Supreme Court of Pakistan Rules: Natural Guardianship Alone Not Sufficient for Child Custody if Welfare Is at Risk.
دوسری شادی اور بچی کی حوالگی: سپریم کورٹ کا اہم فیصلہ
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Must read judgement
A father, who has never met his minor daughter and resides abroad since her birth, cannot claim custody of minor on the sole ground of being natural guardian when natural mother of minor has contracted a second marriage.
In the event of remarriage of either or both parents, the Court must consider the surrounding circumstances of both parties, including their educational qualifications, financial status, character, and ability to care for the minor. Due weight is also given to the emotional attachment of the minor.
While it has been settled that a mother’s second marriage, even to a person stranger to minor, does not in itself disqualify her from custody of the minor, provided that the welfare of the minor is best served by her continued care. It is significant to note that the petitioner himself has contracted a second marriage and is residing abroad. Furthermore, upon a specific query posed by this Court during the course of arguments regarding the frequency of his visits to Pakistan, the petitioner admitted that he visited Pakistan only after a lapse of four years and, even then, did not file any application seeking visitation rights in respect of the minor. This conduct further reflects the petitioner’s lack of genuine interest in the welfare and upbringing of the minor. It is further an undisputed fact that the petitioner has no surviving parents. Considering that the petitioner is residing abroad and has contracted a second marriage, it raises serious concerns as to who would assume responsibility for the minor’s day-to-day care, supervision, and emotional needs in his absence.
It is a settled principle of law that the welfare and best interests of the minor(s) shall be the prime and overriding consideration in determining an application for custody, with no other factor taking precedence.
The expression "welfare of the minor" includes the minor’s moral, spiritual, physical, psychological, educational, and material wellbeing. It further encompasses considerations relating to the minor’s health, academic progress, religious upbringing, and overall emotional development. In determining welfare, due weight must also be given to the minor’s happiness and emotional attachment to the proposed custodian.
It is the duty of the Court to ensure that the welfare of the minor is of paramount concern, and that the actions of the litigating parties are not motivated by personal vendettas, vanity, or emotional desires for affection, but solely in the best interest of the minor. In matters concerning the custody of a child, the Family Court is not obliged to delve into the intricacies or technicalities of the case but must focus on determining what is in the best interest of the minor.
Under Islamic law, the father is generally entitled to custody of a boy after the age of seven years and of a girl after puberty.
The concept of the welfare of the child is internationally recognized as being embodied in the principle of the "best interests of the child." This principle, affirmed under Article 3(1) of the United Nations Convention on the Rights of the Child, 1989 (“UNCRC”) serves as a paramount consideration in all actions concerning children, whether undertaken by public or private institutions, courts of law, or administrative authorities.
C.P.L.A.3920/2024
Asjad Ullah v. Mst. Aisa Bano and others
22-04-2025