Right of the father to claim the custody of a minor son is not an absolute right,

In “Mst. Rabia Bibi v. Abdul Qadir and others” (2016 CLC 1460) it was observed to the effect that mere fact of remarriage of mother would not ipso facto disentitle her from retaining custody of minor and handing him over to the father when it is not otherwise in the welfare of the minor and that the welfare of the minor is the paramount consideration in determining the custody of a minor. In “Mst. Firdous Iqbal v. Shafaat Ali and others” (2000 SCMR 838) it was observed by the honourable Supreme Court as follows: 

“15. As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of ‘Hizanat’ of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under section 25 of the Guardians and Wards Act (VIII of 1890). The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor, neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage…”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20

2020 LHC 162