Minor is not always the best judge of where his or her welfare lies

Dr. Muhammad Asif Mirani Versus ADJ Layyah, etc.

2024 CLC 1520

Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardian and Wards Act, 1890. Custody under the Act involves a right to upbringing of a minor. On the other hand, guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child. A father is considered to be a natural guardian of a minor, since even after separation with the mother, and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor. The liability to maintain the minor is not only religious and moral but legal. The right of custody of minor is subordinate to the fundamental principle i.e. welfare of the minor. Maintaining the children is the duty of father which cannot be a decisive factor in custody of the minors. 

The petitioner/fatherhas contracted second marriage and has one daughter by the second wife as admitted by him in the crossexamination. Unless established otherwise through cogent and reliable evidence, it cannot be presumed that a stepmother could be substitute for the real mother in the matter of upbringing of the minor. She is stranger to the minors born from respondent. In the presence of her own child and presumably will have more children in future, she may have little care for the step-children, however, there may be exceptions to that which require proof which is not available in this case. On the other hand, respondent/mother has not contracted second marriage and even she has stated in her examination in chief that she has no intention to do so.

In this day and age, when pursuit of education and career does not attract any disqualification for a father to seek custody of minor, how a mother can be discriminated on that basis. Working mothers are a reality of the day and their participation in the professional life is essential for the progress of societies. It makes roles of women even harder, which needs to be recognized and appreciated rather than discouraged or made more onerous by attributing disqualifications vis-à-vis custody of the minors. This does not mean that the Courts should become insensitive to the needs of the minors merely because their mother is a working woman. Welfare of the minor remains primary consideration for determining his or her custody. It is only recognition and adjustment of expectation from a working mother in comparison to a stay-at-home mother so that the former is not unreasonably put to any disadvantage.

Dr. Muhammad Asif Mirani Versus ADJ Layyah, etc.

2024 CLC 1520