فیملی اجرا میں مدیون کو حاضری یا مقدمہ فوجداری میں ملزم کو گرفتاری دینے پر مجبور کرنے کیلئے اسکا قومی شناختی کارڈ بلاک نہ کیا جا سکتا ھے

 PLJ 2022 Lahore 803

Family Courts Act, 1964 (XXXV of 1964)--
----S. 17--Execution of decree of dower--Blocking of national identity card--S. 10/11/12//18(2)/19 of National data base registration authority Ordinance, 2000--Art. 175 of Constitution of Pakistan, 1973--The National Database and Registration Authority Ordinance, 2000, (NADRA) provides for registration of all persons--Section 10 entitles every citizen to have National Identity Card who has attained age of 18 years and is registered under section 9--The Ordinance also makes provision for issuance of Pakistan Origin Cards (section 11), Overseas Identity Cards (section 12) and Alien Registration Cards (section 13), Section 19(4) stipulates that--In this backdrop it can be legitimately argued that CNIC is essential for enjoyment of a number of fundamental rights guaranteed by Constitution--A person cannot be deprived of it without due process--Section 18(1) of Ordinance stipulates--Executing Court has passed impugned order without taking section 18 of Ordinance into consideration--The said section does not allow blocking/digital impounding of CNIC of a person to compel him to appear before court--This cannot be permitted because it does not have sanction of law--Such orders are contrary to Article 175(2) of Constitution and concept of rule of law.
National Database and Registration Authority Ordinance, 2000--
----S. 19(4)--Issuance of card--Cards issued under Ordinance, including National Identity Card, shall be proof of identity as could be established from contents of such card.
National Database and Registration Authority Ordinance, 2000--
----S. 18(1)—Property of Federal Government--All cards issued by NADRA, including CNIC, shall be property of Federal Government and it may cancel, impound or confiscate it by an order after giving a show cause notice to holder.

A father is obligated to maintain his children and a reasonable standard must be assumed for determining quantum of their maintenance allowance. It goes without saying that the court while.....

 A father is obligated to maintain his children and a reasonable standard must be assumed for determining quantum of their maintenance allowance. It goes without saying that the court while considering the quantum of maintenance will take into consideration the fundamentals of the minors education, status, general expenses. The court must also take into consideration reasonable probability of obtaining education and the ability to take care of the minors in a stable, safe and healthy environment. Without due consideration of all these factors, the court cannot conclude positively the quantum of maintenance. There is no hard and fast formula for determining quantum of maintenance and the main consideration for the Court is the ability of the father to maintain the minors. This way merely stating that he is short of resources will not discharge him of his obligation. The basic objective for determining maintenance is to ensure that in all probability the minors are maintained by the father in dignified manner with reasonable comfort and that the mother of the child is not left to bear the burden of taking care of the minors. Quantum of maintenance requires due consideration of all factors on the basis of which the court can determine the actual need of the minor. In this regard, it is important for the court to keep in consideration the expenses incurred or likely to be incurred on the minors. Yet for the purpose of maintenance it is the obligation of the father to fulfill needs of his kids.

2024 LHC 2206

Writ Petition No.370 of 2024
Syed Zain Muntazar Mehdi V/S Mst. Sara Naqvi etc.












فیملی کورٹ کی ڈگری کا اجرا دائر کرنے کی کوئی معیاد نہ ھے۔

2024 CLC 979
Writ Petition No.6002 of 2022.
Mirza Muhammad Akbar Baig. Versus Add. District Judge, etc.

From the perusal of the provision of Sec. 13 of the Family Courts Act 1964 it appears that no limitation is provided for filing of an execution petition in family cases.
No specific period of limitation for implementation of decree of dower can be fixed and whenever wife moves the legal forum for satisfaction of her right, husband is under legal obligation to satisfy such decree. Postponement of recovery of dower for any consideration during subsistence of marriage would not deprive the wife from execution of the decree being barred by time.
A cursory glance at Family Courts Act, 1964 shows that the legislature has left many vacant areas but it does not necessarily means that embargo has been placed upon the Family Court in the exercise of certain powers, confidence has been shown in the Court to proceed in the matter by exercising its inherent powers to avoid abuse of the process of law without any hindrance of the technicalities imposed by Civil Procedure Code, 1908. The purpose of enacting Family Courts Act is to frustrate the technicalities for the purpose of justice between the parties in the shortest possible manner. All that the Family Courts Act has done is that it has changed the forum, altered the method of trial and empowered the Court to grant better remedies. The purpose of enacting special law regarding the family disputes is for the purpose of advancement of justice and to avoid technicalities. It is settled proposition of law that Judge Family Court is competent to regulate its own proceedings as the West Pakistan Family Courts Act, 1964 does not make provisions for every conceivable eventuality for unforeseen circumstances.
Provisions of Limitation Act, 1908 are not applicable in family matters in stricto-senso.
An Executing Court while executing a family decree can exercise its own powers to prevent the course of justice being deflected from its path. To regulate the proceedings it has to proceed on the premises that every procedure is permissible unless clearly prohibition is found in law, meaning thereby that Family Court can exercise its powers but is not debarred to follow the principles of other laws coupled with the facts. Proceedings of the Family Court, whether as a Trial Court or an Executing Court are governed by the general principles of equity, justice & fair play.

جب فیملی کورٹ جواب دعوی کا حق کلوز کردے

Right of Defense Struck of by Family Court.
2012 CLC 1361
Ss. 17A, 11, 9 & 5---Constitution of Pakistan, Arts.199 & 10A---Constitutional petition---Suit for recovery of maintenance allowance and dower---Family Court had struck off the right of the husband (petitioner) to file written statement and cross-examine witnesses of the wife---Contention of the husband was that on account of his failure to file a written statement, the Family Court could not deny him the right to cross-examine the witnesses of the wife---Validity---Family Court had struck off the husband's right to file written statement which was contrary to the provisions of the West Pakistan Family Courts Act, 1964---No provision for striking off the right to file written statement existed in the Act---Statutory right to strike off the defence of the defendant was only available under S.17-A of the Act, which was for interim maintenance---If the husband failed to file a written statement in accordance with the order of the Family Court, the Family Court may strike off his defence; and the case would then proceed in evidence and in terms of S.11 of the Act, the wife would lead evidence----At the time of recording evidence, the husband who had not filed his written statement, had a right to cross-examine the wife's witnesses---Such right was a valuable right and was prescribed in S.11(3) of the West Pakistan Family Courts Act, 1964---Family Court, in the present case, could strike off husband's right to file a written statement, right of defence, but could not close his right to cross-examine the witnesses of the wife---Denial of said right would render the procedure adopted by the Family Court as unfair and against the right to a fair trial---High Court set aside impugned orders, remanded the case to Family Court with the direction to provide one more opportunity to the husband to file written statement
All reactions

باپ بیٹی کی تعلیم کے اخراجات ادا کرنیکا پابند ہے

Whether a Muslim father is under an obligation to pay the expenses incurred on education of his daughter/children or whether maintenance of child includes educational expenses?

EVALUATING THE SCOPE OF TERM “MAINTENANCE”
.................
The important question that needs determination is “whether a Muslim father is under an obligation to pay the expenses incurred on education of his daughter/children or whether maintenance of child includes educational expenses? In order to answer this question, it is necessary to examine the definition of the term "maintenance."
In Pakistan, issues related to child maintenance are dealt with by the Muslim Family Laws Ordinance, 1961, and the West Pakistan Family Courts Act, 1964. However, these laws do not provide a specific definition for "maintenance." For better understanding it is suitable to rely on the dictionary meaning of the term.
The word “maintenance” is derived from Arabic word “Nafaq” which means “to spend” and in literal sense, the word “nafaqa(نفقہ) means what a person spends on his family.
The word “maintenance” has been defined in Black’s Law Dictionary, as under:
“Financial support given by one person to another.”
It has been defined in Section 369 of the Principles of Muhammadan Law by D.F Mulla in following words:
“369. Maintenance defined.—“Maintenance” in this Chapter includes food, raiment and lodging.”
Such definition of maintenance is not exhaustive. The word "includes" is generally used in interpretation clauses in order to enlarge the meaning of words or phrases, occurring in the body of the Statute; and when it is so used those words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.
In this view of the matter, it does not exclude other necessary expenses for mental and physical well-being of a minor. This view is also fortified by the judgment in Arslan Humayun and another wherein it was held that Section 369 ibid has a wider connotation and should be given an extended meaning, for the purposes of social, physical, mental growth, upbringing and wellbeing of the minor.
LEGAL FRAMEWORK OF MAINTENANCE - ISLAMIC LAW
...................
Undeniably, the Almighty Allah is the only sustainer, but, He has created means through which this task is accomplished. Bearing the expenses of children is the second most important task of the father.
In Islamic law “maintenance” is termed as Nafaqah (نفقہ) and signifies all those things which are necessary to support life. It is the legal and religious duty of a man to maintain his wife and children.
The obligation to maintain wife and children is derived from the Holy Quran and is one of the incidences of marriage. Verse 233 of Surah Al-Baqarah says:
“…and it is incumbent upon him who has begotten the child to provide in a fair manner for their sustenance and clothing.”
Furthermore, Verse 34 of Surah An-Nisaa enjoins:
“Men are the protectors and maintainers of women because God has given the one more (strength) than the other and because they support them from their means.”
Thus, right of child to be maintained by the father is ordained by Islamic law as mentioned above.
Similarly, under Pakistani law, the maintenance of a child is an obligation primarily upon the father. The Family Courts Act 1964 and the Muslim Family Laws Ordinance 1961 (“MFLO”) deal with the issue of maintenance of minors in Pakistan.
LEGAL FRAMEWORK OF MAINTENANCE- INTERNATIONAL LAW
..........
All the civilized nations of the world have recognised that children have rights by virtue of being children. These obligations are also erga omnes and have since been codified in the United Nations Convention on the Rights of the Child, 1989 (the “UNCRC”). UNCRC is an international treaty which sets out the rights of children. The State of Pakistan ratified the UNCRC on 12.11.1990 with its only reservation that its Articles will be interpreted in light of Islamic injunctions. However, in 1997, this reservation was withdrawn, thus, ratification became absolute.
The concept of the “child's best interests” is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, 1979, as well as in regional instruments and many national and international laws.
When assessing and determining the best interests of a child the obligation of the State to ensure the child such protection and care as is necessary for his or her well-being should be taken into consideration. Children’s well-being, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as needs for affection and safety.
It is in the best interests of the child to have access to quality education, including early childhood education. All decisions on measures and actions concerning a specific child must respect the best interests of the child or children, with regard to education.
The above discussion leads us to draw a conclusion that it would be absolutely safe to include educational expenses also within the concept of maintenance of a child.
Although petitioner/father is not bound to provide the maintenance for education at higher levels ad infinitum however, he is duty bound to provide maintenance to Respondent No.4 till she completes her graduation studies and gains an employment to support herself.

Family/Maintenance Allowance
C.P.8-L/2023 Qudrat Ullah v. Additional District Judge, Renala Khurd District Okara,
PLD 2024 SUPREME COURT 581

محض دوسری شادی کرلینے پر ماں کو بچوں کی حضانت سے محروم نہ کیا جاسکتا ہے

 It is settled law that the father is the natural guardian while the mother is entitled to the custody (hizanat) of a male child till the age of seven years while in case of a female till she attains puberty. This right continues notwithstanding a divorce or separation. As a natural guardian it is the obligation of the father to maintain the child even if the custody is with the mother. The inability of the mother to financially support the child is not a determinate ground to deprive her from custody because in such an eventuality the father's obligation regarding maintenance is not extinguished. The rule that the father is a natural guardian and, therefore, entitled to the custody of the child nor that the mother loses the right of hizanat after the minor has attained the prescribed age or puberty, as the case may be, is not absolute, rather subject to exceptions.The decision regarding custody of a child is governed on the fundamental principle, the paramount and overarching consideration is the welfare of the child i.e to ascertain the course which is in the latter's best interest. The crucial criterion is, therefore, the best interest and welfare of a child while determining the question of custody. The rights or aspirations of the parents or some other person are subservient to this principle and each case of custody must be decided on the basis of ascertaining a course which is in the 'best interest of the child'. The factors or variables that may be taken into consideration while determining the question of custody of a child are not exhaustive but they would depend on the facts and circumstances of each case. The guiding principle is to ensure that the determination of custody promotes the rights of the child as well as the latter's wellbeing. The overriding consideration must be to protect the child from any physical, mental or emotional injury, neglect or negligent treatment.

The mother’s disability, illiteracy or financial status are not the sole determinant factors. The second marriage contracted by the mother also cannot become a stand-alone reason to disqualify her from obtaining the custody of the child.

The question of custody involves taking into consideration the factors which are relevant to the upbringing, nursing and fostering of the child. It essentially extends to the emotional, personal and physical wellbeing of a child. The sole object is to ensure that the overall growth and development of the child is guaranteed.
The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child. Sections 17 and 25 of the Act of 1890 set out the broad guidelines which are to be taken into consideration while deciding custody disputes. It is the duty of the court to form an opinion and adopt a course on the basis of the paramount principle of the welfare of the child. Section 17 explicitly provides that a court shall be guided by what appears in the circumstances to secure the welfare of the minor, consistent with the law to which the minor is subject. Subsection (3) provides that if the minor is old enough to form an intelligent preference then the court may consider that preference. As already noted above, while determining the welfare of the child in the context of custody disputes the court may grant the custody to a person other than the parents e.g the grandparents or aunt, if doing so would promote the welfare and best interest of the child.
As a general rule the guardian and family court is the final arbiter for determining the question of custody, except when it has made a determination in an arbitrary, capricious or fanciful manner i.e when the fundamental principle of welfare of the child has not been considered or determined in the light of the variables which are relevant in the given circumstances. If the court has ignored the welfare of the child and the latter's best interest or has given preference to some other ground then the decision would not be sustainable. The court, in its endeavor to assess and determine the welfare of a child, is not bound to follow rigid formalities, strict adherence to procedure or rules or technicalities if doing so may hamper the determination or undermine the fundamental criterion of the best interest of the child. In a nutshell, the overarching and fundamental principle that must prevail and guide a court in determining custody disputes is the welfare of a child. The court has to adopt a course that would be in the best interest of the child because his/her welfare must always be the paramount consideration.

Guardian and Ward/Custody of Minor
C.P.L.A.3801/2022 Shaista Habib v. Muhammad Arif Habib and others
Mr. Justice Athar Minallah
06-03-2023
23-04-2024












Custody of minor child; difference between 'Walayat' and 'Hizanat'.

It is essential to highlight that there is difference between Walayat (Guardianship) and Hizanat (Custody); in Muslim Law, as in almost every other system of law, the father is the natural guardian of the person and property of his minor child but Islam recognizes the mother as having prior right of custody, obvious reason is the nourishment, sustenance, patronage and up bringing of a human child so as to make him/her a useful human being. Mother keeps a caring instinct, therefore, is the suitable person for such task. That was the reason, for custody, the term ‘Hizanat’ has been used. The word “Hizanat” is derived from the Arabic word “Hizan” which means ‘lap of the mother’, it denotes giving a child to the mother’s lap for caring and rearing.

Right of hizanat of a mother is recognized in Islam as well as in law; claim of the respondent being guardian of the minor would obviously give way to the right of hizanat till prescribed age of the minor under the law. The waiving of her right of hizanat has no binding force in the eyes of law and mother cannot be held accountable if at one occasion she had given up her right to hizanat on any condition. She will retain her right of hizanat when there is no disqualification in law of her waiver, therefore, is not disentitled for claiming right of hizanat again.
Proceedings under Section 491 of Cr.P.C can be initiated before the Sessions Judge or Additional Sessions Judges and before this Court if any person is in illegal and improper custody; similar relief can also be sought by a party under Article 199 (1)(b)(i) of the Constitution of the Islamic Republic of Pakistan, 1973 through writ of Habeas Corpus when any person is in custody without lawful authority or in unlawful manner. This Article is usually applicable on malfeasance, misfeasance and nonfeasance of any party with respect to custody of a detenu. However, High Court Rules and Orders do not create any difference in the format of petition and style of orders in both types of petitions. Chapter 4-F, Volume-V of High Court Rules & Orders consists of rules framed by the High Court under Section 491(2) of Code of Criminal Procedure, 1898 which regulate the proceedings on petitions under Section 491 Cr.P.C.
Under the law mother has a preferential right for custody of a minor till the prescribed age. Even if divorce has become effective between the spouses, mother does not lose her right of hizanat except in the situations mentioned in Para 354 of Muhammadan Law subject to determination by Gurdian Court.

WP (habeas) 3109-24
SADIA AZIZ VS DPO ETC.
Mr. Justice Muhammad Amjad Rafiq
2024 LHC 2076
Signed on 06-05-2024












-S. 3---Intra-court appeal---Maintainability---Scope---Subsection (2) of S.3 of Law Reforms Ordinance, 1972 provides that no appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the court.

 2020 M L D 2011
[Lahore]
Before Masud Abid Naqvi and Jawad Hassan, JJ
AMJAD ALI---Appellant
Versus
Mst. SHAHEEN BIBI and others---Respondents
I.C.A. No.40084 of 2020, decided on 9th September, 2020.

(a) Family Courts Act (XXXV of 1964)---
----Ss. 11 & 14(3)---Closure of right to produce evidence---Interim order---Maintainability---Scope---Appellant/defendant assailed order passed by Family Court whereby his right to produce evidence was closed---Single Judge of High Court vide impugned order had dismissed the constitutional petition---Validity---Family Court, before passing the impugned order, had granted many opportunities to the appellant to produce his evidence, who despite availing absolute and final opportunities had failed to produce the same---Family Court had no option except to close his right to produce evidence---Order passed by Family Court was interim/interlocutory in nature against which constitutional petition did not lie---Section 14(3) of Family Courts Act, 1964 provided that no appeal or revision would lie against an interim order passed by a Family Court---Family Courts Act, 1964 had explicitly barred the remedy of appeal or revision against such an order, therefore, in case constitutional petition was entertained against such an order, it would amount to circumventing the intention of the legislature and to frustrate the express provision of law---Intra-court appeal, being bereft of merit, was dismissed.
Muhammad Anwar Khan v. Mst. Yasmin Zafar 1987 SCMR 2029; Ms. Qauratulain Aleem v. Muhammad Rehman Khan and another 2006 YLR 2604 and Mst. Noor Jehan alias Tasleem Begum v. Muhammad Arshad and another 1986 CLC 442 ref.
President All Pakistan Women Association Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 rel.
(b) Constitution of Pakistan---
----Art. 199---Constitutional jurisdiction---Interim order---Maintainability---Scope---Constitutional petition does not lie against an interlocutory order, unless there is found any blatant illegality which has caused injustice to the rights of any of the parties.
(c) Law Reforms Ordinance (XII of 1972)---
----S. 3---Intra-court appeal---Maintainability---Scope---Subsection (2) of S.3 of Law Reforms Ordinance, 1972 provides that no appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the court.
Muhammad Nasir Umar Dhillun for Appellant.

ORDER

Through this Intra-Court Appeal filed under Section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has challenged the validity of order dated 24.08.2020 (the "Impugned Order") passed in Writ Petition No.37214 of 2020 by the learned Single Judge in Chamber, whereby the Constitutional petition filed by him was dismissed.
2. Learned counsel for the Appellant has argued that the learned Single Judge in Chamber while passing the impugned order did not determine a very crucial question of law to the effect that if there is no remedy available and an illegality has been committed then the only a remedy of writ jurisdiction will be available. He further argued that the learned Single Judge in Chamber has failed to consider all the aspects of the case, therefore, the impugned order is liable to be set aside.
3. Arguments heard and record perused.
4. It is reflected from perusal of record that a suit for recovery of maintenance allowance, dowry articles and dower amount was filed by Respondent No.l. The said suit was contested by the Appellant by filing a written statement. Interim maintenance of minors was fixed as Rs.10,000/-. Out of divergent pleadings of the parties issues were framed. The Appellant/Defendant was required to produce his evidence. Certain opportunities were granted to the Appellant i.e 09.10.2019, 29.10.2019 to produce his evidence and on 13.11.2019 last opportunity was granted to him to submit his affidavit. Thereafter, the case was fixed on 27.11.2019, 12.12.2019 but due to strike no further proceedings were taken place and case was adjourned to 14.1.2020 and ultimately on 31.01.2020, the Appellant tendered his affidavit and the case was fixed for cross-examination on the said affidavit for 24.02.2020. On 24.02.2020, the Appellant failed to produce his evidence and an absolute last opportunity was granted to produce his evidence and case was adjourned for 14.03.2020. On 14.03.2020 the case was again adjourned to 11.4.2020 for cross-examination. On 11.4.2020 due to lock down the case was adjourned to 19.06.2020. On 19.06.2020, the case was fixed for Appellant's evidence with last and final opportunity but he failed to produce the same. Resultantly, his right to produce his evidence was closed. Feeling aggrieved from order dated 19.06.2020 passed by learned Judge Family Court, Lahore, the Appellant assailed the same by filing constitutional petition which was dismissed by the learned Single Judge in Chamber vide order dated 24.08.2020.
5. From the perusal of record it also transpires that before passing the impugned order, the learned Judge Family Court, had granted many opportunities to the appellant to produce his evidence, who despite availing absolute and final opportunities failed to produce the same. In these circumstances, the learned Judge Family Court has no option except to close his right to produce his evidence. The learned Judge Family Court has exercised his jurisdiction vested in him and nothing in the said order is contrary to law and beyond his jurisdiction. The order passed by learned Judge Family Court is interim/interlocutory in nature against which no constitutional petition would lie before the High Court. Perusal of Section 14(3) of West Pakistan Family Courts Act, 1964, shows that no appeal or revision shall lie against an interim order passed by a Family Court. The Act has explicitly barred the remedy of appeal or revision against such an order, therefore, in case a constitutional petition is entertained against such an order, it will amount to circumvent the intention of the legislation and to frustrate the express provision of law. Reliance in this respect is placed upon Muhammad Anwar Khan v. Mst. Yasmin Zafar (1987 SCMR 2029), Ms. Quratulain Aleem v. Muhammad Rehman Khan and another (2006 YLR 2604) and Mst. Noor Jehan alias Tasleem Begum v. Muhammad Arshad and another (1986 CLC 442). Reliance is also placed on a recent judgment rendered by Hon'ble Supreme Court of Pakistan in a case reported as President All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others (2020 SCMR 260), wherein it has been held that:-
"It is settled law that when the Statute does not provide the right of appeal against certain orders, the same cannot be challenged by invoking the constitutional jurisdiction of the High Court in order to gain a similar objective. Where a Statute has expressly barred a remedy which is not available to a party under the Statute, it cannot be sought indirectly by resort to the constitutional jurisdiction of the High Court. "
Since, the order impugned in the constitutional petition is an interlocutory order and against such an order constitutional petition does not lie, unless there is found any blatant illegality which has caused sheer injustice to the rights of the any of the parties. However, in the instant case, multiple opportunities have been granted by the learned Judge Family Court to the Appellant to secure his valuable right, therefore, the learned Single Judge in chamber has rightly passed the impugned order and dismissed the writ petition. Further in view of subsection (2) of Section 3 of the Law Reforms Ordinance, 1972, no appeal shall lie under subsection (1) or subsection(2) from an interlocutory order or an order which does, not dispose of the entire case before the Court.
6. Counsel for the Appellant has failed to point out any illegality or irregularity in the impugned order, the appeal being bereft of merit is hereby dismissed in limine.
SA/A-62/L Appeal dismissed.

-Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Custody of minor---Friend of minor---Scope---Where a person entitled to custody is shown to be.......

 2024 S C M R 486
[Supreme Court of Pakistan]
Present: Ijaz Ul Ahsan, Syed Hasan Azhar Rizvi and Irfan Saadat Khan, JJ
Mst. QURAT-UL-AIN---Petitioner
Versus
STATION HOUSE OFFICER, POLICE STATION SADDAR JALALPUR JATTAN, DISTRICT GUJRAT and others---Respondents
Civil Petition No. 3718 of 2023, decided on 13th December, 2023.
(Against the order/judgment of the Lahore High Court, Lahore dated 21.09.2023 passed in Writ Petition No.59365 of 2023)

(a) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Hebeas corpus, writ of---Scope---Invocation and passing of the writ of habeas corpus is subject to the satisfaction of the High Court that no adequate remedy is provided by the law.
(b) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Habeas corpus, writ of---Scope---Custody of minor---Whatever the inter se relations between the parents may be, the purpose of a writ of habeas corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law---However, there can be no question that a writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child---Clear grounds must be made out and the writ must only be issued in favour of a person who is entitled to custody of the child---Issuing of such a writ is subject to the satisfaction of the High Court that a minor is not being held in custody without lawful authority or in an unlawful manner---Before issuing writ of habeas corpus the High Court should be satisfied that seeking remedy under the Guardians and Wards Act, 1890, or any other law for the time being in force, would not be an adequate remedy; that the production of the child before the High Court is in the best interests of the child/minor; and, that handing over custody of the minor/child to the person petitioning the High Court is in the best interests of the child/minor.
Dushyant Somal v. Sushma Somal AIR 1981 SC 1026 ref.
(c) Guardians and Wards Act (VIII of 1890)---
----Ss. 7 & 25---Constitution of Pakistan, Art. 199(1)(b)(i)---Hebeas corpus petition---Maintainability---Alternate remedy, availability of---Incompetently filed petition---Interim custody of minor girl restored to mother---Mother contracting second marriage---High Court awarding custody of minor girl to paternal grandmother as an interim arrangement after mother contracted second marriage---Legality---Grandmother, no matter the love she may have for her grandchildren, is not the parent of a child for the purposes of the law and must clearly specify why a writ of habeas corpus must be issued for the production of her grandchild(ren), especially so when it is admitted that the grandchild is in the custody of one or both parents---Paternal grandmother failed to aver that she was filing the writ petition in her capacity as a friend of the minor---At no point had the paternal grandmother averred that she was authorised by her son (minor's father) to file the writ petition---No correspondence whatsoever was produced before either the High Court or the Supreme Court which could show that the paternal grandmother was authorised to file the writ petition as a representative of the minor's father---Mere assertion in her petition that paternal grandmother wants to "properly look after the detenue" was insufficient to show that she was interested in the welfare of the child---In the absence of a competently filed writ petition and the presence of an alternative remedy for the paternal grandmother under the Guardian and Wards Act, 1890, the High Court ought to, in the first place, have satisfied itself that despite these shortcomings, it was still in the best interests of the minor that she be produced before the High Court more so: (i) when it was admitted by paternal grandmother in her petition that the minor was in the custody of her real mother; and (ii) an absence as to how the minor being in the custody of her own mother was without lawful authority which necessitated the production of the minor before the Court---Ordering of the divestment of custody by the impugned judgment/order was without lawful authority---In the presence of an adequate remedy, the High Court was constitutionally barred from exercising jurisdiction under Article 199 of the Constitution---All proceedings in the paternal grandmother's writ petition were declared to be without lawful authority and the writ was liable to be dismissed---Appeal was allowed accordingly with the direction that the Guardian Court, seized of the guardian petition filed by the mother would proceed with the matter expeditiously.
(d) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Custody of minor---Friend of minor---Scope---Where a person entitled to custody is shown to be incapable of approaching the Court or where no such person exists, the question of the right of a friend to make such an application arises---In such a situation, the friend of the minor must show that (i) no one who is legally entitled to the custody of the minor or to represent him/her exists, or that such a person, if any, is present and available but unable to file a habeas corpus petition; and (ii) the friend is interested in the welfare of the child.
Raj Bahadur v. Legal Remembrancer AIR 1953 Cal. 522 ref.
(e) Constitution of Pakistan---
----Art. 199(1)(b)(i)---Guardians and Wards Act (VIII of 1890), Ss. 7 & 25---Hebeas corpus, writ of---Scope---Custody of minor---Tendency of the High Courts to readily issue writs of habeas corpus in custody matters---Observations recorded by the Supreme Court deprecating such tendency stated.
The tendency of the High Courts to readily and unhesitatingly resort to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially so where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassment for the concerned parent, specially where the concerned parent is the real mother of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping and/or abduction of the child is involved, the High Court may exercise its constitutional jurisdiction.
Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the Guardians and Wards Act, 1890 provides the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren). It is, inappropriate for a constitutional court to encroach upon and arrogate itself the powers of a Guardian Court, which is the court of competent jurisdiction under the law, to decide all matters relating to custody of child(ren).
(f) Guardians and Wards Act (VIII of 1890)---
----Ss. 7 & 25---Convention on the Elimination of All Forms of Discrimination Against Women, Arts. 1 & 16---United Nations Convention on the Rights of the Child (UNCRC), Arts. 9 & 37---Custody of minor---Mother contracting second marriage---Mother remarrying does not automatically bar her under the law from the custody of her children---Holistic reading of the relevant Islamic principles, the Convention on the Rights of the Child, and Convention on the Elimination of All Forms of Discrimination Against Women leads to the conclusion that there is no legal justification for separating a mother from her child if the mother remarries.
Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Muhammad Owais v. Nazia Jabeen 2022 SCMR 2123 and Najaat Welfare Foundation v. Federation of Pakistan PLD 2021 FSC 1 ref.
Iftikhar Ahmad Bashir, Advocate Supreme Court for Petitioner along with Petitioner in person.
Zafar Iqbal Klasoon, Advocate Supreme Court (via V.L. Lahore) for Respondent No. 3.
Baleeghuz Zaman, Additional A.G. Punjab for Respondent Government.
Nemo for other Respondents.
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