2026 PLP 1219 (YLR)

S. 25

Custody of minor girl

Father, entitlement of

Scope

Maternal or paternal grandmother, right of

Preference

Welfare of minor

Scope

Application filed by the father was accepted and the custody of the minor girl was ordered to be handed over from her maternal grandmother to him

Validity

In all the matters pertaining to the custody of a minor, the paramount and overriding consideration is the welfare of the child

The rights of the father or the mother, or any other guardian, are secondary to said fundamental principle

The Court is required to assesses all attending circumstances, including the moral, intellectual, physical, social and educational well-being of the minor, in order to determine where the welfare of the child would be better served

In the present case, the minor girl appeared before the Court in person and when she was asked with whom she was ready to go she at once replied that she is residing with her maternal grandmother since her birth and she doesn't know her paternal grandmother as well as her father, so, she will not go with them

In the Court's query she was repeatedly asked the same question but her reply was only to live and go with her maternal grandmother; she appeared to be very happy along with her maternal grandmother, so, in such like eventualities, when the minor is happy with her maternal grandmother and had totally refused to go with her father or paternal grandmother, then how she could be forcibly asked to go and live at her father's house

Trial Court illegally ordered to handover her custody to the father despite the fact that he was not in the country and seemingly was stated to be abroad

Ostensibly minor girl was looking in good health and safeguard under the umbrella of guardianship of her maternal grandmother

Tug of war over guardianship was practically between maternal grandmother and paternal grandmother

There was no automatic preference between maternal grandmother and paternal grandmother, the law i.e. 'Guardians and Wards Act' does not rank maternal or paternal grandmother above the other, both are considered close blood relatives and may be appointed as guardian depending on welfare, not lineage

Maternal grandmother should be preferred when put to selection: (i) if she has already been caring for the minor; (ii) the child is very young; (iii) the atmosphere in paternal home is unsuitable (neglect etc.)

Welfare overrides strict rules of "Hizanat" and maternal relatives can be preferred

High Court set-aside the impugned judgment keeping in view the welfare of the minor, and the custody of minor girl was ordered to be given to her maternal grandmother with whom she had been associated for a long time

Appeal was allowed. Judgment Syed Shahid Bahar, J.

The captioned appeal has been directed against the decision passed by the learned Additional District Judge/Guardian Judge Samahni dated 28.02.2023, whereby, the application filed by the respondent, herein, for custody of the minor was accepted and the custody of the minor Amna Nadeem was ordered to be handed over to the applicant/respondent, herein.

2. Respondent, herein, Mohammad Nadeem moved an application pertaining to custody of the minor Amna Nadeem before the Guardian Judge Samahni stating therein that his marriage with defendant No.1, therein, Tania Kousar was solemnized on 29.08.2011 however, the defendant got divorced on 08.02.2019 on the basis of "Khulla" since, that time the minor is residing with her father as the defendant has got 2nd marriage and she is living with her husband. It has been averred that for the better welfare of the minor, her custody may be handed over to the plaintiff/applicant. The suit/application was resisted by the other side. The learned trial Court after necessary proceedings handed over the custody of the minor to the applicant/father of the minor through the decision impugned, herein.

3. Heard, record perused. It is well settled proposition of law that in all the matters pertaining to the custody of a minor, the paramount and overriding consideration is the welfare of the child. The rights of the father or the mother, or any other guardian, are secondary to this fundamental principle. The Court is required to assesses all attending circumstances, including the moral, intellectual, physical, social and educational well-being of the minor, in order to determine where the welfare of the child would be better served. In the case at hand, the minor Amna Nadeem appeared before the Court in person and when she was asked along with she is ready to go? she at once replied that she is residing with her grand maternal mother since her birth and she doesn't know her grand paternal mother as well as her father, so, she will not go with them. In the Court's query she was repeatedly asked the same question but her reply was only to live and go with her grand maternal mother.(sic) well as verification of the relevant school wherein, she is studying, the same shows that she is the student of 7th Class and studying in Kashmir College Samahni Azad Kashmir and she got 80% marks in Class 6th. She appeared to be very happy along with her grand maternal mother, so, in such like eventualities, when the minor is happy with her grand maternal mother and has totally refused to go with her father or grand paternal mother, then how she can be forcibly asked to go and live with her father's house that too, she is attached with her grand maternal mother since her birth, therefore, the learned trial Court illegally ordered to handover her custody to the father despite the fact that he is not in the country who seemingly stated to be in abroad (Dubai).

4. Ostensibly she is looking in a good health and safeguard under the umbrella of guardianship of his maternal grandmother. It is an admitted position that father of the minor is living abroad. Tug of war over guardianship is practically between grandmother and paternal grandmother. Be that as it may, there is no automatic preference between maternal grandmother and paternal grandmother, the Law i.e. 'Guardians and Wards Act' does not rank maternal or paternal grandmother above the other, both are considered close blood relatives and may be appointed as guardian depending on welfare, not lineage. (emphasis supplied)

5. Keeping in view the peculiar facts of the case at hand, it is not out of place to mention that maternal grandmother should be preferred when put to selection: