Custody of minors

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.

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.

Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Convention) requires restoration of children who are wrongfully removed or wrongfully retained in any Contracting State and to ensure that rights of custody and access under the law of a State are effectively respected by other Contracting States

This requires from signatory States to take appropriate measures to secure within their territories the implementation of the objects of the Convention, in most expeditious procedures which are available

It also protects rights of custody even where there has been no order of custody

The rights of custody can arise by operation of law or under decision of competent forum or because of agreement which is legally recognized by the State from where a child is allegedly removed

There are a number of judgments from English jurisdiction to the effect that first task of the Court is to see what right has been left behind by the parent that she/he had under the law of the State of habitual residence immediately prior to removal

Secondly, to see those rights amount to "right of custody" in terms of Art. 3 of Hague Convention or the "rights of access" that includes the rights to take a child for a limited period to a place other than the habitual residence

For the purposes of the Hague Convention "habitual residence" must not be just a temporary or intermittent place, however, there is no need for an intention to reside indefinitely

There must be some degree of integration into the social and family environment in the State

The presence should be voluntarily

Enforced presence or residing somewhere with opportunity to escape is not included

To make the Hague Convention effective in all the Contracting States, particularly the States which have joined it lately, the meanings to the rights given therein and related terms should be interpreted in the literal sense otherwise difficulty can be faced in protection from harmful consequences to a child by wrongful removal or retention

It is also vital to establish procedures to ensure prompt return of the removed child to the State of habitual residence

Article 6-A in Schedule (Part-I) to Family Courts Act (FCA-1964), through SRO 980(I)/2017 dated 25.09.2017 has been inserted

This confers jurisdiction upon the Guardian/Family Court to resolve these issues in the country

An examination of the Hague Convention also reveals that it warrants taking measures of the nature that the question of wrongful removal and detention should be determined at earliest, so that upon being convinced the order of return can be passed without delay or harmful effect to any child

The provisions of Hague Convention necessitate that if less than a year has elapsed from the wrongful removal the order of return should be forthwith

After one year, position depends on the question as to whether a child has settled in his/her new environment?

The word "demonstrated" as provided by Art. 12 of Hague Convention will make it a question of fact

It will depend upon case to case basis

However, when the same could not be demonstrated on the balance of probability the Court or authority should make an order of return

Nonetheless, this also is dependent on Arts. 13 & 20 of the Hague Convention

Further discussion on Art. 13(a) of the Convention will also be relevant

The requested State is not bound to order the return if the one opposing can establish that the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or had subsequently acquiesced in the removal of or the retention.

Hague Convention ensured that rights of custody and access under the law of a State are effectively respected by other Contracting States

The petitioner (father) and respondent No. 3 (mother) were both German nationals and had two children

The family, domiciled in Germany, moved to the UK where the children were habitually resident

Later the family travelled to Pakistan, allegedly for a holiday, but due to marital disputes, the parties divorced in Pakistan, and the children had remained there (Pakistan) since

Later the father filed a custody petition under S. 25 of the Guardians and Wards Act, 1890

Guardian Court dismissed the petition for lack of jurisdiction, citing that the children were foreign nationals and residents of the UK

This decision was upheld by the Appellate Court

The respondent No.3/ mother, opposing the petitioner/father's claim, raised jurisdictional objections and invoked the Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Convention) seeking the return of the children to their habitual place of residence in the UK

Held: In the given circumstances of the present case, where even no other Court or competent forum in Contracting State was seized with the matter or assumed jurisdiction prior to alleged wrongful removal or retention, the determination regarding the issue of return of the children was necessary, to be made at the earliest because there was risk of completely no assessment of rights of children or for that matter rights of the parents

This was what happened in the present case

Guardian Court had refused to entertain the claim on the basis of their nationality

No other forum in any Contracting State was making any determination

The issue of wrongful removal or retention was not properly pressed before the competent forum or the Guardian Court for some reason best known to the parents

This essentially had left the aggrieved un-remedied

There was nothing on record to show that "right of custody" was being exercised or when they came to Pakistan gravity of dispute was so that these rights would have been exercised but for the alleged removal

Mother had not approached the Guardian Court, which was empowered to look into the matter relating to the Hague Convention

Custody petition was filed by the father after thirteen months of their entry in Pakistan

Only in response to this petition, mother had set-up the claim under the Hague Convention and also raised question of jurisdiction on the basis of nationality

One of the minors had spent most of his life in Pakistan

Both the children were apparently well adjusted in their respective schools in Pakistan

Their passports could not be renewed, inter alia, for the reason that none of the parents had right of custody

Courts below failed to examine the interest or welfare of the children

It was deemed just and in the best interest of the minors to proceed further with the present matter

The decisions of the two courts below refusing to exercise jurisdiction were set-aside

The case was deemed to be pending and was directed to be decided by the Guardian Court on its merits

Constitutional petition was allowed in circumstances.

Petitioner / father was concurrently denied custody of minors and the same was granted to their(minors') maternal grandmother after the death of their mother (wife of petitioner)

Validity

Muhammadan Law does indeed recognize that the father, being a 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 natural guardianof the person and property of his minor children, such consideration/right is not unfettered or absolute

The dominant and overarching consideration in custody matters remains the "welfare of the minor", which includes physical well-being, emotional security, moral upbringing, educational needs, and overall development

In the present case, the Trial Court, after recording evidence of both parties, found that the environment in which the minors were presently residing in Islamabad was stable and conducive to their welfare

The maternal grandmother had been looking after the minors since the death of their(minors') mother

The Courts below also took into consideration the strained relationship between the petitioner / father and his in-laws, as well as the potential safety risks involved in transferring the minors' custody to Sheikhupura, where the petitioner resides

From the perusal of the record, it emerged that the petitioner / father 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 theireducation and upbringing did not persuade the Courts below to believe that change in custody would advance the welfare of the minors

Petitioner, though legally entitled to visitation, could not substantiate how the custody under his care would better serve the children's best interest

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

No illegality or jurisdictional error had been pointed out and the orders under challenge appeared to have been passed with due diligence, keeping in view the fundamental consideration of minor's welfare

Constitutional petition, filed by father, was dismissed.

Petitioner / mother of two minor daughters and one minor son was deprived of their custody and it was handed over to respondent / father, by Lower Appellate Court

Validity

Paramount consideration is welfare of minors when examining question of custody

Real mother of child is the pristine source of unconditional love and affection which nature has put into her heart for her children and for which there cannot be any other substitute

Daughters require company and association of their real mother for preparing their personalities to shoulder responsibilities in future

Welfare of minors plays pivotal role in determining controversy regarding question of custody

High Court set aside the order passed by Lower Appellate Court as the same was illegal and restored custody of minors to petitioner / mother

Constitutional petition was allowed, in circumstances.

Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour

Plea of the petitioner / father was that that one of the minors wished to reside with him

Validity

Minor is not always the best judge of where his or her welfare lies

Minor , in the present case, was of tender age of about seven years, hence, it was not appropriate to attach much weight to his choice in order to determine where his welfare in relation to his custody laid

Moreover, the minor had not been allowed to meet his mother (respondent) for years, therefore, his mind seemed to have been tutored

Refusal of the minor to recognize and meet his real mother indeed provided evidence of improper child rearing

It established that contrary to minor's welfare, the father (petitioner) failed to prevent his misbehavior towards his mother which highlighted the value system being inculcated or allowed to be nurtured in the minor by his parent (petitioner / father)

Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment

Constitutional petition was dismissed, in circumstances.

Additionally, the evidence presented showed that he had been involved in criminal cases and had absconded for a long period of time

On the other hand, the respondent had been a loyal mother who provided education and basic necessities to the minors

Therefore, she was the best choice for custody of the minors

Constitutional petition was dismissed.

Mother of minor girls is entitled to their custody unless there is anything available on record to disentitle her.

Question before High Court was whether the provisions of Mental Health Ordinance, 2001, contradict and repeal the Family Courts Act, 1964, to take away jurisdiction of the Family Court qua custody of minors who are suffering from any mental disability and vest the same in the Court of Protection

Held; main crux of the Mental Health Ordinance, 2001, essentially relates to psychiatric facility and management of property of the mentally disabled persons and appointment of guardian under the Mental Health Ordinance, 2001

Dispute inter se parents of a minor for his or her custody and/or guardianship is manifestly not a subject matter of the Mental Health Ordinance, 2001, which falls within the exclusive domain of Family Court even when the minor suffers from any disability

Provisions of Mental Health Ordinance, 2001, do not contradict and repeal the provisions of S. 5 read with Entries Nos. 5 and 6 of Part I of the Schedule to the Family Courts Act, 1964 to take away jurisdiction of the Family Court in disputes amongst parents regarding guardianship and/or custody of minors who are suffering from any mental disability

Overriding effect of the Mental Health Ordinance, 2001, as provided in S. 60 thereof, is limited to cases of conflict.

No doubt Ss. 32 & 33 of the Mental Health Ordinance, 2001, vest authority in the Court of Protection for the appointment of guardian of a mentally disordered person who is incapable of taking care of himself or the manager of his property when he is incapable of managing his property, however, judicial proceedings in that regard are governed by the provisions of Ss. 29 to 31

Requirements of possession of property by the person alleged to be mentally disordered and consent in writing of the Advocate General Punjab prescribed in S. 29 are mandatory prerequisites for judicial proceedings qua appointment of guardian and/or manager under the Mental Health Ordinance, 2001, whereas none of that is required for the assumption and exercise of jurisdiction by the Family Court under the Family Courts Act, 1964, since no minor can be left without a guardian and custodian.

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

Definition of "guardian" in S. 4(2) seems to include the concept of custody, unless the same has been exclusively awarded by the court to a party who is not the guardian of a minor

Custody under the Act 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, 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 father is subordinate to the fundamental principle i.e. welfare of the minor

Maintenance of child is the duty of father and the mother cannot be deprived of custody due to her inability to maintain the child for lack of resources.

Perusal of the visitation schedule revealed that the Trial Court had granted fortnightly overnight stay of the minor with the petitioner/father being non-custodial parent which had been converted by the Appellate Court into day stay in the Court premises

Similarly, the trial Court had granted overnight stay on the second day of both Eid-ul-Fitr and Eid-ul-Azha which had also been converted into second day stay on both Eids

Per Trial Court, the fortnightly overnight stay of the minor would continue during summer and winter vacations till the minor turned 7 years of age whereafter subject to the pleasure of the minor, the same would extend to 03 days

On the other hand, as per the Appellate Court, the minor would stay first two days of winter holidays with the father and first 7 days with the father during summer vacations

Admittedly, the mother had remarried having a child from the second marriage whereas the father was still unmarried

Similarly, the minor was residing with the maternal grandparents and maternal uncle, which fact had been asserted by the petitioners side and same had not been denied by the respondents

Most crucial aspect of the case was that the minor was residing without the supervision and control of both the parents under the custody of the maternal grandparents and maternal uncle

In the absence of overnight stay with the father (petitioner), it could have an extremely detrimental impact on the well-being and welfare of the minor as he would lead his life without both the parents which aspect had been overlooked by the Appellate Court

Since the mother had contracted second marriage and left the minor behind with her father and brother, therefore, the plea of the petitioner (father) being non-custodial parent, to have more access to the minor was not only tenable but also in the interest and welfare of the minor

Denial of overnight stay with the father in such like situation was likely to result in social estrangement of the minor and it was also unjustified to deprive the petitioner of overnight stay of his son particularly when the minor was not even residing with the mother/custodial parent

Case of the petitioner (father) in the present case was on better footing as the minor was not residing with the mother rather with his maternal grand-parents and maternal uncle

Said fact made it imperative that the petitioner (father) being non-custodial parent who had already relinquished his right to custody as a good-will gesture got more time to spend with his son in order to develop fatherly bond and intimacy

Petition was allowed accordingly.

While deciding a guardian petition, including chalking of a visitation schedule, it is the 'welfare of the minor' which is of paramount consideration

Limited hours of meeting within the Court premises is the policy generally adopted by the Courts which is certainly not an appropriate solution inasmuch as it only enable a minor to identify his relation with the non-custodial parent without developing any bonding due to the lack of proper interaction between the minors and such non-custodial parent because of non-conducive environment of the Court premises

As a natural corollary, there is great chance that the minor will turn against such non-custodial parent

Thus, the Courts are to consider the impact that the proposed visitation schedule may have on the child

Failure to protect the development of healthy and secure attachment of a minor with non-custodial parent can have long-term negative effects on the development of the minor, hence, the basic consideration while chalking out the visitation schedule is to ensure that the minor will not turn against one parent because of inadequacy of time given to the non-custodial parent

Petition was allowed.

Application of the respondent/mother for custody of the minors was dismissed by the Trial Court while her appeal was partly allowed entrusting her the custody of minor daughters while maintaining the order of the trial court to the extent of custody of minor sons

Validity

Undisputedly, petitioner/ father of the minors had better financial means and resources than their mother/respondent since petitioner/father was settled in a foreign country, however, that was not the determining factor in law to adjudicate upon custody of the minors

Maintenance of child was the duty of the father and the mother could not be deprived of custody due to her inability to maintain the child for lack of resources

Petitioner/Father did not personally appear in the witness box to oppose claim of respondent/mother and to establish how entrustment of custody to him was indeed in the welfare of the minors

Respondent/mother of the minors, on the other hand, despite meager resources available to her had been relentlessly pursuing her claim for the custody of the minors for a number of years

Mother of the minors girls was entitled to their custody unless there was anything available on record to disentitle her

Minor daughters in this case were at such tender ages where they required the care and custody of their mother because no one could be a better custodian of a minor girl than the real mother

Minor was not always the best judge of where his or her welfare lied

Resourceful father had legal, moral and religious obligation to facilitate his minor daughters' congenial educational environment at his expense

If the minor daughters were deprived of the love, affection and care of their real mother, the quantum of loss of their psychological and emotional development would be phenomenally higher in comparison to limiting interaction with their brothers, which could be mitigated by frequent meetings inter se the minors

Petitioner/Father could not be allowed to remove the minors out of the territorial limits of Pakistan without leave of the Court, particularly when the same was opposed by their mother

Removal of the minors from the territorial limits carried the risk of irreversibly compromising or destroying right of the mother to custody of the minor girls and visiting rights of the minor boys

Impugned judgment of the Appellate Court did not suffer from any illegality or jurisdictional error

Petition was dismissed, in circumstances.

As a general principle the degree of preference was confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which were essential in upbringing of the minors within four corners of law

Any deviation from the general principle, where the blood relationship had to be dislodged, there should be very strong and compelling reasons to have a contrary view which included upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom care of the minors was to be assigned

When ignoring/ bypassing the general principle there must be very strong and exceptional circumstances which must be brought forth with reference to the intent of the legislature regarding the sole purpose of "welfare of minor".

Maternal grandmother of minor assailed orders passed by courts below whereby minor's custody was granted to her real father/respondent

Validity

Mother of the minor had died and her natural guardian had sought custody of the minor which was allowed by the courts

Nothing was alleged against the respondent which could qualify or disentitle him from custody of the minor girl

Respondent was educated and did not suffer from any disqualification envisaged by law

Respondent, right from the inception was vigorously pursuing the remedies to obtain the custody of his daughter

Contention of petitioner that respondent had no feelings towards his daughter and he had deliberately left the daughter at the house of the petitioners after the death of his wife had no force

Constitutional petition was dismissed.

Mother amongst all persons is the best person entitled to the custody of minor children during the connubial relationship as well as after its dissolution

Such right belongs to the mother which cannot be taken from her except for her own misconduct

Tenderness of age of minor or the weakness of his sex, renders a mother's care necessary

Islamic Law supports the mother's natural right qua the custody of the children and similarly according to the Hanafi doctrine mother is entitled to the custody of their children until they arrive at puberty.

Such was purely the prerogative of the Guardian Court to decide the same.

Dispute between the parties was with regard to application regarding custody of minor daughters pending before Family Court

Petitioner sought dismissal of custody application on the principle of res judicate, as earlier custody application had already been dismissed

Family Court dismissed application of petitioner

Validity

Welfare of child in custody cases, was of paramount consideration

Order of custody of a child was not one of permanent nature

Change in circumstances or new grounds that could have arisen with the passage of time could necessitate revisiting earlier order for custody

Second, application was not barred in such circumstances

Earlier order for custody was to be given due weight and importance while deciding second application

Physical, emotional and psychological growth of child could be considered as change of circumstances

No definitive age could be stated at which child was able to express his or her preference in a custody case

Just because a child preferred to stay with one parent or the other did not mean that such wish must necessarily be exceeded to

Child in adolescence could be motivated by desires that may not be in their better interest

Court was to determine if child was mature enough to express his or her preferences as well as could determine intent and reasoning behind its preferences

New grounds, like children were substantially older, remarriage of father, departure of one child and allegations as well as allegations of increased abuse, necessitated that Family Court to examine such issues based on evidence to support such allegations

Children must be given an opportunity to express themselves

High Court declined to interfere in the order passed by Family Court regarding rejecting plea of principle of res judicata

Constitutional petition was dismissed, in circumstances.

Guardian Court was the final arbiter for adjudicating question of custody of children and legal course for obtaining custody of child for a parent or one interested in obtaining custody of child was with Guardian Court within the meaning and scope of S.25 of Guardians and Wards Act, 1890

Where there appeared an exception to normal situation, child could not be left to suffer consequences of procedural hurdles and lethargy of system at the cost of child's welfare rather one deprived of lawful custody provided a way to invoke jurisdiction of Court under S.491, Cr.P.C. as interim measure till final arbiter would decide question of custody finally

Minors were residing with their father at place "K" and prima facie never accrued first step of abnormality i.e. 'illegal removal of child from lawful custody', which alone was sufficient to let normal legal course prevail

Matter was outside the limits of appellate criminal jurisdiction of High Court at place "L", therefore, High Court declined to interfere in the matter

Application was dismissed, in circumstances.

Petitioner (mother) agitated that the minors were forcibly taken away by the respondent (father) and was threatening the petitioner

Respondent filed counter affidavit wherein he denied the said allegations contending that at the time of divorce petitioner consented to handover the custody of the first minor/child whereas she was pregnant and consented the custody of second minor/child after giving birth

Petitioner, instead of approaching the Curt of competent jurisdiction, directly approached High Court under constitutional jurisdiction

Validity

Petitioner had neither produced any document to show the date of divorce nor denied the divorce document produced by respondent

Said divorce document/stamp paper was annexed with counter affidavit by the respondent

Petitioner neither denied such document nor rebutted the same, hence the same was considered to be true

Petitioner claimed custody after an unjustifiable delay of one year

Minor aged 8 months

Mother could not keep quiet when her new born was forcibly taken

Respondent presented Iqrarnama showing that petitioner herself consented to handover custody of minor

Such Iqrarnama had not been denied/rebutted, hence considered to be true

Names of minors had been incorrectly mentioned in petition which showed petitioner's lack of interest in minors

Petitioner alleged in the petition to have filed application before police but record showed the same was filed after more than 04 months of filing petition which seemed to be afterthought

Present Constitutional petition was not maintainable

Petitioner had two remedies: firstly, to approach the concerned police station against alleged threats or avail consequential remedy under S. 22A of Criminal Procedure Code, 1898; secondly, to claim custody of minors under Guardians and Wards Act, 1890

Constitutional petition was dismissed accordingly.

Petition under section 491, CrPC is maintainable and can be filed during pendency of application before Guardian Judge for custody of minor.

Jurisdiction of High Court under S.491, Cr.P.C., for recovery of minors is to be exercised sparingly and such exercise may be undertaken only in exceptional and extra-ordinary cases of real urgency keeping in view that even a Guardian Judge has the requisite powers of recovery of minors and regulating interim custody.

Petitioner/father assailed order passed by Sessions Judge whereby the respondent's/mother's application under S.491, Cr.P.C., for custody of minors was allowed

Contention of petitioner was that the minors were handed over to the petitioner in the light of compromise effected between him and his ex-wife in a family suit

Validity

Court below had only granted temporary custody of minors to the mother

Proceedings under S. 491, Cr.P.C. were summary in nature and were not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention

Petitioner had not even bothered to appear before the Sessions Judge during pendency of the application

Constitutional petition was dismissed, in circumstances.

Proceedings under S.491, Cr.P.C., are summary in nature and are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention

Court while deciding application is not required to go into question of status or relationship of the parties by holding full-fledged trial of the counter claim and it should concern itself only with the free will of the detenue.

Modification of earlier visitation schedule chalked out by the Guardian Court which had attained finality due to reported judgment of High Court [(MRS. AMNA NAWAZ CASE, 2018 MLD 1303)]

Jurisdiction of Guardian Court

Scope

Welfare of minor

No lis was pending between the parties

Mother invoked constitutional jurisdiction of the High Court contending that her visitation rights were being infringed in absence of proper visitation schedule for meeting with her children in custody of their father

Held, that for deciding the question of custody of a minor and any other issue relating thereto, welfare of the minor was the paramount consideration for the Guardian Court and, therefore, any issue in said regard was to be assessed, examined and measured by the Guardian Court on such yardstick

Guardian Court had to record a definite finding on said point before passing any order in the matter

In the present case, after the High Court having set aside the judgment passed by the Appellate Court in only the decision of the Guardian Judge was in the field which was the final arbiter of the matters relating to the custody of the minors and there could not be any other Court more suited to issue an amended visitation schedule of meeting of the petitioner with her children

Guardian Court had been empowered to modify, set-aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context would not operate as a bar of jurisdiction for the Guardian Court for all future time to come

Petitioner, who was real mother of the children, unfortunately, was making hectic efforts and running from pillar to post merely for getting a meeting with her own children but neither visitation schedule , as per order of the High Court, had so far been chalked out due to filing of miscellaneous applications by the respondent/father nor he had appeared and produced children before the High Court despite specific (several) orders/notices

Non-appearance of the father showed that he was deliberately avoiding to appear and produce children

High Court set-aside impugned order passed by the Guardian Judge passed in the year 2019 and directed the petitioner to approach Guardian Court for getting a fresh schedule of meeting with her children

Constitutional petition was allowed, in circumstances.

Petitioner mother impugned orders passed under S.491, Cr.P.C. and S.25 of Guardians and Wards Act, 1890 whereby custody of her minor children was given to father and stepmother

Contention of petitioner, inter alia, was that welfare of minors could only be assured if custody was given to mother

Validity

No ground for disqualification of mother to have custody of children, under Islamic Law, was attracted in the present case and father of minors was admittedly living abroad and thus it could not be presumed that he could take care of them on his own

No one could be a better guardian than a mother, and thus custody of minors should be with mother

Impugned orders were set aside and High Court directed respondents to handover custody of minors to petitioner/mother

Constitutional petition was allowed, accordingly.

Contention of father, inter alia, was that petitioner mother had executed an affidavit whereby she agreed that custody was to be given to father

Validity

While alleged affidavit / agreement was denied by mother, even otherwise such an agreement had no value in eye of law and could not be relied upon as question regarding custody and guardianship of minors could not be settled by private compromise or arbitration

Where there was an agreement entered into by female, which appeared unconscionable on face of it, then there existed a rebuttable presumption that same was entered into under coercion and undue influence

No effective rebuttal was forthcoming in the present case to show as to why mother would voluntarily part with minor son

While Guardian Court was final arbiter in such matters, however, Constitutional jurisdiction of High Court was not precluded from giving consideration to welfare of minors and act where parent holding lawful custody of minor was deprived of same

High Court directed that custody of minor be handed to mother / petitioner

Constitutional petition was allowed, accordingly.

High Court in exercise of powers under S. 491, Cr.P.C. had to exercise parental jurisdiction and was not precluded in all circumstances from giving due consideration to the welfare of minors and to ensure that no harm or damage came to them physically or emotionally by reason of breakdown of the family tie between the parents

Application under S. 491, Cr.P.C. was maintainable for just recovery of minors from illegal custody of any person

Controversy raised by the parties needed to be looked into by the Guardians Court by way of proper proceedings

Application was disposed of with direction to the petitioner to approach the concerned Guardian Court.

Proceedings under S. 491, Cr.P.C., are not available for declaring any person as guardian or for determining all the questions relating to the custody of minor because the final decision of regular custody is to be decided before the Guardian Court in the proceedings initiated by the parties claiming the custody of the minor.

Father's petition for custody of two male minors and one female minor was accepted to the extent of male minors while the custody of female minor was entrusted to her mother till puberty

Validity

Petitioner/father was a contractor who remained out of the house most of the time for business purposes

Petitioner had failed to point out the person who would look after the baby girl at his home

Minor was about 4/5 years of age and in such age the attention of mother for capacity and intellectual development of female minor was much required

Association of female children with their mother was more important as compared to the father

Poor financial status of mother did not disentitle her from the custody of the minor

None could take care of minors more than their real mother for being their first institution and depriving minors of the company of their real mother would create deprivation in their lives which could not be restored back

No misreading or non-reading of evidence could be attributed to the judgments of the courts of below

Constitutional petition was dismissed.

Petitioner filed petition under S.491, Cr.P.C. for issuance of an appropriate order with direction in the nature of habeas corpus

Contention of petitioner was that according to the parenting plan submitted by him and respondent in foreign court both parents would exercise joint parental authority over minors and the parents would consult each other when they planned any relocation of residence of the minors in custody of respondent

Matter of custody had already been decided by foreign courts and the minors were foreign nationals

Respondent had secretly, without consent and knowledge of the petitioner brought the minors to Pakistan

Petition was accepted and the custody of minors was handed over to the petitioner.

Petitioner sought custody of minors on the ground that their mother had violated the written agreement by contracting second marriage, therefore, she had lost her right of hizanat

Held; legality of agreement could not be determined by the court during the proceedings under S. 491, Cr.P.C.

Parties had already appeared before the proper forum for determination of their rights

Petitioner had not alleged that minors were snatched by their mother

Constitutional petition was dismissed.

Applicant sought recovery of minors on the ground that about 15 to 20 days before the filing of petition respondent (father of minors) came to her house and removed the custody of minors on the pretext that he would take them to market for shopping

Respondent produced certificates issued by the Principal of school, in which minors studied, to the effect that they had been studying in the school for the last several months

Admission on the part of applicant that minors had been studying in the school where respondent resided was sufficient evidence to show that their custody was with the respondent when the applicant was allegedly compelled to leave the house

Respondent was the natural guardian of the minors, custody of minors with him could not be termed as illegal

Application was dismissed, in circumstances.

Essential consideration for invoking S. 491, Cr.P.C. is that the custody of minors with the second party is illegal or that the minors were illegally removed from the custody of the applicant.

High Court, in such like case, while exercising of its powers under S.491, Cr.P.C. has to exercise parental jurisdiction and is not precluded in any circumstance from giving due consideration to the welfare of the minors and to ensure that no harm or damage comes to them physically or emotionally by reason of breakdown of the family tie between the parents.

Petition was allowed and custody of minors was handed over to the mother, in circumstances.

Grievance of petitioner/father was that Lower Appellate Court dismissed his appeal for custody as minors had attained majority

Plea raised by petitioner was that he wanted to transfer property in name of his children

Validity

Minors having attained age of majority therefore, no such jurisdiction lay with the Guardian Court, its Appellate Court or Supervisory Court

No law restricted petitioner from making transfer of his property in favour of his children if same was free from all encumbrances

Petitioner needed no permission of any court nor such intention alone could help petitioner to control wishes of an adult if adult had chosen otherwise

Constitutional petition was dismissed in circumstances.

Petitioner sought issuance of yellow and red warrants against her husband for recovery of her minor child from foreign country

Validity

Intention of petitioner was not to get her husband arrested but she was interested in issuance of yellow notice for minor child

Purpose of yellow notice was to get help of Interpol for tracing and locating of a missing person including a minor

Minor was not missing and had traveled to UAE earlier with his father

If it amounted to 'parental abduction' then Hague Convention on Civil Aspects of International Child Abduction would play a part in bringing minor back to Pakistan

When respondent was not wanted in any criminal case and there was no treaty between Pakistan and UAE regarding the issue, order of issuance of red and yellow notices had become infructuous

Welfare of minor was his staying in Dubai and would be more beneficial for his future

While approaching court in Dubai, petitioner also putforth her case by showing her intention to keep minor in Dubai and for same purpose, she demanded for provision of a dwelling house for minor and only certified copy of his passport

Even in transnational child custodial cases, best interest of child could not be overlooked

Petition was dismissed in circumstances.

Petitioner was mother of minor children and was aggrieved of registration of FIR by her ex-husband alleging kidnapping of their minor daughters

Validity

Complainant was aware that custody of minors was taken by natural guardian, i.e., mother from their maternal uncle

Complainant had admittedly not approached a court of competent jurisdiction to obtain custody of minors

No lawful order was available on record giving custody of minors to complainant who was not a natural guardian

Complainant did not hesitate in naming several other family members/relatives of petitioner to harass them as well

Contents of FIR left no doubt whatsoever that, let alone ingredients of S. 361, P.P.C. no criminal case was made out for attracting punishment under S. 363, P.P.C.

Complainant not being a natural guardian was not declared as lawful guardian by any court having competent jurisdiction in this regard

Police authorities had no jurisdiction in interfering with a purely family dispute, related to custody of minors between their parents; it was within exceptions to general rule that courts neither interfered in investigations nor quash criminal case

FIR was quashed in circumstances.

Mere relationship of minor with applicant is not sufficient to hand over his custody.

Paramount consideration, while deciding the question of custody of minors, is their welfare which has to be seen in view of their age, sex and religion

Personal law is also to be taken into consideration.

Where father has opted for second marriage, lived and enjoyed his life with his second wife, it is paramount duty of the court to see convenience and welfare of the minors.

Minors had remained with their mother from childhood; therefore, they were more familiar and akin to their mother as compared to the father

Father had contracted second marriage; and he, being a blind person with no source of income could not himself look after minor children

Minors would ultimately remain at the mercy of their step-mother, who could not be a substitute of a real mother having natural love and affection for her children

Female child naturally needed the company and association of mother

Male child, even if he had crossed the age of seven years, also needed the same atmosphere, especially when he throughout the period had been living with his mother

Mother had been looking after the minors in an appropriate manner while male child was studying in a school

Nothing had been brought on record indicating that the minors were being brought up and looked after in a bad manner

Appeal was dismissed.

Comprehensive plan for custody, visitation rights and maintenance of minors, and obligations of both parents issued by the Supreme Court listed.

Mother contended that she had soleminised nikah and rukhsati was going to be taken place and she would not be in position to look after the minors properly

Held, that while determining the custody of female ward, the question of chastity to be jealously guarded if the mother of female daughter had contracted second marriage with stranger, she had lost her right of hizanat

Father being natural guardian of his minor/minors, Court had to be satisfied about welfare of minor/minors while appointing the father as guardian

Admittedly, the mother had contracted second marriage and it was not possible for her to take the custody of minors with her and father of the minors being in good financial position could easily look after the minors properly rather than the mother

Mother was entitled to the custody of her male child until he had completed the age of seven years and of her female child until she had attained puberty and the right continued though she was divorced by the father of child unless she remarried, in which case the custody belonged to the father

High Court observed that, in the present case, the male minor was about 13 years old and after Nikah with a stranger the mother would loose her right of hizanat to the extent of female minor

Order passed by the Family Copurt was set aside, constitutional pettion was allowed accordingly.

Petitioner/mother contended that her second marriage had not disentitled her for the custody of minors and that as paternal grandmother of minors had died , there was no one to look after the minors

Respondent/father contended that owing to the compromise before Family Court, mother had waived off her right of custody of minors

Validity

When the mother contracted the second marriage with a person who did not fall within prohibitory degree with the minor, she lost her normal right of custody of minor

Record revealed that a compromise was produced before the Family Court which was signed by the mother who also got recorded her statement before the Court

Mother, after having made statement before the Court, was bound to abide by the same and any proceedings instituted by her were violation of the compromise

When the mother otherwise was not entitled for custody of minor, the question of compromise was inconsequential

Admittedly, minor daughter had crossed 8th year of her age and in view of her growing age her stay with second husband of her mother, who was alien to her, would be illegal

Minors, in the present case, were living with their father without any objection from any corner

Record established that in absence of father the minors were being looked after by real sister of their paternal grandmother who had no adverse interest against the minors

No illegality or infirmity having been noticed in the impugned judgment of Appellate Court, Constitutional petition was dismissed.

Feeding the suckling baby is of great importance and sentence of woman prisoner could be postponed while the child was being fed by his/her mother

Child could not be deprived of such right if mother was available and willing to feed the child.

For custody of minors and alternate remedy was available before Courts established under Family Courts Act, 1964, and petitioner had every right to avail the same

Constitutional petition was disposed of accordingly.