Minor custody granted to working lady not to father
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| Minor Custody to working lady |
2024 C L C 1520
[Lahore (Multan Bench)]
Before Raheel Kamran, J
Dr. MUHAMMAD ASIF----Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, LAYYAH and others----Respondents
Writ Petition No.5637 of 2024, decided on 24th May, 2024.
(a) Guardians and Wards Act (VIII of 1890)---
----Ss. 7, 17 & 25---Application for custody of minors---Mother, entitlement of---Welfare of the minor---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Contention of the petitioner /father was that respondent /mother, admittedly, had gone to her college after few days of birth of her first child and had not breastfed him, hence, she was negligent towards upbringing of her child and preferred her career over welfare of her child and that she as a working lady lived alone in Lahore, therefore, there would be no one there to look after the minors---Validity---Section 17 of the Guardians and Wards Act, 1890, reflects that welfare of the minor is the guiding factor in deciding the matter of while giving due consideration to the age, gender custody and religion of the minor and character and capacity of the proposed guardian---In the present case, although the minor, residing with his father, refused to recognize the respondent being his mother yet paramount consideration in custody cases is welfare of the minor and the other facts are subordinate to the same---Though the respondent/ mother admitted during cross-examination the assertion/contention of the petitioner/father (that she had returned to college), however, the findings of the Appellate Court in response to the said assertion were quite justified and unexceptionable as it attributed the same to compelling circumstances for the respondent / mother i.e. her incomplete medical education---Background/circumstances of the present case manifested that the respondent / mother had been intentionally kept away from one of the minors so that he might not have any interaction with his mother and he had been brainwashed too, which was reflected in the sense that he had refused to recognize respondent as his mother---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.
(b) Guardians and Wards Act (VIII of 1890)---
----Ss. 7 & 25---Application for custody of minor---Custody and guardianship---Distinction---Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardians and Wards Act, 1890 ('the Act, 1890')---Custody under the Act, 1890 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---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---Liability to maintain the minor is not only religious and moral but also legal---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.
Mst. Feroze Begum v. Lt-Col. Muhammad Hussain 1983 SCMR 606; Munawar Bibi v. Muhammad Amin 1995 SCMR 1206; Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821; Mst. Atia Waris v. Sultan Ahmed Khan PLD 1959 Lah. 205; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828; Nazan Bibi v. Additional District Judge, Jhang and others 2009 YLR 991; Habib-ur-Rehman v. Hina Saeed 2010 MLD 544; Masroor Hussain v. Additional District Judge, Islamabad 2011 CLC 851; Bushra Asghar v. Dr. Rehmat Ali and 3 others 2012 MLD 1755 and Ms. Shazia Akbar Ghalzai and another v. Additional District Judge, Islamabad (East) and 2 others 2021 MLD 817 ref.
(c) Guardians and Wards Act (VIII of 1890)---
----Ss. 7, 17 & 25---Application for custody of minors---Working mothers---Entitlement to custody of minors---Welfare of the minor---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Plea of the petitioner/father being that one of the minors had been residing with him since his birth and was emotionally attached with him since respondent / mother left him at very tender age to complete her education and did not claim his custody for quite some time---Held, that plea of the petitioner/father was not valid and sufficient consideration to deprive respondent/ mother 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 can a mother be discriminated on that basis---Working mothers are a reality of the day and their participation in 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---Said scenario does not mean that the Courts 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---Although the minor boy was being provided school education and religious teachings under custody of the petitioner / father yet the respondent/mother, being a doctor and serving as an officer in a Government Department, enjoyed somewhat equal status, therefore, there was is no chance that the minor would 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---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.
(d) Guardians and Wards Act (VIII of 1890)---
----Ss. 7 & 25---Application for custody of minors filed by mother---Mother, entitlement of---Conduct of the father---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Conduct of the petitioner /father in keeping the respondent /mother away from the minor was quite evident from the record which reflected that initially respondent/mother filed an application for custody of minors before the Guardian Court, Dera Ghazi Khan about four years ago wherein the petitioner / father took the plea of lack of jurisdiction as the minors were residing in Layyah; the said application of the respondent /mother was returned to her to be presented to the Court of competent jurisdiction; thereafter, respondent / mother, having remained unsuccessful before the relevant Appellate Court and the High 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 / mother was again returned to her for its presentation before the court having competent jurisdiction; the said order was challenged by her before the Appellate Court 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 the High Court wherein the High Court 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, upon which, the constitutional petition was withdrawn by the petitioner---However by then, the mother (respondent) had stated before the High Court that she was not allowed to meet the minors upon which petitioner was directed to produce them before the Court---Said background manifested that the respondent / mother had been intentionally kept away from one of the minors so that he might not have any interaction with his mother and he had been brainwashed too, which was reflected in the sense that he had refused to recognize respondent as his mother---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.
(e) Guardians and Wards Act (VIII of 1890)---
----Ss. 7, 17 & 25---Custody of minors---Wish / choice of the minor---Scope---Mother, entitlement of---Welfare of the minor---Family Court dismissed the application of mother for custody though formed a schedule for her meeting with the minors---Appellate Court accepted appeal filed by mother allowing her application for the custody of minors and dismissed appeal of the father, however, visitation schedule was chalked out in his favour---Plea of the petitioner / father was that that one of the minors wished to reside with him---Validity---Minor is not always the best judge of where his or her welfare lies---Minor , in the present case, was of tender age of about seven years, hence, it was not appropriate to attach much weight to his choice in order to determine where his welfare in relation to his custody laid---Moreover, the minor had not been allowed to meet his mother (respondent) for years, therefore, his mind seemed to have been tutored---Refusal of the minor to recognize and meet his real mother indeed provided evidence of improper child rearing---It established that contrary to minor's welfare, the father (petitioner) failed to prevent his misbehavior towards his mother which highlighted the value system being inculcated or allowed to be nurtured in the minor by his parent (petitioner / father)---Welfare of both the minors laid in their custody with their mother / respondent and the Appellate Court rightly accepted her appeal, hence, no interference was warranted in the impugned judgment---Constitutional petition was dismissed, in circumstances.
Mst. Aisha v. Manzoor Hussain and others PLD 1985 SC 436 ref.
Malik Sajjad Haider Maitla and Tahir Mehmood for Petitioner with Petitioner and both minors.
Waseem Sarwar Khan and Miqdad Hassan Khan for Respondent No.3 with Respondent No.3.
اہم نکات:
1. بچوں کی فلاح و بہبود کو ترجیح:
گارڈین اینڈ وارڈز ایکٹ، 1890 کے تحت بچوں کی فلاح و بہبود سب سے اہم عامل ہے۔
ماں یا باپ کی ذاتی حیثیت یا دیگر عوامل بچے کی فلاح و بہبود کے ماتحت ہیں۔
2. ماں کا حق تحویل:
اپیلٹ کورٹ نے ماں کی درخواست برائے تحویل قبول کی اور والد کی اپیل مسترد کر دی۔
ماں کے پیشہ ورانہ ہونے یا تعلیم جاری رکھنے کو بچوں کی تحویل کے خلاف دلیل نہیں مانا گیا۔
3. کام کرنے والی ماؤں کا کردار:
کام کرنے والی مائیں آج کے دور کی حقیقت ہیں اور انہیں بچوں کی تحویل میں امتیازی سلوک کا نشانہ نہیں بنایا جا سکتا۔
بچوں کی فلاح و بہبود کے لیے عدالتوں کو ماؤں کے پیشہ ورانہ کردار کا مثبت طور پر جائزہ لینا چاہیے۔
4. والد کا رویہ:
والد نے ماں کو بچوں سے دور رکھنے کی کوشش کی اور بچوں کو ان کے خلاف برین واش کیا۔
یہ رویہ بچے کی فلاح و بہبود کے منافی قرار دیا گیا۔
5. بچوں کی خواہش کی اہمیت:
سات سال کی عمر کے بچے کی خواہش کو زیادہ اہمیت نہیں دی گئی کیونکہ بچے کا ذہن والد کے ذریعے متاثر ہو چکا تھا۔
بچے کی ماں سے بدتمیزی والد کی ناقص تربیت کی نشاندہی کرتی ہے۔
6. قانونی فرق: تحویل اور سرپرستی:
قانون کے مطابق تحویل اور سرپرستی میں فرق ہے۔
والد فطری سرپرست ہے اور بچوں کے مالی اخراجات کی ذمہ داری اس پر عائد رہتی ہے، چاہے بچوں کی تحویل ماں کے پاس ہو۔
7. تعلیمی اور سماجی مقام:
ماں، جو ایک ڈاکٹر اور سرکاری افسر ہیں، کا سماجی اور تعلیمی مقام بچوں کی تحویل میں ان کے حق کے لیے معاون ثابت ہوا۔
8. عدالتی فیصلہ:
ہائی کورٹ نے اپیلٹ کورٹ کے فیصلے میں مداخلت نہ کرتے ہوئے بچوں کو ماں کے پاس رکھنے کا حکم برقرار رکھا۔
یہ نکات کیس کے مختلف پہلوؤں کو اجاگر کرتے ہیں اور قانونی اصولوں کو واضح کرتے ہیں۔
2024 C L C 1520
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