عبارات "بہبودِ نابالغ" اور "بچے کے بہترین مفادات"---دونوں عبارات میں ہم آہنگی---عبارت "بہبودِ نابالغ" اب اپنے نوآبادیاتی دور کے معنی تک محدود نہیں رہ سکتی---بلکہ، ...........

 P L D 2026 Supreme Court 238

عبارات "بہبودِ نابالغ" اور "بچے کے بہترین مفادات"---دونوں عبارات میں ہم آہنگی---عبارت "بہبودِ نابالغ" اب اپنے نوآبادیاتی دور کے معنی تک محدود نہیں رہ سکتی---بلکہ، اسے جدید اور بین الاقوامی سطح پر تسلیم شدہ تصور "بچے کے بہترین مفادات" سے مالا مال کیا جانا چاہیے، جیسا کہ کنونشن برائے حقوقِ اطفال (اقوام متحدہ) 1989 کے آرٹیکل 3 میں مدون کیا گیا ہے، جس کی پاکستان ایک فریق ریاست ہے---"بہبود" کا معیار جامد نہیں ہے، بلکہ یہ ایک زندہ معیار ہے جو بچے کی جذباتی، نفسیاتی، ثقافتی اور نشوونما کی ضروریات کا احاطہ کرتا ہے، جو مادی خوشحالی یا والدین کی ترجیح سے کہیں آگے بڑھ جاتا ہے---بچے کے سنے جانے کا حق، جیسا کہ کنونشن برائے حقوقِ اطفال (اقوام متحدہ) 1989 کے آرٹیکل 12 میں ضمانت دی گئی ہے، کو بھی گارڈین اینڈ وارڈز ایکٹ 1890 کی دفعہ 17 کے اطلاق میں شامل پڑھا جانا چاہیے---بچے کی بہبود یا بہترین مفادات کا کوئی بھی مخلصانہ جائزہ اس وقت تک نامکمل ہے جب تک کہ کارروائی میں بچے کی عمر اور پختگی کے مناسب، اس کی بامعنی شمولیت کو یقینی نہ بنایا جائے---گارڈین اینڈ وارڈز ایکٹ 1890 کی دفعہ 17 کی اس طرح ہم آہنگ انداز میں تشریح کرتے ہوئے، جو بین الاقوامی ذمہ داریوں اور آئینی اقدار دونوں کے مطابق ہو، عدالتیں اس بات کی تصدیق کرتی ہیں کہ یہ دفعہ نہ صرف بچے کی بہبود کی خدمت کرنے والی چیزوں کے بارے میں ایک معروضی تفتیش کا تقاضا کرتی ہے بلکہ بچے کو سننے اور اس کی آواز پر مناسب غور کرنے کی ایک طریقہ کار کی ذمہ داری بھی عائد کرتی ہے---ایسا تشریحی نقطہ نظر اس بات کو یقینی بناتا ہے کہ گارڈین اینڈ وارڈز ایکٹ 1890 جتنا پرانا قانون بھی آج کے بچوں کے حقوق اور حقائق کے لیے حساس انصاف فراہم کرنے کے لیے ایک متعلقہ اور مؤثر آلہ رہے---اس کی دوسری طرح تشریح کرنے کا مطلب قانون کو متروک کرنا اور آئینی اور بچوں کے حقوق سے آگاہ موجودہ دور کے لیے ناکارہ بنانا ہوگا۔

نگرانیِ نابالغ---کارروائی میں بچے کی شمولیت---مقصد، غرض اور دائرہ کار---بچے کو سنا جانا ضروری ہے تاکہ اس کے بہترین مفادات کو درست طریقے سے سمجھا اور محفوظ کیا جا سکے---قانونی کارروائی میں بچے کی شمولیت کوئی رسم نہیں ہے؛ بلکہ یہ ایک ایسے نظامِ انصاف کے لیے بنیادی ہے جو بچے کی عزتِ نفس اور خود ارادیت کا احترام کرتا ہے---بچے کی آواز سننا انہیں اپنی اہمیت، شمولیت اور عدالتی عمل پر اعتماد کا احساس دلاتا ہے---بچے کے خیالات پر سنجیدگی سے غور کیا جانا چاہیے، محض ان کا اعتراف کر کے چھوڑ دینا کافی نہیں---بچے کو سننے کا مطلب ان کی ہر ماننا نہیں، بلکہ ان کے نقطہ نظر کو اتنی گہرائی سے سمجھنا ہے کہ ان کے بہترین مفادات کے مطابق عمل کیا جا سکے۔

فیصلے کی نظرثانی---نگرانیِ نابالغ---نابالغ کی بہبود اور اس کے بہترین مفادات---دائرہ کار---درخواست گزار / دو نابالغ بچوں کے باپ نے، جسے عدالتی فیصلے کے ذریعے نگرانی سے محروم کیا گیا تھا، اس فیصلے کی نظرثانی کی درخواست دی---جواز: درخواست گزار / باپ نے دوسری شادی کر لی تھی اور اس کی دوسری بیوی سے ایک سالہ بچہ تھا، اور وہ دن بھر ملازمت کرتا تھا جبکہ شام کے وقت اپنا پرائیوٹ پریکٹس بھی رکھتا تھا، جس کی وجہ سے وہ گھر پر بڑی حد تک غیر موجود رہتا تھا---سپریم کورٹ نے بچوں کی عمر، تعلیمی تسلسل، نفسیاتی صحت، ان کی بدلتی ہوئی ضروریات کے پیشِ نظر جذباتی، طبی اور تعلیمی تسلسل، گھر کے ماحول کے استحکام، اور بچوں کے رہائشی شہر پر غور کرنے اور والدین کے موجودہ حالات اور صلاحیتوں کا جائزہ لینے کے بعد یہ نتیجہ اخذ کیا کہ بچوں کے بہترین مفادات، خاص طور پر خصوصی ضروریات والے بچے کے مفادات، ان کی ماں کی نگرانی میں رہنے میں سب سے بہتر طریقے سے محفوظ ہیں---کوئی بھی متبادل نگہبان ماں کی طرف سے فراہم کیے جانے والے فطری خیال، جذباتی استحکام اور تحفظ آمیز ماحول کا مکمل طور پر متبادل نہیں بن سکتا---یہ حقیقت کہ ماں ایک کام کرنے والی پروفیشنل تھی، نگرانی کرنے والے والد کے طور پر اس کی اہلیت پر کوئی اثر انداز نہیں ہوتی---بلکہ اس کے برعکس، یہ اس کی صلاحیت اور اپنے بچوں کو محفوظ، پرورش کرنے والا اور باوقار پرورش فراہم کرنے کے عزم کی عکاسی کرتی ہے---سپریم کورٹ نے اپنے سابقہ فیصلے کی نظرثانی کرنے سے انکار کر دیا کیونکہ نگرانی کا حق پہلے ہی ماں کے پاس قائم تھا۔

Phrases “welfare of minor” and “best interests of the child”---Harmonizing two phrases---Phrase “welfare of the minor” can no longer be confined to its colonial-era meaning---Instead, it must be enriched by modern, internationally recognized concept of “best interests of the child”, as codified in Article 3 of United Nations Convention on the Rights of the Child, 1989, to which Pakistan is a State Party---Standard of “welfare” is not static, it is a living standard that encompasses a child’s emotional, psychological, cultural, and developmental needs, extending far beyond material well-being or parental preference---Right of the child to be heard, as guaranteed by Article 12 of United Nations Convention on the Rights of the Child, 1989, must also be read into the application of section 17 of Guardians and Wards Act, 1890---Any genuine assessment of the child’s welfare or best interests is incomplete without ensuring the child’s meaningful participation in the proceedings, appropriate to their age and maturity---By interpreting section 17 of Guardians and Wards Act, 1890 in such harmonized manner, consistent with both international obligations and constitutional values, Courts affirm that the provision requires not only an objective inquiry into what serves the child’s welfare but also a procedural obligation to hear the child and give due consideration to their voice---Such interpretive approach ensures that even a law as old as Guardians and Wards Act, 1890 remains a relevant and effective tool for delivering justice that is sensitive to the rights and realities of children today---To interpret it otherwise would be to render the statute obsolete, unfit for the constitutional and child-rights-informed present.

Custody of minor---Participation of child in proceedings---Object, purpose and scope---Child must be heard so that her/his best interests can be properly understood and protected---Participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects dignity and agency of the child---Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process---Views of the child must be seriously considered, not merely acknowledged---Listening to a child does not mean obeying them, but rather understanding their perspective deeply enough to act in their best interests.

Review of judgment---Custody of minor---Welfare of minor and his/her best interest---Scope---Petitioner/father of two minor children sought review of the judgment whereby custody was denied to him---Validity---Petitioner/father had remarried and had a one-year-old child from his second marriage and was employed full-time during the day while also maintaining a private practice in the evenings, leaving him largely unavailable at home---Supreme Court after considering the age, educational continuity, psychological health, children’s emotional, medical, and educational continuity in light of their evolving needs, the stability of home environment, and the city of residence of the children and after assessing current circumstances and capacities of the parents, concluded that the best interests of the children, particularly the child with special needs, were best served by remaining in the custody of their mother---No alternative caregiver could fully replicate the intuitive care, emotional constancy and protective environment a mother was uniquely positioned to offer---Fact that mother was a working professional did not detract from her suitability as a custodial parent---On the contrary, it reflected her resilience and her commitment to providing a secure, nurturing, and dignified upbringing for her children---Supreme Court declined to review its earlier judgment as custody already stood vested with the mother---

JUDGMENT

-“Children are not the people of tomorrow; they are people today. They have a right to be taken seriously.”1

Brief facts

The present review petition arises out of a custody dispute concerning two children, A and B2, aged eight and seven years, respectively. The proceedings were initially instituted by respondent No. 1 (mother), who filed an application for custody before the Senior Civil Judge (Family Division), Layyah. The said application was dismissed vide order dated 14.07.2023; however, a visitation schedule was framed to facilitate meetings between respondent No. 1 and her children. Aggrieved, both parties3 filed separate appeals before the learned Additional District Judge, Layyah. Vide judgment dated 25.04.2024, the appellate court allowed the appeal filed by respondent No.1 (mother) and granted her custody of the children, and maintained a visitation arrangement for the petitioner (father), while dismissing his appeal. The petitioner then filed a constitutional petition before the Lahore High Court, Multan, which was dismissed vide judgment dated 24.05.2024. A civil petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), was preferred before this Court, which was dismissed vide order dated 18.07.2024 ("impugned order"). The present petition seeks review of the impugned order.

Review and Child Justice

2. While fully mindful of the limited scope of our review jurisdiction4, we deemed it necessary to revisit the matter in light of two foundational principles enshrined in the UN Convention on the Rights of the Child5 ("CRC"): Article 3, which mandates that the best interests of the child shall be a primary consideration in all actions concerning them; and Article 12, which guarantees every child the right to express their views freely in all matters affecting them, with due weight given in accordance with their age and maturity. The earlier proceedings regrettably failed to provide the children an opportunity to be heard, an omission that undermines both domestic constitutional protections and our international commitments. Given the central importance of a child's voice in custody determinations, we found it imperative to re-examine the case to ensure that these rights are not only acknowledged but meaningfully upheld. To rectify this oversight and to ensure that the children's welfare and perspectives were given due consideration, this Court deemed it necessary to interact directly with both children involved. The interaction enabled the Bench to make an independent assessment of their emotional well-being, level of comfort, and expressed preferences.

The journey from the Guardian and Wards Act, 1890 to the United Nations Convention on the Rights of the Child, 1989

3. As a contextual background, we emphasize that Section 176 of the Guardians and Wards Act, 1890 ("Act") provides that, in appointing a guardian, the court shall be guided by what "appears in the circumstances to be for the welfare of the minor". While this provision rightly places "welfare" at the center of the determination7, it operates within a framework that is broadly discretionary, adult-centric, and lacking in normative clarity. Rooted in colonial legislative thought, the concept of "welfare" under this Act has often been applied in an arbitrary and paternalistic manner, devoid of structured criteria or meaningful inclusion of the child's own perspective. The journey from the Act to the CRC represents a profound philosophical transformation in the domain of child justice, from a paternalistic, adult-driven notion of "welfare" to a rights-based, participatory understanding of the "best interests of the child." Under the colonial-era framework, the child was largely viewed as an object of adult protection, with minimal recognition of their evolving capacities, autonomy, or voice. While the child's welfare was nominally a guiding principle, it remained vague and was frequently interpreted through the subjective lens of what adults, typically courts or guardians assumed to be appropriate, without affording the child an opportunity to be heard. In stark contrast, the CRC revolutionized this paradigm by anchoring child justice in the principles of dignity, autonomy, and participation. Articles 3 and 12 of the CRC collectively reinforce the child's right to life, equality, protection, and most crucially participation. Article 3 requires that the best interests of the child be a primary consideration in all actions concerning them.8 This is not a vague or aspirational goal; it is a structured legal standard demanding a comprehensive, child-centered assessment that incorporates the child's emotional, psychological, developmental, and relational needs, alongside considerations of safety and long-term well-being. Complementing this, Article 12 mandates that every child capable of forming their own views has the right to express those views freely in all matters affecting them, and that those views must be given due weight in accordance with their age and maturity.9 This shift from "welfare" to "best interests" and from silence to participation marks a fundamental transformation in the philosophy of child justice, it reframes the child not as a passive recipient of adult decisions, but as an active rights-holder whose voice must be heard and respected. While the terms "welfare" and "best interests" may occasionally overlap in practice, they are not synonymous. The former often reflects subjective adult assumptions, whereas the latter is grounded in objective legal principles that prioritize the rights, agency, and holistic well-being of the child. The CRC thus replaces a discretionary and protective approach with a rights-based and participatory one mandating not only the protection of the child but also their meaningful inclusion in decisions that shape their lives.

Reading Section 17 of the Act with CRC through the lens of the Doctrine of Updating Construction of Statutes

4. In this light, Section 17 of the Act, must be interpreted through the lens of the CRC and the doctrine of updating construction of statutes. This interpretive approach empowers courts to move beyond archaic conceptions of "welfare" and adopt a rights-based framework that gives full effect to the dignity, agency, and voice of the child. To harmonize Section 17 with the CRC, the term "welfare" must not be understood in isolation. Instead, it must be interpreted within the CRC's normative framework, thereby transforming the concept into one that is inclusive, participatory, and rights-affirming. While "welfare" is a broader, more traditional term, and "best interests" it's more structured and contemporary legal counterpart, the two are not irreconcilable. Through a dynamic interpretation of "welfare" using the doctrine of updating construction, courts can incorporate the core elements of the best interest's standard, most notably, the child's right to participation. Such an interpretation not only aligns domestic law with Pakistan's international obligations but also with its constitutional values, notably the rights to life, dignity, equality, and the protection of childhood, as guaranteed under Articles 9, 14, 25 and 34 of the Constitution. Though Section 17 was enacted in a different era, it must now be read as a "living" provision. The principle that statutes extends to new circumstances has evolved into the modern doctrine of updating construction.10 Given that continuous statutory revision is rarely feasible and societies often function under inherited laws, courts operate on the presumption that legislation is "always speaking", meant to apply in evolving social and legal contexts.11 This interpretive approach ensures that statutes remain effective and aligned with contemporary values, including shifting constitutional and human rights norms. The phrase "welfare of the minor" can no longer be confined to its colonial-era meaning. Instead, it must be enriched by the modern, internationally recognized concept of the best interests of the child, as codified in Article 3 of the CRC, to which Pakistan is a State Party.12 The "welfare" standard is thus not static, it is a living standard that encompasses a child's emotional, psychological, cultural, and developmental needs, extending far beyond material well-being or parental preference. Moreover, the right of the child to be heard, as guaranteed by Article 12 of the CRC, must also be read into the application of Section 17. Any genuine assessment of the child's welfare or best interests is incomplete without ensuring the child's meaningful participation in the proceedings, appropriate to their age and maturity.13 By interpreting Section 17 in this harmonized manner, consistent with both international obligations and constitutional values, courts affirm that the provision requires not only an objective inquiry into what serves the child's welfare but also a procedural obligation to hear the child and give due consideration to their voice. This interpretive approach ensures that even a law as old as the Act remains a relevant and effective tool for delivering justice that is sensitive to the rights and realities of children today. To interpret it otherwise would be to render the statute obsolete, unfit for the constitutional and child-rights-informed present.

Voice of the Child

5. We underline that a child must be heard so that her best interests can be properly understood and protected. The participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects the dignity and agency of the child. Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process. As clarified in the UN General Comment No. 12, the views of the child must be seriously considered, not merely acknowledged.14 Listening to a child does not mean obeying them, but rather understanding their perspective deeply enough to act in their best interests.15

Child Justice - Integrating CRC Principles and the Constitution

6. The principles enshrined in Articles 3 and 12 of the CRC, the primacy of the child's best interests and the right to be heard find clear constitutional resonance in Articles 9, 14, 25 and 34 of the Constitution. Article 9 guarantees the right to life, which includes the right to a healthy, secure, and meaningful life. Article 14 protects the inherent dignity of every person, including children. Article 25 enshrines equality before the law and non-discrimination, and Article 34 obligates the State to ensure the protection of motherhood and childhood. Collectively, these provisions establish a strong constitutional foundation for child justice and child-centered adjudication, aligning Pakistan's constitutional values with its international obligations under the CRC and other international instruments it has ratified16. The Constitution further reinforces these obligations. Article 25(3) empowers the State to enact special provisions for the protection of children, including measures that may favorably differentiate them from adults. Article 25A mandates free and compulsory education for children aged 5 to 16 years. Article 35 specifically ensures the protection of marriage, the family, the mother, and the child. Article 37(e) guarantees just and humane working conditions, explicitly prohibiting child labour in vocations unsuitable to their age or sex. These provisions collectively prioritize the well-being, rehabilitation, and integration of children into society, and provide a solid legal basis for rights-based adjudication in matters affecting them.

Judicial Obligation to apply a Child-Centered Framework

7. It must be underscored that courts are bound to approach all matters involving children through the lens of a dedicated child-centered and child justice framework, a judicial philosophy grounded in both legal and moral obligations to safeguard, nurture, and empower children within the justice system.17 The concept of child justice is broad and inclusive. It encompasses not only children in conflict with the law, who require rehabilitative and restorative processes rather than punitive sanctions, but also children in contact with the law, including those involved in custody and guardianship disputes and other civil proceedings who must be treated with dignity, heard, protected, and empowered throughout judicial proceedings. As custodians of justice, courts bear a heightened responsibility to prioritize the best interests of the child in all decisions affecting them. This principle, central to international child rights jurisprudence, demands that the judiciary transcend procedural formalism and engage substantively with each child's unique vulnerabilities, developmental needs, and future potential.18 Such an approach requires judicial sensitivity, active participation of children in proceedings (where appropriate), and the creation of child-sensitive courtroom environments that respect their dignity and ensure their voices are not only heard but meaningfully considered.

Hearing the Children: A Participatory Approach

8. Guided by this constitutional and international framework, the Court adopted a child-friendly, participatory approach in the present case. Both children were invited to approach the Bench, not from the rostrum, but in a relaxed and informal manner, reducing the psychological distance between them and the Court. The interaction was designed to be warm and non-intimidating: we greeted them, shook hands, and engaged in a gentle conversation to elicit their views and preferences. The elder child conveyed a heartfelt desire to be with both parents, reflecting a deep emotional need for unity. The younger child, facing developmental delays, was unable to express his views meaningfully. The Court gave due weight to their expressed preferences and developmental contexts, ensuring emotional and psychological well-being remained central to adjudication. Only after internalizing their perspectives did the Court proceed to hear submissions from counsel.

Examining "Best Interests" of the Children

9. Learned counsel for the petitioner (father) submitted that the petitioner has since remarried and has a one-year-old child from his second marriage. He is a qualified child specialist and operates a private hospital in District Layyah. It was emphasized that the petitioner had personally overseen various therapies for child B during the period the child was in his custody as he has significant developmental delays. He further submitted that his parents (the children's paternal grandparents) reside with him and maintain a close and affectionate bond with the children. On this basis, it was argued that the best interests of the children would be served by placing them in his custody.

10. Conversely, learned counsel for respondent No. 1 (mother) submitted that she is also a medical doctor employed in government service and has likewise remarried. However, she clarified that her husband's children are adults and do not reside with them. The children live with her and her husband alone. The elder child is currently enrolled in a renowned private school, where he is performing well, while the younger child is undergoing therapy at a recognized institution in Lahore. She asserted that she is the primary caregiver and has been diligently attending to both the educational and therapeutic needs of the children. Unlike the professional commiment of the petitioner-father, her government job allows her to attend to her children. In any case the mere fact that the mother, is a working mother, cannot be held against her in custodial determinations as her professional commitments do not diminish her role as a mother and the primary caregiver, unless established otherwise. Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") recognizes the right of women to work and to be protected from discrimination in matters relating to marriage and family responsibilities19, while Article 16 ensures equality in matters of marriage and family life, including the rights and responsibilities of parents, irrespective of marital or employment status.20 General Recommendation No. 21 on equality in marriage and family relations under Article 16 specifically calls for states to ensure that custody and guardianship laws do not discriminate against women on the basis of their employment status and uphold shared responsibility of parents for child-rearing.21 To penalize a mother for exercising her right to work would run afoul of these guarantees.

11. We have paid particular attention to the condition of child B, aged seven, who has significant development delays and requires sustained therapeutic care. The petitioner-father, being a child specialist, emphasized his familiarity with the child's needs and past efforts to ensure regular therapy. Respondent No. 1-mother, however, also demonstrated serious attentiveness to the child's condition and B is undergoing special intervention/theraphy in Lahore. Both parents appear committed to the children's welfare and capable of providing stable, loving environments. However, we note that the father has remarried, has a one-year-old child from his second marriage, and is employed full-time during the day while also maintaining a private practice in the evenings, leaving him largely unavailable at home. After considering the age, educational continuity, psychological health, children's emotional, medical, and educational continuity in light of their evolving needs, the stability of home environment, and the city of residence of the children and after assessing the current circumstances and capacities of the parents we conclude that the best interests of the children, particularly the child with special needs, are best served by remaining in the custody of their mother. No alternative caregiver can fully replicate the intuitive care, emotional constancy, and protective environment a mother is uniquely positioned to offer. The fact that she is a working professional does not detract from her suitability as a custodial parent. On the contrary, it reflects her resilience and her commitment to providing a secure, nurturing, and dignified upbringing for her children.

ADR and Child Justice: An Important Intersection

12. In matters involving children, such as custody, guardianship, and family disputes, the courts must recognize that a strictly adversarial approach often exacerbates conflict, delays resolution, and undermines the child's sense of stability and security. In contrast, Alternative Dispute Resolution ("ADR"), particularly mediation, offers a more collaborative, efficient, and child-sensitive mechanism for resolving such dispute. While the CRC does not explicitly reference the term ADR, its spirit and structure clearly support its use. Article 3 of the CRC demands that the best interests of the child be a primary consideration in all actions concerning children, while Article 12 guarantees the child's right to express views freely and to have those views given due weight. In General Comment No. 12 (2009), the UN Committee on the CRC explicitly encourages States to develop mechanisms that ensure meaningful child participation in family law proceedings, including through non judicial and informal processes such as mediation.22 Such processes must be voluntary, child-friendly, and facilitated by professionals trained to respect the evolving capacities of the child and prioritize their best interests. Properly designed ADR mechanisms reduce the psychological burden on children, promote parental cooperation, and lead to faster, more sustainable outcomes that support the child's long-term welfare. Accordingly, Family Courts and Guardianship Tribunals must prioritize mediation as a first recourse, particularly where parties demonstrate a willingness to engage in good faith. Adjudication should be pursued only when mediation fails or is deemed unsuitable due to concerns of safety, coercion, or imbalance of power. This approach not only aligns with Pakistan's international obligations under the CRC but also reinforces the constitutional commitment to protect the dignity, welfare, and future of every child.

Directive to Courts: Hear the Voice of the Child

13. Before parting with this judgment, we find it necessary to underscore that this decision must serve as a directive to all courts, particularly Family Courts and judges of the District Judiciary: the voice of the child must be heard and respected in every custody and guardianship matter. This is not an aspirational goal but a binding obligation under the CRC. We conclude this judgment with the words of James Baldwin, who said: "The children are always ours, every single one of them, all over the globe; I am beginning to suspect that whoever is incapable of recognizing this may be incapable of morality."23 These words are a solemn reminder that courts, especially Family Courts have a moral and legal responsibility to see, hear, and protect every child not as a passive subject of proceedings, but as a rights-bearing individual whose dignity must be safeguarded at every stage of the judicial process.

14. In view of the foregoing, and as custody already stands vested with the mother, we are of the considered view that no case for review of the impugned order is made out. Accordingly, this petition is dismissed. The parties are directed to strictly adhere to the visitation schedule determined by the lower appellate court. Custody of the children shall continue with the mother unless and until the petitioner-father moves a fresh application for custody and the same is adjudicated by the competent forum in light of any material change in circumstances.

15. Copy of this judgment be dispatched to the Registrars of all High Courts for further circulation to judges of the District Judiciary, for their information and future guidance.

1 Janusz Korczak (1878-1942) was Polish doctor, educator, author, and advocate for children's rights, known for his dedication to orphaned children. He established and directed an orphanage in Warsaw and was a prominent figure in Polish education and children's literature. Tragically, he perished in the Treblinka extermination camp during the Holocaust, along with the children under his care.

2 For the sake of confidentiality, the names of the children have been kept anonymous.

3 The petitioner challenged the visitation rights given to respondent No. 1, while respondent No.1 assailed the order passed by the Senior Civil Judge.

4 Federal Public Service Commission v. Kashif Mustafa 2025 SCP 170 (SCP citation); Justice Qazi Faez Isa v. President of Pakistan PLD 2022 SC 119; M/s Habib and Co. v. Muslim Commercial Bank PLD 2020 SC 227; Engineers Study Forum v. Federation of Pakistan 2016 SCMR 1961; Government of Punjab v. Aamir Zahoorul-Haq PLD 2016 SC 421; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049 and Mehdi Hassan v. Province of Punjab 2007 SCMR 755.

5 The United Nations Convention on the Rights of the Child ("CRC") was adopted on 20 November 1989. In interpreting the Articles of CRC and in particular Articles 3 and 12 of the United Nations Convention on the Rights of the Child (CRC) constitute foundational pillars of child-centered justice, requiring that in all actions concerning children, their best interests shall be a primary consideration and that children capable of forming their own views shall be heard and those views given due weight in accordance with age and maturity. These principles are not to be applied in isolation but are to be interpreted in the light of the broader international legal framework that operationalizes and reinforces them. General Comment No. 14 (2013) provides authoritative guidance on the application of Article 3, offering a structured approach to determining and balancing best interests in judicial proceedings, while General Comment No. 12 (2009) elaborates the procedural and substantive dimensions of Article 12, affirming that the right to be heard is not merely formal but must be meaningful, safe, and age-appropriate. These general comments are complemented by instruments such as the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005), the Guidelines for the Alternative Care of Children (2009), and regional conventions including the European Convention on the Exercise of Children's Rights (1996) and the African Charter on the Rights and Welfare of the Child (1990), all of which underscore the legal and moral imperative to integrate the child's voice and best interests in every decision affecting them. Courts, therefore, are under a binding obligation, both moral and legal to embed these interpretive tools in their reasoning, thereby transforming child justice from a paternalistic paradigm to one that upholds the agency, dignity, and evolving capacities of the child.

6 17. Matters to be considered by the Court in appointing guardian.---(1) ...

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

7 Shaista Habib v. Muhammad Arif Habib PLD 2024 SC 629; Rashid Hussain v. Additional District Judge, Islamabad PLD 2022 SC 32; Raja Muhamamd Owais v. Nazia Jabeen 2022 SCMR 2123; Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. Talat Nasira v. Mst. Munawara Sultana 1985 SCMR 1367; Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606; Rahimullah Choudhury v. Helali Begum 1974 SCMR 305 and Khizar Hayat Khan Tiwana v. Zanib Begum PLD 1967 SC 402.

8 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; S v. M [2007] ZACC 18; Re G (Children) [2006] UKHL 43; Troxel v. Granville 530 U.S. 57 (2000); Minister for Welfare v. Fitzpatrick [2000] ZACC 6; Gordon v. Gordon [1996] 2 SCR 27; Young v. Young [1993] 4 SCR 3; 18; J v. C [1970] AC 688 and Santosky v. Kramer 455 U.S. 745 (1892).

9 M and M v. Croatia [2015] ECHR 759; Re D (A Child) [2010] UKSC 12 and S v. M [2007] ZACC 18.

10 See P St J Langan (ed), Maxwell on the Interpretation of Statutes (10th edn, Sweet & Maxwell 1953) and Fakir Muhammad v. Federation of Pakistan PLD 1958 SC 118.

11 Meera Shafi (Meeshah Shafi) v. Ali Zafar PLD 2023 SC 211.

12 Pakistan ratified the United Nations Convention on the Rights of the Child on 12 November 1990 which provided broader guidelines for the promotion and protection of child rights.

13 See Laura Lundy, John Tobin and Aisling Parkes, 'The Right to Respect for the Views of the Child' in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (OUP 2019).

14 See UN Committee on the Rights of the Child, 'General Comment No. 12: The Right of the Child to be Heard' (CRC/C/GC/12, 20 July 2009). The UN General Comments are authoritative interpretations and clarifications issued by the United Nations treaty bodies, especially the Human Rights Committee and the Committee on the Rights of the Child (CRC Committee), among others. These General Comments elaborate on the meaning, scope, and application of specific articles in international human rights treaties.

15 Albie Sachs, The Strange Alchemy of Life and Law 69 (Oxford Univ. Press 2009).

16 Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and Universal Declaration of Human Rights, UN Convention on the Elimination of All Forms of Discrimination against Women, UN Convention on the Rights of Persons with Disabilities, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. UN Framework Convention on Climate Change and UN Genocide Convention.

17 UNICEF, Introduction to the Five Advocacy Briefs on Child Justice and Child Friendly Justice (November 2022).

18 Ursula Kilkelly and Stefaan Pleysier, ‘Rights of the Child in the Justice System’ (2023) 23(2) Sage Journal.

19 Pakistan ratified the CEDAW on 3 December 1996. See CEDAW, Article 11.

20 Ibid, Article 16.

21 Committee on the Elimination of Discrimination against Women (CEDAW), 'General recommendation No 21: Equality in marriage and family relations' (1994) UN Doc A/49/3 8/Rev. 1 at 112 (CEDAW General Recommendation 21).

22 UN Committee on the Rights of the Child, ‘General Comment No. 12: The Right of the Child to be Heard’ (CRC/C/GC/12, 20 July 2009), p. 68-70.

23 James Baldwin (1924-1987) was an American writer, essayist, novelist, and civil rights activist whose work profoundly shaped discussions on race, identity, and justice in the 20th century. He is best known for his incisive explorations of the Black experience in America, particularly the intersection of race, sexuality, and class.

C.R.P. No. 458 of 2024

Dr. MUHAMMAD ASIF Versus Dr. SANA SATTAR

Read More

دفعہ 17-اے -دفعہ 11 -- دفاع خارج کرنا -- متوازی غیر ملکی مقدمات -- نان نفقہ -- شیء جوڈیکاٹا -- دفاع خارج کرنا ایک سزائی طریقہ کار کا نتیجہ تھا، جس کا نفاذ صرف دانستہ خلاف ورزی کے.........

  PLJ 2026 Islamabad 170
Present: Muhammad Azam Khan, J.
MUHAMMAD MUNEEB ARSHAD--Petitioner
versus
Mst. AMMARA MAHROOF, etc.--Respondents
W.P. No. 5459 of 2025, decided on 3.2.2026.

Family Courts Act, 1964 (XXXV of 1964)--

دفعہ 17-اے -- آئین پاکستان، 1973ء، آرٹیکل 199 -- ضابطہ دیوانی، 1908ء (V of 1908)، دفعہ 11 -- دفاع خارج کرنا -- متوازی غیر ملکی مقدمات -- نان نفقہ -- شیء جوڈیکاٹا -- انتخاب کا اصول -- دوہری وصولی -- دائرہ اختیار -- قابلیتِ سماعت -- نان اسپیکنگ آرڈر -- عدالتی اخلاقیات -- عدالتوں کا باہمی احترام -- ذمہ داریوں کا تداخل -- ناجائز فائدہ -- جہاں کوئی مجاز غیر ملکی عدالت پہلے ہی ایک ہی ذمہ داری مقرر کر چکی ہو اور اس پر عمل درآمد کروا رہی ہو، وہاں پاکستان میں متوازی نان نفقہ مقدمات جائز نہیں ہیں؛ ایسے تداخل اور تعمیل کو مدنظر رکھے بغیر دفعہ 17-اے کے تحت دفاع کو خارج کرنا غیر قانونی ہے -- جہاں کوئی مجاز غیر ملکی عدالت پہلے ہی اپنا دائرہ اختیار قائم کر چکی ہو اور اس کے احکامات کی تعمیل کی جا رہی ہو، پاکستان کی فیملی عدالتوں کو متوازی مقدمات سے گریز کرنا چاہیے جو ایک ہی ذمہ داری اور مدت کے لیے ذمہ داریوں کے تداخل یا مقابلے کا باعث بنیں -- یہ قانون کا ایک طے شدہ اصول تھا کہ جہاں ایک ہی ذمہ داری پر بنیادی طور پر ایک ہی ریلیف کے لیے دو فورمز کو حرکت میں لایا جائے، قانون مدعی کو ایک ہی دعوے کو 'دوہرا' چلانے اور ایک ذمہ داری کے لیے دو قابلِ نفاذ ذرائع حاصل کرنے کی اجازت نہیں دیتا -- یہ ایک طے شدہ اصول تھا کہ کیس کی میرٹ پر جانے سے پہلے، عدالتوں کو سب سے پہلے کارروائی کی قابلیتِ سماعت کا جائزہ لینا اور اس کا تعین کرنا ضروری تھا، خاص طور پر جہاں مخالف فریق کی طرف سے دائرہ اختیار/قابلیتِ سماعت کے حوالے سے کوئی مخصوص قانونی اعتراض اٹھایا گیا ہو -- عدالتوں کو سب سے پہلے ان اعتراضات کو حل کرنا اور ان کا تعین کرنا تھا جو قابلیتِ سماعت اور دائرہ اختیار کی جڑوں سے جڑے ہوتے ہیں، خاص طور پر جہاں ایسے اعتراضات کسی فریق کی طرف سے خاص طور پر اٹھائے گئے ہوں -- فورم، متوازی مقدمات، سابقہ فیصلے، اور عدالت کی صلاحیت سے متعلق سوالات محض تکنیکی نوعیت کے معاملات نہیں تھے؛ بلکہ یہ عدالت کے اس اختیار پر براہِ راست وار کرتے تھے کہ وہ مقدمے کو مطلوبہ طریقے سے آگے بڑھائے -- لہذا، ایسے اعتراضات کا آغاز میں یا جلد از جلد مناسب مرحلے پر بامعنی انداز میں تصفیہ کرنا ضروری تھا، بجائے اس کے کہ انہیں مقدمے کے اختتام پر سست روی سے موخر کیا جائے، اگر ریکارڈ پر موجود مواد پہلے ہی عدالتی جانچ کا تقاضا کرتا ہو -- متعلقہ حکم ایک نان اسپیکنگ آرڈر (بغیر وجوہات کا حکم) پایا گیا -- لہذا، معزز ٹرائل کورٹ کا ایسا پاس کردہ حکم ویسٹ پاکستان فیملی کورٹس ایکٹ، 1964ء کی دفعہ 17-اے کے تحت سزائی نتائج کو برقرار نہیں رکھ سکتا -- یہ قانون کا ایک طے شدہ اصول تھا کہ اگر بنیاد غیر قانونی چیز پر رکھی گئی ہو، تو اس پر کھڑی پوری عمارت گرنا یقینی تھی -- درخواست منظور۔

----S. 17-A--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, 1908 (V of 1908), S. 11--Striking off defence--Parallel foreign proceedings--Maintenance--Res judicata--Doctrine of election--Double recovery--Jurisdiction--Maintainability--Non-speaking order--Judicial propriety--Comity of courts--Overlapping liability--Unjust enrichment--Parallel maintenance proceedings in Pakistan are impermissible where a competent foreign court has already fixed and is enforcing same liability; striking off defence under S. 17-A without addressing such overlap and compliance is unlawful--Where a competent foreign court had already assumed jurisdiction and its orders were being complied with, Family Courts in Pakistan were required to avoid parallel proceedings that would result in overlapping or competing obligations for same liability and period--It was a settled principle of law that where two fora were invoked for substantially same relief on same obligation, law did not permit a litigant to ‘double run’ same claim so as to obtain two enforceable streams for one liability--It was a settled principle that before proceeding on merits, Courts were required first to examine and determine maintainability of proceedings, particularly where a specific legal objection as to jurisdiction/maintainability had been raised by opposite party--The Courts were required to first address and determine objections going to root of maintainability and jurisdiction, especially where such objections were specifically raised by a party--Questions relating to forum, parallel proceedings, prior adjudication, and competence of Court were not matters of mere technicality; rather, they struck at very authority of Court to continue with lis in manner sought--Such objections, therefore, were required to be meaningfully adjudicated at threshold or at earliest appropriate stage, rather than being deferred casually to end of trial if material on record already warranted judicial scrutiny--Impugned Order was found to be a non-speaking order--Such an Order passed by learned Trial Court, therefore, could not sustain penal consequence of Section 17-A of West Pakistan Family Courts Act, 1964--It was a settled principle of law that if foundation had been built upon illegality, entire superstructure resting upon it was bound to crumble--Petition allowed.

[Pp. 180, 183, 186 & 191] A, C, D & F

“Res judicata”--

جہاں ایک ہی فریقین کے درمیان ایک ہی سببِ دعویٰ پر کسی مجاز فورم کی جانب سے کسی تنازعے کا پہلے ہی تصفیہ (فیصلہ) کیا جا چکا ہو، وہاں فیملی کورٹس کو اس تنازعے کو دوبارہ کھولنے سے انکار کرنا چاہیے، کیونکہ یہ معاملہ "ریس جوڈیکاٹا" (Res Judicata / شیء جوڈیکاٹا) کے اصول کی زد میں آجاتا ہے۔

----Where a dispute had already been adjudicated upon by a competent forum between same parties on same cause of action, Family Courts were required to decline to reopen controversy as matter was hit by principle of “res judicata”. [P. 182] B

Striking off defense--

دفاع خارج کرنا ایک سزائی طریقہ کار کا نتیجہ تھا، جس کا نفاذ صرف دانستہ خلاف ورزی کے واضح اور دلائل پر مبنی اطمینان کے بعد ہی ہونا ضروری تھا -- اگرچہ دفعہ 17-اے فیملی کورٹ کو عبوری نفقہ کی ادائیگی میں ناکامی پر دفاع خارج کرنے اور دعویٰ کو ڈگری کرنے کا اختیار دیتا ہے، تاہم ایسی شق عدالت کو مکینیکل انداز میں کارروائی کرنے کے لیے بے لگام یا من مانے اختیارات عطا نہیں کرتی۔

----Striking off defense was a penal procedural consequence, which was required to follow only upon a clear, reasoned satisfaction of willful default--Although Section 17-A empowered Family Court to strike off defense and decree suit upon failure to pay interim maintenance, such provision did not confer unfettered or arbitrary power upon Court to proceed mechanically. [P. 189] E

Mr. Akhtar Hussain Bharwana, Advocate for Petitioner.
Mr. Awais Mehmood Awan, Advocate for Respondents No. 1
& 2.
Ms. Amna Danial Khawaja, Judicial Law Clerk for Assisted.
Date of hearing: 3.2.2026.

Judgment

1. The Petitioner, Muhammad Muneeb Arshad, has filed the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, challenging the Order dated 10.12.2025 (“Impugned Order”) passed by the learned Judge Family Court, West-Islamabad (“Trial Court”) whereby his right of defense has been struck off under Section 17-A of the West Pakistan Family Courts Act, 1964 on the ground of default in payment of interim maintenance.

BACKGROUND:

2. Brief facts of the case, as per the contents of the instant petition, are that Mst. Ammara Mahroof (“Respondent No. 1”) filed a suit for recovery of maintenance allowance against the Petitioner, before the learned Trial Court, with the prayer that the following decree may kindly be issued in her favor:--

i. A decree to the effect that the Defendant pay an amount of Rs. 2,00,000/-per month on account of maintenance of the Plaintiff No. 1 from 19.11.2021 till the completion of Iddat period.

ii. A decree to the effect that the Defendant pay the maintenance of the Plaintiff No. 2, calculated at PKR 1,67,772/-per month from the date of birth of Plaintiff No. 2, with an increase of 25% per annum.

3. The suit was contested by the Petitioner/Defendant by filing a written statement, raising objections, among other defenses, touching upon maintainability and jurisdiction, with the consistent stance that the parties’ residence and the minor’s welfare/maintenance issues were already within the cognizance of Courts in Ireland. However, the learned Trial Court vide Order dated 11.11.2024 fixed a sum of Rs. 25,000/-as interim maintenance in favour of the minor, namely Minha Muneeb, payable by the Petitioner on or before the 14th day of each month. Issues were framed, including the maintainability of the suit, and the matter proceeded further. It is pertinent to note herein that the Petitioner/Defendant had also moved an application seeking dismissal of the suit at the threshold, inter alia, on the ground that parallel proceedings before the Court in Ireland had already decided the minor’s maintenance, by virtue of which the Respondent No. 2/Plaintiff No. 2 has been receiving maintenance thereunder. The Petitioner/Defendant further invoked the principles of Res Judicata by invoking Section 11 of the Civil Procedure Code, 1908. The said application filed by the Petitioner/Defendant was dismissed by the learned Trial Court vide Order dated 02.10.2025, indicating that the controversy reflected in the issues framed would be adjudicated in accordance with law at the appropriate stage. For ready reference, the Order dated 02.10.2025 is being reproduced hereunder:--

“Order

02-10-2025

The Application under Section 11 CPC filed by the defendant party stands dismissed with the observation that the matter requires evidence and the fate of the case will be decided after conclusion of trial. Certainly, the Issues No. 3 & 4 were framed regarding the jurisdiction and as well as about maintainability of instant case, which will be decided after the conclusion of trial. The parties are strictly directed to conclude the evidence by next date i.e., 06-11-2025 without failure.”

4. On 06.11.2025, the Respondent No. 1/Plaintiff filed an application under Section 17-A of the West Pakistan Family Courts Act, 1964, read with all other enabling provisions of law, seeking the striking off of the defense of the Petitioner/Defendant. The said application was contested by the Petitioner/Defendant by filing a written reply. After hearing the arguments, the learned Trial Court, vide Impugned Order dated 10.12.2025, struck off the defense of the Petitioner/Defendant under Section 17-A of the West Pakistan Family Courts Act, 1964, on account of his default in payment of the interim maintenance allowance. Being aggrieved by the said Impugned Order, the Petitioner/Defendant has filed the instant petition. Consequent thereto, on 18.12.2025, the learned Trial Court proceeded to decree maintenance for the minor @ Rs. 25,000/-(Twenty-Five Thousand Rupees) with annual increase of 10% with effect from April 2023 till her legal entitlement. The decree was passed on the premise that the right of defense of the Petitioner/Defendant had already been struck off under Section 17-A of the West Pakistan Family Courts Act, 1964 vide Impugned Order dated 10.12.2025, and that the record did not reflect any arrangement or compliance by the Petitioner/Defendant towards payment of the interim maintenance as directed. Accordingly, the suit was decreed to the extent of the minor’s maintenance under Section 17-A of the West Pakistan Family Courts Act, 1964, in the terms reflected in the decree. Thereafter, the proceedings were fixed for further steps, including cross-examination of the Plaintiff’s witnesses to the extent of the remaining claim i.e., the personal maintenance allowance towards the Respondent No. 1/Plaintiff No. 1. It is also material to mention herein that the instant writ petition challenges solely the Order dated 10.12.2025, whereby the right of defense of the Petitioner/Defendant was struck off by the learned Trial Court; subsequent decree dated 18.12.2025 has not been specifically assailed before this Court in the instant matter.

ARGUMENTS ON BEHALF OF THE PETITIONER:

5. Learned counsel for the Petitioner/Defendant has contended that the Impugned Order dated 10.12.2025 is contrary to law and facts, based on surmises and conjectures, and passed without proper application of judicial mind. Alongside the proceedings pending before the learned Trial Court in Pakistan, the Petitioner/Defendant has placed on record orders passed by the learned District Court, Ballinasloe, Ireland, relating to maintenance for the minor, whereby the Petitioner/Defendant’s weekly liability towards the minor was fixed at different stages, which ultimately is reflected as €125 per week vide Order dated 12.09.2024. The Petitioner/Defendant also relies upon payment proofs/bank remittances to show regular payments to the Respondent No. 1/Plaintiff in terms of the arrangement settled by the District Court, Ballinasloe, Ireland. It has been argued that the learned Trial Court acted in haste, ignored the settled law laid down by the Superior Courts requiring matters to be decided on merits rather than technicalities, and failed to consider the available record. It was further submitted that the Respondent No. 1/Plaintiff No. 1 has never denied receipt of the said maintenance, yet the learned Trial Court failed to consider this material fact while passing the Impugned Order. Learned counsel for the Petitioner/Defendant lastly contends that the Impugned Order dated 10.12.2025 is contrary to law and the record, suffers from non-application of mind, and has been passed in a mechanical manner, resulting in grave prejudice by depriving the Petitioner/Defendant of his substantive right to defend.

ARGUMENTS ON BEHALF OF THE RESPONDENT NO. 1:

6. Learned counsel for Respondent No. 1/Plaintiff No. 1 has controverted the arguments advanced by learned counsel for the Petitioner/Defendant, thereby supporting the Impugned Order dated 10.12.2025. It was contended that the Petitioner/Defendant willfully had failed to comply with the Interim Order dated 11.11.2024 passed by the learned Trial Court, thereby attracting the penal consequences under Section 17-A of the West Pakistan Family Courts Act, 1964. It was argued that payment of maintenance, pursuant to an order rendered by a foreign Court, does not absolve the Petitioner/Defendant from complying with the lawful orders passed by the competent Court in Pakistan. Learned counsel further submitted that the Petitioner/Defendant has deliberately avoided payment of maintenance towards the Respondent No. 2/Minor and failed to comply with the directions of the learned Trial Court, which, therefore, has rightly struck off his defense after providing due opportunity.

7. I have heard the learned counsel for the parties at considerable length and perused the record.

8. Examination of the record shows that there remains an undisputed cross-border litigation inter se the parties qua the maintenance allowance for the Respondent No. 2/Minor before the District Court, Ballinasloe, Ireland, wherein cognizance had already been taken by fixing maintenance payable by the Petitioner/Defendant towards the Respondent No. 2/Minor. The record reveals that an application under Section 11(1) of the Guardianship of Infants Act, 1964, was filed before the District Court, Ballinasloe, Ireland, regarding the welfare of the Respondent No. 2/Minor by the Respondent No. 1/Plaintiff No. 1, whereby the Irish Court had fixed the maintenance for the Respondent No. 2/Minor at €50 per week vide Order dated 07.12.2023. Thereafter, vide Order dated 11.01.2024, the said Court enhanced the maintenance towards the Respondent No. 2/Minor at €100 per week by invoking the provisions of Family Law (Maintenance of Spouses and Children) Act, 1976, read with the Guardianship of Infants Act, 1964. Currently, the Petitioner/ Defendant has been paying maintenance regularly in compliance with the directions of the District Court, Ballinasloe, Ireland, which had further fixed the maintenance towards the Respondent No. 2/Minor at €125 per week vide Final Order dated 12.09.2024. The Petitioner/Defendant, in this regard, has placed on record documentary proofs of such payments, which have not been disputed before this Court by the contesting party. On this premise, it is urged that the Petitioner/Defendant could not have been treated as a willful defaulter, and that striking off the defense, being a harsh procedural consequence, was wholly disproportionate.

9. The record also ostensibly shows that the Respondent No. 1/Plaintiff had instituted a suit in Pakistan for maintenance payable towards herself and the Respondent No. 2/Minor under the West Pakistan Family Courts Act, 1964 on 08.06.2023, whereby the Learned Trial Court vide Order dated 11.11.2024 fixed the interim maintenance payable towards the Respondent No. 2/Minor only at the rate of Rs. 25000/-per month, which shall be paid by the Petitioner/ Defendant by 14th day of every calendar month, failing which the Court reserved the right to strike off the defense and decree the suit. Prior to the fixation of interim maintenance, the Petitioner/ Defendant had already moved an application for return/rejection of the suit before the learned Trial Court, which was finally adjudicated on 02.10.2025, whereby his application was dismissed on the ground that the matter required evidence, thus, the fate of the case will be decided at the conclusion of trial. Thereafter, the learned Trial Court vide Order dated 10.12.2025 struck off the defense of the Petitioner/Defendant under Section 17-A of the West Pakistan Family Courts Act, 1964 due to his default in the payment of the interim maintenance allowance towards the Respondent No. 2/Minor. The learned Trial Court further observed that the Petitioner/Defendant remained reluctant to oblige the Order dated 11.11.2024. Consequent thereto, on 18.12.2025, the learned Trial Court proceeded to decree maintenance for the Respondent No. 2/Minor @ Rs. 25,000/-(Twenty-Five Thousand Rupees) with annual increase of 10% with effect from April 2023 till her legal entitlement. The decree was passed on the premise that as the right of defense of the Petitioner/Defendant had already been struck off under Section 17-A of the West Pakistan Family Courts Act, 1964 vide Impugned Order dated 10.12.2025, therefore, there was no evidence on record to show any arrangements made or compliance by the Petitioner/ Defendant towards payment of the interim maintenance as directed. Accordingly, the suit was decreed to the extent of the minor’s maintenance under Section 17-A of the West Pakistan Family Courts Act, 1964. Learned counsel for the Petitioner/Defendant contends that the Impugned Order dated 10.12.2025 is contrary to law and the record, suffers from non-application of mind, and has been passed in a mechanical manner, resulting in grave prejudice by depriving the Petitioner/Defendant of his substantive right to defend. Learned counsel has further submitted that the learned Trial Court ought to have dealt with the jurisdiction/maintainability objection as a preliminary matter, particularly in a case where the minor is within a foreign jurisdiction and a foreign Court is already seized of the matter, and that postponing the jurisdictional determination while simultaneously imposing the sanction of Section 17-A is legally unsustainable.

POINTS OF DETERMINATION:

10. Upon hearing learned counsel for the parties at length and after careful perusal of the record, the following moot questions arise for determination:

1. Notwithstanding that both parties presently reside within the territorial jurisdiction of a foreign Court, can the Family Courts in Pakistan validly assume and exercise jurisdiction to adjudicate the dispute in view of Rule 6 of the West Pakistan Family Courts Rules, 1965?

2. Where a competent foreign Court has already taken cognizance of the minor’s maintenance between the same parties and has fixed the father’s liability, can a Family Court in Pakistan concurrently take cognizance and proceed to pass overlapping orders on the same subject matter, between the same parties, and for the same cause of action?

3. Whether the Respondent No. 1/Plaintiff No. 1, having invoked and pursued the foreign forum for fixation/enforcement of the minor’s maintenance and obtained operative orders therefrom, is bound by the doctrine of election and thus precluded from simultaneously pursuing an overlapping claim for the same minor-maintenance liability before Pakistani Courts?

4. Whether permitting parallel maintenance proceedings/orders in Pakistan amounts to impermissible double burdening of the father and results in unjust enrichment/double recovery for the same liability and period?

5. Whether judicial propriety requires the Courts in Pakistan to avoid passing overlapping/contradictory maintenance orders when a foreign Court has already fixed and is enforcing the minor’s maintenance?

6. If the Impugned Order striking off the Petitioner’s defense under Section 17-A is found to be unlawful for want of reasons and absence of a finding of willful default, can the consequential decree dated 18.12.2025 founded upon that unlawful order legally survive?

POINT NO. 1:

11. There is no cavil to the proposition that territorial competence of a Family Court is not determined solely by the current physical residence of the parties abroad, it is determined by the statutory framework, principally Rule 6 of the West Pakistan Family Courts Rules, 1965, which is reproduced herein below for ready reference:

“Rule 6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which:--

(a) the cause of action wholly or in part has arisen, or

(b) where the parties reside or last resided together:

Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.”

A bare reading of Rule 6 of the West Pakistan Family Courts Rules, 1965, reveals that merely because the parties presently reside abroad does not, by itself, render the Family Courts in Pakistan incompetent to entertain a family dispute. Jurisdiction of the Family Court is governed by the statutory framework, which contemplates jurisdiction through recognized connecting factors, including inter alia the ordinary residence, last residence, and/or where the cause of action wholly or partly arose, as applicable. Reliance in this regard is placed “Sohail Ahmed versus Mst. Samreena Rasheed Memon and another” (2024 SCMR 634), wherein the Honorable Supreme Court of Pakistan observed the following while interpreting Rule 6 of the West Pakistan Family Courts Rules, 1965:

“7. With regard to the question raised before us by the petitioner as to whether Family Courts in Pakistan have jurisdiction to entertain the case when the plaintiff/wife is a dual citizen of Pakistan and the USA and is residing in the USA at the time of the institution of the suit, whereas, the husband is national and permanent resident of Pakistan. In this regard Rule 6 of the West Pakistan Family Courts Rules, 1965 is relevant which is reproduced herein-below:

“6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which:

(a) the cause of action wholly or in part has arisen, or

(b) where the parties reside or last resided together.

Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.”

8. In the above-proviso, the Legislature has intentionally used the word “ordinarily” which has a different meaning than that of permanent residence. According to Black’s Law Dictionary (VIth Edition) word “ordinary” means “usual, common, settled, customary, and reasonable”. Furthermore, Dicey, a renowned jurist, in his book, “Conflict of Laws” at page 96 explains expression “Ordinarily resides” in the following words:

“It is not, as a matter of law, necessary that the residence should be long in point of time, residence for a few days or even for part of a day is enough. The length of residence is not important in itself.”

9. In the present case, although the Respondent is living in the USA at the time of the institution of the suit through her duly constituted attorney. However, the respondent usually comes to Pakistan; have acquired her education in Karachi and visits her family in Karachi from time to time.

10. By this proviso, the rigour of normal rule providing for territorial jurisdiction for trial of cases in Family Court have been relaxed in favour of female filing a suit for dissolution of marriage or recovery of dower. The words “Ordinarily resides” and “shall also have jurisdiction” used in proviso demonstrate the intention of parliament is to facilitate things for the wife and off-set her handicap. Therefore, the option of instituting such suits vests with the wife and the Court is bound to take her convenience subject to law. Hence, Family Courts in Pakistan have jurisdiction to entertain the matter and the trial Court has rightly exercised so.”

(Emphasis Supplied)

12. Keeping in view the above rationale, it becomes ostensible that cross-border elements in matrimonial disputes do not automatically oust the jurisdiction of Pakistani family fora once the statutory jurisdictional touchstones under Rule 6 are met. Consequently, the objection that the Courts in Pakistan are barred from adjudication simply because both parties are within the territorial jurisdiction of a foreign Court is legally unsustainable.

POINT NO. 2:

13. The record placed before this Court shows that the learned District Court, Ballinasloe, Ireland, had assumed jurisdiction and passed orders qua fixation of the maintenance payable towards the Respondent No. 2/Minor by the Petitioner/Defendant, which the latter has been complying with by making regular payments pursuant thereto, with proofs placed on record. In such circumstances, the Courts in Pakistan must act in accordance with judicial propriety and restraint to prevent contradictory or duplicative commands being issued against the same person on the same obligation, particularly where the foreign Court’s orders are being complied with, and the receiving party is not shown to be left remediless. Thus, where a competent foreign Court has already assumed jurisdiction of the same dispute between the same parties, passed effective orders on the same obligation, and those orders are being complied with, judicial propriety requires the Family Courts in Pakistan to avoid parallel cognizance that would produce overlapping or competing obligations for the same liability and the same period.

14. The question is not of a theoretical power to entertain proceedings, but of the orderly administration of justice. Courts in Pakistan must guard against a scenario where one party is permitted to litigate the same claim twice, thereby exposing the other to multiple coercive mechanisms and inconsistent commands. It is pertinent to note that the Petitioner/Defendant had also filed an application seeking dismissal of the suit at the very outset, inter alia, on the ground that parallel proceedings before the competent Court in Ireland had already determined the minor’s maintenance, pursuant to which the Respondent No. 2/Plaintiff No. 2 was receiving maintenance. The Petitioner/Defendant further invoked the bar of res judicata by placing reliance on Section 11 of the Civil Procedure Code, 1908. The said application, however, was dismissed by the learned Trial Court vide Order dated 02.10.2025, observing that the controversy embodied in the framed issues required adjudication in accordance with law at the appropriate stage. For the purpose of examining whether the bar of res judicata is attracted in the present matter, it is appropriate to reproduce Section 17 of the West Pakistan Family Courts Act, 1964, and Section 11 of the Civil Procedure Code, 1908, herein below for ready reference:--

“17. Provisions of Evidence Act and Code of Civil Procedure not to apply--

(1) Save as otherwise expressly provided by or under this Act, the provisions of the Qanun-e-Shahadat, 1984 (P.O. No. 10 of 1984)], and the Code of Civil Procedure, 1908, except Sections 10 and 11, shall not apply to proceedings before any Family Court in respect of Part 1 of Schedule.

(2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.”

“Section 11. Res judicata.--No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

15. Bare reading of the above provisions would disclose that Section 17 of the West Pakistan Family Courts Act, 1964, expressly carves out an exception to the general exclusion of the Code of Civil Procedure, 1908, by providing that, notwithstanding the non-applicability of the CPC to Family Court proceedings, Sections 10 and 11 CPC shall continue to apply. The legislative intent is unambiguous in this regard. While the Family Courts are designed to proceed expeditiously and free from technicalities of the CPC, the principles of res sub-judice and res judicata are preserved to prevent multiplicity of litigation, inconsistent adjudications, and re-agitation of settled disputes. Consequently, where the statutory ingredients of Section 11 CPC are satisfied, a Family Court is not only empowered, but obliged to give effect to the bar of res judicata, so that the same parties are not permitted to litigate the same matter repeatedly under the guise of fresh proceedings. In this regard, reliance is placed on the case titled “Dr. Ayesha Sabir versus Fida-ul-Haq Yasir and 3 Others” (2009 YLR 1536), wherein the Honorable Lahore High Court has observed the following:

“8. The main question to be addressed herein was as to whether the claim of petitioner is hit by Section 17 read with Section 11, C.P.C. Section of the Family Courts Act, 1964 pertains to Sections 10 and 11 of the C.P.C. which are not barred by the Family Courts Act, 1964. Apart from these two Sections the provisions of the C.P.C. are barred by the Family Courts Act, 1964, although the principles do apply. However, here there is no contention regarding the principles. It is very specifically contended by respondents 1 and 2 that having once agitated the issue in Canada and getting relief as prayed for, the petitioner is barred from putting up the same claims again before a Court in Pakistan. I am inclined to agree with this view of the Courts below. The case of the petitioner is hit by res judicata. Once having claimed something and the matter having been decided by a Court of competent jurisdiction, she is barred from bringing it up again in Pakistan. All her claims have already been settled. I do grant that the suit was maintainable up to the extent of dowry articles, which in any case Respondent No. 1 has agreed to return to the petitioner. Her suit pertained to recovery of dowry articles and her mentioning the jewelry again as dowry articles is not justifiable.”

(Emphasis Supplied)

16. Section 17 of the West Pakistan Family Courts Act, 1964 read with Section 11 of CPC embody the rule that where a dispute has already been adjudicated upon by a competent forum between the same parties and on the same cause of action, the Family Courts must decline to re-open the same controversy. The Order dated 12.09.2024 passed by the learned District Court, Ballinasloe, Ireland states that no further application in relation to varying maintenance be made for two years, thereby settling the matter qua maintenance payable towards the Respondent No. 2/Minor inter se the parties. In this regard, it is important to clarify herein that the Explanation of Section 10, therefore, does not apply to the facts of the instant case as the matter qua maintenance payable towards the Respondent No. 2/Minor has been settled by the learned District Court, Ballinasloe, Ireland. Keeping in view the approach taken in the judgement cited supra, this Court is also fortified in holding that once parties had surrendered to the jurisdiction of a competent Irish Court and the claim had been finally adjudicated there, the Respondent No. 1/Plaintiff No. 1 was barred from raising the same claim again before Courts in Pakistan, as the matter would be hit by the principle of res judicata. The controlling logic is that once a claim inter se the same parties has been adjudicated by a competent foreign Court and relief has been granted/settled, the same Claimant cannot pursue the same claim again before Courts in Pakistan so as to create duplicative recovery and inconsistent outcomes. Hence, applying the same principle herein, where the maintenance payable towards the Respondent No. 2/Minor has already been judicially fixed by the learned District Court, Ballinasloe, Ireland vide Order dated 12.09.2024 and payments are being made in compliance, the proceedings undertaken by the learned Trial Court in Pakistan ought not to be allowed to operate as a second judicial channel for the very same maintenance liability, because that would defeat finality, invite inconsistency, and prejudice the payer through duplicative burden.

17. Furthermore, a litigant seeking relief must approach the Courts with clean hands and make full candid disclosure of all material facts. In the present matter, the non-disclosure by Respondent No. 1/Plaintiff No. 1 before the learned Trial Court of the parallel proceedings and maintenance orders passed by the Irish Family Court materially affects the fairness of the proceedings, and disentitles her from securing overlapping relief without judicial scrutiny. It is also significant to mention herein that the orders passed by the competent Irish Family Court fixing maintenance were never shown to have been challenged, set aside, or suspended before any competent forum. In the absence of any such challenge by the parties, the subsisting foreign orders and payments made thereunder could not have been ignored while assessing the Petitioner/Defendant’s alleged default and the propriety of parallel proceedings.

18. Therefore, while jurisdiction under Rule 6 may exist, parallel cognizance and concurrent enforcement on the very same maintenance liability, already fixed and being complied with under the foreign Court’s orders, cannot be sustained, as it defeats finality, invites conflicting obligations, and violates judicial comity and orderly administration of justice. Thus, the findings on Moot Question No. 2 are answered in the negative in the facts of the present case. The Family Courts in Pakistan ought not to proceed in a manner that creates parallel maintenance liability for the minor when the same obligation has already been judicially fixed and is being complied with abroad.

POINT NO. 3:

19. The doctrine of election is a rule of fairness designed to prevent a litigant from simultaneously pursuing parallel remedies or parallel fora for substantially the same relief in a manner that multiplies proceedings and exposes the opposing party to double recovery in practical terms. It is a settled principle of law that where two fora are invoked for substantially the same relief on the same obligation, the law does not permit a litigant to “double run” the same claim so as to obtain two enforceable streams for one liability. Election, in such a scenario, is not an empty technicality, it is rather a rule of fairness and coherence. In the cross-border family dispute, once the Respondent No. 1/Plaintiff elected to pursue maintenance for the Respondent No. 2/Minor before the learned District Court, Ballinasloe, Ireland and obtained a judicial fixation of the father’s liability there, she could not, as a matter of principle and propriety, pursue an overlapping claim for the same maintenance liability before the Courts in Pakistan so as to expose the father to concurrent coercive mechanisms for the same obligation. The doctrine of election does not deny the minor’s right to maintenance, it rather prevents the maintenance jurisdiction from being used as a means of multiplying enforcement streams for the same obligation. Reliance in this regard is placed on “Chief Executive Officer NPGCL, GENCO-III, TPS Muzafargarrah versus Khalid Umar Tariq Imran and others” (2024 SCMR 518), wherein the August Supreme Court of Pakistan elaborated on the doctrine of election in the following terms:--

“11. It is a well-settled proposition of law that when an aggrieved person intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he has to elect and or choose from amongst the actions or remedies available under the law. The choice to initiate and pursue one out of the available concurrent or co-existent actions or remedy from a forum of competent jurisdiction vest with the aggrieved person. Once the choice is exercised and the election is made then the aggrieved person is prohibited from launching another proceeding to seek relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the Courts of law from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, rule (2), C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res judicata as articulated in Section 11, C.P.C. and its explanations. Reference in this regard may be made to the case of Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 828).

Giving a choice to select a remedy from among several co-existent and/or concurrent remedies prevents the recourse to multiple or successive redressals of a singular wrong or impugned action. It also provides an opportunity for an aggrieved person to choose a remedy that best suits the given circumstances. Such a rule of prudence has been developed by Courts of law to reduce the multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another co-existent remedies.”

(Emphasis Supplied)

20. The doctrine of election, as explained, is rooted in recognized principles of waiver/abandonment, estoppel, and res judicata, and is intended to curb multiplicity of proceedings and prevent parties from hopping over forums and shopping successive remedies for the same grievance. Applying the said principle to the present case, once the Respondent No. 1/Plaintiff No. 1 invoked the foreign forum qua the maintenance payable towards the Respondent No. 2/Minor, and obtained operative orders fixing the father’s liability, which, on the record, is being complied with through regular payments, the Respondent No. 1/Plaintiff No. 1 could not, as a matter of prudence and legal coherence, maintain parallel proceedings in Pakistan for the same maintenance liability so as to expose the Petitioner/Defendant to overlapping commands and coercive processes in two jurisdictions.

21. Thus, in this context, the doctrine of election assumes particular significance because the object of maintenance proceedings reflects welfare and subsistence, not the creation of duplicative financial obligations for the same period and the same entitlement. Permitting parallel pursuit in Pakistan, despite the existence of subsisting foreign maintenance orders and receipt of payments thereunder, would effectively allow the Respondent No. 1/Plaintiff

No. 1 to multiply enforcement streams for a single liability and to secure two executable outcomes on the same claim, which the doctrine of election is designed to prevent. Therefore, while the Courts in Pakistan may not be inherently divested of jurisdiction under Rule 6, the Respondent No. 1/Plaintiff’s election of the foreign forum for fixation/enforcement of minor maintenance operates to preclude parallel pursuit of the same relief in Pakistan in a manner that results in duplication and prejudice to the Petitioner. Hence, the findings on Point No. 3 are in the affirmative. The Respondent No. 1/Plaintiff No. 1 was required to elect a single forum for the enforcement of the same maintenance claim. Parallel pursuit is impermissible.

POINT NO. 4:

22. There is no cavil to the proposition that maintenance is fundamentally welfare-driven and intended to secure the subsistence of the child, however, it is not meant to become an instrument for extracting duplicative sums for the same liability. Where a father is already paying maintenance under the subsisting orders of a competent foreign Family Court, and payment is supported through documentary proof, compelling additional payment through parallel proceedings before the Family Courts in Pakistan, without first addressing the overlap effectively taxes the same obligor twice on the same obligation. Such duplication is inherently prejudicial as it forces the payer to simultaneously satisfy two coercive regimes for the same months, thereby creating an unjust and disproportionate burden. At the same time, it risks unjust enrichment if the recipient is allowed to recover two parallel amounts attributable to the same maintenance entitlement for the same period, without disclosure and without adjustment. If such duplication is permitted, the prejudice is twofold. First, the father is placed under the risk of simultaneous sanctions in different fora for the same months, coercive enforcement abroad on the one hand, and strike-off/penal consequences under Section 17-A in Pakistan on the other, despite evidence that the child is in fact being maintained. Second, the very logic of interim maintenance, i.e., to secure subsistence pending adjudication is distorted into a means of collecting amounts over and above what has already been judicially fixed and being received for the same period. That is precisely why, as a matter of fairness and orderly justice, a Court seized of such a claim must not permit parallel recovery without first determining the overlap at the preliminary stage. The Court is not to facilitate multiplicity that results in unjust enrichment, it is to balance welfare with fairness. Therefore, any approach that ignores foreign Court orders and receipts, fails to require disclosure, and proceeds to penalize the payer as a defaulter without addressing the overlap, amounts to permitting an abuse of process and is inconsistent with the equitable foundation of family jurisdiction.

23. It is a settled principle that before proceeding on merits, the Courts must first examine and determine the maintainability of the proceedings, particularly where a specific legal objection as to jurisdiction/maintainability has been raised by the opposite party. Reliance in this regard is placed on “Syed Reza Ali Shah versus XII Model Civil Appellate Court, District South, Karachi and 2 others” (PLD 2022 Sindh 171). In the present case, such an objection having been expressly taken, the same required proper adjudication at the threshold before resorting to penal consequences. It is a settled principle of law that before proceeding further on merits in any suit, petition, appeal or application, the Courts must first address and determine objections going to the root of maintainability and jurisdiction, especially where such objections are specifically raised by a party. Questions relating to forum, parallel proceedings, prior adjudication, and competence of the Court are not matters of mere technicality, rather they strike at the very authority of the Court to continue with the lis in the manner sought. Such objections, therefore, ought to be meaningfully adjudicated at the threshold or at the earliest appropriate stage, rather than being deferred casually to the end of trial if the material on record already warrants judicial scrutiny.

24. In the present case, the record reflects that the Petitioner/Defendant has been paying maintenance towards the welfare of the Respondent No. 2/Minor at the rate of €125 per week pursuant to an Order dated 12.09.2024 passed by the competent Court in Ireland, and documentary proofs of such remittances have been placed on record. In these circumstances, permitting the Respondent No. 1/Mother to simultaneously pursue and enforce a parallel maintenance stream in Pakistan for the same minor, without first disclosing the full particulars of the foreign proceedings and without a clear mechanism of credit/adjustment for the amounts already being received, would operate as an impermissible double burden upon the Petitioner/Defendant. Such duplication would expose the Petitioner/ Defendant to overlapping financial liabilities and coercive consequences in two jurisdictions for the same obligation and period, notwithstanding that the child’s maintenance, on the face of the record, is already being met through the foreign Court-directed payments.

25. Moreover, if the Respondent No. 1 is allowed to obtain and enforce a second executable order in Pakistan for the same maintenance entitlement, while also continuing to receive maintenance under the Irish Court orders, this would tend toward double recovery for the same liability and period, which the law does not countenance. Maintenance proceedings are designed to secure welfare, not to enable accumulation beyond entitlement. Therefore, in applying this principle to the present case, the learned Trial Court was required to address the overlap in jurisdiction, ensure transparency regarding the foreign payments, and decline duplicative enforcement, so that the Petitioner/Defendant is not compelled to be taxed twice for the same maintenance liability. In the absence of such adjustment, parallel enforcement would not only prejudice the Petitioner/ Defendant, but would also create a real risk of unjust enrichment in favour of Respondent No. 1/Plaintiff under the guise of maintenance for Respondent No. 2/Minor.

26. If a party is already receiving maintenance under orders of a foreign Court and, without candid disclosure of such proceedings and payments, seeks the same or substantially similar relief before a Court in Pakistan for the same period and liability, the Court would be justified in treating such conduct as an abuse of process. The law does not countenance double recovery in the garb of parallel proceedings. At the very least, full disclosure and lawful adjustment of payments are indispensable so that no unfair enrichment results and no person is burdened twice over in respect of the same maintenance obligation.

27. Therefore, even assuming Pakistani jurisdiction exists, the Court must ensure that its orders do not cause duplicative burden. The proper judicial response is to decline parallel enforcement of an already settled maintenance liability. Any approach that ignores subsisting foreign payments and treats the payer as a defaulter merely because the payment was made under a foreign order, while the child’s maintenance is demonstrably being met, converts welfare jurisdiction into an inequitable duplication and cannot be sustained, which will risk transforming maintenance, a welfare right, into an inequitable duplication. The law leans against such an outcome as it undermines certainty and creates conflicting duties, it prejudices the relief by exposing the party liable to pay maintenance towards the minor to multiple sanctions for one obligation, and it potentially enriches the recipient beyond the adjudicated entitlement for the same period and same liability. Thus, any approach that ignores proven foreign compliance and proceeds mechanically to penal consequences under Section 17-A of the West Pakistan Family Courts Act, 1964, is inconsistent with fairness and the welfare-based character of family jurisdiction.

POINT NO. 5:

28. Judicial propriety, particularly in family jurisdiction involving cross-border litigation, demands that the Courts act in a manner that preserves coherence of the judicial process, avoids conflicting commands, and maintains the integrity of adjudication. Where a foreign Court of competent jurisdiction has already assumed cognizance of the matter, fixed the obligor’s maintenance liability, and that liability is being complied with through regular payments, the Family Courts in Pakistan, while not necessarily divested of jurisdiction under Rule 6, must still exercise powers with restraint and structured reasoning. The purpose is not to abdicate jurisdiction, but to prevent the judicial system from becoming a vehicle for inconsistent or overlapping obligations imposed upon the same person for the same liability and the same period. If a Family Court proceeds mechanically, without weighing the effect of subsisting foreign orders and proven compliance therewith, it risks undermining comity, fostering contradictory outcomes, and eroding public confidence in the administration of justice. The duty of the Court, therefore, is to ensure that any interim or final directions are passed after due consideration of the entire factual matrix, including prior adjudications and payments, and in a manner that prevents duplication and maintains orderly justice.

29. In the present case, judicial propriety required that the learned Trial Court, before invoking the penal consequence under Section 17-A of the West Pakistan Family Courts Act, 1964, should have first determined whether the alleged default was truly willful in the face of the material placed on record showing maintenance being paid pursuant to orders of the Irish Court. A reasoned judicial approach would necessarily have examined whether the foreign orders covered the same maintenance obligation, whether payments were being regularly received, whether any overlap existed for the same months, and if so, what adjustment/credit mechanism was appropriate to secure the child’s welfare without creating an unfair double burden. In the absence of such an exercise, the drastic step of striking off defense becomes detached from the realities of compliance and welfare, and converts a welfare-centered jurisdiction into a punitive and technical outcome. Judicial propriety, thus, operates as a controlling principle that requires Courts to avoid issuing directions that lead to inconsistent enforcement or double liability, and to insist upon reasoned, proportionate orders which reflect application of mind to all material circumstances.

30. This Court, however, is not laying down as an absolute proposition that the Courts in Pakistan, in no circumstance, may entertain a claim of maintenance merely because proceedings have been undertaken abroad. Rather, the finding is confined to the peculiar facts and circumstances of the present case, wherein maintenance qua Respondent No. 2/Minor has already been settled by the competent Court in Ireland, and payments are being made thereunder. In such a situation, permitting a parallel claim for the same maintenance liability and overlapping period before the learned Family Court in Pakistan, without proper disclosure and adjustment, would offend principles of judicial propriety and fair process, and would expose the Petitioner/Defendant to duplicative financial burden.

POINT NO. 6:

31. The instant petition primarily assails the Impugned Order dated 10.12.2025, whereby the Petitioner/Defendant’s defense was struck off under Section 17-A of the West Pakistan Family Courts Act, 1964. Striking off defense is a penal procedural consequence, which must follow only upon a clear, reasoned satisfaction of willful default. In the present case, the record placed before this Court demonstrates that the Petitioner/Defendant has been making regular payments pursuant to the foreign Court’s order qua maintenance, and such payments were supported by documentary proofs. In such a situation, treating the Petitioner/Defendant as a willful defaulter, without dealing with the existence and effect of foreign maintenance orders and without recording reasons

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