-Custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can husband demand such surrender-

 PLJ 2021 SC 50

[Appellate Jurisdiction]

Contract Act, 1872 (IX of 1872)--

----S. 25--Constitution of Pakistan, 1973, Arts. 9, 14, 25 & 212(3)--Guardian and Wards Act, (VIII of 1890), S. 25--Application for custody of minor--Agreement between husband and wife--Physical disability of mother--Concurrent judgments--Mother was give up custody of minor--Public policy--Principles of policy--Right to hizanat--Rules of hizanat--Determination for custody of minor--Direction to--Constitutional mandate--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--Custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can husband demand such surrender--Agreement to extent that mother surrendered custody of her child or which stopped mother to claim his custody is not lawful consideration; it is contrary to Islamic principles governing hizanat and law determining custody of minors and thus forbidden--Welfare of minor cannot be relegated to personal interest of father and such a clause or condition is against public policy--Father dragged out proceedings and then unnecessarily invoked constitutional jurisdiction of High Court--There was no reason for High Court to exercise its constitutional jurisdiction in terms of Art. 199 of Constitution and to set aside perfectly well-reasoned and legal judgments--Appeal allowed. [Pp. 54, 55 & 59] A, B, D & E

Contract Act, 1872 (IX of 1872)--

----S. 23--Public policy--Object of agreement--What considerations and objects are lawful and what not--consideration or object of an agreement is lawful, unless - it is forbidden by law; or is of such a nature that, if permitted, it would defeat provisions of any law; or is fraudulent; or involves or implies injury to person or property

of another; or Court regards it as immoral, or opposed to public policy--Consideration or object of an agreement is said to be unlawful--Every agreement of which object or consideration is unlawful was void.