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| Second marriage of mother & custody of minor |
والدہ کی دوسری شادی کے باوجود بچی کی تحویل برقرار — پشاور ہائی کورٹ کا اہم فیصلہ
(2026 CLC 1052)
مختصر کہانی
اہم نکات
Must read judgement.
2026 CLC 1052
[Peshawar (D.I.Khan Bench)]
Before Inam Ullah Khan, J
SAEED KHAN ---Petitioner
versus
Mst. ROZINA BIBI and others ---Respondents
W.P. No. 113-D of 2025 with C.M. No. 93-D of 2025, decided on 19th November, 2025.
Guardians and Wards Act (VIII of 1890)---
---Ss. 17 & 25---Constitution of Pakistan, Art. 199---Custody of minor determination of---Welfare of minor---Remarriage of mother of minor
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Jurisdiction in custody matters-Scope and effect-Provision of S.25 of girl-Financial status of parent, consideration of Constitutional the Guardians and Wards Act, 1890 reveals that, in the matter of custody of a minor, the courts must primarily take into consideration the welfare of the minor-Welfare and best interests of the minor are the prime and overriding consideration in determining an application for custody, with no other factor taking precedence---Determination as to what constitutes welfare of a minor is a question of fact that must be established through cogent and reliable evidence in each case rather than presumptions---Expression "welfare of the minor" includes the minor's moral, spiritual, physical, psychological, educational and material well-being; 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---Holistic examination of the record demonstrated that the pivotal question for determination remained the welfare of the minor, which is the controlling consideration under S.25 of the Act---In the present case, the record unequivocally reflected that the minor harboured a strong dislike towards the petitioner/father and repeatedly refused to meet him during the proceedings---Further she appeared before the High Court and clearly expressed her willingness to reside with her mother---Conversely, the petitioner, being in service in the Pakistan Army, remained away from home for extended periods, Cleaving little opportunity to personally attend to the minor's welfare; in such circumstances, the minor would inevitably remain dependent on the petitioner's parents---On the other hand, the respondent-mother had maintained uninterrupted custody of the minor since infancy, during which the minor had remained well-settled, secure and emotionally stable in her care---Aspect of the respondent-mother's remarriage was duly considered by the courts below, and nothing adverse regarding the minor's safety, upbringing or environment had been brought on record---Mere remarriage, without tangible detriment to the minor, could not be treated as a disqualification---Apprehensions raised by the petitioner regarding the respondent-mother's remarriage were speculative and unsupported by any adverse material---Petitioner's assertions of superior financial means or status as natural guardian, though relevant, did not override the settled and emotionally secure welfare enjoyed by the minor in maternal custody---As elucidated in D.F. Mulla's Principles of Muhammadan Law (Paras. 352 and 354), while a mother's right to custody continues even after divorce, it may be forfeited upon remarriage, particularly if the marriage is contracted with a person who is not related to the minor within the prohibited degrees---Nonetheless, Ss. 17 and 25 of the Guardians and Wards Act, 1890 mandate that the welfare of the minor shall remain the paramount
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CIVIL LAW CASES
[Vol. XLVII
consideration in determining custody disputes--Disqualification of the mother under Muhammadan Law upon remarriage is not absolute and must yield to the overarching principle of the minor's welfare---If the welfare of the minor is best served in the custody of the mother, such custody may be granted to her notwithstanding her remarriage-Therefore, each case must be decided on its own facts, with the welfare of the minor remaining the paramount consideration---In such cases, if the welfare of the minor is best served by awarding custody to the mother, even after remarriage, the court may grant her custody---Right of Hizanat, having the force of injunctions of Islam, is an accepted principle of Islamic law---Moreover, a female, on account of remarriage, may be disqualified from exercising this right, but a mother on account of remarriage is not absolutely disqualified from being entrusted with custody of a minor child; rather, she may lose her preferential right of custody---Respondent-mother's remarriage, the environment of her new matrimonial home, the minor's consistent preference and the petitioner's service-related limitations were all duly considered and appropriately weighed---No misreading or non-reading of evidence, or failure of jurisdiction, was demonstrated so as to justify interference under the constitutional jurisdiction of the High Court---Constitutional petition, filed by father of minor girl, was dismissed. [pp. 1057, 1058] A, B, C, D, E, F, G, H & I
Khan Muhammad v. Mst. Surayya Bibi and others 2008 SCMR 480; Rahimullah Choudhary v. Mrs. Sayeda Helali Begum and others 1974 SCMR 305; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123 and Mst. Shahista Naz v. Muhammad Naeem Ahmed and another 2004 SCMR 990 ref.
Muhammad Waqas for Petitioner.
Ghulam Mustafa Marwat for Respondents.
Date of hearing: 19th November, 2025.