Right to custody (Hizanat) of a child cannot be surrendered: agreement containing such terms is against law, injunctions of Islam, and public policy

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._4129_2019.pdf  

The Court while dealing with the questions whether a mother can, by an agreement, give up her right to the custody (Hizanat) of her child, and whether such an agreement is valid and enforceable under the law, held: “Muslim personal law prescribes rules of hizanat (custody); a mother in whom hizanat vests cannot be compelled to surrender it nor can such surrender constitute consideration for an agreement of khula. The custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can the husband demand such surrender. … The agreement to the extent that the mother surrendered the custody of her child or which stopped the mother to claim his custody is not lawful consideration; it is contrary to the Islamic principles governing hizanat and the law determining the custody of minors and thus forbidden. An agreement the object or consideration of which is against public policy is void, as stipulated in section 23 of the Contract Act … The welfare of a minor cannot be subsumed by the interest of his father, and if this is done it will be against public policy, and such clause or condition will be void.” (Paras 7, 8)

Beena v. Raj Muhammad 

Download Link PDF: https://www.supremecourt.gov.pk/downloads_judgements/c.p._4129_2019.pdf 

Present Mr. Justice Mushir Alam and Mr. Justice Qazi Faez Isa