What legal principles and provisions under Pakistani

family law recognize and safeguard the rights of

Father to seek custody of their children particularly
in cases of separation or divorce?
Difference between custody and guardianship:
Custody is actually the state of physically holding or
controlling a person or piece of property or of
having the right to do so.
While Guardian is a legal representative appointed
by court to take care of individuals who are unable
to take care of themselves.
The term “ custody “ is not defined in the Guardians
and Wards Act 1890. But in the light of some
judgments it is referred as “ right to upbringing of a
minor child by mother or someone who is legally
entitled to it.”
On the other hand section 4 (2) of the Guardians
and Wards Act defines Guardianship as : “ Guardian
means a person having the care of the person of a
minor or of his property or both of his person and
property.”
It seems the term guardian includes the concept of
custody unless a guardian court award the custody
of child exclusively to a parent who isn’t the
guardian of a minor. In some judgments it is held
that guardianship entails the concept of taking care
of the minor even in the when the guardian does
not have " domain over the corpus of the child.”

Provisions for safeguarding Father’s rights in

custody cases:
Section 7, 12 ,17 ,19 and 41 of Guardians and Wards
Act ensures the rights of Father in custody matters.
Traditionally, in the event of separation of the
parents as a family unit custody of suckling minors is
handed to the mother whereas the father is
endowed with the responsibility to act as guardian
for the person and property of the minor [see PLD
2009 SC 751]. However, this general rule is not
carved in stone and for purposes of the Act, welfare
of the child remains the paramount consideration
(not one of the considerations or even the primary
consideration). In view of Sections 17, 19 and 41 of
the Act, the scheme of the Act is that the father is
the natural guardian even when the mother is
bestowed with the child’s custody, and custody of
the minor is not a precondition or a requirement for
being a guardian of his/ her person or property ( see
PLD 1967 Karachi 569, PLD 1968 Karachi 774, PLD
1963 Lahore 534 ) .
But a father is considered the natural guardian of a
minor, since even after separation with the mother,
and even when the mother has been granted
custody of a minor child, the father is obligated to
provide financial assistance to the minors. In Mst.
Kaneez Akhtar v. Abdul Qadoos and 2 others, [2005
MLD 828] held at para 9 that “[t] here is no cavil
about the proposition that liability to maintain
minor child is not only religious/moral obligation of
the father but it is also his bounded legal duty.” In
Nazan Bibi v. Additional District Judge, Jhang and 2
others, [2009 YLR 991 (Lahore)] held in para 10 that
the father, “although a natural guardian…his right
of Hizanat [custody] is…subordinate to the
fundamental principle i.e. welfare of the minor, the
sole criteria, which in any case should prevail”. In
Habib-ur-Rehman v. Hina Saeed [2010 MLD 544],
the father of the child, who was in France, wasn’t
awarded custody, as the mother would have been
unable to see the child, but the father was still held
responsible for maintenance. The concept of
guardianship thus encapsulates, in the ordinary
scheme of things, the obligation of the father to
maintain a minor child and the rights that come
along are afforded to him to exercise oversight and
to stay involved with the affairs of the child for
purposes of discharging his obligations as guardian.
What the Quran says:
The said provision is reproduced here to below for
the perusal:

“ ‫ات ُي ْرضِ ْعنَ َأ ْواَل دَ هُنَّ َح ْو َل ْي ِن َكا ِم َل ْي ِن ۖ لِ َمنْ َأ َرادَ َأن ُي ِت َّم‬ُ َ‫َوا ْل َوالِد‬
‫ف‬ ْ ‫اع َة َۚو َع َلى ا ْل َم ْولُو ِد َل ُه ِر ْزقُ ُهنَّ َوك‬
ُ ‫ِس َو ُت ُهنَّ ِبا ْل َم ْع ُروفِ ۚ اَل ُت َك َّل‬ َ ‫ض‬ َ ‫الر‬
َّ
‫ار َوالِدَ ةٌ ِب َو َل ِدهَا َواَل َم ْولُو ٌد َّل ُه ِب َو َل ِد ِه ۚ َو َع َلى‬
َّ ‫ض‬َ ‫س ِإاَّل ُو ْس َع َها ۚاَل ُت‬ ٌ ‫َن ْف‬
َ ‫او ٍر َفاَل ُج َن‬
‫اح‬ ُ ‫ش‬َ ‫اض ِّم ْن ُه َما َو َت‬ ٍ ‫ِصااًل َعن َت َر‬ َ ‫ث ِم ْثل ُ َ ٰ‌ذلِ َك ۗ َفِإنْ َأ َرادَ ا ف‬ِ ‫ا ْل َو ِار‬
 َ ‫َع َل ْي ِه َما ۗ َوِإنْ َأ َرد ُّت ْم َأن َت ْس َت ْرضِ ُعوا َأ ْواَل دَ ُك ْم َفاَل ُج َن‬
َ ‫اح َع َل ْي ُك ْم ِإ َذا‬
‫س َّل ْم ُتم‬
‫اع َل ُموا َأنَّ هَّللا َ ِب َما َت ْع َملُونَ َبصِ ي ٌر‬ ْ ‫َّما آ َت ْي ُتم ِبا ْل َم ْع ُروفِ َۗوا َّتقُوا هَّللا َ َو‬
Translation as per Muhsin Ali :
The mothers shall breastfeed their children for two
whole years, (that is) for those (parents) who desire
to complete the term of suckling, but the father of
the child shall bear the cost of the mother’s food
and clothing on a reasonable basis. No person shall
have a burden laid on him greater than he can bear.
No mother shall be treated unfairly on account of
her child, or father on account of his child. And on
the (father’s) heir is incumbent the like of that
(which was incumbent on the father). If they both
decide on weaning, by mutual consent, and after
due consultation, there is no sin on them. And if you
decide on a foster-feeding-mother for your children,
there is no sin on you, provided you pay (the
mother) what you agreed (to give her) on
reasonable basis. And fear Allah and know that
Allah is the All-Seer of what you do. (‫سورة البقرة‬,
Al-Baqara, Chapter #2, Verse #233)
QURAN ON THE RIGHTS OF NON CUSTODIAL
PARENT:

As per the provisions of Verse No. 2, Ayat No. 233 of

the Holy Quran, no parent will be subjected to
torture for being the parent of a child.

Analyse these cases below: Write your findings for

each case which are relevant to the father/paternal
grandmother/paternal grandfather’s rights?

Then write your overall observation about these

[Link] fathers have it tough in our law and
society?

Custody Visitation rights for Fathers and

Grandparents

Citation Name : 2022 PLD 32 SUPREME-COURT

 Side Appellant : RASHID HUSSAIN
Side Opponent : ADDITIONAL DISTRICT JUDGE,
ISLAMABAD (EAST)
Ss. 17 & 25---custody of minors with their maternal
grand-father after suspicious death of their
mother---Father failing to discharge his duties
towards minors---Parents of father alleged to have
burnt to death mother of minors---Whether father
had preferential right to custody over maternal
grand-father in such circumstances---Held, that the
petitioner/father was a cab driver in a foreign
country---While the father was away, the mother
was critically burnt for which an FIR was lodged
against the parents of the father with an allegation
that they had intentionally burnt to death the
mother of the minors---Statement of the father
recorded before the Family Court revealed that had
not discharged his duties as father in any manner
towards the minor children or his deceased wife;
that he was most reluctant to take care of his wife
or minor children because they were under the
patronage of maternal grandfather and he thought
of it as an opportunity to skip his moral, legal and
religious duty bestowed upon him---Minor children
were brought before the Court and seemed very
well dressed up showing mature manners and they
plainly refused to accompany their own father,
rather they categorically stated to reside with their
maternal grandparents---Body language of the
minors clearly demonstrated a sign of hatred
towards their father---Maternal grand-father of
minors stated before the Court that he owned 19
acres of agricultural land which was sufficient to
bear the expenses of the minor children and they
were already enjoying reasonable living status in the
custody of their maternal grandfather---Another
important aspect of the present case was that the
minors were well aware of the fact that their
mother died due to unnatural consequences and it
must be in the back of their minds that it was their
father who was involved in the whole episode---At
present stage any change in custody by the
Supreme Court by handing over the minors to the
father would be instrumental in impairment of their
mental faculty which could have negative impact on
their personality in future and that would squarely
be against the dictates of "welfare of the minor"
which was the prime factor under the Guardians
and Wards Act, 1890---Petition for leave to appeal
filed by the father was dismissed, leave was refused,
and it was directed that the visitation . schedule
made by the Family Court for the grandparents shall
be considered to be made for the father.

Citation Name : 2022 MLD 1506

KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. FATIMA ZAHRA
Side Opponent : MUHAMMAD SHEROZ
Ss.12 & 17---Power to make interlocutory order for
production of minor and interim protection of
person and property---Matters to be considered by
the Court in appointing guardian----Welfare of
minor---visitation s rights of
father---Respondent-father had contracted second
marriage---Respondent (father) filed application
under S.12 of the Guardians and Wards Act, 1890,
for temporary custody of minor in winter and
summer vacations which was allowed---Held, that
paramount consideration while deciding question of
custody of minor was the welfare of minor
irrespective of age, sex and religion---Welfare
includes his/her moral, spiritual and material well
being----While considering what was welfare of
minor, Court should have regard to age, sex, religion
of minor, character and capacity of proposed
guardian, his/her nearness of kin to the minor, and
preference of minor if he or she was intelligent
enough to make it---Travelling of minor from
petitioner (mother) house to house of respondent-
father from time to time and from hand to hand
could not be suitable for health and betterment of
minor----High Court directed that respondent father
should have visitation s rights i.e. birthdays, eid
occasions, and summer and winter vacations and
arrangements should be made by the Family Judge
that such arrangements shall be subject to payment
of maintenance of minor-----Constitutional petition
was disposed of accordingly.

Citation Name : 2021 MLD 1610

QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : MUHAMMAD TUFAIL
Side Opponent : SAMINA TABASUM
Ss.12 & 25---custody of minor---Interim custody ,
right of---Scope---Guardian Court, jurisdiction
of---Father of minor had passed away---Guardian
Court granted interim custody of minor girl (aged 08
years) to the mother---Paternal grandparents
invoked constitutional jurisdiction of High Court
against the said order---Held, that under S.12(1) of
the Guardians and Wards Act, 1890, the Guardian
Judge was empowered to make interlocutory orders
for production of minor and interim protection of
his person and his property---Said power could even
be exercised in the absence of an
urgency---Company of grandfather obviously could
not be a substitute of the mother---custody of
minor could not be allowed to shuttle between the
parties---Once the Guardian Judge had exercised its
jurisdiction in granting interim custody , the same
was to be allowed to stay, unless there were
compelling circumstances to change the custody
---Order of temporary custody of the minor being
interim in nature would be subject to the decision in
the (main) guardian application under S.25 of
Guardians and Wards Act, 1890---Same could be
varied, altered or rescinded by taking notice of all
subsequent events and welfare of minor---No
illegality or infirmity was found in the impugned
order and judgment passed by the Guardian Court
granting interim custody of minor girl to
mother---High Court , however, directed the Trial
Court to pass an appropriate order for production
and visitation of minor to the grand-parents without
disturbing her studies---Constitutional petition was
dismissed, in circumstances.

Citation Name : 2021 YLR 2127

LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD AZEEM
Side Opponent : ADDITIONAL DISTRICT JUDGE,
SIALKOT
S.25---custody of minor---Principle---Petitioner was
father of minor daughter who was declined her
custody by two Courts below---Validity---Central
consideration was welfare of minor and to
determine the same all relevant factors had to be
kept in view---Petitioner never evinced any interest
in welfare of minor, never availed visitation rights
during trial or appeal and he never expressed his
desire to meet minor despite the fact that he was
permitted by Court to meet the minor as per
schedule fixed---Minor was comfortable with her
maternal grandmother---During last approximately
nine years petitioner had not attempted to meet
the minor even once either during proceedings for
recovery of her maintenance allowance or in Trial
Court---High Court declined to interfere in
concurrent orders passed by two Courts below, as
the same were not suffering from any misreading of
record or error of law or jurisdiction---Constitutional
petition was dismissed, in circumstances.

Citation Name : 2021 YLR 2030

LAHORE-HIGH-COURT-LAHORE
Side Appellant : AMNA NAWAZ
Side Opponent : DISTRICT JUDGE
Ss. 12 & 25---custody of minors---visitation
rights---Modification of earlier visitation schedule
chalked out by the Guardian Court which had
attained finality due to reported judgment of High
Court [(MRS. AMNA NAWAZ CASE, 2018 MLD
1303)]---Jurisdiction of Guardian
Court---Scope---Welfare of minor---No lis was
pending between the parties---Mother invoked
constitutional jurisdiction of the High Court
contending that her visitation rights were being
infringed in absence of proper visitation schedule
for meeting with her children in custody of their
father---Held, that for deciding the question of
custody of a minor and any other issue relating
thereto, welfare of the minor was the paramount
consideration for the Guardian Court and, therefore,
any issue in said regard was to be assessed,
examined and measured by the Guardian Court on
such yardstick---Guardian Court had to record a
definite finding on said point before passing any
order in the matter---In the present case, after the
High Court having set aside the judgment passed by
the Appellate Court in only the decision of the
Guardian Judge was in the field which was the final
arbiter of the matters relating to the custody of the
minors and there could not be any other Court
more suited to issue an amended visitation
schedule of meeting of the petitioner with her
children---Guardian Court had 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 would
not operate as a bar of jurisdiction for the Guardian
Court for all future time to come---Petitioner, who
was real mother of the children, unfortunately, was
making hectic efforts and running from pillar to post
merely for getting a meeting with her own children
but neither visitation schedule , as per order of the
High Court, had so far been chalked out due to filing
of miscellaneous applications by the
respondent/father nor he had appeared and
produced children before the High Court despite
specific (several) orders/notices ---Non-appearance
of the father showed that he was deliberately
avoiding to appear and produce children--- High
Court set-aside impugned order passed by the
Guardian Judge passed in the year 2019 and
directed the petitioner to approach Guardian Court
for getting a fresh schedule of meeting with her
children---Constitutional petition was allowed, in
circumstances.

Citation Name : 2021 YLR 1989

LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAROSH SIKANDER
Side Opponent : GUARDIAN JUDGE, LAHORE
S. 5, Sched.---Family Court (Amendment) Ordinance,
2002 (LV of 2002), Preamble---Guardian and Wards
Act (VIII of 1890), Ss. 8 & 12---Interim custody of
minor---Application moved by the grandmother
before the Guardian Court--- Maintainability---
'Parent'---Scope---Respondent (grandmother of the
minor) instituted application for interim custody
and visitation rights of minor girl, whereas the
petitioner (mother of the minor) filed the
application for rejection of the same on the ground
of maintainability--- Guardian Court rejected the
application of petitioner---Contention of the
petitioner was that the Family Courts Act, 1964, was
promulgated as a special act for special class of
people i.e. husband and wife in case of their
custody ---Validity---Although contention of the
petitioner was correct but the Guardians and Wards
Act, 1890, also dealt with the situation where only
grandparents were contestants, therefore, the same
would not stop the Guardian Court to adjudicate
upon matter-in-hand---In the Family Court Act,
1964, the Schecule made under S. 5 thereof,
prescribed "custody of the children" in clause (5),
however, an amendment was made through Family
Court (Amendment) Ordinance, 2002 and after "
custody of children" the words "and the visitation
rights of parents to meet them" were
added---Application of the respondent
(grandmother) was maintainable before the
Guardian Court---Constitutional petition was
dismissed, in circumstances.
 Citation Name : 2021 YLR 1989
LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAROSH SIKANDER
Side Opponent : GUARDIAN JUDGE, LAHORE
S. 5, Sched.---Guardians and Wards Act (VIII of
1890), Ss. 8 & 12---'Parent'---Scope---Interim
custody of minor---Application moved by the
grandmother (respondent) before the Guardian
Court---Maintainability---Contention of the
petitioner (mother of minor) was that only the
parents could request for the visitation right of the
minor as the 'grandmother' was not covered in the
definition of 'parent'---Held, that the word 'parent'
used in S. 5 and the Sched. of the Family Courts Act,
1964, was wider in sense and was not restricted to
its literal meaning particularly when the grandchild
was entitled to inheritance from the
grandparent---Application of the respondent
(grandmother) was maintainable before the
Guardian Court---Constitutional petition was
dismissed, in circumstances.

Citation Name : 2008 PLD 198

KARACHI-HIGH-COURT-SINDH
Side Appellant : IMRAN ALI
Side Opponent : Mst. IFFAT SIDDIQUI
Ss. 12, 25 & 47---West Pakistan Family Courts Act
(XXXV of 1964), S.14---Constitution of Pakistan
(1973), Arta 199---Constitutional
petition---Appointment of guardian and custody of
minors---One of the minors was of about 8 years
while other was. about 5-1/2 years old---Petitioner,
who was father of minors was Shia and had
sufficient means to look after the welfare of the
minors, and also to provide them better means for
their growth as per his own sect---Minors were
going to school prior to handing over the temporary
custody to the mother and no evidence was
available on record to the effect that during
temporary custody of mother, minors were going to
school ---Mother of minors was residing with her
three brothers, one of whom was a convicted
person and was residing abroad---Record had also
shown that the family atmosphere of father was
much better for future growth of minors as' mother
of the father was retired principal of a school , his
elder brother was running his own school and his
second brother was getting education in
Australia---Father had sufficient source of income to
maintain the minors in better way---Father and
mother had equal love with the children , moreso
minors needed love, affection, better education,
mental and physical health and civil and social
atmosphere---children should be brought up
according to the sect/religion of their father---Both
Courts below while granting temporary custody of
minors to mother had not considered said facts and
circumstances and had misread evidence available
on record and had not properly appreciated the
evidence---Impugned judgments were set aside and
petition by father was allowed as prayed for and he
was appointed as guardian of the minors till the age
of their majority as welfare of minors lay with him.

Citation Name : 2021 YLR 1989

LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAROSH SIKANDER
Side Opponent : GUARDIAN JUDGE, LAHORE
Ss. 8 & 12---Family Courts Act (XXXV of 1964), S. 5,
Sched.---Interim custody of
minor---'Parent'---Scope---Application moved by
grandparent---Maintainability---Respondent
(grand-mother of the minor) instituted application
for interim custody and visitation rights of minor
girl, whereas the petitioner (mother of the minor)
filed application for rejection of the same on the
ground of maintainability---Guardian Court rejected
the application of petitioner---Petitioner invoked
constitutional jurisdiction of the High Court
contending that only the parents could request for
the visitation right of the minor as the
'grandmother' was not covered in the definition of
'parent'---Validity---Record revealed that parents of
the minor got married to each other but , soon after
the birth of minor, the divorce was
effected---Intensity of estrangement was so high
that a criminal case was got registered on the
behest of father of the petitioner which though was
later cancelled---Father of the minor was a foreign
national, who came back after the birth of child to
see new-born child and to reconcile but the efforts
failed and he returned abroad after pronouncing
divorce---Petitioner had referred to definition of the
word 'parent' from dictionaries, which included
adoptive parents, but such concept was not
recognized in Islam---Keeping in view the fact in the
present case that neither the real father of the
minor had come forward with any definite plea nor
the effort was made to implead him as a party, his
tacit approval could be presumed---Proceedings
before the Guardian Court were for the visitation
right of the minor only, therefore, the application
filed by the grandmother was
competent---Constitutional petition dismissed, in
circumstances.

Citation Name : 2021 YLR 1989

LAHORE-HIGH-COURT-LAHORE
Side Appellant : SAROSH SIKANDER
Side Opponent : GUARDIAN JUDGE, LAHORE
Ss. 8 & 12---Family Courts Act (XXXV of 1964), Ss. 5,
Sched. & 14---Constitution of Pakistan, Art.
199---Constitutional petition filed against an
interlocutory order of Guardian
Court---Maintainability---Interim custody of
minor---Impugned order was just an interlocutory
order holding that the application of interim
custody /visitation right filed by the grandmother
could proceed and the same was not even an order
deciding the application filed by the grandmother,
therefore, constitutional petition was not
maintainable since an appeal could be filed against
the final order---Constitutional petition was
dismissed in circumstances.

Citation Name : 2021 YLR 1915

LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHIDA ADNAN
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 25---custody of minor---visitation
right---Scope---Petitioner/mother was aggrieved of
issuance of a schedule of meeting of the minor with
her father---Contention of petitioner was that the
minor had no attachment with her father and that
the father did not regularly maintain the
minor---Validity---Father could not be denied the
right of access to his minor daughter nor would he
be considered an alien/enemy to her---Minor not
only needed love, affection, care and attention of a
mother but also the company and guiding hand of
father---Negating the father of his right to meet his
daughter would lead to emotional
deprivation---Constitutional petition was dismissed.

Citation Name : 2021 YLR 1299

LAHORE-HIGH-COURT-LAHORE
Side Appellant : EHANGIR SIRAJ DOGAR
Side Opponent : DISTRICT JUDGE
S.12---Visitation right---Choice of
minors---Scope---Petitioner was father of minors
who was aggrieved of Visitation right provided to
respondent-mother of minors---Plea raised by
petitioner was that minors did not want to meet
their mother---Validity---Question of custody of
Visitation schedule could not be determined solely
by deduction from rule of law rather it required an
exercise of judicial discretion dependent upon
relevant facts and circumstances---All three minors
appeared before Family Court and stated that they
wanted to live with their father---Such statement
did not mean that minors would be kept away for all
times from their mother and not allowed to develop
any bonding with her---Lower Appellate Court
rightly observed that since both parties were at
daggers drawn, it could not be ruled out that minors
would have been subjected to some brain washing
against mother---Once children would reach age of
discretion, custody matters were to be disposed of
in terms of their wishes which itself would
constitute their welfare---To deprive mother from
meeting minors was not only harsh and cruel but
was also against welfare and interest of minors who
would further be influenced and brain washed
against their mother were not able to develop any
bonding with her---High Court declined to interfere
in schedule of Visitation ---Constitutional petition
was dismissed in circumstances.

Citation Name : 2021 CLC 1089 ISLAMABAD

Side Appellant : Mst. ISBAH RASHID
Side Opponent : ADDITIONAL DISTRICT JUDGE,
ISLAMABAD-WEST
S.5, Sched, Sr. 5---Suit for recovery of maintenance
allowance---Visitation schedule, fixation
of---Scope---Petitioner (mother of minor) assailed
order passed by Judge Family Court whereby
respondent (father of minor) was allowed to meet
the minor once in a month for half an
hour---Contention of petitioner was that Judge
Family Court had no jurisdiction to fix meeting
schedule as the lis pending was with regard to
recovery of maintenance allowance and not a
guardian petition; that the respondent had already
filed a guardian petition where he could ask for
similar relief and that the respondent was chronic
patient of skin disease---Validity---Judge Family
Court had jurisdiction to adjudicate upon the
matters contained in Part I of the Schedule attached
to the Family Courts Act, 1964, which included
"custody of children" against serial No. 5 with
addition of "Visitation rights of parents to meet
them"---Respondent could not be restrained to have
meeting with his daughter---Father, like mother, had
equal right to see his children and the right so
bestowed could not be taken away---Constitutional
petition was dismissed in limine.

Citation Name : 2020 YLR 401

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. AYESHA ABDUL MALEEK
Side Opponent : ADDITIONAL DISTRICT JUDGE,
SAHIWAL
Ss. 25 & 17---custody of minor---Welfare of
minor---"Intelligence preference" of
minor---Scope---Petitioner/mother filed petition for
custody of minor daughter whereas father moved
application for appointment as guardian---Petition
for custody of minor daughter filed by the mother
was dismissed whereas father's application for
appointment of guardian was allowed--- Validity---
Paramount consideration while deciding application
for custody of minor was welfare of minor and
nothing else---Character and capacity of proposed
guardian as well as age and sex were important
factors to be considered while determining the
welfare of minor---Courts below summoned the
minor for the purpose of "intelligence preference"
and she denied to have company with the petitioner
mother and showed her willingness to reside with
her father---Courts below had rightly concluded that
petitioner mother was not entitled to the custody of
minor daughter and respondent father was entitled
to retain her custody as he had sound financial
status---Respondent father was looking after the
minor properly---Petitioner mother of minor
daughter was entitled for Visitation rights---No
illegality or jurisdictional error had been pointed out
in the impugned orders passed by the Courts
below---Constitutional petition was dismissed, in
circumstances.

Citation Name : 2020 CLC 1353

KARACHI-HIGH-COURT-SINDH
 Side Appellant : Mst. MUNIBA RAHEEL
Side Opponent : RAHEEL TAUFIQ FEROZ
Ss.12 & 25---Interim custody of minor---Visitation
rights of father---Petitioner was mother of minor
daughter and had assailed order passed by Family
Court regarding interim custody ---Validity---Real
father could not be deprived of his right to meet his
daughter and / or spend time with her---Such
restraint would lead to / cause emotional
deprivation of the minor daughter on both sides---
Child not only needs love, affection, care and
attention of a mother but also that of a
father---During litigation between the parties such
order or 'interim custody ' could not be alleged /
called as un-justified and / otherwise harsh and
illegal--- Any order passed under S.12 of Guardians
and Wards Act, 1890, was not equivalent to an
order passed under S.25 of Guardians and Wards
Act, 1890---Latter order was to determine rights of
parties with regard to 'regular custody ' of a minor
and that too only after taking into consideration the
capacity / position of a party to either maintain a
child and / or to provide love and affection to such
child---Such like questions could only be decided in
a 'final adjudication' of application under S.25 of
Guardians and Wards Act, 1890---High Court
declined to interfere in the order passed by Family
Court with regard to interim custody as there was
no 'infirmity' or 'illegality' in the
order---Constitutional petition was dismissed, in
circumstances.

Citation Name : 2020 CLC 879 ISLAMABAD

Side Appellant : SANA AIZAD
Side Opponent : ADDITIONAL DISTRICT JUDGE
VII/GUARDIAN APPELLATE COURT, ISLAMABAD
S. 25---custody of minor---Clausula rebus sic
stantibus, doctrine of---Applicability---Mother
moved application for custody of minor son wherein
compromise was effected that she would take the
minor alongwith her to the United
Kingdom---Application for visa of minor was
rejected and mother proceeded abroad without the
minor son---Petitioner being mother of minor filed
application for appointment of guardian whereas
respondent (father) moved application for custody
of minor---Petition of mother was dismissed
whereas that of father was accepted
concurrently---Validity---Petitioner mother was in
the United Kingdom whereas minor was in the
custody of his maternal grandparents---Application
of minor for visa to the United Kingdom had been
turned down---Father was justified in seeking
minor's custody , in circumstances---Contract or
treaty between the parties had become inapplicable
because of a fundamental change of
circumstances---Doctrine of clausula rebus sic
stantibus was applicable in the case---No advantage
could be taken by the petitioner mother from the
statement of father agreeing before the Guardian
Court that minor's custody should remain with
her---Impugned judgments passed by the Courts
below granting custody of minor to his father did
not suffer from any irregularity---Guardian Court
had fixed an adequate Visitation schedule of
minor---Declaration of Guardian Court that
petitioner mother would not be entitled for
permanent custody of minor in case of her return to
Pakistan was not justified, which was set
aside---Constitutional petition was disposed of, in
circumstances.

Citation Name : 2019 SCMR 116

SUPREME-COURT
Side Appellant : Ms. SHAZIA AKBAR GHALZAI
Side Opponent : KHURRAM MEHBOOB
S. 491---Habeas corpus petition---Recovery of
minor---Minor, a suckling baby was forcibly taken
away by the father from the lawful custody of his
mother within the territorial limits of the relevant
High Court---Minor was thereafter moved to
different cities in order to evade the process of
law---Minor was about one year old and obviously
needed his mother to survive---No reason
whatsoever had been alleged or pleaded by the
father's side that may furnish any justification to
deny custody to the real mother and hand him over
to the father---Prima facie mother had a right to
have custody of the suckling baby---Material and
overwhelming factors pointed towards welfare of
the minor being best served and protected, if his
custody was handed over to the mother---Supreme
Court directed that custody of minor shall continue
with the mother, subject to any other order passed
by a court of competent jurisdiction in appropriate
proceedings, however the father may approach the
Guardian Court for determination of Visitation
rights; that appropriate action should be initiated
against the father, however the same shall not
preclude him from asserting his rights before a
Guardian Court in accordance with law, and that the
mother shall not remove the minor out of the
territorial limits of Pakistan without express
permission of a Court of competent
jurisdiction---Petition was disposed of accordingly.

Citation Name : 2019 CLC 1352

PESHAWAR-HIGH-COURT
Side Appellant : MUJEEB UR REHMAN
Side Opponent : Mst. MEHROON NISA alias Tanzil
Begum
S. 12---Temporary custody of minor---Father,
working abroad---Petitioner assailed the order of
Guardian Judge whereby he had directed delivery of
interim custody of the minor child to his
mother---Validity---Petitioner was serving abroad
and was not residing in Pakistan---Minor was totally
at the mercy of his paternal grandfather and cousin
of petitioner, hence, for all practical purposes minor
was not having paternal love---Company of
grandfather and cousin of petitioner could not be a
substitute of mother and father---Maintenance of a
child was the responsibility of father---Minor could
still have the same level of education and treatment
while remaining under the shadow of his
mother---custody of minor could not be allowed to
shuttle between the parties---Order passed by
Guardian Judge under S. 12, Guardians and Wards
Act, 1890 was not to be interfered unless there
were compelling circumstances to change the
custody ---Order of temporary custody of the minor
being interim in nature was subject to decision in
the main case---Findings of courts below with
respect to the interim custody of minor were
unexceptional---Trial Court was directed to pass an
appropriate order for production and Visitation of
minor---Constitutional petition was dismissed,
accordingly.

Citation Name : 2019 YLR 785

LAHORE-HIGH-COURT-LAHORE
Side Appellant : ZAHIDA TAHIRA
 Side Opponent : JAVED IQBAL
Ss. 12 & 25---Interim custody of minor
sons---Mother a household lady---Schedule of
meeting between minors and their father---Ages of
the minors were 8 years and 6 years who needed
proper care and attention of their real mother/
petitioner--- Father/respondent was a government
servant who mostly remained on duty outside the
house in view of the nature of his job in police
department---Mother, on the other hand, was a
household lady who stayed at home and could very
well look after the minors even during the pendency
of the guardianship petition---(Interim) custody of
the minors was given to the mother till the decision
on petitions under S. 25 of the Guardians and Wards
Act, 1890 pending before the Guardian Court---High
Court provided a schedule of meeting for the father
to the effect that the mother shall ensure meeting
of the minors with their father on first Saturday of
every month from 11:00 A.M. to 1:00 P.M. through
bailiff in Visitation room; that on the occasion of
Eid-ul-Fitar and Eid-ul-Azha, the father would be
entitled to meet the minors on the second day of
Eid from 11:00 A.M. to 2:00 P.M. and on the
occasion of birthdays, father would be entitled to
meet the minors from 11:00 A.M. to 2:00 P.M. in the
Visitation room---Constitutional petition was
allowed accordingly.

Citation Name : 2019 CLC 1787

KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. NOOR AFSHAN
Side Opponent : MUHAMMAD GHALIB
S.25---custody of minor---Welfare of
minor---Re-marriage of mother---Visitation
---Conduct of father---Non-payment of maintenance
allowance---Effect---Petitioner/mother assailed the
order of Appellate Court whereby permanent
custody of minor was given to the
father/respondent---Appellate Court had granted
the permanent custody of minor to the father on
the sole ground that the mother had remarried and
was now living with her second
husband---Validity---Held; such ground could have
been applied had the subject minor been a girl---No
other justifiable reason was assigned by the
Appellate Court for granting permanent custody of a
male minor of tender age to his
father---Observation of Family Court regarding the
conduct of father being negligent and mala fide,
was apparent in view of his continuous absence at
the time of Visitation ordered by the Family Court,
impounding and blocking of his CNIC by Family
Court and issuance of his non-bailable warrants by
the Judicial Magistrate---Father had not complied
with the decree of maintenance passed by Family
Court in favour of the subject minor---Grant of
permanent custody of minor to respondent/father
was not in the interest and welfare of the
minor---Respondent was, however, granted right of
Visitation , subject to certain
conditions---Constitutional petition was allowed, in
circumstances.
 Citation Name : 2019 CLC 1478
KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. ABEERA KHAN
Side Opponent : ADNAN JAMIL
S. 12---Interim custody of minor---Right of
hizanat---Scope---Petitioner/mother assailed order
of Family Court whereby the Court while disposing
of application under S. 12 of Guardians and Wards
Act, 1890 handed over the custody of two minor
girls to their father---Validity---Both female minors
aged about 7 and 5 years came within the right of
hizanat bestowed to the mother under the
law---Family Court ignored the relation of mother
with the minors and did not even pass an order of
meeting/Visitation ---Family Court based the
impugned decision on the grounds that petitioner
(mother) had no male relative in the city; that she
did not own any house and that she had moved
application to the school management for
withdrawing the minors from school---Petitioner in
her written statement had categorically given details
of sources of income/funds she owned---Petitioner
had moved an application in the minors' school for
getting them admitted in another school nearer to
her residence---Presumption drawn by Family Court
about removal of minors from the jurisdiction of
court was premature---Family Court had ample
powers to restrain a party from initiating or taking
any step/act contrary to the welfare of
minors---High Court allowed the petition and
directed Family Court to decide the application
under S. 12 of Guardians and Wards Act, 1890
afresh in accordance with law, after hearing both
the parties---Constitutional petition was disposed of
accordingly.

Citation Name : 2019 CLC 1478

KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. ABEERA KHAN
Side Opponent : ADNAN JAMIL
S. 12---Interim custody of minor---Visitation ---Real
parents have an inherent right to meet and visit
their children.

Citation Name : 2019 MLD 659

KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. BUSHRA AMEEN ALVI
Side Opponent : INCHARGE JUDGE, FAMILY
JUDGE-VIII, KARACHI
Ss. 12 & 25---Application for guardianship by
mother---Minor was residing with father---Trial
Court granted interim custody to mother only for
Visitation periodically---Mother was also directed
for payment of travelling
charges---Petitioner/mother contended that she
could not be compelled to pay charges to father for
production of minor--Validity---Status of parents
was a consequence of legal contract, which
continued even on dissolution of marriage between
parents---Liabilities of parents continued towards
the child who (child) would always be known of
such parents whether they resided together or
separately or even they were no more husband and
wife---Law favoured the right of Visitation of a
parent to remain intact even if the custody was
awarded to other parent, subject to such terms and
conditions determined by Guardian Judge---Said
principle, however, would neither be changed nor
controlled under well-established principle of law
which morally and legally bound the 'father' alone
to maintain the child and said liability normally was
never shifted---If both the said principles were kept
in juxta-position it would result into nothing but
that whenever right of Visitation was allowed to a
mother such right legally could not be made subject
to any remuneration---Petitioner , in the present
case, was declined permanent custody of minor on
the ground of her failure to substantiate her plea
and only meeting was allowed---Right to claim
custody of the child was always subject to
satisfaction of Guardian Judge as to where the
welfare of the minor lay---Such satisfaction was
never controlled either by financial status of parent
being mother or father but to welfare of the minor
alone---Requiring mother to pay fare charges, was
not justified rather against the basic principle of
law---High Court set aside the impugned finding
with regard to payment of fare
charges---Constitutional petition was disposed off
accordingly.

Citation Name : 2018 SCMR 1991

SUPREME-COURT
Side Appellant : Mst. MADIHA YOUNUS
Side Opponent : IMRAN AHMED
S. 25---custody of minors---Compromise/agreement
between parents---custody with mother---Visitation
rights of father---Maintenance of
minors---Comprehensive plan for custody ,
Visitation rights and maintenance of minors, and
obligations of both parents issued by the Supreme
Court listed.

Citation Name : 2018 SCMR 1385

SUPREME-COURT
Side Appellant : CH. IFTIKHAR AHMED, I.-G.,
ISLAMABAD
Side Opponent : State
S. 3---Constitution of Pakistan, Art.
204(2)---Contempt of Court---Unconditional apology
tendered by alleged contemnor, acceptance
of---Principles---Apology not sincere and not
tendered at the earliest stage of contempt
proceedings---Manhandling of Chief Justice of the
Supreme Court---Reference had been sent against
the then Chief Justice of the Supreme Court under
Art. 209 of the Constitution to the Supreme Judicial
Council (the Council)---Chief Justice as a mark of
protest did not use the official vehicle made
available for taking him to the Supreme Court
building for appearance before the Council, and
walked out of his residence---When the Chief Justice
started walking on foot, the police personnel in the
presence of accused persons allegedly tried to
prevent him from proceeding on foot and in doing
so some police personnel physically stopped him
and tried to push him into the official car---Accused
persons submitted their unconditional apologies for
the incident but were still found guilty of Contempt
of Court and awarded sentences of
imprisonment---Contention of accused persons that
in view of their unconditional apologies, the Court
could have taken a lenient view and discharged
them from the contempt
proceedings---Validity---Accused contemnors did
not submit any unconditional apologies at the
outset, but only submitted the same after a few
dates of hearing when charge had been framed
against them---Perusal of unconditional apologies
tendered by some of the accused showed that they
were stereotype and some of the words appearing
in those had been mis-spelt and none of them cared
or bothered to correct them and it showed there
was no application of mind by accused
persons---Such unconditional apologies seemed to
have been submitted in post haste after the charge
had been framed and there did not seem to be any
sincere and genuine remorse rather they appeared
to be half-hearted merely to fill up the
formality---Some of the accused persons had even
tried to justify their conduct in their apologies which
had become cause of contempt
proceeding---Gravity of the conduct of the accused
persons was also to be seriously taken note of in
that they had physically roughed up, manhandled,
pushed, bundled and physically forced the Chief
Justice of the Supreme Court, the head of the
highest judicial forum of the country, to sit in a
car---Holder of highest judicial office of the country
was restrained physically in the eyes of the public
and also in the presence of print and electronic
media---Such incident could not, by any means, be
considered a minor incident which could be let off
by submission of unconditional apology rather such
conduct required Visitation by exemplary
punishments for the conduct of the accused
persons as it had jolted the very edifice of the
judicature, as provided in the Constitution, and
seriously undermined and brought the authority of
the Court or administration of justice into
disrespect, disrepute and interfered with,
obstructed, interrupted and prejudiced the process
of law and due course of judicial
proceedings---Accused persons had already been
dealt quite leniently in terms of quantum of their
sentences of imprisonment---Supreme Court
directed that other than those accused persons
sentenced to imprisonment till rising of the Court,
the other accused were to be taken into custody
and lodged in prison to serve out their respective
sentences---Intra-court appeals were dismissed
accordingly.
 Citation Name : 2018 PLD 79 SUPREME-COURT
Side Appellant : Mst. LAIBA SULTAN
Side Opponent : MUHAMMAD NAWAZ
S. 491---Constitution of Pakistan, Art.185(3)---Power
to issue directions of the nature of habeas
corpus---custody of minor(s)---Considerations for
welfare of minors---Scope---Petitioiner mother
impugned order of High Court whereby her petition
of habeas corpus to recover custody of her minor
children from her husband was
dismissed---Petitioner mother was an Afghan
refugee, having no roots or reference in Pakistan
and there was no guarantee that she would not
remove the minors from jurisdicion of Pakistan and
taken them across the border---Attitude and
behavior of the minor towards the mother gave way
to the apprehension that the minors, at least
presently, could not live with mother happily and
their custody with mother would not be conducive
to their welfare and health development---Supreme
Court disposed of the petition with the observation
that mother was at liberty to approach the Guardian
Court for seeking custody of minors and directed
that Visitation right of the mother will continue.

Citation Name : 2018 PLD 44

QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : ABDUL KHALIQ
Side Opponent : Ms. MAH NOOR
S. 12---Visitation rights of father of
minor---Scope---Court premises as meeting place of
the minor with the father---Effect---Welfare of
minor---Scope---Petitioner/father contended that
Family Court had rightly allowed him to take his
minor daughter to his house on (certain) special
days---Respondent/Mother contended that
Appellate Court had rightly set aside schedule
arranged by Trial Court as father should meet minor
within court premises---Validity---Father might
disentitle himself to custody on account of his
conduct but father, in the present case, was
regularly depositing the maintenance allowance of
his minor daughter as fixed by the court---Minor
daughter in her tender age required love and care of
her parents; deprivation of any of them would have
negative effect not only on her mental growth but
would also affect her intellectual
development---Neither the minor nor the father
could be deprived of company of each
other---Father being natural guardian was not only
required to participate in the upbringing of the
minor but should also develop love, bondage and
affinity with her, to achieve said purpose---Court
was to facilitate a congenial , homely and friendly
environment and reasonable Visitation
schedule---Office of the Guardian Judge or office of
Civil Nazir of the Court, for the said purpose, was
neither conducive nor effective which lacked proper
facilities and arrangements, and was not
comparable to a homely environment---Meeting in
Court premises could not serve the purpose of
meeting, and it was not in the interest or welfare of
the minor to hold meeting in the Court
premises---Meetings of the minor with the father,
were preferably to be held at the residence of the
father---High Court set aside the impugned order
passed by the Appellate Court and re-scheduled the
more flexible arrangements of meeting of minor
with the father on special days and on every
Saturday of the calendar month with arrangement
that Civil Nazir or a bailiff be deputed by the Trial
Court to collect the minor from the residence of the
mother at 10:00 a.m. along with a representative of
the father, take her to residence arranged by the
father, and thereafter along with representative of
mother collect her from the father on the same day
and drop her back at the residence of mother---Such
arrangement would remain in vogue till the minor
daughter was five years of age or admitted to
school---Constitutional Petition was disposed off
accordingly.
 Citation Name : 2018 YLR 20
PESHAWAR-HIGH-COURT
Side Appellant : HASEEB AHMAD
Side Opponent : Mst. WAJIHA WAKEEL
S.5 & Sched.---Guardians and Wards Act (VIII of
1890),Ss.12 & 25---Suit for dissolution of marriage
and custody of minors by the mother---Wife alleged
physical torture by husband---Husband had
contracted second marriage---Trial Court decreed
custody of minors to the mother---Visitation rights
of father---Scope---Welfare of
minor---Scope---Father contended that despite his
second marriage he was entitled for custody of
minors as grandmother of the minors was also living
with him---Mother of minors contended that Trial
Court had rightly decreed custody of minors to her,
however, she was subjected to physical torture by
husband which issue was wrongly decided against
her---Validity---Record revealed that wife was
beaten by husband and due to said beating wife was
severely injured and her ear drum was
ruptured---Beating had been established from the
evidence produced by wife as she had appeared and
narrated the facts as alleged in her plaint, mostly
about the behavior of her husband and other
housemates---Record further showed that she was
not confronted in the court in respect of her
allegation of physical beating and injury and witness
produced by her had also stated about physical
torture---Evidence in circumstances established that
wife was subjected to physical torture and her ear
drum was ruptured and she remained under
treatment---Trial Court, while giving findings had
ignored rather non-read the evidence in that regard
and Appellate Court had also overlooked said
aspect---High Court set aside findings on the
relevant issue and decided the same in affirmative
and observed that both the courts below had rightly
decided the question of custody of minors in favour
of mother as the mother of husband was an old lady
who herself needed extra care so she could not take
care of two minor children---Prime consideration in
such like cases was the welfare of minors---Husband
during subsistence of marriage, had contracted
second marriage and did not think about the future
of his minor children---Father was allowed to meet
the minor once in a month---Family Court/
Executing Court was directed that on application by
father custody of both minors could be granted on
both the Eids---Constitutional petition was disposed
of accordingly.

Citation Name : 2018 MLD 2001

PESHAWAR-HIGH-COURT
Side Appellant : MUHAMMAD ASHAR MALIK
Side Opponent : SANA ASHAR
Ss. 25 & 12---Family Courts Act (XXXV of 1964), Ss.
5, Sch. & 7---Family Courts Rules, 1965, R. 6---Suit
for custody of minors, recovery of dower, dowry
articles and personal belongings by
mother/ex-wife---Territorial
jurisdiction---Scope---Plaint did not include the
prayer for dissolution of
marriage---Effect---Permanent residence of
Spouses---Determination---Marriage had already
dissolved on the basis of Khula at "K" and thereafter
mother of minors moved from "K" to "P" without
minors---Application for interim custody of minors
by the mother/plaintiff was
accepted---Petitioner/Father raised objection to the
territorial jurisdiction of the Family Court at "P" with
the plea that both the spouses last resided along
with minors at "K" where he was permanently
residing with the minors---Respondent/mother
contended that petitioner/father was permanent
resident of "P" where she had moved the Family
Court---Validity---Nikah Nama and marriage
registration certificate showed that parties were
permanent residents of "P"---Despite husband's
claim of permanent residence at "K", the petitioner
had brought nothing on record to suggest that he
had abandoned his permanent abode at "P" for
good and had permanently settled at "K"---For the
purpose of determining territorial jurisdiction of
Family Court, Family Courts Act, 1964 and Family
Courts Rules, 1965, were to be taken into account
and not the provisions of S. 25 of the Guardians and
Wards Act, 1890---Section 5 & Sched. of Family
Courts Act, 1964 included custody of children and
Visitation rights of the parents to meet them, while
proviso to R. 6 of Family Courts Rules, 1965 in case
of suit for dissolution of marriage or dower, allowed
the wife to move the Court within the local limits of
which she ordinarily resided---Second proviso to S.
7(2) of Family Courts Act ,1964 introduced, [in the
year 2002], the concept of composite suit/plaint by
making the provision that plaint for dissolution of
marriage could contain all claims---Plaint did not, in
the present case, include the prayer for dissolution
of marriage, however, proviso to R. 6 of Family
Courts Rules, 1965 would come to rescue of the
respondent in the matter of jurisdiction of Family
Court at "P" to entertain, hear and adjudicate the
suit of the respondent also for custody of
minors---Plaintiff, other than for dissolution of
marriage, could claim a prayer for the custody of
minors---Not only respondent ordinarily resided at
"P", rather both the parties had their permanent
residences at "P", where their marriage took place,
therefore, the Family Court at "P" had jurisdiction to
entertain, hear and adjudicate upon suit of the
respondent for dower etc. including custody of
minors---No illegality or infirmity having been
noticed in the impugned order passed by the Family
Court, constitutional petition was dismissed
accordingly.

Citation Name : 2018 MLD 1793

LAHORE-HIGH-COURT-LAHORE
Side Appellant : HAROON RASHID
Side Opponent : ADDITIONAL DISTRICT JUDGE
Ss. 12 & 25---Application for custody of minor by
maternal grandmother as mother of the minor had
passed away---Interim custody ---Visitation schedule
of minor with his grandmother---Scope---Overnight
stay with grandmother---Welfare of
minor---Scope---Guardian Court though dismissed
the application for custody of the grandmother but
chalked out a schedule of her meeting with the
minor---Petitioner/father contended that Appellate
Court had wrongly modified meeting schedule by
expanding/adding overnight stay of minor with his
grandmother on 3rd Saturday of each month as she
just wanted to poison the minor against
him---Validity--Welfare of minor was prime
consideration of the Court---In absence of mother of
the minor, maternal grandmother had the right to
see and meet the minor---Denial of such legal right
would tantamount to deprive the minor from the
love and affection of his maternal grandmother and
the family of his deceased mother, which was
against the welfare of the minor for the reason that
minor needed love and affection of both of his
paternal and maternal relations---Minor was not to
be deprived of love and affection of either of the
two blood relations and have maximum interaction
with his maternal relations as well, as his
permanent custody was with the father, otherwise
the same could cause an estrangement in the mind
of the child which could ultimately leave a vacuum
in the development of his personality---Father was
not to create hurdles in enabling the minor to
develop a healthy relationship with his maternal
side which could only be developed if he was
allowed to spend a reasonable period of time with
them---No illegality or infirmity having been noticed
in the impugned order passed by the Appellate
Court, constitutional petition was dismissed
accordingly.

Citation Name : 2018 MLD 1592

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. AYESHA SHAHID
Side Opponent : ADDITIONAL DISTRICT JUDGE
S. 12---Interim custody of minor---Visitation
schedule of minor with his
father---Scope---Overnight stay with
father---Welfare of minor---Scope---Meeting of
minor with father in Court
premises---Effect---Petitioner/mother contended
that Appellate Court had wrongly chalked out
overnight stay of minor with his father/respondent
as the same would affect his growth adversely and
he was likely to confront some unpleasant situation
there---Mother also apprehended removal of the
minor out of territorial jurisdiction of the
Court---Father contended that proper growth of the
minor required love and affection of parents and
Guardian Court had wrongly dismissed his prayer of
meeting with his son out of Court
premises---Validity---Welfare of minor was prime
consideration before the Court, admittedly,
respondent was father of the minor and being the
natural guardian he had right of his supervision
under the Islamic Law, therefore, on separation of
the parents the minor could not be permanently
deprived from the love and affection of either of the
parents---Minor, in the present case, had crossed
the age of six years, therefore, he should have
maximum interaction with the father even if the
custody was with the mother, otherwise, it may
cause an estrangement in the mind of the child
which may ultimately leave a vacuum in the
accomplishment of his personality for deprivation of
love, affection and company of his father---Court, in
order to achieve such goal, was to make every
possible effort to chalk out reasonable Visitation
schedule in friendly atmosphere---Meeting of the
minor in the Court premises with the father was
neither conducive nor effective and did not serve
the purpose of meeting, therefore, welfare of the
minor was in meeting with the father at his
residence--- Appellate Court had already imposed
condition of submission of surety bonds by the
father at the time of taking over custody of the
minor which was sufficient to dispel the
apprehension of the mother regarding removal of
the minor from the territorial jurisdiction of the
Court---No illegality or infirmity having been noticed
in the impugned order passed by the Appellate
Court, constitutional petition was dismissed
accordingly.

Citation Name : 2018 MLD 448

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Dr. SAMINA ANAYAT
Side Opponent : ADDITIONAL DISTRICT JUDGE
S.12---Family Courts Act (XXXV of 1964),
S.14(3)---Constitution of Pakistan, Art.199---Interim
custody of suckling minor---Review of Visitation
hours---Scope---Petitioner/mother contended that
both Courts below had failed to consider that it
would be hard to bring the minor of 1½ years of age
to the court twice a month for meeting with the
father---Respondent/father contended that
meetings with minor in tender age was necessary to
develop affiliation with the father---Validity---While
passing the impugned order, the Guardian Court
had exercised his jurisdiction vested in it and
nothing in the said order was contrary to law and
beyond his jurisdiction---Parties also confirmed that
said order had been complied with and since then
the meetings were being conducted---Order passed
by Guardian Court was interim in nature and
constitutional petition would not lie before the High
Court---Section 14(3) of Family Courts Act, 1964
showed that no appeal or revision would lie against
interim order passed by the Family Court---Family
Courts Act, 1964 had explicitly barred the remedy of
appeal or revision against such an order, therefore,
in case a constitutional petition was entertained
against such order, the same would amount to
circumventing the intention of the legislature and
frustrating the express provision of law---No
illegality or infirmity having been noticed in the
impugned order passed by the Appellate
Court---Constitutional petition was dismissed
accordingly.

Citation Name : 2018 YLR 649

KARACHI-HIGH-COURT-SINDH
 Side Appellant : IMRAN AHMED
Side Opponent : Mst. MADIHA YOUNUS
Ss.17 & 25---Application for custody of male minors
above the age of seven years by
mother---Preference of minors---Scope---Minors
were living with father and step-mother since
birth---Effect---Welfare of minors--- Scope---
Petitioner/father contended that both the courts
below had wrongly granted custody of minors above
the age of seven to the
mother---Respondent/mother contended that there
was no substitute for mother's
lap---Validity---Record revealed that father had
moved application under S.17(3)(5) Guardians and
Wards Act, 1890 before Family Court and appellate
court praying to record the statements of minors
but request was disallowed for no cogent
reasons---While deciding the issue of custody of
minor Court had to consider all the
circumstances---In the present case, admittedly, the
minors were living with their father since 2015,
when the parents of the minors started living
separately and finally the marriage was dissolved by
way of Khulla the same year---Father was a natural
guardian of minors and with him the children were
living since their birth and there was step-mother
and grandmother to look after their well-being and
there were no adverse allegations against their
attitude towards minors---Right of Hizanat lay in
favour of mother only up to seven years in case of
male child, admittedly in the present case both the
minors were more than seven years of age---High
Court during the course of hearing sent both the
parents out of the Court room and one by one both
of minors were asked to disclose their preference as
they looked intelligent enough to form their
opinion---Minors disclosed about their schooling,
their daily routine and repeatedly expressed their
wish to live with their father as they were being
properly looked after by their grandmother,
step-mother and father---Preference of the minors
could not be ignored altogether and had to be given
due importance---Minors needed supervision of
their father at such growing age to groom
properly---High Court observed that welfare of the
minors, in the present case, lay with the father
while charting out Visitation schedule for mother to
meet them occasionally---Impugned orders passed
by the two Courts below were set
aside---Constitutional petition was allowed
accordingly.

Citation Name : 2018 MLD 1361

KARACHI-HIGH-COURT-SINDH
Side Appellant : IMDAD ALI
Side Opponent : Mst. SAKINA
S. 5, Sched.---Application for guardianship by
mother of minor daughter was concurrently
granted---Visitation rights of father---Scope---Father
had alleged that mother could not provide proper
education to the minor---Welfare of
minor---Scope---Petitioner/father contended that
two courts below had not considered welfare of the
minor as proper education was not likely to be
provided to minor girl in the family of separated
mother/respondent---Respondent/mother
contended that she had been taking care of two
elder daughters properly, concern for non-provision
of education to third daughter had no
basis---Validity---Record showed that respondent
mother had alleged that petitioner had turned her
out of the marital abode, with the two minor
children while baby girl/ward remained with the
petitioner---Petitioner/father though was willing to
keep the baby girl, but did not show his eagerness
to keep the other two daughters with him---High
Court observed that it would be better for the
sisters to live together instead of separating them
from each other; in this way, they would be enjoying
the company of their siblings and would grow up
with a sense of sisterhood and a better
understanding and harmony with each
other---Education of a minor depended upon the
maintenance provided by the father---If the
petitioner/father was willing to provide a better
education for his children, he might do so by
bearing the cost of education of his
choice---Petitioner/father could not establish that
elder daughters were not getting proper
education---If respondent/ mother was a good and
proper person for keeping the custody of two
daughters of the petitioner, she could also be a
good and proper person for keeping the third
daughter of the petitioner---Upbringing of girl child
required that she would remain under the
supervision of a matron and a mother was a natural
matron for her children---Record showed that after
the dissolution of marriage, respondent had not
married again and could devote all her time for
looking after and upbringing of her three
daughters---Maintenance (kifalat) under Islamic Law
was the responsibility of father while brooding
(hizanat) was the responsibility of mother, and a
male child needed the care of his mother up to a
certain age but a female child needed the
requirement of "brooding" up to her puberty and
even up to her marriage---Father had right to enjoy
the company of his daughter and to be well
acquainted and familiarized with her; Trial Court
was directed by the High Court to arrange meetings
of the petitioner/father with baby girl twice a
month---Place for meeting was to be decided
considering the safety and security of minor and
facility of the parties---Constitutional petition was
disposed of accordingly.

Citation Name : 2018 MLD 574

KARACHI-HIGH-COURT-SINDH
Side Appellant : AMIR BASHIR
Side Opponent : Mst. NOSHEEN FATIMA
Ss 12 & 25---Father having custody of
minors---Application for right of Visitation for
minors by mother---Family Court allowed
application of mother---Father contended that
family Court had wrongly allowed application of
mother for Visitation rights for minors as she had
not filed proper suit for guardianship as minors
were already in his custody ---Validity---Admittedly,
the applicant was real mother and natural guardian
of minors, therefore, she had every right to meet
her children which was enforced by the Family
Court---Father had failed to point out any
irregularity in the impugned order as proposed
arrangement made by the Family Court was just, fair
and equitable and was not only in the interest of
minors but also reasonably protected the rights of
both the parties---No illegality or infirmity having
been noticed in the impugned order, constitutional
petition was dismissed accordingly.

Citation Name : 2018 PLD 377

KARACHI-HIGH-COURT-SINDH
Side Appellant : SCHERAZADE JAMALI
Side Opponent : HISHAM GILLANI
S. 17---Restriction on movement of
ward/minor---Direction by Trial Court not to remove
the minor from the jurisdiction of the
Court---Legality---Welfare of minor---Scope---While
dismissing the application of father for permanent
custody the Trial Court directed both the parties not
to remove the ward from the jurisdiction of the
Court and to deposit the passport of
minor---Appellate Court upheld the order of Trial
Court on the basis that if the minor was removed
from the jurisdiction of the Trial Court, the father
would be deprived of Visitation rights and would be
seriously prejudiced; held, that visiting rights of
father was only a part that played a role in the
welfare and well-being of the child but it did not
form the entire ingredient or composition in the
upbringing and grooming of a child---Minor
belonged to a family which could afford a better
upbringing, education and environment either in
Pakistan or anywhere in the world---Courts below
should not have seen welfare of the minor only
from the angle that the father would miss his
opportunity to see his child but it also had to be
seen whether a ward who was capable of studying
abroad, in case opportunities were available to him,
should be deprived on account of the fact that
father must not miss his visiting
opportunities---Every child has its own peculiar
circumstances and his welfare demands may
vary---Restriction on movement, in the present
case, appeared to be a tool to settle score with the
mother but it would not serve the welfare of the
minor---High Court set-aside the restriction on
movement of the ward and directed that the
passport should be returned to the ward; that the
ward was at liberty to travel and to be admitted in
any best available educational institution, be it in
Pakistan or foreign country as desired by the
mother, however the selection of the institution
shall be subject to approval and permission of the
father; that the father shall not be unreasonable in
issuing no objection to the admission of the ward to
any school, college or university; that any
movement of the ward away from the foreign
country where the mother desired to take the child
for educational benefit or change of school and
college etc, within or outside the foreign country,
shall be subject to permission of father, however he
shall not be unreasonable in considering such
request of change of institute and should not
withhold such permission in case it was meant for
the welfare of the ward; that the father was at
liberty to visit the ward at least once in 15 days
and/or as many days as agreed between the
parents; that insofar as the winter or summer
vacations were concerned, father had a right to be
with his son and father may travel to him, if he so
desired to spend vacation for any period, which may
not exceed 30 days during summer vacation and 15
days during winter vacations, or the parties may set
a schedule annually on such terms and conditions as
they deemed fit and proper---Constitutional petition
was disposed of accordingly.
 Citation Name : 2018 YLR 1891 ISLAMABAD
Side Appellant : Mst. FATIMA ALI
Side Opponent : Mst. RUBINA EHTESHAM
Ss. 25 & 12---custody of minor---Visitation
rights---Court premises as Visitation place---
Scope--- Petitioner/ mother of the minor contended
that there was apprehension that the minor would
be taken out of the jurisdiction of Guardian Court as
respondent/grandmother of minor resided abroad
and respondent should be given opportunity of
Visitation within the court premises---Grandmother
contended that she resided within territorial
jurisdiction of the Guardian
Court---Validity---Respondent was the paternal
grandmother of minor while both father and
grandfather of the minor had passed
away---Depriving the grandmother from spending
some time with her grandchild was not fair, while
the custody remained with the
mother---Grandmother resided within territorial
jurisdiction of the court, so apprehension of the
mother was misplaced---Guardian Court while
taking welfare of the minor into consideration had
rightly declined the suggestion of mother to allow
Visitation within the court premises---Court
premises was neither an appropriate place for
Visitation nor it was appropriate to expose the child
to its environment---No illegality or infirmity having
been noticed in the impugned order, constitutional
petition was dismissed accordingly.

Citation Name : 2017 CLC 1747

LAHORE-HIGH-COURT-LAHORE
Side Appellant : MEMOONA ILYAS
Side Opponent : ADDITIONAL DISTRICT JUDGE
Ss.12, 25 & 47---Family Courts Act (XXXV of 1964),
S.5, Sched. & S.14---Suit for custody of minors by
father---Visitation s rights of the
father---Scope---Guardian Court granted Visitation
rights to father for meeting children twice a month--
Father moved the Court again for handing over
interim custody of children during school summer
vacations---Guardian Court partially accepted the
application against which father preferred
appeal---Appellate Court passed order regarding
interim custody to father adding considerable
period of summer, winter and spring vacations and
also on occasions of Muharram, both Eids and
birthdays of minors as well as father's---Mother
objected both revised schedules passed by Trial
Court as well as Appellate Court---Order passed on
application under mien S.12 of Guardians and
Wards Act, 1890---Extent---Jurisdiction of Family
Court---Scope---Right of
appeal---Scope---Petitioner/mother contended that
earlier order of Visitation s rights of father to meet
twice a month passed under S.12 of Guardians and
Wards Act, 1890 was final, which being interim in
nature, was neither reviewable nor appealable in
terms of S.47 of Guardians and Wards Act,
1890---Father asserted that Trial Court had ample
powers to modify or review its earlier order in the
interest of justice and provisions of Guardians and
Wards Act, 1890 could not be read in isolation and
combined reading of Family Courts Act, 1964 had
made the decision of Family Court under Family
Courts Act, 1964 appealable in terms of S.14 of the
said Act---Validity---Provisions of Guardians and
Wards Act, 1890 could not be read in isolation
because the legislature, by design, had brought the
disputes relating to the guardianship, within the
purview of First Sched. of S.5 of the Family Courts
Act, 1964, therefore, all the affairs relating to the
guardianship would be exclusively triable by the
Family Court under the Family Courts Act, 1964
because the statute which was later in time would
prevail---In terms of S.14 of Family Courts Act, 1964
while excluding an interim order, a decree or
decision given by the Family Court would be
appealable---High Court observed that order passed
by Family Court/Guardian Court under S.12 of the
Guardians and Wards Act, 1890 was appealable
under S.14 of Family Courts Act, 1964---Family Court
had parental jurisdiction and there was no scope of
such jurisdiction for any undue adherence to
technicalities and Family Court being quasi-judicial
forum could follow its own procedure which was
not to be against the principles of fair trial---No legal
infirmity or jurisdictional defect having been
noticed, constitutional petition was dismissed
accordingly.

Citation Name : 2016 MLD 242

LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAMIM AKHTAR
Side Opponent : DISTRICT JUDGE
Ss. 5, Sched. & 7(2)---Constitution of Pakistan, Art.
199---Constitutional petition---Suit for recovery of
bridal gifts---Wife filed a suit for recovery of bridal
gifts which was decreed partially by the Family
Court but same was dismissed by the Appellate
Court---Validity---Wife had instituted a suit for
recovery of maintenance allowance, expenses of
delivery of minor and dowry articles against
husband prior to filing of present suit---Wife had not
mentioned details of bridal gifts allegedly in
possession of husband in the said suit---Bridal gifts
would fall within the ambit of "personal property"
and belongings of wife which would confer exclusive
jurisdiction upon the Family Court to hear the claim
of such matters---Plaint for dissolution of marriage
might contain all claims with regard to dowry,
maintenance, dower, personal property and
belongings of wife, custody of children and
Visitation rights of parents to meet their
children---No bridal gift was in the possession of
husband, as if any such gift was in his possession,
wife would have claimed recovery of the same at
the time of filing of earlier suit---Wife had
intentionally relinquished her claim for recovery of
bridal gifts, if any, at the time of filing of earlier
suit---Appellate Court had rightly formulated the
opinion that claim of wife with regard to recovery of
bridal gifts appeared to be an afterthought---No
legal infirmity, jurisdictional error or perversity was
found in the impugned judgment and decree passed
by the Appellate Court---Constitutional petition was
dismissed in limine.

Citation Name : 2015 SCMR 731

SUPREME-COURT
Side Appellant : SHAUKAT MASIH
Side Opponent : Mst. FARHAT PARKASH
S. 491---Guardians and Wards Act (VII of 1890), Ss. 7
& 10---Civil Procedure Code (V of 1908), O. IX, R.
13---Constitution of Pakistan, Art. 187(1)---custody
of minor---Ex parte proceedings---Guardianship
certificate---Power of Supreme Court to issue such
directions, orders or decrees as may be necessary
for doing complete justice in a case involving
custody of minor---Scope---Paternal grandfather of
the minor obtained guardianship certificate through
ex parte proceedings without disclosing to the court
that mother of minor was still alive---Mother of
minor, who was unaware of the guardianship
certificate, filed a habeas corpus petition before the
High Court claiming custody of the minor---Habeas
corpus petition was allowed by the High Court
despite the existence of guardianship certificate in
favour of paternal grandfather on the ground that
said certificate had not been obtained in a bona fide
manner and, thus, by ignoring the guardianship
certificate the High Court ordered transfer of the
custody of the minor from the paternal grandfather
to the mother---Legality---Mother of minor had not
filed any appeal against the order passed by the
Guardian Judge nor had any application so far been
filed by her before the Guardian Judge seeking
recalling of the ex parte order and reconsideration
of the matter on its merits---By way of order passed
by the High Court a minor had been given in the
custody of her real mother and even if there were
some questions regarding proper exercise of
jurisdiction by the High Court in the matter still the
Supreme Court would not like the minor to be made
a ball of ping pong and shuttle her custody during
the legal battles being fought by those interested in
her custody ---Under Art. 187(1) of the Constitution,
the Supreme Court could issue such directions,
orders or decrees as may be necessary for doing
complete justice in any case or matter pending
before it---Supreme Court by invoking its jurisdiction
under Art. 187(1) of the Constitution in the present
case set aside the order passed by the Guardian
Judge, and cancelled the Guardianship certificate
and directed the Guardian Judge to consider the
application for guardianship certificate submitted by
the paternal grandfather as a pending application,
and to hear all the parties concerned, including the
mother of the minor, and then decide the matter of
custody afresh after attending to all the
jurisdictional, legal and factual issues relevant to the
controversy raised by the parties---Supreme Court
further directed that during the interregnum the
custody of the minor shall remain with the mother
and the Guardian Judge shall attend to the request,
if any, made regarding Visitation rights---Petition
was disposed of accordingly.
 Citation Name : 2015 PLD 382
KARACHI-HIGH-COURT-SINDH
Side Appellant : Mst. MARIUM TARIQ
Side Opponent : SHO OF POLICE STATION DEFENCE
Ss. 12 & 25---Penal Code (XLV of 1860), Ss. 363 &
34---Criminal Procedure Code (V of 1898), S.
154---Constitution of Pakistan, Art.
199---Constitutional petition---custody of minor
girl---Kidnapping, offence of---Scope---Natural
guardian of minor not liable for
kidnapping---Quashing of FIR lodged against mother
for kidnapping her minor child ---Father and mother
of minor girl were divorced from each
other---Father filed application before the Family
Court for custody of the minor girl---During
pendency of said application mother left the
country to pursue further studies and took the
minor girl along, who was 2-½ years old---Family
Court decided in favour of the mother and allowed
her to retain custody of the minor girl---Father
lodged an FIR against the mother for abducting the
minor girl---Plea of father was that the mother
denied him access to his daughter when the Family
Court had allowed him Visitation rights; that he had
also filed an application to restrain the mother from
taking their daughter abroad and for deposit of their
passports in the Family Court; that the mother
kidnapped the minor girl and took her to a foreign
country; that intervention of the International
Criminal Police Organization (INTERPOL) was
required both for producing the accused mother
before the Trial Court and for retrieving the custody
of the minor---Validity---Family Court did not disturb
the custody with the mother which order was
upheld by the Appellate Court as well as by the High
Court---Mother contended that she got admission in
a foreign university for post-graduation studies with
financial assistance, so under the force of
circumstances, she left for the foreign country along
with her 2-1/2 years daughter who could not be
looked after properly in Pakistan in the absence of
her real mother---Element of mens rea for
kidnapping was thus missing in the circumstances of
the present case---When the Family Court decided
the father's application it was aware that the
mother had proceeded to a foreign country along
with her daughter, even then the Family Judge was
of the view that there was no cogent reason to
disturb the current setup of the minor hence the
restoration of custody to the father was
declined,however the father was allowed Visitation
rights---Admittedly the minor girl was in the custody
of her mother since birth and there was no
allegation that the mother snatched the custody
from father---When the FIR was lodged the age of
minor girl was 2-1/2 years---Mother and father both
were natural guardians and one natural guardian
could not lodge an FIR of kidnapping against the
other natural guardian---Mother who was enjoying
custody of minor since birth and whose right of
Hizanat or custody had been affirmed by the Family
Court, First Appellate Court and the High Court
could not be held accused of kidnapping her own
daughter---Consent of 2-½ years old minor for
leaving abroad with her real mother was immaterial
in the present case for the reason that since birth,
daughter was in custody of mother and the age of
the minor ward showed that neither she could be
asked to offer any consent nor she could show any
disagreement or displeasure on moving with her
real mother---Main allegation in the FIR against the
mother was travelling abroad with the minor girl
without permission of father which ultimately
culminated into the charge of
kidnapping---Circumstances of the present case
showed that no offence of kidnapping was made
out under S.363, P.P.C.---Letter of law articulated
that provision of S.363, P.P.C. was meant to protect
and espouse the rights of parents and not to exploit
it against each other as a tool of victimization,
persecution and oppression after their
divorce---Being a natural guardian, father was also
entitled for the access and Visitation rights to his
daughter which right had been affirmed by the
Family Court, First Appellate Court and the High
Court---Admittedly the order for Visitation rights in
favour of father was not implemented, thus, the
appropriate remedy for the father was to approach
the Family Court for the implementation of its
orders, which had not been done in the present
case---High Court, in the present case, had already
directed the Immigration Authorities that as and
when the minor reached Pakistan they may take her
passport at the airport in their custody for safe
deposit of the same with the Nazir of the High Court
so that minor would not leave Pakistan in
future---High Court accordingly quashed the FIR
lodged against the mother under Ss.363 & 34, P.P.C.
with all consequential proceedings, and directed
that the intervention of INTERPOL could not be
ordered for ensuring attendance in the quashed FIR,
and that the father may first approach the Family
Court for the implementation of Visitation s rights
order and in the event of non-compliance, he may
apply to the Family Court for directions to issue
INTERPOL red and yellow notice forms for ensuring
attendance of the mother in court---Constitutional
petition was disposed of accordingly.

Citation Name : 2014 PLD 39

QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant : ABDUL HAMEED
Side Opponent : Mst. SHABNAM alias SHABANA
Ss. 47, 4(5) & 25---West Pakistan Family Courts Act
(XXXV of 1964), Ss. 14 & 5, Sched---Application for
custody of minor---Forum of appeal---Application
filed under S.25 of Guardians and Wards Act, 1890
was accepted by Family Court---Appeal preferred
before Additional District Judge was dismissed for
want of jurisdiction---Validity---While entertaining
petition for custody of minor and other related
matters under Guardians and Wards Act, 1890,
same was not to be dealt with in isolation rather the
provisions of West Pakistan Family Courts Act, 1964
were to be read co-jointly---Family Court
constituted under the provisions of West Pakistan
Family Courts Act, 1964 had exclusive jurisdiction in
the matters enumerated in the Schedule attached to
the said Act---Section 5 of West Pakistan Family
Courts Act, 1964 with the Schedule attached therein
described the limits of jurisdiction vested with
Family Court---Matters pertaining to custody of
children and Visitation rights of parents and
guardianship would come in the exclusive
jurisdiction of Family Court---Section 4(5) of
Guardians and Wards Act, 1890 was not to be read
in isolation rather to be read with S.25 of West
Pakistan Family Courts Act, 1964---While dealing
with the matters contained in Guardians and Wards
Act, 1890, Family Court had to follow the procedure
prescribed in the Guardians and Wards Act,
1890---Section 47 of Guardians and Wards Act, 1890
described the forum of appeal in the matters
decided under the provisions of said Act as High
Court---Any order passed by Family Court while
entertaining an application for custody of minor
would not amount to an order of District Court nor
right of appeal would become available before High
Court rather appeal had to be preferred under S.14
of West Pakistan Family Courts Act, 1964---Appeal
against order pertaining to matters covered by
Guardians and Wards Act, 1890 should lie before
District Court except where Family Court being
presided over by District Judge or Additional District
Judge or a person notified by the Government to be
of such rank and status, and in such case appeal
should lie to the High Court---If application for
custody of minor was heard and decided by Family
Judge not having status of District Judge, the appeal
should lie to District Judge---Appellate Court was
under misconception and had committed an
error---Constitutional petition was accepted and
order of Additional District Judge was set aside and
Appellate Court was directed to decide the appeal
on merit.

Citation Name : 2014 PLD 17

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Dr. KIRAN QADIR
 Side Opponent : Maj. Dr. MUHAMMAD ALI YOUSAF
KHAN
Ss. 5, Sched., & 14(b)---Guardians and Wards Act
(VIII of 1890), Ss. 12, 25 & 47(c)---Constitution of
Pakistan, Art. 199---Law Reforms Ordinance (XII of
1972), S.3(2), proviso---Intra-court
appeal---Maintainability---Father's application to
Family Court under S.25 of Guardians and Wards
Act, 1890 for custody of minor son---Order of Family
Court refusing custody of minor to father while
allowing him to meet the minor---Dismissal of
mother's appeal and constitutional petition by
District Judge and High Court
respectively---Mother's plea was that
intra-court-appeal was competent as no appeal
against order of Visitation passed by Guardian Judge
was provided under S.47 of Guardians and Wards
Act, 1890; and that appeal filed by her under S.14(b)
of West Pakistan Family Courts Act, 1964 for being
incompetent was liable to be ignored for purposes
of maintainability of
intra-court-appeal---Validity---Family Court and not
the Guardian Judge had powers to grant Visitation 's
rights---Order of Visitation , in the present case
passed by Family Court was appealable; and that
mother's appeal filed thereagainst under S.14(b) of
West Pakistan Family Courts Act, 1964 had been
dismissed by District Judge, whereagainst
constitutional petition filed by her had also been
dismissed by High Court---Mother had right of
appeal under S.47 of Guardians and Wards Act,
1890 as father's application was for custody of
minor---Mother could not be allowed to blow hot
and cold in same breath---High Court dismissed
intra-court appeal for being not competent.

Citation Name : 2014 CLC 1168

LAHORE-HIGH-COURT-LAHORE
Side Appellant : SHAHBAZ AFTAB KHAN
Side Opponent : JUDGE FAMILY COURT
S. 25---Constitution of Pakistan,
Art.199---Constitutional
petition---Maintainability---Application for custody
of minor---Conditional order for Visitation of minor
subject to submission of surety
bond---Validity---Mother filed petition for custody of
minors which was accepted with the consent of
parties subject to affording the father opportunity
to meet his minor children---Neither mother
showed any apprehension of removal of minors
from the territorial jurisdiction of court nor her
counsel requested for any condition at the time of
passing of impugned order as imposed by the
Guardian Court---Proceedings before the Guardian
Court were conducted in congenial and harmonious
manner---Dispute between the parties was decided
with the concurrence of the parties and Trial Court
was not justified in passing an order which was
beyond the prayer of parties---Father was not likely
to remove the minors from the territorial
jurisdiction of Family Court---Right of father to see
his children could not be curtailed by imposing
condition of submission of sureties every time he
had to meet his own children---Impugned order
with regard to imposition of such condition was
illegal and arbitrary exercise of
power---Technicalities could not prevent High Court
to strike down such order in exercise of its
constitutional jurisdiction when act of court or
tribunal would infringe the fundamental right of a
citizen---Impugned order was set aside to the extent
of imposition of condition with regard to submission
of two surety bonds in the sum of Rs. 10,00,000
each with local sureties and same was modified to
the extent that father would be entitled to meet his
children twice in a month when he would be in
Pakistan subject to advance intimation of 72 hours
to the mother---Father was told that if he would
misuse such concession granted by the High Court
or attempted to remove the minors from the
territorial jurisdiction of Guardian Court then he
would be liable to face contempt of court
proceedings and would also loose the right of
Visitation of his children---Constitutional petition
was accepted in circumstances.

Citation Name : 2013 YLR 954

KARACHI-HIGH-COURT-SINDH
Side Appellant : ALI HAYAT
Side Opponent : KHOLOD SHAFI
Ss. 491 & 561-A---Habeas corpus
application---Recovery of minor children---Parenting
agreement between father and mother of children
regarding their custody and Visitation
rights---Father/applicant and mother of minor
children had divorced each other, where-after they
entered into a parenting agreement---Contention of
father was that children's mother had moved them
to a new house and denied him his Visitation rights,
in violation of the agreement---Contentions of
mother were that present application under S.491,
Cr.P.C. was incompetent as children were allowed to
remain in her custody in pursuance of the Parenting
Agreement, and that according to the said
agreement all disputes had to be first referred to a
mediator---Validity---Execution of Parenting
Agreement between father and mother of minors
had not been denied---Admittedly custody of
children was with their mother---High Court
directed that both parties should follow the
Parenting Agreement and might sit together to
renegotiate the Parenting Agreement keeping in
view the best interest and welfare of their children;
that as an interim measure the mother would allow
the father to meet the children three times in a
week for two hours each, and such interim measure
would be valid for up to 30 days; that both parties
would not remove the custody of minors from the
city without any order of competent court; that
father would continue to deposit monthly expenses,
and that in case of failure to reach an amicable
settlement outside Court within 30 days, parties
would be at liberty to approach the Guardian Judge
for redressal of their grievance---Application was
disposed of accordingly.

Citation Name : 2012 PCrLJ 1433

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Dr. SAIMA MALIK
Side Opponent : CAPITAL CITY POLICE OFFICER,
LAHORE
S. 491---Guardians and Wards Act (VII of 1890), S.
25---Habeas corpus petition for recovery of minor,
pending petition before Guardian Judge for custody
of minor---Effect---Agreement between the minor's
mother (petitioner) and father (respondent), by
which the latter had Visitation rights---Father took
the minor from his mother and refused to return
him and filed an application under S.25 of the
Guardians and Wards Act, 1890---Contentions of the
mother were that the minor was handed over to the
father as per their agreement but he did not return
the minor, which was a violation of the agreement ;
that the minor was not in proper custody , and that
she had the right of "Hizanat" qua the
minor---Contentions of the father were that the
mother had given up her right regarding custody of
the minor, and that the Guardian Judge had directed
that the minor should not be removed from the
father illegally, forcibly and without due course of
law---Validity---Perusal of the agreement between
the parties showed that the minor was in the
custody of the mother but the father was given
Visitation rights---Father took the minor from his
mother's residence and never returned him in
violation of the terms of the agreement, and instead
moved an application under S.25 of the Guardians
and Wards Act, 1890---Contention of the father that
since the matter was pending before the Guardian
Judge, therefore, present application was not
maintainable, was misconceived---When the minor
was living with the father at the relevant time, there
was no need for him to file the petition before the
Guardian Judge, thus it was obvious that he did not
approach the Guardian Court with clean
hands---Proceedings under S.491, Cr.P.C., could not
be terminated in view of the order of the Guardian
Judge---Mother had the right of "Hizanat" qua the
minor---Minor was about five (5) years old and
needed constant love, care and affection of the
mother---Father had agreed at the time of divorce
with the mother that the minor would live with
her---Petition for recovery of child was accepted by
High Court in circumstances, and the minor was
given in "Hizanat" of the mother---Parties were
directed by High Court to abide by the agreement
regarding Visitation rights of the father, unless
varied by the Guardian Judge.

Citation Name : 2012 MLD 1755

LAHORE-HIGH-COURT-LAHORE
Side Appellant : BUSHRA ASGHAR
Side Opponent : Dr. REHMAT ALI
Ss.7 & 25---Constitution of Pakistan, Art.
199---Constitutional petition---Guardian and
custody of minor---Scope---Minor sons were living
with their father and their mother filed application
for custody of minors and her being appointed as
their guardian---Trial Court and Lower Appellate
Court dismissed application and appeal filed by
mother of minors---Validity---Minors being kept
separately, could not enjoy company of each other,
that two brothers had a right to do---Although
children needed guidance of their father yet could
not be denied company of the equals who inter se
share the thoughts, activities and urges---Father was
pre-occupied with his profession and he had little
time to spare for the children---Paternal aunt might
spare a lot of time but that would leave little time
for the minors to lead a life suitable for the
youth---Mother who always had a better
understanding with her children, with whom the
children enjoyed intimacy and had a superior right
of custody of minors---Intelligence preference made
by minors who were old enough to make a right
preference deserved a consideration and
respect---Child needs a proper control as well as a
room for free thoughts and actions and mother's lap
is proper place for such optimum restrictions and
liberties---High Court found welfare of minors in
giving their custody to their mother---As the minors
were boys, they needed masculine company of their
father as well for grooming and training as
men---Father had a right of Visitation to the children
as settled between parties before Lower Appellate
Court---High Court in exercise of constitutional
jurisdiction, set aside the orders passed by two
courts below and let the father remain as guardian
of minors, while custody of minors was given to
mother---Petition was allowed accordingly.

Citation Name : 2012 MLD 670

LAHORE-HIGH-COURT-LAHORE
Side Appellant : IFTIKHAR AHMAD CHISHTI
Side Opponent : DISTRICT JUDGE, CHAKWAL
S. 25---Constitution of Pakistan,
Art.199---Constitutional petition---Suit for custody
of minors---Contest between father and mother of
minors---Suit of petitioner (father) for custody of
minors was dismissed concurrently by the Guardian
Court and Appellate Court, and such dismissal was
assailed in the constitutional petition---Petitioner
had admitted that a suit for maintenance of minors
against the petitioner was filed in the year 2003
while suit for custody of minors was filed by him in
the year 2007---Petitioner also admitted that he had
filed an appeal against the judgment and decree of
Family Court in the suit for maintenance, and had
been litigating against the minors throughout, and
had failed to pay the maintenance under the decree
of Family Court and was detained in civil prison---If
a father failed to pay maintenance, and then
litigated against the custody of minors and finally
did not pay the maintenance even after the decree
of the court and preferred to go to civil prison , it
could be safely presumed that he was not interested
in the welfare and well-being of the
minors---Petitioner appeared to be disinterested in
the well-being of the minors and was living with his
second wife and could not categorically deny that
he had children from his second wife---Step-mother
could not bestow the love and affection which
would be given by the real mother---Courts below
had rightly found, in such circumstances, that it was
not in the welfare of the minors to be given to the
petitioner (father)---Contention that better
education facilities were available at the place
where the petitioner was residing or that the
petitioner had better means than the respondent,
were not valid grounds to give the minors in his
custody ---Constitutional petition was dismissed
with the observation that the petitioner may move
application for Visitation rights with minors.

Citation Name : 2012 CLC 517

LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUMARAZ KHAN
 Side Opponent : RAKHSHANDA BIBI
S. 5, Sched. (Part I) & S.17---Civil Procedure Code (V
of 1908), S.11---Specific Relief Act (I of 1877),
S.21---Suit for specific performance of agreement
between spouses---Second
suit---Maintainability---Res judicata, principle
of---Applicability---Scope---Earlier suit filed by
petitioner for custody of children had been
dismissed by Family Court and attained finality uptil
the Supreme Court---Second suit instituted by
petitioner to determine right of Visitation based on
an agreement between spouses fell within the
exclusive jurisdiction of the Family Court---Petitioner
had not agitated right of Visitation in the earlier suit
but it was deemed to have been directly and
substantially in issue in the earlier suit---Principle of
res judicata applied in the case and court seized
with second suit could not try the same in view of
section 11, C.P.C.---Second suit was also not
maintainable in view of section 21 of Specific Relief
Act, 1877 as it was based on an agreement which
contained a promise by respondent to arrange
meeting of petitioner with minors till an indefinite
period---Both courts below having rightly dismissed
the suit and appeal, revision was dismissed with
costs.

Citation Name : 2010 SCMR 1804

SUPREME-COURT
Side Appellant : (SUO MOTU CASE FOR RECOVERY
OF MINOR KIDS OF MST. TAHIRA JABEEN)
Side Opponent :
Ss.12 & 2S---Constitution of Pakistan (1973), Art.
184 (3)---Suo motu jurisdiction---Recovery of minor
children---During the pendency of proceedings
before Guardian Court, father of minor children
misused the concession of Visitation rights and
removed the minors to foreign country---Despite
registration of F.I.R., against father of minors and
three others, minors could not be
recovered---Supreme Court, while hearing bail
application of co-accused took suo motu notice of
removal of minors and directed the authorities to
recover the minors---Authorities had recovered the
minors from abroad and handed them over to their
mother, who was entitled to retain their custody
subject to the decision of Guardian
Judge---Supreme Court appreciated the Provincial
Police Officer for taking personal interest in tracing
out the property of wife of father of minors and
observed that he should also take like steps to
ensure that with the cooperation and coordination
of Federal Investigating Agency, the culprits would
be brought back whosoever were involved in the
cases so that they could face trial, which would send
a loud and clear message that no one was above the
law, whosoever he might be and should be dealt
with sternly, if he had violated the law of the
State---Minor children were handed over to their
mother in the court and she was allowed to take
them to her city---Supreme Court directed the
police to provide protection to mother of minors, if
need be, against any mischief---Case was disposed
of accordingly.

Citation Name : 2010 YLR 556

LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD ISHFAQ QURESHI
Side Opponent : Mst. SURAYYA BIBI
S.25---Constitution of Pakistan (1973), Art.
199---Constitutional petition---custody of
minor---Out of two minors, one male and other
female, custody of female minor aged 10 years was
given to the petitioner/father by the Trial Court,
however on filing appeal against the judgment of
the Trial Court by the respondent/mother, judgment
of the Trial Court was set aside and custody of
minor girl was handed over to the respondent
mother which was challenged by petitioner in
constitutional petition---Grave injustice had been
rendered to the minors as they had suffered due to
break-up of their home and were being deprived of
their love for each other---Minor boy missed his
sister---Respondent mother had remarried and in
her new family there were too many `Na­mehrams'
in the life of the minor girl, step father, his sons and
his brothers, etc.---Minor girl was at an extremely
vulnerable stage of her life---When certain matters
were prohibited under Islam, they needed to be
taken seriously---Welfare of the minor though was
the predominant consideration, both the
injunctions of Islam as well as the welfare of the
minor, must be given due consideration---For the
minor girl to be surrounded by males in the non
prohibitory decree, was not in her welfare---Minor
girl would never get the love, affection and
protection from her step father and step-brothers as
she would have from her real father and
brother---Direction was issued that for six weeks
both the minors be given enough time to establish a
bond---Order of the Trial Court was upheld and
modified it to the extent of directions that the
custody of minor girl be handed over to the
petitioner/father after lapse of a six weeks
period---Respondent was to be allowed Visitation in
terms that both the minors would spend every first
and third short weekend of the month from Friday
to Saturday on a regular basis.
Citation Name : 2010 MLD 340
LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. ZAHIDA PARVEEN
Side Opponent : MUHAMMAD NAWAZ
S.25---Constitution of Pakistan (1973), Art.
199---Constitutional petition---Minor son of 8 years
age, custody of---Contest between mother and
father of minor both having re-married---Father of
minor employed as school teacher and owning
agricultural land---Mother and step father of minor
being illiterate and having no permanent source of
income as step father was a labourer---Order of
Guardian Judge handing over custody of minor to
his mother set aside by Appellate
Court---Validity---While determining question of
custody of a minor, prime consideration would be
his welfare---Record showed that father was
financially stable, thus, he was in a better position
to meet material needs of minor---Father having no
child from second . wife could keep minor with him
in school, supervise his activities and directly take
care of his educational, financial, psychological and
emotional needs---Present environment at which
minor was living and role models which he had were
of paramount importance and this was a stage for
laying foundation of his career---Keeping minor in
environment of uncertainty and having flaws in his
educational foundation and upbringing would affect
entire structure of his responsibility and future
career---Obligation of father was to provide
adequate funds to mother to meet needs of minor,
which was likely to be misapplied by her for not
having source of income---Depriving minor of
opportunity of growing-up with support, in
company and under direct supervision of his real
father would not be in his welfare---All
step-mothers were not Cinderella's
step-mothers---Possibility of ill-treatment by
step-mother in present case was quite remote as
minor would spend most part of day and week in
school in academic environment under supervision
of his father---Record showed that mother could not
cater educational needs of minor, who being about
8 years old was still in Class-I---Need of minor for
maternal love and affection could be met by
providing adequate Visitation time to
mother---Mother was allowed to meet minor on
first Sunday of every month from 11-00 a.m. to 2-00
p.m., the one week during winter vacations and two
weeks during summer vacations---High Court partly
accepted constitutional petition in circumstances.

Citation Name : 2010 MLD 42

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. MUHAMMAD JAN
Side Opponent : DISTRICT JUDGE, ATTOCK
Art.199---Criminal Procedure Code (V of 1898),
S.491---Guardian and Wards Act (VIII of 1890),
S.7---Constitutional petition---Habeas
Corpus---custody of minor---Welfare of
minor---Respondent/mother of the minor after the
death of her husband continued residing with her
in-laws along with minor, but later on she was
expelled by the grandmother of the minor retaining
the custody of minor---After being turned out of her
home, she being mother of the minor filed petition
under S.491, Cr.P.C. for recovery of the minor, which
on the statement of minor that he would prefer
living with his paternal grandmother/the petitioner,
petition was dismissed---Mother of the minor later
on filed petition under S.7 of Guardians and Wards
Act, 1890 to appoint her as guardian of person and
property of the minor, which again was dismissed
on the statement of minor in favour of his paternal
grandmother---Appeal filed by the mother of the
minor against judgment and decree, however
having been accepted, judgment and decree of the
Guardian Judge, was set aside with direction to the
Guardian Judge, to hand over custody of minor to
the mother---Grandmother had impugned said
order in constitutional petition---Minor was
brainwashed to the extent that he abhorred his real
mother and was making up stories of her having
inflicted physical violence on him even in the court,
which was abnormal---Petitioner/grandmother of
the minor had not adhered to the Visitation
schedule as determined by the Guardian Court and
was teaching the child how to lie and hate---Danger
to a child's life was not only physical, but it was also
mental---Extent of the mother's sacrifice for her
minor son was that despite being a young woman
she had not remarried after the death of minor's
father; she was educated, holding a job and seemed
to be intelligent woman---Initially the minor may
not be happy in his mother's custody , but the tie of
the umbilical cord was too strong to be
severed---Lady was mother of minor and knew the
best of her child---No one take place of real
mother--Moreover under Islamic Law the custody of
paternal grandmother was subservient to the
custody of the mother---What had to be taken into
consideration at each and every stage of litigation
involving minors and their custody , was the welfare
of the minor---Welfare of the minor in the case lay
with his real mother---Constitutional petition
dismissed.

Citation Name : 2010 YLR 776

KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD SHOAIB
Side Opponent : Mst. FOUZIA
S. 5---West Pakistan Family Courts Act (XXXV of
1964), S.5, Sched. & S.14---Constitution of Pakistan
(1973), Art.199---Constitutional petition---custody
of minor---Welfare of minor---Both Family Court and
Appellate Court had dismissed application of
petitioner/father of the minor for custody of minor
girl aged 14 years---Validity---Paramount duty of the
court was to adjudicate the dispute of custody of
minor, in line with the welfare of the minor girl who
had been brought up since her birth by her
mother/respondent--Minor girl aged about 14 years
appeared in the court and met her father/petitioner
in the court and expressed her willingness and
desire to live with her mother---At that juncture
taking into consideration the age of the minor girl
impugned judgments of the court below to the
effect that the custody of the minor should remain
with the mother, could not be interfered
with---Counsel for the petitioner had candidly
conceded the best course in the interest of the
minor was that the Visitation arrangement made by
the Appellate Court below be maintained---High
Court fixed day and time for such Visitation
accordingly.

Citation Name : 2009 CLC 1443

LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. MARYAM MASOOD
 Side Opponent : MUGHISUDDIN MIRZA
S. 25---custody of minor and Visitation schedule of
minor with the parents---Pivotal considerations for
settlement of the issues expounded.

Citation Name : 2008 SCMR 527

SUPREME-COURT
Side Appellant : ALTAF AKHTER ALVI
Side Opponent : Mst. SADAF ARA
S. 25---Constitution of Pakistan (1973),
Art.185(3)---custody of minors---Application filed by
ex-wife of the petitioner, under S.25 of Guardians
and Wards Act, 1890 for custody of minors was
disposed of by the Guardian Judge/Family Court in
view of compromise between the parties and it was
directed that permanent custody of minors would
remain with the petitioner who would hand over
minors on each Sunday to the ex-wife for Visitation
---Appeal filed by petitioner against judgment of the
Family Court was partly allowed by the Appellate
Court below by making some changes in respect of
Visitation rights of respondent and judgment of
Appellate Court below was upheld by High
Court---Plea of petitioner was that as ex-wife had
contracted a second marriage with a stranger, she
had lost her right of Hizanat or even Visitation
---Validity---Mother of minors, could not be denied
minimum right of access to her minor children nor
she be considered like an alien enemy qua
them---Appellate Court below adopted a very
sensible approach by permitting the mother to
meet the minors on the first Sunday of each
month---Order passed by the Appellate Court below
was upheld by the High Court, being just and fair to
which no exception could be taken---Impugned
judgment of the High Court, not suffering from any
legal infirmity so as to warrant interference by the
Supreme Court---Petition was dismissed.
 Citation Name : 2008 PLD 499
KARACHI-HIGH-COURT-SINDH
Side Appellant : SAAD AMANULLAH KHAN
Side Opponent : IVTH-SENIOR CIVIL JUDGE,
(SOUTH), KARACHI
S. 25---Constitution of Pakistan (1973), Arts.199 &
187---Constitutional petition---custody of minor
children---Welfare of minor---Decision of Supreme
Court---Implementation---Matter between the
parties with regard to custody of minor children was
finally decided by Supreme Court on the basis of a
compromise filed by the parties---According to the
compromise,. custody of minors was handed over to
their mother while their father was given a right of
Visitation ---Grievance of father of minors was that
mother of minors was not complying with the
decision of Supreme Court---Validity---In long legal
battle with allegations and counter allegations both
father and mother had lost sight of the fact that in
ultimate result, the losers were children as their
welfare was in the fact that both the parents should
have an effective say in upbringing and children
should be attached to both the parents---High Court
appointed Deputy Registrar (Judicial) with the task
to see implementation of the order in letter and
spirit and either party might approach the official
for its implementation---High Court permitted the
official so appointed to seek police aid in case the
same would be required to get the order
implemented---High Court warned the parties
concerned that nothing should be done to disobey
the order and all efforts should be employed to
implement the same in letter and spirit failing which
High Court would adopt effective measures---High
Court further directed Deputy Registrar (judicial) to
take such steps to create an environment whereby
children would be enabled to meet their parents
smoothly---Petition was disposed of accordingly.

Citation Name : 2008 PLD 499

KARACHI-HIGH-COURT-SINDH
 Side Appellant : SAAD AMANULLAH KHAN
Side Opponent : IVTH-SENIOR CIVIL JUDGE,
(SOUTH), KARACHI
S. 25---custody of minor---Visitation
right---Scope---Law favour right of Visitation of a
parent to remain intact even if custody is awarded
to the other parent.

Citation Name : 2006 MLD 135

KARACHI-HIGH-COURT-SINDH
Side Appellant : IRFAN AHMED
Side Opponent : II-JUDICIAL MAGISTRATE EAST, AT
KARACHI
--Ss.5 & Sched., 14(3) [as amended by Family Courts
Act (Amendment) Ordinance (LV of 2002).] &
17---Constitution of Pakistan (1973), Art.
199---Constitutional petition, maintainability
of----custody of minors---Section 14(3) of West
Pakistan Family Courts Act, 1964 had provided no
appeal or revision against an interim order of Family
Court, constitutional petition being the only remedy
same was maintainable---Petition was admitted to
regular hearing by consent, and date of hearing was
fixed---Both counsel of parties agreed that they
would make efforts to work out amenable
`settlement' between the parties---Petitioner
undertook that he would comply with impugned
order subject to result of present constitutional
petition---Respondent also agreed that Visitation
rights would be available to petitioner for four hours
on every Friday so that he could collect the minors.

Citation Name : 2005 PLD 22 SUPREME-COURT

Side Appellant : MUHAMMAD IQBAL
Side Opponent : PARVEEN IQBAL
----S.7(2), proviso---West Pakistan Family Courts
Rules, 1965, R.6--Constitution of Pakistan (1973),
Art.185 (3)---Transfer of guardianship application to
the place of residence of wife--Plea raised by the
husband was that under R.6 of West Pakistan Family
Courts Rules, 1965, suit for dissolution of marriage
or dower could only be competently filed before the
Family Court where wife ordinarily
resided---Validity---Irrespective of suit for
dissolution of marriage and dower, under the
proviso to S.7(2) of West Pakistan Family Courts Act,
1964, suit for maintenance, personal property,
belongings of wife, custody of children and
Visitation rights of parents to meet their children
could also be instituted before Family Court where
wife resided---

Citation Name : 2002 SCMR 371

SUPREME-COURT
Side Appellant : BADRUDDIN ROSHAN
Side Opponent : MST. RAZIA SULTANA
Guardians and Wards Act 1890 ----Ss.12 & 25---West
Pakistan Family Courts Act (XXX of 1964), S.5 &
Sched.---Constitution of Pakistan (1973), Arts.
185(3)-& 199---custody of minor child---Father got
from mother custody of minor child by force during
pendency of case before Guardian Court---Appellate
Court directed the Guardian Court to restore the
position with regard to custody of minor as it was at
the time of filing of case and decide same on merits
keeping in view welfare of the minor---High Court in
exercise of Constitutional jurisdiction refused to
interfere with order of Appellate Court---Validity---
Father's apprehension that in the event of
production of minor before Guardian Court for
Visitation of mother, she might kidnap minor, was
unfounded and misconceived---Supreme Court
while declining to express any opinion on the merit
of the case lest it should prejudice the interest of
either of the parties, observed that custody of
minor must be regulated by Guardian Court in
accordance with consistent practice and law of the
land having regard to the supreme interest of
welfare and well-being of the minor---High Court
had not committed any error of law by'refusing to
interfere with discretionary order of Appellate
Court---Impugned order did not suffer from any
legal infirmity or jurisdictional error warranting
interference by Supreme Court---Leave to appeal
was refused in circumstances.