2025 PLP 1761 (CLC)

HASSAN NAWAZ MAKHDOOM, J.

The present petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, assails judgment dated 04.07.2024 passed by respondent No. 2 (Guardian Judge, Lahore) and judgment dated 10.08.2024 passed by respondent No. 1 (Additional District Judge, Lahore). By means of the former judgment, petition under Section 25 of the Guardian and Wards Act, 1890 (the "Act") filed by respondent No.3/real mother for custody of her daughter, namely, Pari Zahra (the "minor"), was accepted and through the later, appeal filed against it by the petitioner was dismissed.

2. Briefly, the facts of the case are that respondent No. 3 and respondent No. 5 (real parents of the minor) got married and were blessed with three daughters, out of whom the minor is the youngest. Respondent No.4 (uncle of the minor), who is first cousin of respondent No.5, was married with the petitioner. However, the couple remained issueless. The custody of the minor was handed over to respondent No.4/uncle and an Adoption Deed (Mark-C./Annexure-A) was also executed in this regard on 07.11.2020. The minor remained with the petitioner and respondent No.4/uncle, for a short span of time. Later, the couple (the petitioner and respondent No.4) got separated, but even after their divorce in the year 2021, custody of the minor was retained by the petitioner. Subsequently, respondent No.3 filed a petition under Section 25 of the Act before the learned Guardian Judge, Lahore on 06.11.2021, seeking custody of the minor from the petitioner wherein respondents Nos. 4 and 5 filed their conceding written statements. On divergent pleadings, issues were framed and ultimately, the petition was allowed in favour of respondent No. 3/real mother vide judgment dated 04.07.2024. Being aggrieved, the petitioner filed an appeal before the learned Additional District Judge, Lahore, which was dismissed vide judgment dated 10.08.2024, upholding claim of custody of the minor in favour of respondent No.3. The petitioner still feeling dissatisfied, has filed the instant petition.

3. Learned counsel for the petitioner argued that the petitioner and the minor have developed a state of love and affection, inter alia, on account of the fact that the minor, right from her birth, stayed with the petitioner, who had always looked after the minor with utmost devotion. Further added that the petitioner has not re-married after her divorce with respondent No.4, in order to utilize all her energies towards welfare of the minor with complete dedication. The learned counsel also argued that the concept of adoption is recognized under Islamic/Shari'ah law, which, according to him, entitles the petitioner to retain the custody of the minor. While candidly acknowledging that the petitioner does not share any blood relationship with the minor, the learned counsel nonetheless laid strong emphasis on the assertion that welfare of the minor squarely rests with the petitioner. In this regard, relied on Miss Fauzia Iqbal v. Farhat Jahan and others (PLD 2015 Lahore 401).

4. Conversely, learned counsel appearing on behalf of respondents Nos. 3, 4, and 5 vehemently opposed the submissions made by the petitioner and submitted that respondents Nos. 3 and 5 are the real/biological parents of the minor, and their matrimonial bond is still intact. It was contended that, in totality of circumstances, the minor 's welfare solely rests with her natural parents, who are best positioned to provide a stable, loving, and holistic upbringing to her. Emphasis was placed on the fact that the minor would be living in the company of her two real sisters, thus, benefiting from a nurturing familial environment essential for her emotional, psychological, and moral development. Learned counsel argued that any arrangement, which separates the minor from her biological parents and siblings would be contrary to the settled principles governing custody and against her best interest.

5. Arguments heard. Record perusd.

6. The pivotal question for determination before this Court, in matters relating to custody of minor, is to see welfare of the minor, which holds paramount importance. In view of this settled principle, the question narrows down to a determination as to whether the petitioner or the real parents are entitled to custody of the minor in terms of her welfare. As candidly admitted by the petitioner for not having any blood relationship with the minor nonetheless claiming her custody, in presence of her real parents, has a greater threshold and standards to be qualified by the petitioner for grant of her claim. The parentage of the minor is an admitted fact. A careful perusal of the petition under Section 25 of the Act filed by respondent No.3 reveals that the custody of the minor was handed over to respondent No.4/uncle by respondent No.5/real father, without consent of respondent No.3/real mother. It is also observed that the adoption deed dated 07.11.2020, available on record, reflects that respondent No.5/real father handed over custody of the minor to respondent No.4/uncle with a clear stipulation that custody of the minor shall remain with respondent No.4/uncle and none else. Perusal of the adoption deed and petition under Section 25 of the Act also reveal that respondent No.3/real mother claimed and sought custody of the minor in a year's time.

7. The only defence taken by the petitioner is that welfare of the minor lies with her, inter alia, oil the basis of adoption deed and her bond with the minor. This raises a significant question as to whether respondent No.3/real mother can be deprived of custody of her real daughter (minor) when she has unequivocally claimed that act of adoption was administered against her consent. There is no cavil to the proposition that adoption is permitted under principle of Islamic Laws but compelling circumstances, under which adoption was imperative, are required to be established. The very fact that adoption was only made in favour of respondent No.4/uncle, who had since divorced the petitioner in the year 2021 and had also conceded to the claim of custody of respondent No.3/real mother, makes it lucid that disentitling respondent No.3/real mother would neither be in the interest of justice nor in the best interest and welfare of the minor. It is well settled that real parents have a preferential right regarding custody of their child unless exception exists warranting to hold otherwise in respect of welfare of the minor. This Court is mindful of the fact that respondents Nos. 3 and 5, whose marriage is still intact and are living with their two daughters, must be experiencing a void without their third daughter/minor. Even more so, the petitioner, who has no blood relationship with the minor and has even been divorced by respondent No.4, is a stranger to the family of the minor. It is also noticed that the minor being of a tender and gullible age of seven years and is not old enough to formulate her opinion or even to understand and realize the bonding of real blood relationship, therefore, her intelligent preference cannot be obtained. However, the minor joining her family, which includes her real parents and real sisters, would be an environment of true love, affection and care, also in the best interest and welfare of the minor. The assertion that the minor is deeply attached with the petitioner is without any substance since a child naturally becomes associated and attached with any person, who raises him/her from the stage of infancy. It is quite common and natural that infants do tend to get attached even to their nannies, caretakers or babysitters. However, it does not defeat a claim of custody raised by real mother. In paragraphs 352 and 354 of the Muhammadan Law confer the custody of a child to his/her natural parent on the touchstone of welfare, particularly, the mother, who is bestowed with inbuilt and inherent love and affection for her child more than anyone else in the world. There is no reason to deprive the minor from her entitlement to be brought up by her real parents along with her siblings. Such an act is precisely according to the principles enunciated by Islam, which does not treat custodial parents as the same or equal in contrast to biological parents1.

8. It is also observed that this case is not of adoption simpliciter as the adoption deed was only in favour of respondent No.4/uncle and none else. The petitioner being not related to the minor at all and in presence of real parents of the minor, the custody of the minor cannot be handed over to the petitioner as welfare of the minor best, lies with her real/biological parents

2. Steering thoughts in this regard, have been gathered from the principle enunciated in Shabana Naz v. Muhammad Saleem (2014 SCMR 343), Mst. Beena v. Raja Muhamamd and others (PLD 2020 SC 508), Miss Nancy Ruth Baney v. District Judge, Islamabad and another (PLD 2011 Islamabad 6) and Jamshed v. Saleemuddin and 4 others (PLD 2014 Sindh 120). The Hon'ble Supreme Court of Pakistan in case cited as Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi and 2 others (1991 SCMR 19) has held as under:- "

4. Learned counsel for the respondents made a categorical statement that the minor is now living in a very happy and cordial atmosphere. Be that as it may, even if it would have been little indifferent, she sharing with her own parents, their joys and worries, would be more natural than her passing these very important years of adolescence with a foster-mother. And this is in accord with the principles enunciated by Islam and contained in Quran and Sunnah. The adopted parents have never been treated as the same or equal to the real parents. In this context, therefore, we do not accept the contention of the learned counsel that it was "unnatural" to transfer the custody of the minor from her foster-mother to real mother and father. What Islam enjoins and teaches, in our system of law, is natural and not unnatural. Similarly his reliance on a stray case where some exception might have been made on account of extraordinary circumstances of the case for making a departure from the normal rule, is of no avail to the petitioner. As already found in the foregoing discussion in the present case it is in the welfare of the minor to remain in the custody of the natural parents. It is in accord with natural and also with the law."

9. Admittedly, respondents Nos. 3 and 5 are real parents of the minor and as per Sections 17 and 25 of the Act, welfare of the ward/minor lies with the real parents. Further reliance is placed to a judgment of the Hon'ble Supreme Court of Pakistan in Rahimullah Choudhury v. Mrs. Sayeda Helali Begum and others (1974 SCMR 305) wherein it has been held that Section 25 of the Act recognizes a right of the guardian that his ward who leaves or is removed from his custody be returned into his/her custody, but subject to his welfare. "Welfare" being a question of fact will have to be resolved on the material placed before the Guardian Judge and not on the basis of mere presumption. Reliance in this regard is also placed on Mst. Farah Mehnaz and others v. Safeer Hussain Jaffar and others (2013 CLC 235) and Shahida Adnan v. Additional District Judge and others (2021 YLR 1915).

10. In light of the above detailed case law, it is apparent that the consistent judicial view across superior courts of Pakistan upholds the principle that biological parentage, particularly the mother's right to hizanat, is to be prioritized in custody disputes unless extremely exceptional circumstances exist. The petitioner's claim fails to meet this threshold.

11. The sanctity of biological lineage is well recognized in the Islamic law. In the case at hand, the petitioner has no biological link to the minor and was only connected through a now-dissolved marriage with the minor's uncle (respondent No.4). Her claim, therefore, is not only weak in statutory terms but also finds no backing under the Shari'ah.

12. The petitioner's reliance on Miss Fauzia lqbal v. Farhat Jahan and others (PLD 2015 Lahore 401) is clearly misplaced as the said judgment is distinguishable on account of different set of facts and circumstances.

13. In view of the above discussion, this writ petition is found to be devoid of merits. It is a settled principle that Article 199 of the Constitution cannot be invoked as a substitute for an appeal, nor can concurrent findings of fact be interfered with unless it is established that the same are tainted with manifest illegality, perversity, or jurisdictional defect. None of those is discernible in the present case. Hence, no case for interference by this Court is made out. Consequently, this writ petition is hereby dismissed. UN/N-12/L Petition dismissed. 1 2025 LHC 151. 2 2025 LHC 2015.