Child custody If mother remarried in Pakistan
ماں کی کمزور مالی حالت اور غربت کی وجہ سے اس سے اس کو بچوں کی حوالگی سے محروم کرنامعقول وجہ نہیں ھے۔ SCMR 520 2019
Q: What are the legal rights of women after divorce or before divorce she can get through
Ans: there are many rights she can avail
- Women and their legal rights
- Transfer of cases in her city
- Kharche ka case
- saman jahez ka case
- Custody of kids
- mere khawand ne bache cheen liye hain un ko wapis kese le sakti hun
- mere gear walo ne meri shadi meri marzi k half kar di hai
- mera shohar bachu ka kharcha ada nahi kar raha
- main apne shohar se recovery kese karwa sakti hu
- gumshuda nikah nama dubara banwana
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| Child custody If mother remarried in Pakistan |
custody of children always very important for both parties after divorce and both parties want to take custody but always minors welfare is most important thing which decide custody.
Following judgement is latest judgement of Supreme court in which supreme court decide the right of the mother not end if she remarry.
Short story of the following judgement that trial court custody of the children grant to mother
Because The both girls record their statements that they want to live with their mother where they are living.
But Father stance fail in trial court that mother have been lost the right of custody due to second marriage.
Father challenge orders before session Judge and session judge accepted his Appeal and order setaside trial court.
Mother challenge Session court order before High court in writ jurisdiction. After hearing the case High court restore trial court order and give custody again to mother.
Father challenge High Court order in Supreme Court.
Supreme Court maintain the orders of the High court and trial court and give custody to mother.
Latest judgement Cover all the points people ask.
Specially Father wants to take custody on ground that mother is remarried.
Judgement of Supreme court about custody of kids If mother remarried in Pakistan.
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Syed Mansoor Ali Shah
Mrs. Justice Ayesha A. Malik
CIVIL PETITION NO.240 of 2021
[Against order dated 12.01.2021 passed by the Lahore High Court
Rawalpindi Bench, Rawalpindi in W.P. No.3800/2019]
0
Raja Muhammad Owais
…Petitioner(s)
Versus
Mst. Nazia Jabeen and others
…Respondent(s)
For the Petitioner(s)
: Mr. Muhammad Siddique Awan, ASC
along with Petitioner
For Respondents No.1
to 5
: Ms. Sarkar Abbas, ASC along with
Respondents
Date of Hearing
: 05.10.2022
JUDGMENT
AYESHA A. MALIK, J.- The Petitioner has impugned
order dated 12.01.2021 of the Lahore High Court, Rawalpindi
Bench (the High Court) whereby judgment by the Appellate
Court dated 08.11.2019, was set aside and judgment dated
25.04.2019 passed the Senior Civil Judge, Rawalpindi, was
restored.
2.
Brief facts are that the Petitioner and Respondent
No.1 were married and had four children, namely, Faizan Ullah
Raja, Rabia Awais, Ayesha Awais and Ummama Awais; their
ages today are 8 years, 13 years, 16 years and 17 years,
respectively. Their marriage was dissolved on 30.01.2017. An
application for custody under Section 25 of the Guardians and
Wards Act, 1890 (Act) was filed by Respondent No.1, the mother
CP No.240 of 2021
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on 08.11.2017 for the custody of the four children wherein she
disclosed the fact that she had remarried. During the pendency
of the custody application, two of the children, namely,
Ummama Awais and Ayesha Awais left their father’s home and
moved in with their mother on 15.11.2017. They did this of
their own choice and as a consequence thereof, the mother
moved an application under section 22-A/22-B Cr.P.C. seeking
a direction to refrain the Petitioner-father from causing
harassment to her and the family members, which was disposed
of by a learned Additional Sessions Judge/Ex-Officio Justice of
Peace, Rawalpindi on 25.11.2017. The Senior Civil Judge
(Family Division), Rawalpindi, vide consolidated judgment dated
25.04.2019 accepted her application for custody of the children.
This judgment was challenged before the Appellate Court which
set aside the judgment of the Senior Civil Judge and awarded
custody of the children to the father vide judgment dated
08.11.2019. The mother assailed the judgment of the Appellate
Court through Writ Petition No.3800 of 2019 and the impugned
order set aside the said judgment by upholding the judgment of
the Senior Civil Judge, awarding custody of the children to the
mother.
3.
The basic contention of the father is that the mother
has lost her right to custody given her second marriage. The
learned counsel argued that in this case the father has not remarried; he has a respectable job and is able to care for the
children; that his family consists of his brother & his wife and
his mother. They reside in the same house and are able to help
CP No.240 of 2021
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him in taking care of the children. The father appeared in
person and stated that the man the mother has married already
has another wife with four children and amongst these children,
he has four sons who are adults, ages between 20 to 24 years
whilst his daughters are young between the ages 13 to 17 years.
Hence, he stated that his four children should live with him and
not with the step-father and step-brothers, which is not
acceptable.
4.
On behalf of the mother, the learned counsel
confirmed that she has remarried and that the husband does
have another family. However, she clarified that the families live
in separate houses and that the husband visits Respondent
No.1 in her home. She stated that Respondent No.1 is
independent and runs a successful business with her husband;
that the children are happy with the mother and they have all
opted to live with her as they made their statements before the
Senior Civil Judge that they are desirous of living with the
mother. The impugned order has considered both the
judgments of the Senior Civil Judge and the Appellate Court
and concluded that while the Senior Civil Judge decided the
issue of custody in favour of the mother based on the facts of
the case while considering the second marriage of the mother,
the Appellate Court did not consider the facts properly and set
aside the judgment solely on the ground that she had
remarried.
5.
The impugned order has relied on the financial
independence of the mother, her education and the fact that the
CP No.240 of 2021
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children wish to live with the mother. On the issue of the
second marriage, the High Court found that the welfare of the
minors lies in all four children living together, with the mother.
The Petitioner contests these findings essentially on the ground
of Respondent No.1’s second marriage and the fact that the
person whom Respondent No.1 is remarried has another wife
and family.
6.
The basic issue is with reference to the custody
sought by the mother for her four children. The emphasis by the
father is on the mother’s second marriage which it is argued
disentitles her to custody under the Islamic Law. D.F. Mullah in
Mohammadan Law in Para 352 provides that the mother is
entitled to the custody (hizanat) of her male child until he has
completed the age of seven years and of her female child until
she has attained puberty. Para 352 ibid provides that this right
continues whilst she is divorced from the father of the child,
however, in the event she marries a second time, custody then
belongs to the father. Para 354 of Mohammadan Law provides
that the mother, who is otherwise entitled to the custody of a
child, loses the right of custody if she marries a person not
related to the child within the prohibited degrees which are
specified in paras 260-261 of Mohammadan Law. So as per the
principles of Mohammadan Law by D.F. Mullah where she
remarries, she can be disqualified for custody. Section 17 of the
Act requires the Court to consider the welfare of the minor when
appointing a guardian and welfare will be decided based on the
age, sex and religion of the minor, as well as the character and
CP No.240 of 2021
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capacity of the guardian and the preference of the minor where
they are old enough to state their preference intelligently. These
provisions and the principles of Mohammdan Law have been
examined by this Court in several judgments where it has held
that the conditions contained in Paras 352 and 354 of Mullah’s
Mohammadan Law are not absolute and are subject to the
welfare of the child. In Muhammad Siddique v. Lahore High
Court, Lahore thorugh Registrar and others (PLD 2003 SC 887),
it was held that although the general rule is that the mother on
contracting a second marriage forfeits her right of custody, this
rule is not absolute and if it is in the interest of the child,
custody should be given to the mother. The Court further held
that it is the welfare of the minor that must be considered while
determining custody and there is no absolute rule or fixed
criteria on the basis of which welfare of the minor can be
determined or custody can be awarded. In Mst. Shahista Naz v.
Muhammad Naeem Ahmed (2004 SCMR 990), this Court
concluded that the right of Hizanat having the force of
Injunctions of Islam is an accepted principle of Islamic Law and
a female on account of re-marriage may be disqualified to
exercise this right, but a mother on account of re-marriage is
not absolutely disqualified to be entrusted the custody of a
minor child rather she may lose the preferential right of
custody. The Court further held that there is no denying the fact
that there can be no substitute for the mother of the minor
child especially of tender age, therefore, the consideration for
grant or refusal of custody will always be the welfare of
CP No.240 of 2021
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minor. In this case, the mother even on contracting second
marriage was entitled to retain custody of the minor. Again
while looking at the Islamic provisions on custody of minor, this
Court concluded in Mst. Hameed Mai v. Irshad Hussain (PLD
2002 SC 267) that the question of custody of a minor child will
always be determined on the basis of the welfare of the minor
and notwithstanding the father’s right for custody under
Muslim Personal Law, this right is subject to the welfare of the
minor. Again in Shabana Naz v. Muhammad Saleem (2014
SCMR 343), Paras 352 and 354 of the Mohammadan Law were
considered
and
the
Court
concluded that
although
Mohammadan Law provides that the mother is disentitled to
custody if she re-marries, this is not an absolute rule but one
that may be departed from if there are 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.
7.
The aforesaid judgments clearly dispel the stance
taken by the father that on account of the mother’s second
marriage, she has lost the right of custody over her four
children. Time and again, this Court has held that the
paramount consideration where custody is concerned is the
welfare of the minor, that is to consider what is in the best
interest of the child. The court’s jurisdiction in custody cases is
in the form of parental jurisdiction which means that the court
must consider all factors from the parents’ ability to provide for
the child including physical and emotional needs, medical ca
CP No.240 of 2021
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but also relevant is the parents’ ability to provide a safe and
secure home where the quality of the relationship between the
child and each parent is comforting for the child. Hence, there
is no mathematical formula to calculate the welfare of the
minor, as the factors range from financial and economic
considerations to the household environment, the care, comfort
and attention that a child gets. Accordingly, the concept of
welfare of the child is an all encompassing concept which will
cover not only the manner in which the child has to be cared for
but will also include the physical, mental and emotional wellbeing of the child.
8.
The United Nations Convention on the Rights of the
Child, 1989 (UNCRC) is an international treaty which sets out
the rights of children, be it economic, social, health or family.
The UNCRC was ratified by Pakistan in 1990 with reservations
that it will adopt the Convention, subject to the requirements of
the Islamic Law. However, in 1997, the ratification became
absolute as the reservation was withdrawn. The UNCRC
recognizes that the child should grow up in an environment of
love, happiness and understanding. Article 3 provides that in all
actions concerning children whether by courts of law or public,
or private welfare institution amongst others, the best interest
of the child shall be a primary consideration. Article 7 provides
that every child has right to be cared for by their parents and
Article 9 requires that in the event of separation between the
parents, the child should be in contact with both parents unless
either one can cause any harm. Article 12 provides that
CP No.240 of 2021
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capable of forming his or her own view should be able to
express it and it should be given due weightage. This Article
suggests that children’s preferences can be a guiding factor in
custody cases, hence, encouraging their participation and
opinion in custody matters. This is essential because custody is
about the care and comfort of the child and the right of the
child to a family. Custody matters are always sensitive and
require a great deal of care as the court has to weigh in all
factors in order to determine where the welfare of the minor lies.
In cases of remarriage, circumstances change, hence, while
looking at the welfare of the child, the entire living arrangement
and environment has to be reassessed in the context of the
welfare of the child. Fundamental to this decision is the best
interest of the child and not that of the parents. Hence, a
second marriage of the mother cannot become a stand alone
reason to disqualify her right to custody.
9.
In this case, the Senior Civil Judge (Family Division)
considered the welfare of the children based on their ages and
gender. The mother is an educated woman running a private
school. She lives in her own house and is able to care for the
children. One of the factors that prevailed with the Senior Civil
Judge was the wishes of the four children as they made their
statement in Court that they were desirous of living with their
mother. In order to ascertain the desire of the children as of
today, we asked each of the children, who are present in Court,
about their preference. We were informed by each of the
children that they desired to live with their mother. We find t
CP No.240 of 2021
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the children were confident and were able to easily express their
wishes. The desire as expressed by the children is relevant
particularly when the child is able to express his or her mind on
preference. Although, this cannot be the sole factor, it is a
relevant factor and we find that the Appellate Court totally
ignored this aspect of the matter particularly with reference to
Ummama Awais and Ayesha Awais, who of their own free will,
left their father’s home to reside with their mother on
15.11.2017 and have since been living with their mother.
10.
Under the circumstances, we find no illegality in the
impugned judgment. Consequently, no case for grant of leave is
made out. Petition is dismissed.
JUDGE
JUDGE
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