Application for custody of minor

2024 CLC 1520 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 7 & 25Application for custody of minorCustody and guardianshipDistinction

Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardians and Wards Act, 1890 ('the Act, 1890')

Custody under the Act, 1890 involves a right to upbringing of a minor ;on the other hand, guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child

Father is considered to be a natural guardian of a minor, since even after separation with the mother and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor

Liability to maintain the minor is not only religious and moral but also legal

Right of custody of minor is subordinate to the fundamental principle i.e. welfare of the minor

Maintaining the children is the duty of father which cannot be a decisive factor in custody of the minors.

2015 PLD 253 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25Constitution of Pakistan, Art.199Constitutional petitionApplication for custody of minorWelfare of minorScopeSecond marriage of mother of minorEffect

Father filed application for custody of minor daughter on the ground that her mother had contracted second marriage and it was settled between the parties that in such situation the mother would hand over the custody of minor to him

Application for custody of minor was dismissed by the Guardian Court but same was accepted by the Appellate Court

Validity

Father neither made any effort for meeting with the minor daughter prior to filing of such for recovery of maintenance allowance by the mother nor he paid any maintenance to her

Father admitted at the time of evidence that it was settled between the parties at the time of divorce that he would not demand the custody of minor

Father had no interest with the welfare of minor and he filed application for her custody in order to avoid the payment of maintenance allowance to her

Father was accused of a criminal case of heinous nature and he remained behind the bars

Minor was growing up properly in the custody of her mother and she was getting education in a private school

Minor was living with her mother since her birth and in such part of her age she would require company of real mother for her certain personal needs and she could not be left at the mercy of a step mother

Nothing was on record to establish that education or health of minor was suffering due to financial inability of mother to maintain her

Father was legally and morally bound to maintain minor even if she resided with her mother

Mother could not be deprived of the custody of minor on the pretext of having limited source

Father had also contracted second marriage out of which he had two children

No evidence was on record that present husband of mother of minor was adverse in keeping her in his home

Second marriage of mother would not ipso facto disentitle her from retaining custody of minor children and handing them over to the father when it was not otherwise in the welfare of minor

Prime consideration for deciding application for custody of minor was the welfare of minor and nothing else

Minor had developed great love and affection with her mother and at such stage if her custody was disturbed then same would adversely affect her upbringing

Lap of mother was considered as cradle of God and no substitute existed of real mother

Welfare of minor, in circumstances, would lie in the custody of her mother

Custody of minor daughter should not be handed over to the father

Guardian Court had rightly dismissed the application of father for custody of minor after appreciation of material available on record

Impugned judgment of Appellate Court was set aside and that of Guardian Court was restored

Constitutional petition was accepted in circumstances.

2015 YLR 489 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 25Constitution of Pakistan, Art. 199Constitutional petitionApplication for custody of minorFather moved application for custody of minor son and daughter which was dismissed concurrentlyValidityBoth the twin minors were aged about 5 yearsFather had contracted third marriage and from the said wedlock he had a babyLap of a real mother was God's own cradleStep mother could not be equated with a real mother when she had her own minor baby

No jurisdictional error or any perversity, illegality or infirmity was pointed out in the impugned orders passed by the courts below

Constitutional petition was dismissed in circumstances.

2014 PLD 39 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 47, 4(5) & 25West Pakistan Family Courts Act (XXXV of 1964), Ss. 14 & 5, SchedApplication for custody of minorForum of appealApplication filed under S.25 of Guardians and Wards Act, 1890 was accepted by Family CourtAppeal preferred before Additional District Judge was dismissed for want of jurisdictionValidity

While entertaining petition for custody of minor and other related matters under Guardians and Wards Act, 1890, same was not to be dealt with in isolation rather the provisions of West Pakistan Family Courts Act, 1964 were to be read co-jointly

Family Court constituted under the provisions of West Pakistan Family Courts Act, 1964 had exclusive jurisdiction in the matters enumerated in the Schedule attached to the said Act

Section 5 of West Pakistan Family Courts Act, 1964 with the Schedule attached therein described the limits of jurisdiction vested with Family Court

Matters pertaining to custody of children and visitation rights of parents and guardianship would come in the exclusive jurisdiction of Family Court

Section 4(5) of Guardians and Wards Act, 1890 was not to be read in isolation rather to be read with S.25 of West Pakistan Family Courts Act, 1964

While dealing with the matters contained in Guardians and Wards Act, 1890, Family Court had to follow the procedure prescribed in the Guardians and Wards Act, 1890

Section 47 of Guardians and Wards Act, 1890 described the forum of appeal in the matters decided under the provisions of said Act as High Court

Any order passed by Family Court while entertaining an application for custody of minor would not amount to an order of District Court nor right of appeal would become available before High Court rather appeal had to be preferred under S.14 of West Pakistan Family Courts Act, 1964

Appeal against order pertaining to matters covered by Guardians and Wards Act, 1890 should lie before District Court except where Family Court being presided over by District Judge or Additional District Judge or a person notified by the Government to be of such rank and status, and in such case appeal should lie to the High Court

If application for custody of minor was heard and decided by Family Judge not having status of District Judge, the appeal should lie to District Judge

Appellate Court was under misconception and had committed an error

Constitutional petition was accepted and order of Additional District Judge was set aside and Appellate Court was directed to decide the appeal on merit.

2014 YLR 1374 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25Constitution of Pakistan, Art.199Constitutional petitionScopeApplication for custody of minorWelfare of minorScope

Father filed application for custody of minor daughter on the ground that welfare of minor was her custody with him and mother of the minor had contracted second marriage with a person who was not related to the minor within the prohibited degree

Application for custody of minor was dismissed concurrently

Validity

Mother of minor daughter had contracted second marriage and father-petitioner had also contracted second marriage and had got two daughters from second wife

No evidence was on record that second husband of mother of minor was not from the brotherhood of minor and did not fall within the prohibited degree

Minor was enjoying good health and she was being brought up and educated properly

Step-mother could not be a substitute for real mother

Welfare of minor was with her custody with mother

High Court did not interfere with the findings of facts recorded by the courts below when such findings were reasonable and were not arrived at by disregarding any provisions of law or any accepted principle concerning appreciation of evidence

Constitutional jurisdiction was discretionary in nature and who sought equity must come with clean hands

No infirmity or illegality had been pointed out in the impugned judgments

Constitutional petition was dismissed in circumstances.

2014 MLD 1439 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25Constitution of Pakistan, Art. 199Constitutional petitionApplication for custody of minor

Father filed application for custody of minor son on the ground that he could provide best health and education to him as compared to the mother

Application for custody of minor was dismissed concurrently

Validity

Father did not meet the minor son from the time of separation

Application for custody of minor by father was moved subsequent to the suit filed by the mother for maintenance allowance

Father had least interest in the welfare of minor and he had filed present petition just to avoid payment of maintenance allowance to the minor

Minor was living with his real mother since from his birth and she had not contracted second marriage for the sake of minor

Minor was enjoying good health and he could not be left in solitude or with his step mother as father remained outside the house for the whole day in pursuit of earning his livelihood

Step mother could not be given preference over real mother

Father was legally and morally bound to maintain the minor even he was residing with her mother

Mother could not be deprived of the custody of minor on the pretext of having limited sources

No illegality or irregularity had been pointed out in the impugned orders

Constitutional petition was dismissed in limine.

2014 CLC 1168 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 25Constitution of Pakistan, Art.199Constitutional petitionMaintainabilityApplication for custody of minorConditional order for visitation of minor subject to submission of surety bondValidity

Mother filed petition for custody of minors which was accepted with the consent of parties subject to affording the father opportunity to meet his minor children

Neither mother showed any apprehension of removal of minors from the territorial jurisdiction of court nor her counsel requested for any condition at the time of passing of impugned order as imposed by the Guardian Court

Proceedings before the Guardian Court were conducted in congenial and harmonious manner

Dispute between the parties was decided with the concurrence of the parties and Trial Court was not justified in passing an order which was beyond the prayer of parties

Father was not likely to remove the minors from the territorial jurisdiction of Family Court

Right of father to see his children could not be curtailed by imposing condition of submission of sureties every time he had to meet his own children

Impugned order with regard to imposition of such condition was illegal and arbitrary exercise of power

Technicalities could not prevent High Court to strike down such order in exercise of its constitutional jurisdiction when act of court or tribunal would infringe the fundamental right of a citizen

Impugned order was set aside to the extent of imposition of condition with regard to submission of two surety bonds in the sum of Rs. 10,00,000 each with local sureties and same was modified to the extent that father would be entitled to meet his children twice in a month when he would be in Pakistan subject to advance intimation of 72 hours to the mother

Father was told that if he would misuse such concession granted by the High Court or attempted to remove the minors from the territorial jurisdiction of Guardian Court then he would be liable to face contempt of court proceedings and would also loose the right of visitation of his children

Constitutional petition was accepted in circumstances.

2014 CLC 510 ISLAMABAD Judicial Precedent

R. 6Guardians and Wards Act (VIII of 1890), S.25Constitution of Pakistan, Art.199Constitutional petitionApplication for custody of minorObjections with regard to territorial jurisdiction of Guardian CourtGuardian Judge dismissed objection petition filed by the fatherValiditySpouses lived at Peshawar and thereafter at Lahore and then settled at Abu Dhabi

Guardian Judge Islamabad had no jurisdiction to entertain application filed under S.25 of the Guardians and Wards Act, 1890

Impugned order was set aside and Guardian Judge was directed to return application for custody of minor for presentation of the same before the court of competent jurisdiction

Constitutional petition was accepted in circumstances.