Ss. 17 & 25---Custody of children---Mother contracting second marriage---Intention of children to live with the mother---In the present case, the Guardian Judge considered the welfare of the children based on their ages and gender-

 2022 SCMR 2123

Ss. 17 & 25---Custody of children---Mother contracting second marriage---Intention of children to live with the mother---In the present case, the Guardian Judge considered the welfare of the children based on their ages and gender---Mother was an educated woman running a private school; she lived in her own house and was able to care for the children---One of the factors that prevailed with the Guardian Judge was the wishes of the four children as they made their statement in Court that they were desirous of living with their mother---In order to ascertain the desire of the children each of them was asked in Court, about their preference, and they informed the Court that they desired to live with their mother---Children were confident and were able to easily express their wishes, and their desire as expressed was relevant particularly when the child was able to express his or her mind on preference---Although, this could not be the sole factor, it was a relevant factor---Custody of children was rightly awarded to the mother---Petition for leave to appeal was dismissed.

Custody of children---Mother contracting second marriage---Effect---Although the general rule (as contained in paragraphs 352 and 354 of Principles of Muhammadan Law By D F Mulla) is that the mother on contracting a second marriage forfeits her right of Custody , this rule is not absolute and if it is in the interest of the child, Custody should be given to the mother---Paramount consideration where Custody is concerned is the welfare of the minor, that is to consider what is in the best interest of the child---In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child---Fundamental to such decision is the best interest of the child and not that of the parents---Hence, a second marriage of the mother cannot become a stand alone reason to disqualify her right to Custody .

Ss. 17 & 25---Custody of children---Welfare of child---Scope---Factors to be considered by the Court---Court's jurisdiction in Custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child---Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets---Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child.