“Welfare” is an all-encompassing word. On the one hand, “it includes ...............

 A child’s personality can develop and he can groom only in a healthy environment which includes a happy home. However, when there are disputes in the family – whether it is between the parents or otherwise – and the matter reaches the court and it is asked to decide the question of custody of the minor, its primary consideration is his welfare. Section 17(1) of the GWA gives statutory recognition to this principle.

“Welfare” is an all-encompassing word. On the one hand, “it includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained.” On the other hand, it signifies “the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.

Indeed, the question as to what is for the welfare of minor depends on the facts of each case. Section 17(2) mentions some of the factors which the court is required to take into consideration for this purpose. These include: the age, sex and religion of the minor, the character and the 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. Section 17(5) states that the court shall not appoint any person as guardian without his consent and against his will.

Sub-section (3) of section 17 of the GWA makes the preference of the minor also a relevant factor. It is this provision which is central to the controversy involved in this case. Article 12 of the Convention of the Rights of the Child (1989) (CRC), which has been ratified by Pakistan, also requires that the child who is capable of forming his own views should be given the right to express them freely in all matters affecting him. Further, his views should be given due weight in accordance with his age and maturity.

The minor’s interview helps in the decision of the case. It may bring certain facts to the court’s notice which may have been concealed or overlooked by the parties while getting their evidence recorded. It is, therefore, preferable that the court should quiz him in detail. However, it needs to be emphasized that ascertaining the preferences of the minor and the weight to be attached to it are two different things. Further, while questioning the minor the court should not only consider his age and maturity but also see whether he has been tutored or is under undue influence of the person with whom he is living for the time being. It should not allow itself to be swayed by emotions. This approach is in consonance with the CRC.

Writ Petition No.15203/2021

Sajida Rehmat Ullah Vs. Guardian Judge-II etc.