2026 PLP 927 (CLC)

SHAUKAT ALI RAKHSHANI, J.

The instant constitutional petition filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ( Constitution ), carries the following relief; It is, therefore, respectfully prayed that record of the case be called for and after examining the same, the order dated 10-08-2022 passed by learned Additional Sessions Judge IV Quetta, respondent No.3 may kindly set aside and order dated 14-02-2021(sic) passed by the Family Judge I Quetta may kindly be upheld, in the interest of justice, equity and fairplay.

2. Facts germane for disposal of the instant petition are that Abdul Hadi (respondent No.1) filed an application under sections 7, 10 and 12 of the Guardians and Wards Act, 1890 ( Act of 1890 ) read with section 25 of West Pakistan Family Courts Act, 1964 ( Act of 1964 ) before learned Family Judge-I, Quetta ( Family Court ) for appointing, declaring and custody of minors namely Bibi Asma and Bibi Sitara with the following prayer; It is, accordingly, respectfully prayed that the guardian application for the custody, guardianship of the minor girls/daughters may kindly be allowed on the following grounds; a. That the applicant is natural guardian of the minors girls/daughters. b. That the respondent No.1 has married to a stranger, who is not related to the minor girls and is Na-Mehram for the girls, as such, her custody is illegal and against the norms of Muhammadan Law, Sharia and law. c. Declare that the respondent No.1 has failed to maintain the minor girls, as per Sharia, law of the country and Muhammdan Law. d. That the respondent No.1 has two sons from the marriage of her 3rd husband, namely Alamzaib, and due to this reason, she is not giving full attentions for the welfare of the minors girls, as such, she is not entitled to the custody of the girls. e. Declare that the applicant is entitled to the welfare of the minor girls and is entitled for the custody, guardianship and declaration in this regard. f. Any other relief, which this Hon ble Court deems fit and proper of the case may also be granted in favour of the applicant."

3. During trial, the petitioners also filed an application under Order VII Rule 11 of Civil Procedure Code, 1908 ( C.P.C. ) read with section 17 of Act of 1964 for dismissal of plaint, which application was contested by respondent No.1 by filing rejoinder, thus, the Family Court vide order dated 14.02.2022 dismissed the application of respondent No.1 under section 11 of C.P.C. read with section 17 of Act of 1964 on the principle of res-judicata, which order was assailed by respondent No.1 by means of filing an appeal before learned Additional District Judge-IV ( Appellate Court ), which vide impugned order dated 10.08.2022 set-aside the order of Family Court dated 14.02.2022 and remanded back the case with the direction to decide the case on merits, after adducing evidence from both the parties, hence this petition.

4. Heard. Record perused with the able assistance of learned A.A.G.

5. The petitioners have assailed the impugned order dated 10.08.2022 passed by the Appellate Court, whereby the appeal filed by respondent No.1 against the order of Family Court was allowed and the order of Family Court dated 14.02.2022 was set aside. The Appellate Court vide impugned order dated 10.08.2022, allowed the appeal filed by respondent No.1 on the following reasons;

10. It is further evident from the record that previously application filed by the appellant's/applicant's was dismissed by the Honorable High Court of Balochistan, Quetta, in non-prosecution. Furthermore, since the appellant/applicant has impleaded second husband, Nasrullah, and the present husband, Alam Zaib of respondent No. as respondents, therefore, a fresh cause of action accrues to the appellant/applicant. Section 354(1) of the Principle of Muhammadan Law which deals with guardian ship of person and property provides that a female, including the mother, who is otherwise marries a person not related to the child within the prohibited degree, e.g., a stranger, but the right revives on the dissolution of marriage by death or divorce. Therefore, this question needs to be resolved through proper trial and production of evidence by the parties. Since his application has not been disposed of on the merits and a fresh cause of action accrues to the appellant/applicant, point No. 1 is resolved in the negative [Emphasis supplied]

6. The core issue in the case in hand is with regard to the custody of minors. Before diving into the impugned order, we would like to refer to the D.F Mullah s Mohammadan Law, wherein Para No.352 provides that the mother is entitled to the custody ( Hizanat ) of her male child, until he has completed the age of seven years and of her female child, until she has attained puberty. Para 352 ibid also enunciates that this right continues, whilst the mother is divorced from the father of the child, however, if she marries second time, then custody belongs to the father. Para 354 of Mohammadan Law provides that the mother, who is otherwise entitled to the custody of a child, loses the right of custody, if she marries a person not related to the child within the prohibited degrees which are specified in paras 260 and 261 of Mohammadan Law. Thus, as per the principles of Mohammadan Law by D.F. Mullah, where a mother re-marries, she can be disqualified for the custody of the minor. Section 17 of the Act of 1890 requires the Court to consider the welfare of the minor, when appointing a guardian and welfare will be decided on the basis of age, sex and religion of the minor, as well as the character and capacity of the guardian and the preference of the minor, where they are old enough to state their preference intelligently. The Supreme Court of Pakistan, while dealing with the Islamic provisions on custody of minors, in the case of Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC 267) held that the question of custody of a minor child will always be determined on the basis of the welfare of the minor and notwithstanding the father s right for custody under Muslim Personal Law, which right is subject to the welfare of the minor. Similarly, the apex court in the case of Mst. Shahista Naz v. Muhammad Naeem Ahmed (2004 SCMR 990), while dealing with the case of custody, concluded that the right of Hizanat having the force of Injunctions of Islam is an accepted principle of Islamic jurisprudence and a female on account of re-marriage may be disqualified to exercise this right, but a mother on account of remarriage is not absolutely disqualified to be entrusted with the custody of a minor child rather at the worst, she may lose the preferential right of custody. It was further held that there is no denial of the fact that there can be no substitute for the mother of a minor child especially of tender age, therefore, the consideration for grant or refusal of custody will always be the welfare of the minor.

7. The apex court, in a recent well celebrated judgment titled as Raja Muhammad Owais v. Mst. Nazia Jabeen (2022 SCMR 2123) held that the conditions contained in Paras 352 and 354 of Mullah s Mohammadan Law are not absolute and are subject to the welfare of the child and ruled that a mother even on contracting second marriage was entitled to retain custody of the minor. The relevant excerpt of Raja Muhammad Owais s case is reproduced herein below; Custody matters are always sensitive and require a great deal of care as the court has to weigh in all factors in order to determine where the welfare of the minor lies. In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child. Fundamental to this decision is the best interest of the child and not that of the parents. Hence, a second marriage of the mother cannot become a stand alone reason to disqualify her right to custody. [Underline is ours]

8. Furthermore, the Supreme Court of Pakistan in the case of Mst. Qurat-ul-Ain v.The Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat (2024 SCMR 486) held that a mother remarrying does not automatically debar her from the custody of her child.

9. In view of the above judgments, the stance taken by the father that on account of the mother s third marriage, she has lost the right of custody over her children has fallen on earth as the paramount consideration, where custody is concerned, is the welfare of the children, which is to be considered what is in the best interest of the child.

10. In order to dilate upon the controversy in hand, it would be appropriate to understand the import of section 17 of the Act of 1964, which reads as under;

17. Provisions of Evidence Act and Code of Civil Procedure not to apply. Save as otherwise expressly provided by or under this Act, the provisions of the [Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984)], and the Code of Civil Procedure, 1908, [except sections 10 and 11,] shall not apply to proceedings before any Family Court [in respect of Part I of Schedule]. (2) Sections 8 to 11 of the Oaths Act, 1872, shall apply to all proceedings before the Family Courts.

11. Imperative to add here that respondent No.1 before filing the instant fifth application for custody of minors had previously filed four applications, which were subsequently dismissed, attaining finality. It is worthwhile to mention here that respondent No.1 in the fourth Guardian application bearing No.18 of 2019 in para No.4 had specifically mentioned regarding third marriage of petitioner No.1 Bibi Feroza with petitioner No.2 Alamzeb, which application was dismissed by the Family Court vide order dated 11.12.2019, and subsequently upheld by the Appellate Court vide order dated 08.09.2020, and as such, it attained finality too, squaring within the ambit of res-judicata as enshrined under section 11 of C.P.C. read with section 17 of the Act of 1964, henceforth, the same is not maintainable under the law as no new cause of action has arisen, thus the impugned order is unsustainable.

12. For the foregoing reasons, the petition is allowed and impugned order passed by the Appellate Court dated 10.08.2022 is set aside, and consequently, the order dated 14.02.2022 passed by the Family Court is upheld, with no order as to cost. SA/96/Bal Petition allowed.