Custody of minors

  1. Welfare of the minors would be presumed with the person who is entitled to it under the Muslim Law until and unless otherwise proved. Zakia Khatoon v. M. Hayat Khan 1998 SCR 140 (B)
  2. Paramount consideration while deciding the question of custody of minors, is the welfare of minors which has to be seen keeping in view the age, sex and religion — The personal law has also to be taken into consideration. Shaheen Akhtar  v. Munir Ahmad and 2 others 2003 SCR 502 (A)
  3. Welfare of minor — paramount consideration — question — father and mother contracted second marriages — on account of remarriage of mother with a person who is not related to minor within the prohibited degree, whether she absolutely disqualifies herself from custody of minor — this question has to be decided while keeping in view the interest and welfare of the minor. Held: the welfare of the minor is of paramount importance while deciding the question of welfare of minor, the Court has to consider all attending circumstances. Mst. Shazia Kousar v. Nisar Ahmed 2014 SCR 572 (A) PLD 1955 Lah. 412, PLD 1965 Karachi, 65, and PLD 1963 W.P. Karachi 465  ref.
  4. Held: while deciding the question of custody of the minor, paramount importance is given to welfare of the minor.  Apart from considering the whole circumstances and record, the opinion of the minor has also to be considered, if the minor is intelligent enough to form an independent opinion. The application for custody can be decided on the basis of the statement of the minor. Mst. Shazia Kousar v. Nisar Ah. 2014 SCR 572 (B) 2006 SCR 301, & PLJ 2012 SC (AJ&K) 26  ref.
  5. Prime consideration — welfare of minor — mere on the ground that the father is a natural guardian, the appellant-grandmother cannot be deprived of the custody of the minor, especially, when the welfare of the minor is lying with her.  Mst. Hukam Jan v. M. Yaseen  2016 SCR 487 (A) 2000 CLC 108 rel.
  6.  Held: prime consideration for determining the question of custody is always the welfare of the minor — there could not be an absolute rule and fixed criteria for determining the welfare as each case has its own peculiar facts and circumstances — father cannot be deprived of the custody of minor on any other ground except the welfare of minor. Mst. Hukam Jan & 4 others v. Muhammad Yaseen 2016 SCR 487 (B)
  7.  Mother and father contracted second marriages — minor 9 year old — remained all along in custody of mother — father never paid the maintenance charges/expenses to the minor — welfare of minor prime consideration — In case reported as 1995 SCR 136, it was held that the welfare of minor would be presumed with the person who is entitled to the custody under Muslim Law — the said presumption rebuttable if the circumstances are brought on record which tend to show that in fact the welfare of a minor lies with a person other than one who is not entitled to have the custody under Personal Law, the Court may refuse the custody — Courts below  ordered  for handing over the custody of minor to father on the  ground that he is living in England — despite the fact that he has contracted second marriage and has children, is against the welfare of the minor — Held: the welfare of the minor lies with the mother. Tahira Zaib v. Ghaffar Ahmed & 2 others 2016 SCR 818 (B,C&E) 1995 SCR 136 distinguished  Where the minor is intelligent enough to form an opinion, while determining the question of custody and welfare of the minor, the opinion of the minor shall be considered. Tahira Zaib v. Ghaffar Ahmed & 2 others 2016 SCR 818 (D) 1985 SCMR 1367 rel. 
  8. —Paramount consideration for deciding the matter of custody of minor, is the welfare of the minor. Muhammad Sarfraz Versus Mst. Uma-e-Hani & another 2021 SCR 205 (A)
  9. — Paramount importance is always given to the welfare of the minor—apart from considering the whole circumstances, the opinion of minor has also to be considered—if the minor is intelligent enough to form an independent opinion, then the issue of custody can be decided on the basis of the statement of the minor. Muhammad Farooq Versus Beenish & another 2021 SCR 221 (A)
  10. —Father a labourer by profession— cannot give proper time to the minors—mother an educated lady who has not contracted the second marriage—spends whole time with the minors—held: welfare of the minors lies with mother.Muhammad Farooq Versus Beenish & another 2021 SCR 221 (B)
  11. —Contention of—the utmost priority of the Court in determining the custody of a minor is the welfare and well-being–the objective of law is not just handing over the custody of the minor, but to examine all the aspects which come with it— the power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor’s welfare—the word “welfare” in such case is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, education needs, physiological well-being, religious and moral values— the Courts are duty bound to consider custody in the best interest and health up-binging of the minor which sometimes may yield the rights of the parents— no doubt according to certain Muslim Jurists, custody of minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father Waheeda Bashir versus Muhammad Munsif Khan 2021 SCR 586 (A) 
  12. —the paramount consideration in all such situation would be the betterment of the minor and even mother may be deprived of the custody of minor, if circumstances of the case allow. Waheeda Bashir versus Muhammad Munsif Khan 2021 SCR 586 (B)
  13. —The Court will prefer the betterment of minor over that of parents’ right in such cases— the said principle allows the Guardian Courts to determine the custody of the minor on the basis of his best interest which can lie with either of the parents. Waheeda Bashir versus Muhammad Munsif Khan 2021 SCR 586 (E)
  14. —See Syed Naveed Hussainshah v. Mst. Naznin Mazhar2022 SCR 125 (A)
  15. — Mother is entitled to custody of her minor but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger then the custody of minor belongs to father. Mst. Shahnaz Akhtar v. Muhammad Kabir 2022 SCR 746 (A)
  16. — Mother of minor always has natural love and affection— minor-daughters attained the age of 13 and 16 mother contracted second marriage with a person, who is not related to minors within the prohibited degree   the welfare/betterment of minors lies with the father. Mst. Shahnaz Akhtar v. Muhammad Kabir 2022 SCR 746 (B)
  17. — in the matter of custody of minors, the paramount consideration for the Court is always the welfare of the child — mother, a teacher, earning substantial income, seems capable of providing better upbringing for the child — father contracted second marriage and have children from second union — the father has an obligation to support the child regardless of his/her custody — taking into account child’s statement as well as the circumstances the custody of minor awarded to the real mother.Sonia Farhad versus Usman-ul-Haq & others 2023 SCR 666 (A)
  18. —father and mother, both entered into second marriage— previously custody of minor was with mother and grandmother, as per agreement between parties —father sought custody of minor on ground of mother’s contracting second marriage—custody of minor well-suited with grandmother or stepmother— determination of—held: It is also evident from the record that the petitioner has entered into a second marriage and in presence of the stepmother it may not be appropriate to grant custody of the minor to the petitioner as it is believed that the stepmother may not be able to provide adequate attention to the minor. Abdul Ghafoor vs Kiran Mukhtair 2024 SCR 425(B)

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