must be decided on its own facts, with
the welfare of the minor remaining the paramount consideration. In
such cases, if the welfare of the minor is best served by awarding custody
to the mother, even after remarriage, the court may grant her custody as
held in the case of Raja Muhammad Owais v. Mst. Nazia Jabeen and
others (2022 SCMR 2123). This Court, in the case of Mst. Shahista Naz
v. Muhammad Naeem Ahmed and another (2004 SCMR 990), observed
that the right of Hizanat having the force of Injunction of Islam is an
accepted principle of Islamic Law. Moreover a female, on account of remarriage may be disqualified to exercise this right, but a mother on
account of remarriage is not absolutely disqualified to be entrusted the
custody of a minor child rather she may lose her preferential right of
custody. - In the case of Mst. Beena vs. Raja Muhammad and others
(PLD 2020 SC 508) this Court emphasized the critical importance of the
mother-child bond, stating that removing a child from the mother
disrupts their relationship and deprives the child of the love and care
essential for his/her upbringing. The relevant paragraphs are reproduced
below:-
“11. …………… If a child is taken away from the mother, deprived
of her love and the benefit of her upbringing the mother and the
child’s relationship is fragmented. - Another of the principles provides that Muslims must be
enabled to live their lives in accordance with the fundamental
principles and basic concepts of Islam and to promote unity and
the observance of the Islamic moral standards. The religion of
Islam gives a high status to expectant ladies and mothers. When
performing the Hajj and Umrah pilgrimages, Muslims run
between the mounts of Safa and Marwah (Sa’ee) in the footsteps
of the lady Haajar to emulate her when she desperately searched
for water for her child, Ismail (peace be upon him). Haajar the
esteemed mother is commemorated in perpetuity by incorporating
her actions as an integral component in the performance of Hajj
and Umrah of the Islamic Faith. A mother-child bond and a
mother’s agony instituted a religious obligation, a rare if not the
only example, in world religions. The mother of Islam’s progeny,
lady Haajar is buried next to her son, the Prophet Ismail (peace
Civil Petition No. 3920 OF 2024 10
be upon him), in the Hateem, the crescent shaped enclosure
adjacent to one of the walls of the Holy Ka’ba, also known as Hijr
Ismail, the shelter constructed by Prophet Ibrahim (peace be
upon him) for his wife and child. Pilgrims from all over the world
circumambulate the Holy Ka’ba, including the Hijr/Hateem. - The high status of motherhood is reflected in the naming of a
chapter of the Holy Qu’ran after Maryam (Mary), peace be upon
her, the only chapter named after a woman. Almighty Allah
recalls her qualities and bestows on her a number of titles: a
purified (tahharaki) and chosen (istafagi) one, a sin (ayatan) of
God, truthful (siddiqatun) and devoutly obedient (qanitina). The
lady Maryam (peace be upon her) is mentioned 34 times in the
Holy Qur’an. The mother of the Prophet Isa (peace be upon him)
faced the pangs of childbirth alone. She, like the lady Haajar,
overcame formidable odds to care for her child. These great ladies
are acknowledged and incorporated into the Faith, enriching
Islam’s glorious tradition. It is for believers to ponder and reflect
upon their lives, and to derive lessons from it. To be financially
underprivileged, to be weighed down with a child, to give birth or
to have a disability is not something to be derided. For a mother
to bear the pain of childbirth, the greatest human natural pain,
but then to have her child wrested away from her on the pretext
that she is incapable of taking care of the child is insensitive in
the extreme, and may also be characterized as hypocritical.”
[Emphasis added]
Reference may also be made to the case of Shabana Naz v Muhammad
Saleem (2014 SCMR 343), wherein it has been observed as under:-
“As regard the second marriage with another woman by
respondent No.1, it may be noted that this fact alone will not
disentitle respondent No.1 from obtaining custody of his minor
daughter. Moreso, when it is an admitted fact that the appellant
too has remarried another person, namely, Haji Syed Wali with
whom the minor has no relationship.
“11. Para 352 of the Muhammadan Law provides the mother is
entitled to the custody (Hizanat) of her male child until he has
completed the age of 7 years and of her female child until she has
attained puberty and the right continues though she is divorced
by the father of his child unless she marries a second husband in
which case the custody belongs to the father.
“12. Para 354 provides for disqualification of female from custody
of the minor, which includes the mother and one of the instance
laid down is that if she marries a person not related to the child
within the prohibited degree e.g. a stranger but the right revives
on the dissolution of marriage by death or divorce.
“13. Thus, it is apparent from reading of the two paras of the
Muhammadan Law that though the mother is entitled to the
custody (Hizanat) of her minor child but such right discontinues
when she takes second husband, who is not related to the child
within the prohibited degree and is a stranger in which case the
custody of minor child belongs to the father. It has been
construed by the Courts in Pakistan that this may not be an
absolute rule but it may be departed from, if there are exceptional
circumstances to justify such departure and in making of such
departure the only fact, which the Court has to see where the
welfare of minor lies and there may be a situation where despite
second marriage of the mother, the welfare of minor may still lie
in her custody.
[Emphasis added]
Civil Petition No. 3920 OF 2024 11 - While it has been settled that a mother’s second marriage,
even to a person stranger to minor, does not in itself disqualify her from
custody of the minor, provided that the welfare of the minor is best
served by her continued care. It is significant to note that the petitioner
himself has contracted a second marriage and is residing abroad.
Furthermore, upon a specific query posed by this Court during the
course of arguments regarding the frequency of his visits to Pakistan, the
petitioner admitted that he visited Pakistan only after a lapse of four
years and, even then, did not file any application seeking visitation rights
in respect of the minor. This conduct further reflects the petitioner’s lack
of genuine interest in the welfare and upbringing of the minor. It is
further an undisputed fact that the petitioner has no surviving parents.
Considering that the petitioner is residing abroad and has contracted a
second marriage, it raises serious concerns as to who would assume
responsibility for the minor’s day-to-day care, supervision, and emotional
needs in his absence. This Court in the case of Mst. Firdous Iqbal v.
Shifaat Ali and others (2000 SCMR 838) has noted that:-
” 15. … It would, thus, be noticed that right of the father to claim
the custody of a minor son is not an absolute right, in that, the
father may disentitle himself to custody on account of his conduct
in the light of the facts and the circumstances of each case. In the
instant case, the evidence on the record showed that the
respondent father who sought custody of the minor, neglected the
child since the separation of the spouses inter se and had
voluntarily left the custody to the petitioner-mother. She had
brought him up and educated him till she had to opt for her
second marriage. Even then she had not been negligent in the
tare of her minor son. She had entrusted that duty to her mother
and father and minor is being properly educated till date in a
local school. All along this entire period, the father never bothered
even to go to meet the minor much less than providing
maintenance to him, when the petitioner-mother sued him for
providing maintenance allowance to the minor. It is only then
that he had made an application for custody of the minor. Again
the respondent-father has also taken another wife who has got
one or two children out of the wedlock. The second wife of the
respondent is living in the village of the respondent whereas the
respondent himself is an Army Personnel in service of Pakistan
Army and remains under posting from one cantonment to
another. Consequently, he would also not be present in the house
where he proposed to lodge his son. The minor would be exposed
to the onslaughts of the step-motherly treatment of his second
wife. There would be no one to stop the step-mother from the
well-known step motherly treatment. It was in these
Civil Petition No. 3920 OF 2024 12
circumstances that the learned Courts below had concurrently
found as a fact that the welfare of the minor lay in leaving him to
the custody of the real mother through her parents rather than
giving him to the respondent who is himself away from his
household which had been left to the charge of the step-mother.”
[Emphasis added] - In the event of remarriage of either or both parents, the
Court must consider the surrounding circumstances of both parties,
including their educational qualifications, financial status, character,
and ability to care for the minor. Due weight is also given to the
emotional attachment of the minor. In Sardar Hussain and others v. Mst.
Parveen Umer (PLD 2004 SC 357), custody was awarded to the mother
despite her second marriage, as the minor had developed a strong
emotional bond with her and regarded the father as a stranger, despite a
short period of residence with him. - Perusal of the record reveals that the petitioner is residing in
Greece and, merely two months after his marriage with respondent No.1,
he returned to Greece while respondent No.1 stayed in Pakistan. The
petitioner pronounced divorce upon respondent No.1 while residing in
Greece. Furthermore, the petitioner has neither seen his minor daughter
since her birth nor made any effort to meet her. He did not return to
Pakistan to pursue the custody of the minor but, instead, filed an
application for custody after his arrival in Pakistan due to the demise of
his father. - The petition and subsequent appeal were filed through his
attorney, Ihsanullah, his real brother, who represented him in the
proceedings. This fact has been admitted by the Ihsanullah (attorney of
petitioner) (A.W.1) before trial court in his cross examination wherein he
stated that:
“یہ درست ہے کہ جب سے نابالغہ پیدا ہوئی ہے، سائل اسجد نے نابالغہ کو نہیں دیکها ہے۔”
Civil Petition No. 3920 OF 2024 13
Moreover, the petitioner did not appear personally in either the trial or
appellate court or in constitutional petition. - This clearly demonstrates that the petitioner’s application for
custody is not motivated by affection or concern for the minor, but
appears instead to be a retaliatory measure in response to the suit
instituted by Respondent No.1 for recovery of dowry articles and
maintenance. Moreover, there is no evidence on record to suggest that
respondent No.1, the mother, has failed in her duty to properly care for
the minor or to provide her with proper education and upbringing. - It is evident that the minor is now about 13 years of age. She
has never seen her father, who has been residing outside Pakistan since
before her birth. Throughout her life, she has developed a strong
emotional attachment with her mother, who has been her sole source of
love, care, guidance, and financial support. On the contrary, the
petitioner, as the father, has never made any attempt to contribute
towards the minor’s educational expenses, nor has he inquired about her
schooling or well-being. - It is also an admitted fact that the minor is receiving quality
education in a reputable private school and has consistently been
securing top positions in her class, which reflects her academic
excellence, proper upbringing, and stable environment. At this delicate
and formative stage of adolescence, when emotional security, proper
moral upbringing, and a strong educational foundation are of paramount
importance for the minor’s future growth and development, any
unwarranted disturbance or change in her environment would likely
cause irreversible harm to her personality and career. Therefore, keeping
in view the welfare, betterment, and best interests of the minor, it is
imperative that her custody remains with her mother.
Civil Petition No. 3920 OF 2024 14 - In view of the above discussion, we find that impugned
judgment is well-reasoned and the High Court has considered all the
material aspects of the case. Learned counsel for the petitioner has failed
to point out any illegality or infirmity in the concurrent findings of the
courts below. - Consequently, this petition, being devoid of merit, is
dismissed and leave refused. - Above are the reasons for our short order of even date
reproduced below:-
“Heard the learned counsel for the petitioner and perused the
record with his able assistance. The petitioner is also in
attendance.
For the reasons to be recorded separately, leave is refused and
the petition is dismissed by majority of 2 to 1 (Musarrat Hilali, J.
dissenting). However, if any application for visitation rights is
filed, at any stage, before the concerned Guardian Court, the
same shall be decided on its own merits in accordance with law.”
JUDGE
JUDGE
Islamabad
22.04.2025
APPROVED FOR REPORTING
Paras Zafar, LC/*
JUDGE
Civil Petition No.3920 of2024
Musarrat Hilali, I.-While I differ with my learned colleagues in
dismissing the petition in limine, I feel compelled to briefly state my
reasons.
The petitioner, being the biological father of the minor, seeks the custody
of his minor daughter presently residing with her maternal grandmother.
The mother, respondent No.1, had already remarried and is settled abroad
whereas, the petitioner has not remarried.
Given the sensitive nature of custody matters and the paramount
importance of the welfare of the minor, I was inclined to form an opinion
to issue notices to the respondents before forming any conclusive view. In
my opinion, the assertions raised in the petition, though not determinative
at this stage did merit issuance of notice, which in the instant case would
have enabled a more comprehensive assessment of the matter. A father
holds a position of vital importance in a child’s life, offering not only
emotional stability but also social identity and support within our societal
structure.
Nonetheless, I could not agree with the dismissal of th- netition in the
manner as decided by my learned colleagues.
Judge