PLD 2020 SC 508
ماں نے اقرارنامہ تحریر کر کے دے دیا کہ وہ خلع کے عوض بچے کی حضانت کے حق سے دستبردار ھوتی ھے۔ سپریم کورٹ آف پاکستان نے مورخہ 17 جولائی 2020 کے فیصلہ میں ایسے معاہدہ کو سراسر غیر شرعی اور غیر قانونی قرار دے کر بچہ باپ سے لیکر ماں کے حوالے کرنے کا حکم صادر فرمایا۔
اور مزید قرار دیا کہ ماں جتنی بھی لاچار، غریب یا معذور ہو اسے حق حضانت سے محروم نہیں رکھا جا سکتا
P L D 2020 Supreme Court 508
Shared by: Syed Naeenm Ali Advocate
Guardians and Wards Act (VIII of 1890)---
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----S. 25---Contract Act (IX of 1872), Ss. 23 & 25---Custody of minor---Disabled mother with no substantial source of income---Hizanat, right of---Scope---Agreement for khula' between husband and wife whereby the latter gave up custody of their minor son---Repugnancy of such agreement to Inunctions of Islam---Mother in whom right of hizanat vested could not be compelled to surrender it nor could such surrender constitute consideration for an agreement of khula'---Holy Quran, which enabled khula', did not contemplate surrendering a child's custody to secure khula' nor that it could constitute valid consideration for it---To insert such a condition in an agreement of khula' was contrary to the law, public policy, and the Injunctions of Islam---Such a stipulation would be void under S.25 of the Contract Act, 1872 because it was without consideration---Any agreement the object or consideration of which was against public policy was void, as stipulated in S.23 of the Contract Act, 1872.
Family Judge came to a legally and factually correct decision that the child's welfare lay in the mother having his physical custody; that the mother's disability was not a factor that could deprive her of custody; and even if the mother was financially incapable to provide for the child, it was not her responsibility to do so but that of the father to maintain the child. Judgment of the Family Judge was upheld by the Appellate Court, however, the two concurrent judgments were set aside by the High Court by relying on the agreement between the husband and wife, and the clause therein stipulating that the mother could not claim the custody of her son. High Court held that the mother's physical condition meant that she was not able to look after her child and further held that she was not financially independent. All three said reasons which prevailed with the High Court were extraneous to the law and Shariah, pertaining to the personal law of Muslims.
Mother in whom hizanat vested could not be compelled to surrender it nor could such surrender constitute consideration for an agreement of khula. Custody of a child or rights to his/her custody could not be surrendered to obtain khula nor could the husband demand such surrender. Holy Quran, which enabled khula, did not contemplate surrendering a child's custody to secure khula nor that it could constitute valid consideration for it. To insert such a condition in an agreement of khula was contrary to the law and the Injunctions of Islam.
PLD 2006 SC 533 and Surah Al-Baqarah (2) verse 229 and Surah An-Nissa (4) verse 35 ref.
In the agreement under consideration the wife in order to obtain khula not only surrendered her dower (haq mehr) but also agreed to forego the custody of her son. The agreement to the extent that the mother surrendered the custody of her child or which stopped the mother to claim his custody was not lawful consideration; it was 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 was against public policy was void, as stipulated in section 23 of the Contract Act, 1872. The welfare of a minor could not be subsumed by the interest of his father, and if this was done it would be against public policy, and such clause or condition would be void. Such a stipulation would also be void under section 25 of the Contract Act because it was without consideration.
Impugned judgment of the High Court was set-aside and consequently, the father was directed to hand over the physical custody of the minor to the mother.
Guardians and Wards Act (VIII of 1890)---
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----S. 25---Custody of minor---Welfare of child---Scope---Disabled mother with no substantial source of income---In determining the welfare of the child and his custody neither the mother's physical condition nor her income were determinative factors.
Constitution of Pakistan---
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---Arts. 9, 14 & 25---Persons with disabilities or persons with different abilities---Use of pejorative words such as 'crippled' or 'disabled' in judgments---Such words seriously offended the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Arts. 9, 14 & 25 of the Constitution.
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