Case law on Custody process how court decide custody case.

کیس کی مرکزی کہانی ڈاکٹر محمد آصف اور جواب دہندہ نمبر 3 کے درمیان تحویل کے تنازعہ کے گرد گھومتی ہے، جو نابالغ بچوں محمد حمزہ اور طلحہ آصف کی والدہ ہیں۔ جواب دہندہ نمبر 3 نے بچوں کی تحویل کے لیے درخواست دائر کی جس کا ڈاکٹر آصف نے مقابلہ کیا۔ عدالت نے فریقین کی طرف سے پیش کیے گئے دلائل اور شواہد پر غور کیا، جس کے نتیجے میں جواب دہندہ نمبر(ماں3) کے حق میں فیصلہ دیا گیا، اس کی نابالغوں کی تحویل میں دیا گیا اور ڈاکٹر آصف کے لیے ملاقات کے شیڈول کا خاکہ پیش کیا۔ یہ ایک قانونی معاملہ ہے جس میں خاندانی حرکیات اور بچوں کی فلاح و بہبود شامل ہے۔

میسرز وسیم سرور خان اور مقداد

حسن خان، وکیل مدعا علیہ کے ساتھ

نمبر 3۔

راحیل کامران جے:- درخواست گزار نے درخواست کی ہے۔

کے آئین کے آرٹیکل 199 کے تحت اس عدالت کا دائرہ اختیار

اسلامی جمہوریہ پاکستان، 1973 ('آئین') کو چیلنج کرنے کے لیے

حکم مورخہ 14.07.2023 سینئر سول جج (فیملی) نے منظور کیا

ڈویژن) لیہ کی حد تک میٹنگ کا شیڈول تیار کر لیا گیا۔

ماں کے حق میں اور 25.04.2024 کا فیصلہ

ایڈیشنل ڈسٹرکٹ جج، لیہ نے منظور کیا جس کے تحت اپیل کی گئی۔

ماں کو ترجیح دی گئی اور اس کے نتیجے میں اسے قبول کر لیا گیا۔

ایک خاکہ پیش کرتے ہوئے نابالغوں کی تحویل کے لیے درخواست کی اجازت دی گئی۔

درخواست گزار کے لیے ملاقات کا شیڈول۔

اس درخواست کو جنم دینے والے حقائق یہ ہیں کہ مدعا علیہ نمبر 3

ماں ہونے کے ناطے نابالغوں کی تحویل کے لیے درخواست دائر کردی

محمد حمزہ اور طلحہ آصف کی عمریں تقریباً پانچ سال اور چار سال ہیں۔

سال بالترتیب درخواست گزار کے خلاف جس نے اسی کی طرف سے مقابلہ کیا تھا۔

ڈبلیو پی 2024 کا نمبر 5637

تحریری جواب داخل کرکے۔ فریقین کی مختلف درخواستوں میں سے، دو

معاملات طے کیے گئے اور فریقین کے شواہد ریکارڈ کیے گئے۔ دی

سینئر سول جج (فیملی ڈویژن)، لیہ نے غور کے بعد

ثبوت، 14.07.2023 کے حکم نامے کے ذریعے ماں کی درخواست کو خارج کر دیا۔

تاہم ماں نے اس کی ملاقات کا شیڈول بنایا

نابالغوں کے ساتھ. غمزدہ ہو کر دونوں فریقوں نے الگ الگ رہنے کو ترجیح دی۔

اپیل اور ایڈیشنل ڈسٹرکٹ جج، لیہ نے فیصلہ سنا دیا۔

مورخہ 25.04.2024 نے ماں کی اپیل منظور کر لی جبکہ

جبکہ نابالغوں کی تحویل کے لیے اس کی درخواست کی اجازت دینا درخواست گزار باپ کی اپیل خارج کر دی گئی، تاہم میٹنگ کا شیڈول تھا۔

اس کے حق میں نکلا۔

3۔

باپ کے وکیل نے استدلال کیا ہے کہ ان کا دعویٰ کیا گیا ہے۔

اپیل کورٹ کا فیصلہ قانون اور حقائق کے منافی ہے۔

کیس کے ساتھ ساتھ شہادت کو غلط پڑھنے اور نہ پڑھنے کا شکار ہیں۔

ثبوت. اس کا کہنا ہے کہ ماں نے جرح کے دوران اعتراف کیا کہ حمزہ کی پیدائش کے چند دن بعد (اس کا پہلا)

بچہ) وہ کالج گئی تھی اور اس نے اسے دودھ نہیں پلایا تھا، اس لیے ایسا ہے۔

اس سے ظاہر ہوتا ہے کہ وہ اپنے بچے کی پرورش میں غافل تھی۔

بلکہ اس نے اپنے کیریئر کو اپنے بچے کی فلاح و بہبود پر ترجیح دی۔ اس نے مزید

جواب دہندہ نمبر 3 ایک کام کرنے والی خاتون ہے جو اکیلی رہتی ہے۔

لہٰذا لاہور میں نابالغوں کی دیکھ بھال کرنے والا کوئی نہیں ہوگا۔

جبکہ درخواست گزار اپنی ماں، بہن اور دوسری بیوی کے ساتھ رہتا ہے۔

جو نابالغوں کی مناسب دیکھ بھال کر سکے۔ ان کے مطابق، معمولی

محمد حمزہ اپنی دینی اور دنیاوی صحیح طریقے سے حاصل کر رہے ہیں۔

تعلیم. انہوں نے مزید کہا کہ درخواست گزار کو باپ ہونے کی ترجیح حاصل ہے۔

خاص طور پر سات سال کی عمر کے مرد بچوں کی تحویل کا حق

جب وہ اس کے ساتھ زیادہ قریب اور آرام دہ ہوں اور یہاں تک کہ وہ بھی

جواب دہندہ نمبر 3 کو پہچاننے سے انکار کر دیا ہے جو جان بوجھ کر چھوڑ گیا تھا۔

وہ اپنی کم عمری میں۔ ان کے بقول درخواست گزار

خود ایک چائلڈ سپیشلسٹ ڈاکٹر ھی اور بیمار بچوں کی مناسب دیکھ بھال کر رہا ہے۔

اپنی تلاش ہیومن کی جاری کردہ رپورٹ کے مطابق طلحہ آصف ترقیاتی مرکز بتدریج بہتر ہو رہا ہے۔ وہ آخر کار بحث کرتا ہے۔

ڈبلیو پی 2024 کا نمبر 5637

کہ نابالغوں کی فلاح و بہبود ان کے والد کے ساتھ ہے اور اچانک تبدیلی

ان کی حراست ان کے جسمانی اور ذہنی طور پر بری طرح متاثر ہو سکتی ہے۔

ترقی، لہذا، اپیل کورٹ کے فیصلے کو مسترد کیا جاۓ

قانون میں غیر پائیدار.

اس کے برعکس، ماں کے وکیل

اپیل کورٹ کی طرف سے منظور شدہ فیصلے کی حمایت کرتے ہوئے،

کا دعویٰ ہے کہ ماں نے نابالغ محمد حمزہ کو چھوڑ دیا تھا۔

اس کی پیدائش کے چند دن بعد مجبوری حالات کی وجہ سے وہ

تعلیم ابھی ادھوری تھی کیونکہ وہ فائنل ایئر کی طالبہ تھی۔

تاہم، ایم بی بی ایس کو مستقل طور پر بہانے کے طور پر استعمال نہیں کیا جا سکتا

اسے نابالغوں کی تحویل حاصل کرنے کے حق سے محروم کرنا۔ وہ برقرار رکھتا ہے۔

کہ ماں کی جانب سے تلاش میں کوئی تاخیر نہیں ہوئی۔

نابالغوں کی تحویل میں کیونکہ اس کی ستمبر 2019 میں طلاق ہوگئی تھی اور وہ

پہلی بار گارڈین کورٹ ڈیرہ غازی خان سے رجوع کیا۔

اس مقصد کے لیے 21.11.2020 کو۔ انہوں نے مزید کہا کہ۔

بلاخر ھائیکورٹ نے کسٹڈی ماں کو دے دی اور ایپلٹ کورٹ کا فیصلہ برقرار رکھا۔

The main story of the case revolves around a custody dispute between Dr. Muhammad Asif and respondent No.3, who is the mother of the minors, Muhammad Hamza and Talah Asif. Respondent No.3 filed an application seeking custody of the children, which Dr. Asif contested. The court considered the arguments and evidence presented by both parties, leading to a decision in favor of respondent No.3, granting her custody of the minors and outlining a visitation schedule for Dr. Asif. It's a legal matter that involves family dynamics and the welfare of the children.

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

W.P. No.5637 of 2024

Dr. Muhammad Asif

Versus

ADJ Layyah, etc.

J U D G M E N T

Date of Hearing

15.05.2024

For the petitioner

Malik Sajjad Haider Maitla and Tahir

Mehmood, Advocates with the petitioner and

both minors.

For Respondent

No.3

M/s Waseem Sarwar Khan and Miqdad

Hassan Khan, Advocates with respondent

No.3.

Raheel Kamran J:- The petitioner has invoked the

jurisdiction of this Court under Article 199 of the Constitution of

Islamic Republic of Pakistan, 1973 (‘Constitution’) to challenge the

order dated 14.07.2023 passed by the Senior Civil Judge (Family

Division), Layyah to the extent of meeting schedule chalked out in

favour of respondent No.3 and the judgment dated 25.04.2024

passed by the Additional District Judge, Layyah whereby appeal

preferred by respondent No.3 was accepted and consequently, her

application for the custody of minors was allowed while outlining a

visitation schedule for the petitioner.

The facts giving rise to this petition are that respondent No.3

being mother filed an application for the custody of minors

Muhammad Hamza and Talah Asif aged about five years and four

years respectively against the petitioner who contested by the same

W.P. No.5637 of 2024

by filing written reply. Out of divergent pleadings of the parties, two

issues were framed and evidence of the parties was recorded. The

Senior Civil Judge (Family Division), Layyah after consideration of

the evidence, vide order dated 14.07.2023 dismissed the application

of respondent No.3, however, formed a schedule for her meeting

with the minors. Feeling aggrieved, both sides preferred separate

appeals and the Additional District Judge, Layyah vide judgment

dated 25.04.2024 accepted the appeal of respondent No.3 while

allowing her application for the custody of minors whereas

dismissed appeal of the petitioner, however, visitation schedule was

chalked out in his favour.

Learned counsel for the petitioner contends that the impugned

judgment passed by the Appellate Court is against the law and facts

of the case as well as suffer from misreading and non-reading of

evidence. He maintains that respondent No.3, during crossexamination, admitted that after few days of birth of Hamza (her first

child) she had gone to college and had not breastfed him, hence, it is

manifest that she was negligent towards upbringing of her child

rather she preferred her career over welfare of her child. He further

contends that respondent No.3 is a working lady who lives alone in

Lahore, therefore, there will be no one there to look after the minors

whereas the petitioner lives with his mother, sister and second wife

who can properly look after the minors. According to him, minor

Muhammad Hamza is properly getting his religious and worldly

education. He adds that the petitioner being father has preferential

right of custody of male children aged about seven years especially

when they are more close and comfortable with him and even they

have refused to recognize respondent No.3 who had willfully left

them in their tender ages. According to him, the petitioner being

himself a Child Specialist is properly taking care of the sick minor

Talha Asif who as per report issued by Apni Talash Human

Development Centre is gradually improving. He finally contends

W.P. No.5637 of 2024

that welfare of the minors lies with their father and sudden change in

their custody might adversely affect their physical and mental

growth, therefore, impugned judgment of the Appellate Court is

unsustainable in law.

Conversely, learned counsel for respondent No.3 besides

supporting the impugned judgment passed by the Appellate Court,

contends that respondent No.3 had left the minor Muhammad Hamza

after few days of his birth due to compelling circumstances that her

education was still incomplete as she was student of the final year of

MBBS, however, that could not be used as an excuse to permanently

deprive her of the right to seek custody of the minors. He maintains

that there was no delay on the part of respondent No.3 in seeking

custody of minors as she was divorced in September, 2019 and she

for the first time approached the Guardian Court, Dera Ghazi Khan

on 21.11.2020 for that purpose. He further contends that respondent

No.3 has been continuously making efforts to meet the minors but

the petitioner created every possible hurdle in her way on one pretext

or the other and she has been purposely kept away from meeting the

minors. According to him, the minors have been brainwashed by the

petitioner against their real mother (respondent No.3) and that is why

the minor Muhammad Hamza has refused to recognize her. He adds

that respondent No.3 is living in Lahore and can provide better

treatment to minor Talha Asif as better facilities are available there.

According to him, the petitioner has contracted second marriage and

has one daughter out of the said wedlock, therefore, it is not expected

from a stepmother to give such love, affection and attention as the

real mother can. He further adds that respondent No.3 can properly

take care of the minors at Lahore as she would admit the elder minor

in school and would take the younger one to the office with her.

Heard. Record perused.

Bare reading of section 17 of the Guardian and Wards Act,

1890 reflects that welfare of the minor is the guiding factor in

W.P. No.5637 of 2024

deciding the matter of custody, of course, while giving due

consideration to the age, gender and religion of the minor and

character and capacity of the proposed guardian. The case in hands

involves custody of two male children namely Muhammad Hamza

and Talha Asif aged about seven years and six years respectively, as

mentioned in the custody petition. As regards Talha Asif, the

younger child, he is suffering from psychological disorder and as per

cross-examination of petitioner (DW-1), he is receiving training in

Apni Talash Training Centre. There is nothing available on record

in the evidence that minor Talha Asif was born with such

psychological disorder, therefore, it must have developed with the

passage of time during his custody with the petitioner. Although

petitioner is also a Child Specialist and has admitted in his crossexamination that the children with normal mental health are getting

education in Apni Talash Training Centre and has denied the

suggestion that minor Talha is suffering from Attention Deficit

Hyperactivity Disorder (ADHD). Such training, as admitted by the

petitioner, includes speech and psychological training. Without

commenting on exact nature of the disorder that minor Talha may be

suffering from, it is noticed by this Court that there exists one which

is manifest from his behavior in the Court. The petitioner has further

admitted in the cross-examination that he performs duty in DHQ

Layyah and also carries on private practice in the evening.

Therefore, the petitioner would not have much time to spend with his

children who must have been brought up by their grandmother and

aunt whereas respondent No.3 in her cross-examination, in response

to a question on how will she take care of the minors in case their

custody is handed over to her since she is also a working woman, she

stated that she would admit the elder son in school and take the

younger son along with her to school. Moreover, respondent No.3

(mother) is living in Lahore which, being a Metropolitan City and

capital of the province has better facilities as compared to Layyah

and minor Talha Asif can have better treatment at Lahore. In these

W.P. No.5637 of 2024

circumstances, this Court is of the view that minor Talha Asif needs

more attention and care which can definitely be provided by his real

mother as there is no substitute of the natural love, affection and care

of the mother who is admittedly qualified as doctor.

So far as the elder minor Muhammad Hamza is concerned,

although he is getting education in the school at Layyah and he has

also refused to recognize respondent No.3 being his mother yet

paramount consideration in custody cases is welfare of the minor and

the other facts are subordinate to the same. It has been contended

that respondent No.3 (PW-1) admitted during cross-examination that

she had returned to college after 40 days of the birth of minor

Muhammad Hamza and that she could not have breastfed the minors

for longer period. The findings of the Appellate in response to the

said assertion recorded in paragraph Nos.10 & 11 of the impugned

judgment are quite justified and unexceptionable which are

reproduced hereunder: -

“10…….. However, to my observation, the said finding of the

learned trial court is not based on well appreciated evidence of

the parties as it is evident from the pleadings as well as evidence

of both the parties that the appellant married with Dr. Muhammad

Asif respondent on 25.01.2015, when she was student of MBBS 2

year (as mentioned by the respondent Dr. Muhammad Asif in the

written reply of the application of appellant for custody of minors

in the court of learned Guardian Court Dera Ghazi Khan on

02.02.2021). However in cross-examination, the appellant has

stated that her “Rukhsati” did not take place at the time of her

“Niakh” and when she accompanied the respondent for

matrimonial relationship, she was in fourth year of MBBS. She

has further stated that she failed in one subject subsequently again

she failed in final exams in one subject. She has stated that her

elder son Muhammad Hamza was born on 07.05.2017 at Dera

Ghazi Khan (the residence of parents of the appellant) while

Talha Asif Ali was born on 09.08.2018. She had further stated

that her degree was completed after the birth of Talha Asif alias

Ali who too was born at Dera Ghazi Khan. She had further stated

that she had done her house job in DHQ Hospital Dera Ghazi

Khan in 2019 and at that time, the minors were with her.

However, their (spouses) separation took place on 20.10.2019.

11.

The above mentioned narration of the appellant clearly

indicates that Dr. Muhammad Asif respondent and his family was

well aware at the time of marriage as well as “Rukhsati” of Dr.

W.P. No.5637 of 2024

Sana Sattar appellant that she was still student of MBBS and it

was not expressly settled down by the parties that she would

discontinue her education (as nothing contrary available on the

file). The appellant has not been suggested so, in her crossexamination, therefore, the production of the babies was joint

considered decision of the spouses and Dr. Muhammad Asif being

medical man should be knowing that how much time and

consideration is required being medical student to complete her

degree if he had opted to have birth during the education of the

appellant. He was well aware of the fact that she would not be

able to take personal care of the born child as normally in our

society house wife, mother dedicates her life to the born child. If

the appellant had left the minor after 40 days of the birth, it was

not, due to least love care but due to the compelling circumstances

i.e. incomplete education of the appellant……...”

The petitioner is father of the minors who is their natural guardian

as well. However, law maintains a distinction between custody and

guardianship and respective rights and obligations in that regard

under the Guardian and Wards Act, 1890. 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. A father is considered to be a natural guardian

of a minor, since 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. The liability to

maintain the minor is not only religious and moral but legal. The

right of custody of minor is subordinate to the fundamental principle

i.e. welfare of the minor. Maintaining the children is the duty of

father which cannot be a decisive factor in custody of the minors. In

support of above proposition, reliance is placed on judgments in the

cases of Mst. Feroze Begum v. Lt-Col. Muhammad Hussain (1983

SCMR 606), Munawar Bibi v. Muhammad Amin (1995 SCMR

1206), Mst. Razia Bibi vs. Riaz Ahmad and another (2004 SCMR

821), Mst. Atia Waris vs. Sultan Ahmed Khan (PLD 1959 Lahore

205), Sultana Begum vs. Mir Afzal and others (PLD 1988 Karachi

252), Mst. Kaneez Akhtar vs. Abdul Qadoos and 2 others (2005

MLD 828), Nazan Bibi vs. Additional District Judge, Jhang and

W.P. No.5637 of 2024

others (2009 YLR 991), Habib-ur-Rehman vs. Hina Saeed (2010

MLD 544), Masroor Hussain vs. Additional District Judge,

Islamabad (2011 CLC 851), Bushra Asghar vs. Dr. Rehmat Ali and

3 others (2012 MLD 1755) and Ms. Shazia Akbar Ghalzai and

another vs. Additional District Judge, Islamabad (East) and 2 others

(2021 MLD 817).

Admittedly, the petitioner has contracted second marriage and

has one daughter by the second wife as admitted by him in the crossexamination. Unless established otherwise through cogent and

reliable evidence, it cannot be presumed that a stepmother could be

substitute for the real mother in the matter of upbringing of the

minor. She is stranger to the minors born from respondent No.3. In

the presence of her own child and presumably will have more

children in future, she may have little care for the step-children,

however, there may be exceptions to that which require proof which

is not available in this case. On the other hand, respondent No.3 has

not contracted second marriage and even she has stated in her

examination in chief that she has no intention to do so.

10. The plea of the the petitioner that minor Muhammad Hamza

has been residing with him since his birth and is emotionally

attached with him since respondent No.3 left him at very tender age

to complete her education and did not claim his custody for quite

some time, is not a valid and sufficient consideration to deprive

respondent No.3 of her entitlement to custody permanently. In this

day and age, when pursuit of education and career does not attract

any disqualification for a father to seek custody of minor, how a

mother can be discriminated on that basis. Working mothers are a

reality of the day and their participation in the professional life is

essential for the progress of societies. It makes roles of women even

harder, which needs to be recognized and appreciated rather than

discouraged or made more onerous by attributing disqualifications

vis-à-vis custody of the minors. This does not mean that the Courts

W.P. No.5637 of 2024

should become insensitive to the needs of the minors merely because

their mother is a working woman. Welfare of the minor remains

primary consideration for determining his or her custody. It is only

recognition and adjustment of expectation from a working mother in

comparison to a stay-at-home mother so that the former is not

unreasonably put to any disadvantage.

11. The conduct of the petitioner in keeping her away from the

minor is quite evident from the record which reflects that initially,

respondent No.3 filed an application for custody of minors before the

Guardian Court, Dera Ghazi Khan on 21.11.2020 wherein the

petitioner took the plea of lack of jurisdiction as the minors were

residing in Layyah. The said application of respondent No.3 was

returned to her to be presented to the court of competent jurisdiction.

Thereafter, respondent No.3 having remained unsuccessful before

the Appellate Court and this Court, filed custody petition before the

Guardian Court, Layyah, however, the petitioner in order to defeat

her legal right shifted the minors from Layyah to Lahore upon which

application of respondent No.3 was again returned to her for its

presentation before the court having competent jurisdiction. The

said order was challenged by her before the Additional District

Judge, Layyah, which was accepted and the matter was remanded to

the Guardian Court, Layyah for regular trial. However, the said

judgment was challenged by the petitioner before this Court through

W.P.No.3951 of 2022 wherein this Court vide an order dated

17.10.2022 in order to determine the ordinary place of residence of

the minors at the time of filing of guardian petition, requisitioned the

original record of the school concerned as well as summoned its

responsible officer for 24.10.2022. Upon which, the said writ

petition was withdrawn by the petitioner on 20.10.2022. In an order

dated 11.05.2022 in the said writ petition, annexed with this petition,

respondent No.3 stated before the Court that she was not allowed to

meet the minors upon which petitioner was directed to produce them

W.P. No.5637 of 2024

before the Court. In this background, it is manifest that not only

respondent No.3 has been intentionally kept away from the minor so

that he might not have any interaction with his mother but he has

been brainwashed too, which is reflected in the sense that he has

refused to recognize respondent No.3 as his mother.

12. As regards plea that minor Muhammad Hamza wishes to

reside with his father, it is observed that minor is not always the best

judge of where his or her welfare lies, as held by the Supreme Court

of Pakistan in the case of Mst. Aisha vs. Manzoor Hussain and

others (PLD 1985 Supreme Court 436). Minor Muhammad Hamza

is of the tender age of about seven years, hence, it is not appropriate

to attach much weight to his choice in order to determine where his

welfare in relation to his custody lies. Moreover, as discussed above

the minor Muhammad Hamza has not been allowed to meet his

mother for years, therefore, his mind is seemed to have been tutored.

Refusal of the minor Hamza to recognize and meet his real mother

indeed provides an evidence of improper child rearing. It establishes

that contrary to his welfare, the petitioner failed to prevent his

misbehavior towards his mother which highlights the value system

being inculcated or allowed to be nurtured in the minor by his parent

in custody.

13. Although Muhammad Hamza is being provided school

education and religious teachings yet respondent No.3 being a doctor

and serving as an officer in a Government Department enjoys

somewhat equal status, therefore, there is no chance that the minor

will be deprived of any of the facilities being provided to him at

present. Even otherwise, there is no substitute of the natural love,

affection and care of an educated mother.

14. For the foregoing reasons, this Court is of the considered

view that welfare of both the minors lies in their custody with their

mother and the Appellate Court rightly accepted the appeal of

respondent No.3, hence, the impugned judgment does not call for

W.P. No.5637 of 2024

any interference by this Court in exercise of jurisdiction under

Article 199 of the Constitution of Islamic Republic of Pakistan,

1973. Accordingly this writ petition, being devoid of any merit, is

dismissed.

(RAHEEL KAMRAN)

JUDGE

Announced in open Court on 24.05.2024.

JUDGE

APPROVED FOR REPORTING

JUDGE

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