2000 PLP 1967 (MLD)

Ss.6 & 17

Expression "law to which, the minor is subject" in S.6, Guardians and Wards Act, 1890

Meaning

Said expression as visualized by Guardians and Wards Act, 1890, means law as given by the Holy Qur'an' and Sunnah

Word "law" appearing in the expression is not to be equated to an opinion or interpretation while discussing "Nass" of the Holy Qur'an or Sunnah.

Ss.4(2) & 25

Proceedings under S.25, Guardians and Wards Act, 1890 against real mother

Scope

Where the minors were continuously in the custody of their mother who according to S.4(2) of Guardians and Wards Act, 1890 was their guardian, provisions of S.25 of Guardians and Wards Act, 1890 were not applicable.

Custody of minor

Islam does not recognize custody of mother as illegal.

Hizanat

Meaning

Hizanat has come from the word Hizan lap of mother.

S.25

Custody of minor

Welfare of minor, determination of

Power of Guardians Court

Scope

Approach of the Guardian Court, while deciding custody of minor, should by dynamic and not dormant

While determining welfare of minor Guardian Court has unlimited and unfettered powers of parental jurisdiction

Court has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law under which the minor is subject

Where the Court comes to the conclusion that neither father nor mother qualify to be the guardian of the minor, then other persons relevant to be appointed as guardians as maternal grandmother etc., under the Islamic law may be considered.

Art.199

Muhammadan law

Custody of destitute children

Writ of mandamus can be issued to the Government to act as "Mutwalli" of destitute children.

S.25

Custody of minor

Mother of minor re-marrying. a stranger to minor

Loss of preferential right of such mother to the custody of minor

. Validity

Right of such mother to the custody of the minor is not, lost absolutely

Where there is another relation of the minor who possesses a right under the Muslim Law to the custody of the person of the minor and to whom the welfare of the minor can be safely and properly entrusted, such a female relation can claim the custody of child as of right.

Ss.17 & 25

Custody of minor

Guardian Court, jurisdiction of--?Scope

While determining custody of minors the Guardian Court could only look into the material facts namely whether the custody of mother of the minor was illegal or whether it was in the paramount welfare of the minors to remove them from such custody

Where both the parents of the minors belonged to the same social set-up, the Court had to look as to for what reasons the custody was taken from the mother and entrusted to the father.

Custody of minor

Preferential right of custody

Scope

No bar is placed in the Holy Qur'an and Sunnah for mother or even father to hold the custody of minor nor there is any provision which stipulates that the preferential right of custody lies with father or mother or in their absence grand-parents or uncles or cousins are eligible to claim custody.

Ss. 25

Hizanat

Status of Wali, determination of

Jurisdiction of Court

Factors required for such determination

Scope

Concept of Wali has been given by the Holy Qur'an in respect of Hizanat and Wilayat, but status of Wali has not been conferred either upon father or mother and has been left open to the Court to determine and give status of Wali to a -person to secure welfare of minor in case of dispute

Court can make the suitable orders and arrangements to secure the welfare of children of broken homes or destitute children or the children of abnormal circumstances according to prevailing circumstances

Choice is given to the Court to decide cases on the basis of its peculiar facts in view of true determination of justice, equity, Adl and Ehsan.

S. 25

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Custody of minor

Concurrent findings of both the Courts below

Mother of the minor had remarried and was living a pious life was from red light area

Father of the minor at the time of divorce to the mother of the minor executed a relinquishment deed regarding custody of the minors in favour of the mother

Father at the time of marriage knew about her social status as he himself was from the same social set-up and was conscious about the after-effects of the marriage

Father being a man could have pulled her out of sinful life giving her all the protection and decencies of matrimonial life and providing his children healthy atmosphere quite away from her social set-up

Both the Courts below non-suited the mother of the minor because of her being "prostitute"

Validity

Father of the minor who had failed to pull out his wife from the sinful life, such person was most undeserving one to be a Wali of the minor

Other relatives also stood disqualified to obtain the custody

Judgments and decrees of both the Courts below were set aside

High Court directed that the minor would remain in the custody, direct supervision and control of their mother in circumstances

"Hizanat"

Meaning

Hizanat has come from the word Hizan (lap of mother).