Paramount consideration

2026 CLC 92 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Ss. 17(3) & 25Custody of minorsWelfare of minorParamount considerationNon-consideration of factor of intelligent preference by minorsEffectPea of inability of the mother to afford the expenses of childrenLegality

It is primary duty of the father to bear the expenses of the children and merely the inability of the mother to afford the expenses of their children does not disqualify her from retaining the custody of the minor(s)

If the minor is old enough to form an intelligent preference, the court may consider that preference as well, but such right of preference had not been given to the children.

2026 MLD 908 PESHAWAR-HIGH-COURT Judicial Precedent

S.25Constitution of Pakistan, Art.199Custody of minorsConstitutional petitionConcurrent judgments of courts below granting custody to respondent father, challenge toMother contracting second marriageEffectWelfare of minorParamount considerationScope

Held: Petitioner's remarriage had introduced strained familial relations and criminal allegations involving her new husband, who too was no one else but the real brother of her previous husband i.e. respondent No.1, the father of the minors

So, this fact expressly led the case to the exceptional circumstances, thereby affecting the overall well-being of the minor

Respondent being employed in Pakistan Army had demonstrated the ability to provide a secure and stable environment to his children, hence in view of the attending facts and circumstances the courts below had rightly prioritized the minors' welfare and committed no legal error while refusing custody of the minor to the petitioner/mother

Father being the natural guardian held a superior claim in absence of any disqualification

Impugned judgments of courts below were maintained by the High Court

Custody was to remain with the respondent father

Constitutional petition instituted by mother was dismissed, in circumstances.

2026 MLD 79 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 7, 17 & 25Custody of minorDetermining factors/ considerationsWelfare of minorParamount considerationForemost consideration to decide the question of custody of a minor is his or her welfare and bettermentWelfare of the minor would overweigh against all other considerations

Under S. 17(2) of the Guardians and Wards Act, 1890, (Act) character and capacity of the proposed guardian as well as age and sex, is also an important factor to be considered while determining the welfare of the minor

Right of custody of minor is not an absolute right of any of the parent rather it is always subject to the welfare of the minor

Court in the light of facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to this settled principle

Under Muhammadan Law a Muslim father being the natural guardian of the minor has the preferential right of custody of minor but this rule does not apply rigidly.

2026 MLD 79 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 7, 17 & 25Custody of minorWelfare of minorParamount considerationHizanat, right ofPlea of second marriage of wife/respondentRight of the one of the parents versus welfare of minorPreference

Trial court on the ground of second marriage of wife and mothering of another female child from second husband granted custody of minor to her first husband/petitioner

Appellate Court granted custody to mother/respondent on the ground of Hizanat

Validity

Right of Hizanat with respect to male child goes to the mother until minor becomes independent and capable of understanding things, that is to say, he becomes capable of easy walking, eating, drinking and performing other natural functions without assistance

Hizanat with respect to a boy ceases at the end of seven years of age

Although Muhammadan Law delineates that the mother loses her right to the custody of minor if she re-marries, however, this is not an absolute rule and may be departed from in exceptional circumstances to justify such departure, and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody

Guardianship Courts while dealing with matters relating to custody of minor children exercise parental jurisdiction

Custody of a minor can be delivered by the Court only in the interest and welfare of the minor and not as right of one parent or another

Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided if it is for the welfare of the minor

Similarly the right of the mother to claim the custody of a minor son aged below 7 years is not absolute, in that, the mother may disentitle herself to custody on account of her conduct in the light of the facts and circumstances

Respondent/mother neglected the child since the separation of the spouses and did not make arrangements for his schooling and opted for second marriage and mothered a baby girl leaving the minor exposed to the onslaught of step-motherly and step-fatherly treatment

All the factors disentitled respondent from custody of minor, yet in view of tender age of minor, he could not be deprived of the care of mother

High Court keeping the custody of the minor with respondent enhanced the visitation right of the petitioner from 03 hours in a week to 03 days in a week with liberty to initiate proper proceedings for permanent custody of minor after attaining the age of 07 years

Constitutional petition was disposed of accordingly.

2025 MLD 1751 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.25Constitution of Pakistan, Art.199Custody of minorDetermining factorsWelfare of minorParamount considerationHizanat, right of

The petitioner married respondent No.1 and out of the wedlock minor son was born, however, respondent No.1 (mother of minor) left petitioner's home and later filed a suit for custody before the family court which was dismissed granting custody to the mother

The petitioner (father of minor) filed an appeal before the District Court which was also dismissed

Being aggrieved the petitioner filed the present constitutional petition under Art.199 of the Constitution seeking custody of the minor

Held: Prime consideration for deciding the present petition for custody of minor was the welfare of minor and nothing else

Admittedly, the minor was living with the respondent No.1/real mother since his birth and thus had developed great love and affection towards her and if at this stage, his custody was disturbed, it would adversely affect his upbringing

The respondent No.1 was the real mother of the minor and there was no substitute of a real mother on the earth

Lap of mother was considered as cradle of God, therefore, in the presence of real mother it would have been very harsh for the minor to be left at the mercy of anyone else

Besides, she (mother) had not yet contracted second marriage

Admittedly, mother of a child always has natural love and affection for her children and also is the best guardian

This is the reason that Islamic law recognized the preferential right of mother to the custody of her minor children

Moreover, petitioner (father) being a government servant was often out of home and there was no female in the house to take care of the minor

Although mother has a right of Hizanat of a minor child till the age of seven years but as the Guardian Court enjoys loco parenti jurisdiction while deciding the custody of minor(s), therefore, no infirmity was found in the impugned judgments passed by courts below

It was clear from the record that respondent No.1(mother) was looking after the minor in an appropriate manner, while the minor was also studying in a good school and nothing was brought on record which could have indicated that the minor child was being brought up and looked after in a bad manner

Mere relationship of minor with petitioner (father) was not a sufficient ground to handover his custody to him and it would not be in interest of minor to put him in an alien environment where there was no one to properly look after him

Constitutional petition was dismissed, in circumstances.

2025 PLD 134 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 25Custody of daughtersWelfare of childParamount considerationSecond marriage of motherEffectRight of Hizanat, loss ofExistence of exceptional circumstance for retaining the custody by motherBurden of proof

Father filed application for custody of his daughters on the ground that their welfare was with him as the mother had contracted second marriage with a person, who was not related to the minors within the prohibited degree

Petitioner-husband's application for custody of daughters was dismissed by both the Guardian Court and the Appellate Court

Validity

Mother's second marriage to someone unrelated to her children within the prohibited degree (a stranger) does not automatically disqualify her from custody

While paragraphs-352 and 354 of Principles of Muhammad Law suggest that mother loses such right of Hizanat upon remarriage, the child's welfare remains the paramount consideration

Even though the mother loses the automatic right to Hizanat, especially after daughters reach puberty, the court must still determine their best interests, which includes considering the children's physical and emotional needs, medical care, the parents' ability to provide a safe home, and the quality of parent-child relationship

Court must ascertain if exceptional circumstances exist to justify the mother retaining custody, the burden of proving which falls on her

Nothing was produced by mother to show that the petitioner/husband, who himself was a well-placed person, could not sustain maintenance of the minors at his house or there were some special and exceptional circumstances to justify minors living with a stranger and not with their real father

Daughters living with a stranger, who might be husband of their mother but not related to them within prohibited degree, was not even sanctioned by Islam

In absence of any exceptional circumstances, which the mother had not pointed out through tangible evidence and which might disentitle the petitioner from custody of his daughters, the living of daughters with a stranger could not be perpetuated judicially at the alter of convenience of the minors, which they were used to by the dint of living with their mother for a considerable time

Petitioner was the real father of the minors, hence, was natural guardian, who was living in a joint family house, where apart from him, his parents were also residing, thus, minor daughters would be more comfortable in living with their father and grandparents than living with a stranger

Application was allowed, in circumstances, by handing over custody of daughters to father and establishing visitation rights of mother.

2015 CLC 116 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 25Constitution of Pakistan, Art. 199Constitutional petitionCustody of minorsParamount considerationWelfare of minorMother filed application for custody of minorsApplication was accepted to the extent of minor girls concurrentlyValidityParamount consideration regarding custody of minors was their welfareNone was the substitute of real mother for the minor childrenInability to maintain children was no ground for depriving mother of custody of her children

Father had alleged that mother possessed immoral character and had illicit relations with some one but had failed to state as to with whom mother had illicit relations

Female minors had not attained puberty whereas the male children had crossed the age of 7 years

Father, after divorcing the mother had contracted second marriage who was also divorced and thereafter he contracted third marriage

Step-mother could not be in a better position to maintain and take care of the minors like a real mother

Constitutional petition was dismissed.