“4. From a perusal of the orders passed by the
Guardian Judge as also the Addl. District Judge, it
becomes abundantly clear that the only reason which
prevailed with them for directing that the custody of
the minors be handed over to respondent No.1, the
father, was that the petitioner on account of her
remarriage with the stranger has lost her right of
Hizanat. Unfortunately, however, while deciding the
application no attention was paid by the Courts below
either to the evidence on the record nor was any effort
made so as to ascertain that it would be in the welfare
of the minors to continue living with the mother
notwithstanding her remarriage. It is trite law that the
dominant or rather the only factor which is to be
considered by the courts while determining the
question of custody of the minors is, their welfare. To
this paramount consideration all other reasons are
subordinate. The fact that the petitioner had remarried
was one of the factors which could be taken into
consideration while deciding the dispute, but it certainly form the sole basis. Reference in this
connection may be made to Shagufta Bano. v.
Musarrat Hanif and others 1982 CLC 1821; Mst.
Rafiqan and 2 others v. Jalal Din 1983 SCMR 481;
Mst. Jannatan v. Ch.Abdul Hamid and others 1984
CLC 345 and Mst. Feroze Begum v. Lt. Col.
Muhammad Hussain 1983 SCMR 606 it was observed
that :-
“…It is therefore, provided specifically
that although the guardian is entitled to
such a custody, no order will be made to
that effect unless the Court is satisfied that
it will be for the welfare of the ward. Even
if there be a presumption that it is for the
welfare of the ward to deliver him into the
custody of guardian, the Court will have to
weigh it against the other weighty
considerations on the record. The overriding and paramount consideration always
is the welfare of the minor. Indeed, this is
the sole consideration that must prevail in
the final analysis and the fact that the
father is the lawful guardian of his minor
children does not compel the Court to pass
an order in this favour unless it is in their
welfare to do so. The welfare of a minor
means his material, intellectual, moral and
spiritual wellbeing.”
The Courts below while dismissing the appeal relied
upon Mst. Parveen Akhtar v. Muhammad Ashraf 1986
SCMR 1944 and Mst. Zubeda Khanum v. the District
Judge, Karachi South and 2 others 1988 CLC 556 but
these authorities are distinguishable on facts inasmuch
as, in both the cases it was held that the welfare of
minors demanded that their custody be granted to their
father. Unfortunately, in the present case, as already
indicated, no such exercise was undertaken which has
rendered the orders of the Courts below to be without
lawful authority.
It is also to be noticed that while adjudicating
upon the question, the custody of minors, it is not the
right of the parties which is required to be decided by
the Courts but instead it is the welfare of the minors
which has to be considered. Consequently, both the
Courts below fell in serious error in proceeding to
decide the application for custody of the minors on the
sole ground that the petitioner had lost her right of
Hizanat. Another legal error committed by the Courts
below is that they have failed to consider that the factum of remarriage of the mother has no relevance
as regards the custody of the male child for this
principle is only applicable in cases of females”
Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20
| 2020 LHC 162 |
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