2026 PLP 1065 (YLR)

Muhammad Asif, J.

Through the instant writ petition, the petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), seeking the following relief: "It is therefore, respectfully prayed that the instant writ petition may kindly be accepted and the impugned consolidated judgment dated 10.12.2024 to the extent of dismissal of petitioner's appeal passed by Learned Addl. District Judge Islamabad West and impugned order dated 25.06.2024 passed by learned Judge Family Court Islamabad West may kindly be set aside and guardian petition under section 25 of Guardians and Wards Act filed by the petitioner may kindly be allowed in his favour and permanent custody of minors namely Muhammad Abdullah Nadeem, Rubab Nadeem, Muhammad Essa Nadeem, Muhammad Moosa Nadeem may kindly be handed over to the petitioner, in the best interest of justice. Any other relief which this Honorable Court deem fit and proper may kindly be awarded."

2. Briefly stated, the facts, as set forth by the petitioner, are that he was married to Mst. Aneela Iram, according to Muslim rites. From this wedlock, four children were born: Muhammad Abdullah Nadeem, Rubab Nadeem, Muhammad Essa Nadeem, and Muhammad Moosa Nadeem. Unfortunately, the wife of the petitioner passed away on 31.08.2019. Thereafter, on 13.09.2019, respondent No.3, the maternal grandmother of the minors, took custody of the children and brought them to Islamabad. The petitioner, being aggrieved by this development, filed a guardian petition under Section 25 of the Guardians and Wards Act, 1890 (the Act), along with an application under Section 12 of the Act, before the learned Judge Family Court (West), Islamabad ("trial court"), seeking permanent custody of the minors. Respondent No.3 appeared before the trial court and submitted a written reply. From the divergent pleadings of the parties, isues were framed, and both sides led oral as well as documentary evidence. After evaluating the evidence and hearing the learned counsel for the parties, the learned trial court dismissed the guardian petition through the impugned judgment dated 25.06.2024, although it granted a structured visitation schedule to the petitioner for meeting the minors. The petitioner preferred an appeal against the said judgment before the learned Additional District Judge (West), Islamabad ("appellate court"), who was exercising appellate jurisdiction under the Guardian and Wards Act. Simultaneously, respondent No.3 also filed an appeal challenging the visitation schedule fixed by the learned trial court. Both appeals were heard together, and the learned appellate court, through the consolidated impugned judgment dated 10.12.2024, dismissed both appeals. Feeling aggrieved; the petitioner has invoked the constitutional jurisdiction of this Court.

3. The learned counsel for the petitioner argued that the impugned judgments of both the learned trial and appellate courts are contrary to law, bereft of proper reasoning, and reflect a misreading and non-reading of the material available on record. He submitted that the petitioner, being the biological father and natural guardian of the minors, has a superior legal right to custody, which should not have been denied. He contended that no substitute exists for the affection, care, and guidance of a father and that the maternal grandmother, or any other relative, cannot replace the emotional and moral upbringing a father provides. He further submitted that the courts below failed to appreciate the legal principle that the welfare of the minor must be determined in light of emotional and spiritual development, not merely physical comfort. He criticized the reliance of the courts on 2021 YLR 743, asserting that the facts of that case are distinguishable and were misapplied. The learned counsel emphasized that the petitioner had no other efficacious remedy available and that the constitutional jurisdiction of this Court is properly invoked to correct the miscarriage of justice resulting from the impugned judgments.

4. On the other hand, the learned counsel for respondent No.3 opposed the writ petition and supported the concurrent findings of the courts below. He argued that the judgments were passed after full application of judicial mind, appreciation of evidence, and due regard to the welfare of the minors. He contended that the petitioner had not contributed to the maintenance or educational needs of the minors since their mother's demise, which reflects a lack of responsibility and concern. The learned counsel also expressed concerns regarding the physical safety and emotional stability of the minors if custody were handed over to the petitioner, particularly in light of serious enmities within the paternal family residing in Sheikhupura. He further ubmitted that the petitioner was irregular in availing visitation rights and failed to demonstrate any, genuine intention to maintain a meaningful and consistent relationship with the minors. Relying on 2021 YLR 743, he argued that the right of a father, though recognized under Islamic law, is not absolute and must yield to the paramount consideration of the welfare of the children.

5. I have heard the learned counsel for the parties and carefully perused the record with their able assistance. The core issue requiring adjudication in the present constitutional petition is whether the learned courts below erred in dismissing the petitioner's claim for permanent custody of the minors and failed to give due regard to the welfare of the minors, which is the paramount consideration under the Guardians and Wards Act, 1890, despite his status as their natural guardian under Muhammadan Law, and whether such findings warrant interference under the constitutional jurisdiction of this Court.

6. It is an undisputed fact that the petitioner is the real father of the minors and that their mother Mst. Aneela Iram passed away on 31.08.2019. Thereafter, custody of the minors was taken over by the maternal grandmother, respondent No.3, who has since been in continuous custody of the children. The petitioner filed a Guardian Petition under Section 25 of the Guardian and Wards Act, 1890 seeking permanent custody, which was dismissed by the learned Family Court. His appeal also met the same fate before the learned Appellate Court.

7. The crux of the petitioner's grievance is that the courts below failed to appreciate that the father, being the natural guardian, enjoys a preferential right to the custody of his children. While the legal position under Muhammadan Law does indeed recognize the father as the o natural guardian of the person and property of his minor children, such right is not unfettered or absolute. The dominant and overarching consideration in custody matters, as consistently reiterated by the superior courts of Pakistan, remains the "welfare of the minor", which includes physical well-being, emotional security, moral upbringing, educational needs, and overall development.

8. The learned trial court, after recording evidence of both parties, found that the environment in which the minors are presently residing is stable and conducive to their welfare. The maternal grandmother has been looking after the minors since the death of their mother. The courts below also took into consideration the strained relationship between the petitioner and his in-laws, as well as the potential safety risks involved in transferring the minors' custody to Sheikhupura, where the petitioner resides. In the present case, the petitioner, being the natural and biological father of the minors, does indeed possess a preferential right to custody under the general principles of Muhammadan Law. However, this right is not absolute and is always subject to the welfare of the children. Instead, a structured schedule for visitation was provided, balancing the father's right of access with the children's stability under the care of their maternal grandmother.

9. From the perusal of the record, it emerges that the petitioner failed to demonstrate that he had consistently maintained contact or provided financial or emotional support to the minors after their mother's demise. His sporadic attendance during visitation proceedings, and absence of sustained interest in their education and upbringing, did not persuade the learned courts below to believe that a change in custody would advance the welfare of the minors. The petitioner, though legally entitled to visitation, could not substantiate how the custody under his care would better serve the children's best interest.

10. The learned trial court rightly relied on principles laid down in case reported in 2021 YLR 743, wherein the High Courts have consistently held that custody decisions must not be guided by technical guardianship rights alone, but by holistic and pragmatic evaluation of each child's best interests. Importantly, the welfare of minors cannot be assumed; it must be evidenced by conduct.

11. This Court also notes that both the learned trial court and the appellate court have passed speaking orders, elaborately discussing the oral and documentary evidence, the demeanor of the parties, the surrounding circumstances, and more importantly, the minors' best interests. The reasoning furnished does not suffer from perversity, illegality or any jurisdictional error so as to justify interference under Article 199 of the Constitution.

12. It is well-settled that constitutional jurisdiction under Article 199 cannot be invoked to substitute factual findings of courts below merely on the basis of a different opinion unless such findings are manifestly perverse, arbitrary, or have resulted in gross miscarriage of justice. In the present case, no such illegality or jurisdictional error has been pointed out. On the contrary, the orders under challenge appear to have been passed with due diligence, keeping in view the fundamental consideration of minor's welfare.

13. In view of the above, the instant Writ Petition No.1215 of 2025 is found to be without merit and is accordingly dismissed. However, the petitioner shall remain entitled to visitation rights as per the schedule fixed by the learned Family Court. He may also approach the said court for modification of the visitation arrangement, if circumstances so warrant, which shall be decided in accordance with law and keeping in view the welfare of the minors. MQ/161/Isl. Petition dismissed.