فقہ جعفریہ کی طلاق کے بارے اسلام آباد ہائی کورٹ کا انتہائی معلوماتی فیصلہ (سرٹیفکیٹ)-فقہ جعفری-طلاق کے اعلان کے لیے............

 2026 C L C 1

[Islamabad]

طلاق کی تاثیر کا سرٹیفکیٹ جاری کرنا (سرٹیفکیٹ)-فقہ جعفری-طلاق کے اعلان کے لیے 2 مسلمان گواہوں کی موجودگی میں "سیگھا جات" کے اعلان کے تقاضوں کو پورا نہ کرنا-درخواست گزار/بیوی کی طرف سے قائم کی گئی دیکھ بھال کی وصولی کے مقدمے میں فیملی کورٹ کے سامنے فریقین کے درمیان سمجھوتہ کرنے کے بعد شوہر اور بیوی کے طور پر تعلقات کی بحالی - درخواست گزار نے اس بنیاد پر سرٹیفکیٹ کی منسوخی کے لیے درخواست دائر کی کہ چیئرمین آربٹریشن کونسل کی طرف سے جاری کردہ سرٹیفکیٹ غیر قانونی تھا ، کیونکہ فریقین نے اپنے تعلقات کو دوبارہ شروع کر دیا تھا ۔ حقیت-- عدالت جعفری سے تعلق رکھنے والا شخص رضاکارانہ طور پر اپنی مرضی سے خود یا باضابطہ طور پر مجاز وکیل/وکیل کے ذریعے ، کم از کم دو گواہوں کی موجودگی میں لفظی عربی الفاظ سیغازات بول کر ، آرٹ کی ذیلی شق (1) کے تقاضے کو پورا کر کے طلاق کا اعلان کر سکتا ہے ۔ 17 قانون شہادت ، 1984 ، اور شق کے مذکورہ طریقہ کار پر عمل کیے بغیر ، طلاق کی تاثیر کا سرٹیفکیٹ جاری نہیں کیا جاسکتا تھا - - تیسری طلاق پر بھی مطلوبہ سیغازات کا لفظی عربی تلفظ نہیں کیا گیا تھا ، اس طرح ، فقہ جعفری کے مطابق ، طلاق موثر نہیں تھی - - سیغازات کے اعلان کی تصدیق کیے بغیر سرٹیفکیٹ جاری کیا گیا تھا ، جو ایسے معاملات میں لازمی تقاضہ تھا جہاں فریقین کا تعلق فقہ سے تھا - - لفظ "ہو سکتا ہے" عدالت کو اجازت دیتا ہے کہ وہ اس پر "کرے گا" یا "ضرور" کے معنی میں غور کرے ۔ --اگر مسلم خاندانی قوانین آرڈیننس ، 1961 کی دفعہ 7 کی شق میں استعمال ہونے والے "ہو سکتا ہے" (آرڈیننس) کو "لازمی" نہیں بنایا گیا ہے تو یہ آرڈیننس میں 2021 کی دوسری ترمیم کے ذریعے شامل کردہ پروویسو کے پورے ارادے کو مایوس کرے گا ، اس طرح لفظ "ہو سکتا ہے" کو پورے متن کے حوالے سے سمجھا جائے گا اور مقننہ نے لفظ "ہو سکتا ہے" کو پروویسو میں استعمال کیا ہے جو کہ ایک عام قاعدے سے مستثنی ہے تاکہ ان فریقین کے حقوق کا تحفظ کیا جا سکے ، جن کا تعلق فقح جعفری سے ہے-- ہائی کورٹ نے اس دلیل سے اتفاق نہیں کیا کہ لفظ "ہو سکتا ہے" کو لازمی کے معنی کے ساتھ مجبور نہیں سمجھا جانا چاہیے ، اس طرح ، ہائی کورٹ نے ایک واضح ہدایت جاری کی ، جس میں ثالثی کونسل کے چیئرمین پر ایک سنگین فرض اور ذمہ داری عائد کی گئی ہے ، خاص طور پر عدالت عالیہ کے وضع کردہ اصولوں کی تعمیل کو یقینی بنانے کے لیے ، طلاق کے طریقہ کار کے ذریعے ۔ --ممنوع یا لازمی - - فطرت-- عام طور پر لفظ "ہو سکتا ہے" سے مراد صوابدید ہے لیکن اگر پورے سیاق و سباق پر غور کیا جائے کہ آرڈیننس کی دفعہ 17 (1) (اے) کے ذریعے فقح جعفری کے حوالے سے اس ترمیم کو شامل کرنے کے پیچھے مقننہ کا مقصد کیا تھا ، تو صوابدید کے طور پر "ہو سکتا ہے" کا پورا تصور مسترد ہو جاتا ہے ۔ کوئی مکمل طے شدہ امتحان نہیں ہے جو اس بات کا تعین کر سکے کہ آیا کوئی قانون 'صوابدیدی' ہے یا 'لازمی'-- یہ عدالت کا فرض ہے کہ وہ مقننہ کے ارادے اور قانون کے پورے دائرہ کار کو مدنظر رکھے کہ آیا یہ 'اجازت' ہے یا 'لازمی' نوعیت کا ہے ۔
لفظ "ہو سکتا ہے" ایک فعال لفظ ہونے کے ناطے - --اثر---اپنے اختیارات کو استعمال کرنے کے لیے اختیار یا عدالت کی تفریق - دائرہ کار-- لفظ "ہو سکتا ہے" ایک شق کو "قابل" بنا سکتا ہے اور یہ اتھارٹی یا عدالت کو اپنے اختیارات کا استعمال کرنے کی صوابدید دیتا ہے لیکن اسے عام طور پر "اجازت" کے طور پر سمجھا جاتا ہے نہ کہ "لازمی" - آرڈیننس کی دفعہ 7 کے التزام میں استعمال ہونے والے لفظ "ہو سکتا ہے" کو ایک قابل لفظ ہونے کی وجہ سے ایک جبر کا معنی دیا جائے گا جس کی پیروی کی جانی چاہیے ۔ - جب قانون کی کسی شق کے عام لغت کے معنی ایک مضحکہ خیز تشریح کی طرف لے جاتے ہیں اور قانون کے مقصد سے متصادم ہوتے ہیں ، تو ایسی صورت میں متن کی زبان کو مقننہ کے ارادے کو پورا کرنے کے لیے تبدیل کیا جا سکتا ہے ۔ اس طرح کی تبدیلیاں لفظ کے معنی کو تبدیل کر کے یا اسے مکمل طور پر نظر انداز کر کے کی جاتی ہیں ۔ اس طرح کی غیر معمولی تشریح کی ضرورت اس وقت ہوتی ہے جب ایک نادان مسودہ تیار کرنے والا شخص کسی لاپرواہ لفظ کا استعمال کرتا ہے جو پورے قانون کے ارادے کے خلاف جاتا ہے-اس طرح کی مثالیں درحقیقت غیر معمولی ہوتی ہیں اور عدالتیں کسی قانون میں کسی لفظ کو تبدیل کرنے یا شامل کرنے سے گریزاں ہوتی ہیں ، لیکن عدالتیں مضحکہ خیز سے بچنے کے لیے ضرورت پڑنے پر لفظی اصول سے الگ ہو سکتی ہیں ۔

Issuance of certificate of effectiveness of divorce (Certificate)---Fiqah-e-Jafria---Non-fulfillment of requirements of pronouncement of "seegha jaat" in presence of 02 Muslim witnesses for pronouncement of divorce---Resumption of relationship as husband and wife after compromise between the parties before the Family Court in a suit for recovery of maintenance instituted by the petitioner/wife---Petitioner filed application for cancellation of certificate on the ground that the certificate issued by the Chairman Arbitration Council was illegal, as the parties had resumed their relationship---Validity---Person belonging to Fiqah-e-Jafria can voluntarily with his own free will pronounce Talaq himself or through duly authorized attorney/Vakeel, uttering literal Arabic words seeghajaat in the physical presence of at least two witnesses, qualifying the requirement of Sub-Clause (1) of Art. 17 of Qanun-e-Shahadat, 1984, and without following the said procedure of proviso, the Talaq effectiveness certificate could not be issued---Literal Arabic pronouncement of required seeghajaat had not been pronounced even on the third Talaq, thus, as per Fiqah-e-Jafria, the Talaq was not effective---Certificate was issued without verifying the pronouncement of seeghajaat, which was a mandatory requirement in cases where parties belonged to the Fiqah-e-Jaferia---Word "may" permits the Court to consider it in sense of "shall” or "must"---If the "may" used in proviso to S. 7 of the Muslim Family Laws Ordinance, 1961, (Ordinance) is not made "mandatory" it would frustrate the entire intent of the proviso added by Second Amendment of 2021 in the Ordinance, thus, the word "may" is to be considered with reference to the whole text and the legislature has used the word "may" in the proviso which is an exception of a general rule in order to protect the rights of those parties, who belong to Fiqah-e-Jafria---High Court did not agree with the contention that word "may" should not be considered as a compulsion with the meaning of "must", thus, High Court issued a clear directive, placing a serious duty and obligation upon the Chairman of the Arbitration Council, particularly in cases governed by Fiqah-e-Jafria, to adhere to the principles ensuring the effectiveness of divorce, and to adopt the procedure as future guidelines devised by High Court---

Word “may”---Permissive or mandatory---Nature---Ordinarily the word "may" refers a discretion but if the whole context is considered as to what was the purpose of the legislature behind incorporating this amendment with reference to Fiqah-e-Jafria through S. 17(1)(a) of the Ordinance, the entire concept of, "may" as to discretion stands negated---There is no absolute settled test which can determine whether a statute is 'discretionary or 'mandatory'---It is the duty of the court to take into consideration the intent of the legislature and the whole scope of the statute to determine whether it is 'permissive' or 'mandatory' in nature.

Word “may” being an enabling word---Effect---Discretion of authority or Court to exercise its powers---Scope---Word “may” makes a provision “enabling” and it gives the discretion to the authority or Court to exercise its power but it is usually construed as “permissive” and not “mandatory”---Word “may” used in proviso to S. 7 of the Ordinance being an enabling word would be given meaning of a compulsion that must be followed---When the ordinary dictionary meaning of a provision of law leads to an absurd interpretation and contradicts the purpose of the law,in such situation the language of the text can be modified to meet the intention of the legislature---Such modifications are done by changing the meaning of the word or ignoring it altogether---Such exceptional interpretation is required when a careless word is used by an ignorant draftsperson which goes against the intention of the whole statute---Such instances are indeed exceptional and courts are reluctant to substitute or add a word in a statute, but courts may depart from the literal rule when required to avoid absurdity.

JUDGMENT

---Through this writ petition, the petitioner has assailed the order dated 12.06.2024, passed by Respondent No. 1, whereby her application for cancellation of effectiveness of Talaq certificate issued by Chairman of Arbitration Council has been turned down.

2. Learned counsel for the petitioner contends that petitioner and Respondent No. 2 belong to Shia Sect and their divorce is to be regulated in accordance with Section 7 (1) of Muslim Family Laws Ordinance, 1961, amended by the Act of 2021 dated 03.12.2021, whereby, procedure for Talaq of parties belong to Fiqah-e-Jafria has been explained separately. Learned counsel further contends that this section requires the pronouncement of seegah jaat talaq (Arabic expressions) to pronounce Talaq in accordance with Shia law which was not done in this case, and the certificate of effectiveness of divorce has also not been issued in accordance with the requirement laid down in Section 7 of the Muslim Family Laws Ordinance, 1961. Learned counsel further contends that the Talaq notice/divorce dated 18.12.2021, specifically refers to the words in Urdu, . Furthermore, the matter could not be concluded without establishing presence of two Muslim witnesses and fulfilling other legal requirements for effectiveness of divorce, especially in absence of the seegah jaat which were not pronounced by the respondent No.2 as a fundamental requirement in Fiqah-e-Jafria for pronouncement of Talaq. Learned counsel for petitioner further contends that the petitioner was ousted from the premises by the respondent No.2 and she went to her parents’ house and even filed a suit before the family judge Sargodha for maintenance, whereby a compromise was effected between the parties and the petitioner withdrew her suit for maintenance and started living with the respondent No.2 from 02.11.2022, till her second desertion i.e. 03.06.2023. Therefore, the certificate of effectiveness of divorce, which was issued by Chairman Arbitration Council is illegal, as the parties had resumed their relationship, though respondent No.2 has not disclosed the fact of resumption of the relationship of the parties.

3. Notice has been issued to the respondents, whereby, the Chairman Arbitration Council has submitted the original record of all the proceedings along with the report and respondent No. 2 also put appearance and opposed the maintainability of this petition primarily on the ground that a divorce certificate was issued by the Chairman, Arbitration Council after fulfilment of all the requirements. Therefore, the same could not be challenged.

4. Argument heard, record perused.

5. Perusal of record reflects that the petitioner and respondent No.2 were married to each other in accordance with Fiqah-e-Jafria on 02.02.2020, wherein, the petitioner was deserted from house as per her own stance along with the minor on 11.10.2021 and she moved to her parents' in Sargodha, where she filed a suit for maintenance on 11.01.2022. However, in the meanwhile, the respondent No.2 processed the case for issuance of effectiveness of divorce certificate and as per record of the Chairman Arbitration Council, the Arbitration Council has processed the case whereby, Arsalan Abdullah, respondent No.2, personally appeared before the Chairman Arbitration Council on 23.02.2022 and verifies the Talaq and recorded a statement that there is no chance of reconciliation between the parties. However, no one turned up on behalf of Bushra Hussain, the present petitioner, and as per record of the Arbitration Council, the matter was fixed for 16.03.2022, but only respondent No.2 put appearance and again reiterated his stance for non-reconciliation.

6. Another notice was issued to the petitioner and finally a notice has been published in newspaper for 22.04.2022. However, as per the report placed on record by the Arbitration Council the Council finally issued the certificate for effectiveness of divorce on 11.05.2024. It has also been highlighted in the report that there is no provision of law, which empowered the Chairman Arbitration Council to set aside the certificate or cancel the certificate for effectiveness of divorce.

7. While considering all these aspects, there is no cavil to the proposition that the Muslim Family Laws Ordinance, 1961, regulates the procedures and processes of Talaq irrespective of any particular sect. In Section 7 of Muslim Family Ordinance, 1969 an amendment, through the Act No. XXIX of 2021 by way of Muslim Family Laws (Second Amendment Act, 2021, was added whereb a proviso has been inserted which is reproduced as under:-

“Amendment of section 7, Ordinance VIII of 1961.- In the Muslim Family Laws Ordinance, 1961 (VIII of 1961), in section 7,-

(i) in subsection (1), for the full-stop, occurring at the end, a colon shall be substituted and thereafter the following proviso shall be inserted, namely:-

"Provided that where the parties belong to Fiqah-e-Jafria,-

(a) the man may voluntarily and with his free will pronounce himself or through duly authorized attorney (Vakil) Talaq uttering in literal Arabic words (seegha) in the physical presence of at least two qualifying the requirements of clause (1) of Article 17 of the Qanun-e-Shahadat, 1984 (P.O.No.1 of 1984);

(b) the pronouncement of Talaq shall be ineffective if it is done jokingly or under anger, intoxication, insanity, duress or coercion of any kind and from any corner whatsoever; and

(c) in case of dispute, with reference to paragraph (a) or (b) arising due to difference of opinion, the parties or any of the parties may have recourse to a court of competent jurisdiction or by approaching the "Mujtahid-e-Alam" and the decision of Mujtahid-e-Alam shall have a status of an Award and the same shall be dealt with in accordance with the provisions of the Arbitration Act, 1940 (X of 1940).

Explanation.- The expression "Mujtahid-e-Alam" (Faqih-e-Azam) means a juris-consult/religious scholar / doctor of Shia school of thought well versed with Shariat having international repute and of such recognition. The Council of Islamic Ideology shall maintain a panel of Muitahid-e-Alam having aforesaid qualification.

[(1A) As enshrined in Article 227 of the Constitution of the Islamic Republic of Pakistan, the divorce and matters connected therewith or ancillary thereto shall be decided according to the personal law interpreted by Fiqah-e-Jafria (Shia school of thought).]

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

(3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection [(3)) or the pregnancy, whichever be later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person unless such termination is for the third time so effective.”

8. From the plain reading of the above proviso, it is confirmed that any person who belongs to Fiqah-e-Jafria can voluntarily with his own free will pronounce Talaq, himself or through duly authorized attorney/Vakeel, uttering literal Arabic words seegah jaat in the physical presence of at least two witnesses, qualifying the requirement of sub-clause (1) of Article 17 of Qanun-e-Shahadat Order, 1984 and without following the said procedure of proviso, the Talaq effectiveness certificate could not be issued.

9. In this case, the admitted position available on record has been considered in the light of the Talaq Nama; the divorce deed available with the Chairman Arbitration Council, wherein, the first notice of Talaq in writing was executed and issued by Arsalan Abdullah Respondent No. 2 on 13.10.2021, where-after, second Talaq notice was issued on 20.11.2021 and the third notice was issued on 18.12.2021. A specific note has been given at the end of the third talaq: -

10. The above referred phrase outrightly confirms that the literal Arabic pronouncement of required Seegha jaat has not been pronounced even on the third Talaq. Therefore, as per Fiqah-e-Jafria, the Talaq was not effective and this aspect has been fortified with the view rendered in PLD 2023 Lahore 38 (Syed Sajid Hussain Abidi v. Iram Shehzadi Abidi and others), 1984 CLC 1961 (Mst. Maryam Bano v. Hussain Ali and another), PLD 2025 Lahore 18 (Syed Zouzab Imran Kazmi v. Syeda Iffat Bukhari and 2 others), 2006 YLR 1753 (Mst. Saira Shaukat through Special Attorney v. District Collector ICT, Islamabad and 2 others), PLD 1965 West Pakistan Karachi 185 (The State v. Syedda Salma Begum and another).

11. All the judgments cited by both sides are clear in the requirement of Shia law whereby the effectiveness of Talaq could only be declared subject to pronouncement of Seegha Jaat directly or through representative/Vakeel in presence of female or her representative /Vakeel, or otherwise, whereafter, divorce will become effective. Such exercise could be undertaken in respect of a case even with the retrospective effect, as held in Syed Sajid Hussain Abidi’s case Supra. However, when the learned counsel for respondent No.2 has been confronted as to whether the Seegha Jaat have been pronounced by respondent No.2 accordingly in Arabic terms, the learned counsel has produced a certificate dated 20.06.2023, contents of which are as under:-

12. The above-mentioned certificate clearly discloses that the Seegha Jaat were issued on 20.06.2023 to Mst. Bushra Hussain, the present petitioner, on behalf of respondent No.2, through Mr. Kausar Abbas Kummi in presence of two witnesses namely Syed Najmul Hassan and Iftikhar Hussain. The document has been placed on record and resultantly this Court is of the view that on the day of pronouncing the Seegha Jaat in Arabic, the Talaq becomes effective. Therefore, the primary question is whether the original Talaq certificate will remain in filed and effective or not without pronouncement of Seegha Jaat. The answer is negative, as the Talaq certificate was issued without verifying the pronouncement of Seegha Jaat , which is a mandatory requirement in cases where parties belong to the Fiqa Jafferia.

13. I have also gone through the words used by the legislature in the Amendment Act, 2021, wherein phrase “voluntarily” and “with his free will” are used; to pronounce talaq by himself or through duly authorized attorney/Vakeel uttering in literal Arabic words (Seegha Jaat .

14. Learned counsel for respondent No.1 contends that the word “may” is used in the proviso (a) of section 7 of MFLO, 1961, which signifies the discretion of the man and it is not mandatory rather permissive. But this Court is not in agreement with this interpretation. No doubt ordinarily the word “may” refer a discretion but if the whole context is considered as to what was the purpose of the legislature behind incorporating this amendment with reference to Fiqah-e-Jafriya through a proviso in subsection (1) of Section 7 of Muslim Family Laws Ordinance, 1961, the entire concept of “may” as to discretion stands negated. There are certain rules of statutory interpretation which courts apply while interpreting a statute or a provision of statute, however, it is settled position that there is no absolute or settled test which can determine whether a statute is ‘discretionary’ or ‘mandatory’. It is the duty of the court to take into consideration the intent of the legislature and the whole scope of the statute to determine whether it is ‘permissive’ or ‘mandatory’ in nature as held in 2001 SCMR 1001 (Ghulam Hassan v. Jamshaid Ali) and 2011 SCMR 420 (Syed Zia Haider Rizvi v. Deputy Commissioner of Wealth Tax, Lahore).

15. The word “may” make a provision “enabling” and it gives the discretion to the authority or court to exercise its power but it is usually construed as ‘permissive’ and not ‘mandatory’. I have gone through the Principles of Interpretation laid down by Lord Cairns in Julius v. Lord Bishop of Oxford, (1874-80) All ER Rep. 43 where Lord Cairns enunciated Principles of Statutory Interpretation in the following words:-

“There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise the power when called upon to do so.

Where a power is deposited with a public officer for the purpose of being used for the benefit of persons specifically pointed out with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised.

The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right”

16. Relying on the above reasoning of Lord Cairns, the word “may” used in proviso to section 7 proviso being an enabling word would be given meaning of a compulsion that it must be followed. When the ordinary dictionary meaning of a provision of law leads to absurd interpretation and contradicts the purpose of the law; in such situation the language of the text can be modified to meet the intention of the legislature. Such modifications are done by changing the meaning of the word or ignoring it altogether. This exceptional interpretation is required when a careless word is used by an ignorant draftsperson which goes against the intention of the whole statute. Such instances are indeed exceptional and courts are reluctant to substitute or add a word in a statute (R. v. Trafford (1850) QB 200.) but courts may depart from the literal rule when required to avoid absurdity.

Maxwell on The Interpretation of Statutes (12th Edition page 234) says that:

“In ordinary usage, "may" is permissive and "must" is imperative, and, in accordance with such usage, the word "may" in a statute will not generally be held to be mandatory. In some cases, how-ever, it has been held that expressions such as "may," or "shall have power," or "shall be lawful," have to say the least a compulsory force, and so their meaning has been modified by judicial exposition.” (underlined for emphasis)

17. Similarly, I have also gone through Crawford on The Construction of Statutes1 (1940 edition, pages 519 to 522) which states that:

"Mandatory and directory are permissive words.

Ordinarily, the words 'shall' and 'must' are mandatory, and the word 'may' is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience or for some other reason is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and object, reveals that the legislature intended the words 'shall' and 'must' to be directory, they should be given that meaning. Similarly, under the same circumstances, the word 'may' should be given a mandatory meaning, especially where the statute concerns the rights and interests of the public, or where third persons have claim de jure that a power shall be exercised or whenever something is directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionality.”

18. Keeping in view the above definitions and instances of interpreting statutory provisions as per the intent of the legislature it is settled now that the word “may” permit the Court to consider it in sense of “shall” or “must”. If the “may” used in proviso to section 7 is not made “mandatory” it would frustrate the entire intent of the proviso added by 2021 Amendment in MFLO, 1961. Thus, the word “may” is to be considered with reference to the whole text and the legislature has used the word “may” in the proviso which is an exception of a general rule in order to protect the rights of those parties, who belong to Fiqah-e-Jafria and this Court does not agree with the contention that word “may” should not be considered as a compulsion with the meaning of “must”. This Court further considers it appropriate to issue a clear directive, placing a serious duty and obligation upon the Chairman of the Arbitration Council, particularly in cases governed by Fiqah-e-Jafria, to adhere to the principles ensuring the effectiveness of divorce, and to adopt the following procedure as a future guideline:-

(i) Whenever any person who belongs to Fiqah-e-Jafria files a divorce deed before the Chairman Arbitration Council, the arbitration council shall follow the procedure provided in section 7 of Muslim Family Laws Ordinance, 1961 (Second Amendment Act, 2021) and ensure that the man / husband shall pronounce the Seegha Jaat in Arabic before the Chairman Arbitration Council to his wife in presence of two witnesses qualifying the requirement of Clause 1 of Article 17 of Qanun-e-Shahadat Order, 1984.

(ii) If the requirement of presence of two witnesses or the Seegha Jaat pronouncement has not been conducted before the arbitration council, the husband may file certificate verifying the facts that Seegha Jaat have been pronounced before any religious scholar accordingly, however, no certificate for effectiveness of talaq shall be issued without verification of Seegha Jaat.

(iii) Chairman Arbitration Council can also direct the person/husband to call a Vakeel or the religious scholar along with two witnesses for declaration that those Seegha Jaat have been pronounced before them and to that extent a certificate shall be issued by referring that the relevant Seegha Jaat in Arabic have been pronounced and issued therefore, these two requirements must be fulfilled by the Chairman, Arbitration Council.

19. While considering the above discussion, instant writ petition is ALLOWED and the Chairman, Arbitration Council is directed to issue the amended certificate for effectiveness of divorce effective from 20.06.2023, to the petitioner/Bushra Hussain confirming the Talaq in accordance with the Fiqah-e-Jafria, while considering the certificate issued by Kausar Abbas Qummi, who has pronounced the Seegha Jaat in this case.

20. It is also pertinent to mentioned here that during the course of hearing, both the sides have presented the Code of Muslim Family Laws Book published by M. Mahmood of Pakistan Law Times Publication. But surprisingly, the amendment in the Muslim Family Laws Ordinance 1961, through the Amendment Act of 2021 has been published and notified in Section 7 of the West Pakistan Family Courts Act, 1964, which is a law for institution of suits before the Family Court. Therefore, such mistake which is causing misrepresentation reflects the negligence of the publisher who printed the proviso of Section 7 of Muslim Family Laws Ordinance, 1961 in Section 7 of Family Courts Act, 1964. Therefore, office is directed to transmit copy of this judgment to the Pakistan Law Times Publication of Mr. M. Mahmood and all other such publishers who have misprinted or wrongly printed the amendment in Family Courts Act, 1964 instead of Muslim Family Laws Ordinance, 1961, to correct the same accordingly.

BUSHRA HUSSAIN Versus CHAIRMAN, ARBITRATION COUNCIL, ISLAMABAD

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عبارات "بہبودِ نابالغ" اور "بچے کے بہترین مفادات"---دونوں عبارات میں ہم آہنگی---عبارت "بہبودِ نابالغ" اب اپنے نوآبادیاتی دور کے معنی تک محدود نہیں رہ سکتی---بلکہ، ...........

 P L D 2026 Supreme Court 238

عبارات "بہبودِ نابالغ" اور "بچے کے بہترین مفادات"---دونوں عبارات میں ہم آہنگی---عبارت "بہبودِ نابالغ" اب اپنے نوآبادیاتی دور کے معنی تک محدود نہیں رہ سکتی---بلکہ، اسے جدید اور بین الاقوامی سطح پر تسلیم شدہ تصور "بچے کے بہترین مفادات" سے مالا مال کیا جانا چاہیے، جیسا کہ کنونشن برائے حقوقِ اطفال (اقوام متحدہ) 1989 کے آرٹیکل 3 میں مدون کیا گیا ہے، جس کی پاکستان ایک فریق ریاست ہے---"بہبود" کا معیار جامد نہیں ہے، بلکہ یہ ایک زندہ معیار ہے جو بچے کی جذباتی، نفسیاتی، ثقافتی اور نشوونما کی ضروریات کا احاطہ کرتا ہے، جو مادی خوشحالی یا والدین کی ترجیح سے کہیں آگے بڑھ جاتا ہے---بچے کے سنے جانے کا حق، جیسا کہ کنونشن برائے حقوقِ اطفال (اقوام متحدہ) 1989 کے آرٹیکل 12 میں ضمانت دی گئی ہے، کو بھی گارڈین اینڈ وارڈز ایکٹ 1890 کی دفعہ 17 کے اطلاق میں شامل پڑھا جانا چاہیے---بچے کی بہبود یا بہترین مفادات کا کوئی بھی مخلصانہ جائزہ اس وقت تک نامکمل ہے جب تک کہ کارروائی میں بچے کی عمر اور پختگی کے مناسب، اس کی بامعنی شمولیت کو یقینی نہ بنایا جائے---گارڈین اینڈ وارڈز ایکٹ 1890 کی دفعہ 17 کی اس طرح ہم آہنگ انداز میں تشریح کرتے ہوئے، جو بین الاقوامی ذمہ داریوں اور آئینی اقدار دونوں کے مطابق ہو، عدالتیں اس بات کی تصدیق کرتی ہیں کہ یہ دفعہ نہ صرف بچے کی بہبود کی خدمت کرنے والی چیزوں کے بارے میں ایک معروضی تفتیش کا تقاضا کرتی ہے بلکہ بچے کو سننے اور اس کی آواز پر مناسب غور کرنے کی ایک طریقہ کار کی ذمہ داری بھی عائد کرتی ہے---ایسا تشریحی نقطہ نظر اس بات کو یقینی بناتا ہے کہ گارڈین اینڈ وارڈز ایکٹ 1890 جتنا پرانا قانون بھی آج کے بچوں کے حقوق اور حقائق کے لیے حساس انصاف فراہم کرنے کے لیے ایک متعلقہ اور مؤثر آلہ رہے---اس کی دوسری طرح تشریح کرنے کا مطلب قانون کو متروک کرنا اور آئینی اور بچوں کے حقوق سے آگاہ موجودہ دور کے لیے ناکارہ بنانا ہوگا۔

نگرانیِ نابالغ---کارروائی میں بچے کی شمولیت---مقصد، غرض اور دائرہ کار---بچے کو سنا جانا ضروری ہے تاکہ اس کے بہترین مفادات کو درست طریقے سے سمجھا اور محفوظ کیا جا سکے---قانونی کارروائی میں بچے کی شمولیت کوئی رسم نہیں ہے؛ بلکہ یہ ایک ایسے نظامِ انصاف کے لیے بنیادی ہے جو بچے کی عزتِ نفس اور خود ارادیت کا احترام کرتا ہے---بچے کی آواز سننا انہیں اپنی اہمیت، شمولیت اور عدالتی عمل پر اعتماد کا احساس دلاتا ہے---بچے کے خیالات پر سنجیدگی سے غور کیا جانا چاہیے، محض ان کا اعتراف کر کے چھوڑ دینا کافی نہیں---بچے کو سننے کا مطلب ان کی ہر ماننا نہیں، بلکہ ان کے نقطہ نظر کو اتنی گہرائی سے سمجھنا ہے کہ ان کے بہترین مفادات کے مطابق عمل کیا جا سکے۔

فیصلے کی نظرثانی---نگرانیِ نابالغ---نابالغ کی بہبود اور اس کے بہترین مفادات---دائرہ کار---درخواست گزار / دو نابالغ بچوں کے باپ نے، جسے عدالتی فیصلے کے ذریعے نگرانی سے محروم کیا گیا تھا، اس فیصلے کی نظرثانی کی درخواست دی---جواز: درخواست گزار / باپ نے دوسری شادی کر لی تھی اور اس کی دوسری بیوی سے ایک سالہ بچہ تھا، اور وہ دن بھر ملازمت کرتا تھا جبکہ شام کے وقت اپنا پرائیوٹ پریکٹس بھی رکھتا تھا، جس کی وجہ سے وہ گھر پر بڑی حد تک غیر موجود رہتا تھا---سپریم کورٹ نے بچوں کی عمر، تعلیمی تسلسل، نفسیاتی صحت، ان کی بدلتی ہوئی ضروریات کے پیشِ نظر جذباتی، طبی اور تعلیمی تسلسل، گھر کے ماحول کے استحکام، اور بچوں کے رہائشی شہر پر غور کرنے اور والدین کے موجودہ حالات اور صلاحیتوں کا جائزہ لینے کے بعد یہ نتیجہ اخذ کیا کہ بچوں کے بہترین مفادات، خاص طور پر خصوصی ضروریات والے بچے کے مفادات، ان کی ماں کی نگرانی میں رہنے میں سب سے بہتر طریقے سے محفوظ ہیں---کوئی بھی متبادل نگہبان ماں کی طرف سے فراہم کیے جانے والے فطری خیال، جذباتی استحکام اور تحفظ آمیز ماحول کا مکمل طور پر متبادل نہیں بن سکتا---یہ حقیقت کہ ماں ایک کام کرنے والی پروفیشنل تھی، نگرانی کرنے والے والد کے طور پر اس کی اہلیت پر کوئی اثر انداز نہیں ہوتی---بلکہ اس کے برعکس، یہ اس کی صلاحیت اور اپنے بچوں کو محفوظ، پرورش کرنے والا اور باوقار پرورش فراہم کرنے کے عزم کی عکاسی کرتی ہے---سپریم کورٹ نے اپنے سابقہ فیصلے کی نظرثانی کرنے سے انکار کر دیا کیونکہ نگرانی کا حق پہلے ہی ماں کے پاس قائم تھا۔

Phrases “welfare of minor” and “best interests of the child”---Harmonizing two phrases---Phrase “welfare of the minor” can no longer be confined to its colonial-era meaning---Instead, it must be enriched by modern, internationally recognized concept of “best interests of the child”, as codified in Article 3 of United Nations Convention on the Rights of the Child, 1989, to which Pakistan is a State Party---Standard of “welfare” is not static, it is a living standard that encompasses a child’s emotional, psychological, cultural, and developmental needs, extending far beyond material well-being or parental preference---Right of the child to be heard, as guaranteed by Article 12 of United Nations Convention on the Rights of the Child, 1989, must also be read into the application of section 17 of Guardians and Wards Act, 1890---Any genuine assessment of the child’s welfare or best interests is incomplete without ensuring the child’s meaningful participation in the proceedings, appropriate to their age and maturity---By interpreting section 17 of Guardians and Wards Act, 1890 in such harmonized manner, consistent with both international obligations and constitutional values, Courts affirm that the provision requires not only an objective inquiry into what serves the child’s welfare but also a procedural obligation to hear the child and give due consideration to their voice---Such interpretive approach ensures that even a law as old as Guardians and Wards Act, 1890 remains a relevant and effective tool for delivering justice that is sensitive to the rights and realities of children today---To interpret it otherwise would be to render the statute obsolete, unfit for the constitutional and child-rights-informed present.

Custody of minor---Participation of child in proceedings---Object, purpose and scope---Child must be heard so that her/his best interests can be properly understood and protected---Participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects dignity and agency of the child---Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process---Views of the child must be seriously considered, not merely acknowledged---Listening to a child does not mean obeying them, but rather understanding their perspective deeply enough to act in their best interests.

Review of judgment---Custody of minor---Welfare of minor and his/her best interest---Scope---Petitioner/father of two minor children sought review of the judgment whereby custody was denied to him---Validity---Petitioner/father had remarried and had a one-year-old child from his second marriage and was employed full-time during the day while also maintaining a private practice in the evenings, leaving him largely unavailable at home---Supreme Court after considering the age, educational continuity, psychological health, children’s emotional, medical, and educational continuity in light of their evolving needs, the stability of home environment, and the city of residence of the children and after assessing current circumstances and capacities of the parents, concluded that the best interests of the children, particularly the child with special needs, were best served by remaining in the custody of their mother---No alternative caregiver could fully replicate the intuitive care, emotional constancy and protective environment a mother was uniquely positioned to offer---Fact that mother was a working professional did not detract from her suitability as a custodial parent---On the contrary, it reflected her resilience and her commitment to providing a secure, nurturing, and dignified upbringing for her children---Supreme Court declined to review its earlier judgment as custody already stood vested with the mother---

JUDGMENT

-“Children are not the people of tomorrow; they are people today. They have a right to be taken seriously.”1

Brief facts

The present review petition arises out of a custody dispute concerning two children, A and B2, aged eight and seven years, respectively. The proceedings were initially instituted by respondent No. 1 (mother), who filed an application for custody before the Senior Civil Judge (Family Division), Layyah. The said application was dismissed vide order dated 14.07.2023; however, a visitation schedule was framed to facilitate meetings between respondent No. 1 and her children. Aggrieved, both parties3 filed separate appeals before the learned Additional District Judge, Layyah. Vide judgment dated 25.04.2024, the appellate court allowed the appeal filed by respondent No.1 (mother) and granted her custody of the children, and maintained a visitation arrangement for the petitioner (father), while dismissing his appeal. The petitioner then filed a constitutional petition before the Lahore High Court, Multan, which was dismissed vide judgment dated 24.05.2024. A civil petition for leave to appeal under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), was preferred before this Court, which was dismissed vide order dated 18.07.2024 ("impugned order"). The present petition seeks review of the impugned order.

Review and Child Justice

2. While fully mindful of the limited scope of our review jurisdiction4, we deemed it necessary to revisit the matter in light of two foundational principles enshrined in the UN Convention on the Rights of the Child5 ("CRC"): Article 3, which mandates that the best interests of the child shall be a primary consideration in all actions concerning them; and Article 12, which guarantees every child the right to express their views freely in all matters affecting them, with due weight given in accordance with their age and maturity. The earlier proceedings regrettably failed to provide the children an opportunity to be heard, an omission that undermines both domestic constitutional protections and our international commitments. Given the central importance of a child's voice in custody determinations, we found it imperative to re-examine the case to ensure that these rights are not only acknowledged but meaningfully upheld. To rectify this oversight and to ensure that the children's welfare and perspectives were given due consideration, this Court deemed it necessary to interact directly with both children involved. The interaction enabled the Bench to make an independent assessment of their emotional well-being, level of comfort, and expressed preferences.

The journey from the Guardian and Wards Act, 1890 to the United Nations Convention on the Rights of the Child, 1989

3. As a contextual background, we emphasize that Section 176 of the Guardians and Wards Act, 1890 ("Act") provides that, in appointing a guardian, the court shall be guided by what "appears in the circumstances to be for the welfare of the minor". While this provision rightly places "welfare" at the center of the determination7, it operates within a framework that is broadly discretionary, adult-centric, and lacking in normative clarity. Rooted in colonial legislative thought, the concept of "welfare" under this Act has often been applied in an arbitrary and paternalistic manner, devoid of structured criteria or meaningful inclusion of the child's own perspective. The journey from the Act to the CRC represents a profound philosophical transformation in the domain of child justice, from a paternalistic, adult-driven notion of "welfare" to a rights-based, participatory understanding of the "best interests of the child." Under the colonial-era framework, the child was largely viewed as an object of adult protection, with minimal recognition of their evolving capacities, autonomy, or voice. While the child's welfare was nominally a guiding principle, it remained vague and was frequently interpreted through the subjective lens of what adults, typically courts or guardians assumed to be appropriate, without affording the child an opportunity to be heard. In stark contrast, the CRC revolutionized this paradigm by anchoring child justice in the principles of dignity, autonomy, and participation. Articles 3 and 12 of the CRC collectively reinforce the child's right to life, equality, protection, and most crucially participation. Article 3 requires that the best interests of the child be a primary consideration in all actions concerning them.8 This is not a vague or aspirational goal; it is a structured legal standard demanding a comprehensive, child-centered assessment that incorporates the child's emotional, psychological, developmental, and relational needs, alongside considerations of safety and long-term well-being. Complementing this, Article 12 mandates that every child capable of forming their own views has the right to express those views freely in all matters affecting them, and that those views must be given due weight in accordance with their age and maturity.9 This shift from "welfare" to "best interests" and from silence to participation marks a fundamental transformation in the philosophy of child justice, it reframes the child not as a passive recipient of adult decisions, but as an active rights-holder whose voice must be heard and respected. While the terms "welfare" and "best interests" may occasionally overlap in practice, they are not synonymous. The former often reflects subjective adult assumptions, whereas the latter is grounded in objective legal principles that prioritize the rights, agency, and holistic well-being of the child. The CRC thus replaces a discretionary and protective approach with a rights-based and participatory one mandating not only the protection of the child but also their meaningful inclusion in decisions that shape their lives.

Reading Section 17 of the Act with CRC through the lens of the Doctrine of Updating Construction of Statutes

4. In this light, Section 17 of the Act, must be interpreted through the lens of the CRC and the doctrine of updating construction of statutes. This interpretive approach empowers courts to move beyond archaic conceptions of "welfare" and adopt a rights-based framework that gives full effect to the dignity, agency, and voice of the child. To harmonize Section 17 with the CRC, the term "welfare" must not be understood in isolation. Instead, it must be interpreted within the CRC's normative framework, thereby transforming the concept into one that is inclusive, participatory, and rights-affirming. While "welfare" is a broader, more traditional term, and "best interests" it's more structured and contemporary legal counterpart, the two are not irreconcilable. Through a dynamic interpretation of "welfare" using the doctrine of updating construction, courts can incorporate the core elements of the best interest's standard, most notably, the child's right to participation. Such an interpretation not only aligns domestic law with Pakistan's international obligations but also with its constitutional values, notably the rights to life, dignity, equality, and the protection of childhood, as guaranteed under Articles 9, 14, 25 and 34 of the Constitution. Though Section 17 was enacted in a different era, it must now be read as a "living" provision. The principle that statutes extends to new circumstances has evolved into the modern doctrine of updating construction.10 Given that continuous statutory revision is rarely feasible and societies often function under inherited laws, courts operate on the presumption that legislation is "always speaking", meant to apply in evolving social and legal contexts.11 This interpretive approach ensures that statutes remain effective and aligned with contemporary values, including shifting constitutional and human rights norms. The phrase "welfare of the minor" can no longer be confined to its colonial-era meaning. Instead, it must be enriched by the modern, internationally recognized concept of the best interests of the child, as codified in Article 3 of the CRC, to which Pakistan is a State Party.12 The "welfare" standard is thus not static, it is a living standard that encompasses a child's emotional, psychological, cultural, and developmental needs, extending far beyond material well-being or parental preference. Moreover, the right of the child to be heard, as guaranteed by Article 12 of the CRC, must also be read into the application of Section 17. Any genuine assessment of the child's welfare or best interests is incomplete without ensuring the child's meaningful participation in the proceedings, appropriate to their age and maturity.13 By interpreting Section 17 in this harmonized manner, consistent with both international obligations and constitutional values, courts affirm that the provision requires not only an objective inquiry into what serves the child's welfare but also a procedural obligation to hear the child and give due consideration to their voice. This interpretive approach ensures that even a law as old as the Act remains a relevant and effective tool for delivering justice that is sensitive to the rights and realities of children today. To interpret it otherwise would be to render the statute obsolete, unfit for the constitutional and child-rights-informed present.

Voice of the Child

5. We underline that a child must be heard so that her best interests can be properly understood and protected. The participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects the dignity and agency of the child. Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process. As clarified in the UN General Comment No. 12, the views of the child must be seriously considered, not merely acknowledged.14 Listening to a child does not mean obeying them, but rather understanding their perspective deeply enough to act in their best interests.15

Child Justice - Integrating CRC Principles and the Constitution

6. The principles enshrined in Articles 3 and 12 of the CRC, the primacy of the child's best interests and the right to be heard find clear constitutional resonance in Articles 9, 14, 25 and 34 of the Constitution. Article 9 guarantees the right to life, which includes the right to a healthy, secure, and meaningful life. Article 14 protects the inherent dignity of every person, including children. Article 25 enshrines equality before the law and non-discrimination, and Article 34 obligates the State to ensure the protection of motherhood and childhood. Collectively, these provisions establish a strong constitutional foundation for child justice and child-centered adjudication, aligning Pakistan's constitutional values with its international obligations under the CRC and other international instruments it has ratified16. The Constitution further reinforces these obligations. Article 25(3) empowers the State to enact special provisions for the protection of children, including measures that may favorably differentiate them from adults. Article 25A mandates free and compulsory education for children aged 5 to 16 years. Article 35 specifically ensures the protection of marriage, the family, the mother, and the child. Article 37(e) guarantees just and humane working conditions, explicitly prohibiting child labour in vocations unsuitable to their age or sex. These provisions collectively prioritize the well-being, rehabilitation, and integration of children into society, and provide a solid legal basis for rights-based adjudication in matters affecting them.

Judicial Obligation to apply a Child-Centered Framework

7. It must be underscored that courts are bound to approach all matters involving children through the lens of a dedicated child-centered and child justice framework, a judicial philosophy grounded in both legal and moral obligations to safeguard, nurture, and empower children within the justice system.17 The concept of child justice is broad and inclusive. It encompasses not only children in conflict with the law, who require rehabilitative and restorative processes rather than punitive sanctions, but also children in contact with the law, including those involved in custody and guardianship disputes and other civil proceedings who must be treated with dignity, heard, protected, and empowered throughout judicial proceedings. As custodians of justice, courts bear a heightened responsibility to prioritize the best interests of the child in all decisions affecting them. This principle, central to international child rights jurisprudence, demands that the judiciary transcend procedural formalism and engage substantively with each child's unique vulnerabilities, developmental needs, and future potential.18 Such an approach requires judicial sensitivity, active participation of children in proceedings (where appropriate), and the creation of child-sensitive courtroom environments that respect their dignity and ensure their voices are not only heard but meaningfully considered.

Hearing the Children: A Participatory Approach

8. Guided by this constitutional and international framework, the Court adopted a child-friendly, participatory approach in the present case. Both children were invited to approach the Bench, not from the rostrum, but in a relaxed and informal manner, reducing the psychological distance between them and the Court. The interaction was designed to be warm and non-intimidating: we greeted them, shook hands, and engaged in a gentle conversation to elicit their views and preferences. The elder child conveyed a heartfelt desire to be with both parents, reflecting a deep emotional need for unity. The younger child, facing developmental delays, was unable to express his views meaningfully. The Court gave due weight to their expressed preferences and developmental contexts, ensuring emotional and psychological well-being remained central to adjudication. Only after internalizing their perspectives did the Court proceed to hear submissions from counsel.

Examining "Best Interests" of the Children

9. Learned counsel for the petitioner (father) submitted that the petitioner has since remarried and has a one-year-old child from his second marriage. He is a qualified child specialist and operates a private hospital in District Layyah. It was emphasized that the petitioner had personally overseen various therapies for child B during the period the child was in his custody as he has significant developmental delays. He further submitted that his parents (the children's paternal grandparents) reside with him and maintain a close and affectionate bond with the children. On this basis, it was argued that the best interests of the children would be served by placing them in his custody.

10. Conversely, learned counsel for respondent No. 1 (mother) submitted that she is also a medical doctor employed in government service and has likewise remarried. However, she clarified that her husband's children are adults and do not reside with them. The children live with her and her husband alone. The elder child is currently enrolled in a renowned private school, where he is performing well, while the younger child is undergoing therapy at a recognized institution in Lahore. She asserted that she is the primary caregiver and has been diligently attending to both the educational and therapeutic needs of the children. Unlike the professional commiment of the petitioner-father, her government job allows her to attend to her children. In any case the mere fact that the mother, is a working mother, cannot be held against her in custodial determinations as her professional commitments do not diminish her role as a mother and the primary caregiver, unless established otherwise. Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") recognizes the right of women to work and to be protected from discrimination in matters relating to marriage and family responsibilities19, while Article 16 ensures equality in matters of marriage and family life, including the rights and responsibilities of parents, irrespective of marital or employment status.20 General Recommendation No. 21 on equality in marriage and family relations under Article 16 specifically calls for states to ensure that custody and guardianship laws do not discriminate against women on the basis of their employment status and uphold shared responsibility of parents for child-rearing.21 To penalize a mother for exercising her right to work would run afoul of these guarantees.

11. We have paid particular attention to the condition of child B, aged seven, who has significant development delays and requires sustained therapeutic care. The petitioner-father, being a child specialist, emphasized his familiarity with the child's needs and past efforts to ensure regular therapy. Respondent No. 1-mother, however, also demonstrated serious attentiveness to the child's condition and B is undergoing special intervention/theraphy in Lahore. Both parents appear committed to the children's welfare and capable of providing stable, loving environments. However, we note that the father has remarried, has a one-year-old child from his second marriage, and is employed full-time during the day while also maintaining a private practice in the evenings, leaving him largely unavailable at home. After considering the age, educational continuity, psychological health, children's emotional, medical, and educational continuity in light of their evolving needs, the stability of home environment, and the city of residence of the children and after assessing the current circumstances and capacities of the parents we conclude that the best interests of the children, particularly the child with special needs, are best served by remaining in the custody of their mother. No alternative caregiver can fully replicate the intuitive care, emotional constancy, and protective environment a mother is uniquely positioned to offer. The fact that she is a working professional does not detract from her suitability as a custodial parent. On the contrary, it reflects her resilience and her commitment to providing a secure, nurturing, and dignified upbringing for her children.

ADR and Child Justice: An Important Intersection

12. In matters involving children, such as custody, guardianship, and family disputes, the courts must recognize that a strictly adversarial approach often exacerbates conflict, delays resolution, and undermines the child's sense of stability and security. In contrast, Alternative Dispute Resolution ("ADR"), particularly mediation, offers a more collaborative, efficient, and child-sensitive mechanism for resolving such dispute. While the CRC does not explicitly reference the term ADR, its spirit and structure clearly support its use. Article 3 of the CRC demands that the best interests of the child be a primary consideration in all actions concerning children, while Article 12 guarantees the child's right to express views freely and to have those views given due weight. In General Comment No. 12 (2009), the UN Committee on the CRC explicitly encourages States to develop mechanisms that ensure meaningful child participation in family law proceedings, including through non judicial and informal processes such as mediation.22 Such processes must be voluntary, child-friendly, and facilitated by professionals trained to respect the evolving capacities of the child and prioritize their best interests. Properly designed ADR mechanisms reduce the psychological burden on children, promote parental cooperation, and lead to faster, more sustainable outcomes that support the child's long-term welfare. Accordingly, Family Courts and Guardianship Tribunals must prioritize mediation as a first recourse, particularly where parties demonstrate a willingness to engage in good faith. Adjudication should be pursued only when mediation fails or is deemed unsuitable due to concerns of safety, coercion, or imbalance of power. This approach not only aligns with Pakistan's international obligations under the CRC but also reinforces the constitutional commitment to protect the dignity, welfare, and future of every child.

Directive to Courts: Hear the Voice of the Child

13. Before parting with this judgment, we find it necessary to underscore that this decision must serve as a directive to all courts, particularly Family Courts and judges of the District Judiciary: the voice of the child must be heard and respected in every custody and guardianship matter. This is not an aspirational goal but a binding obligation under the CRC. We conclude this judgment with the words of James Baldwin, who said: "The children are always ours, every single one of them, all over the globe; I am beginning to suspect that whoever is incapable of recognizing this may be incapable of morality."23 These words are a solemn reminder that courts, especially Family Courts have a moral and legal responsibility to see, hear, and protect every child not as a passive subject of proceedings, but as a rights-bearing individual whose dignity must be safeguarded at every stage of the judicial process.

14. In view of the foregoing, and as custody already stands vested with the mother, we are of the considered view that no case for review of the impugned order is made out. Accordingly, this petition is dismissed. The parties are directed to strictly adhere to the visitation schedule determined by the lower appellate court. Custody of the children shall continue with the mother unless and until the petitioner-father moves a fresh application for custody and the same is adjudicated by the competent forum in light of any material change in circumstances.

15. Copy of this judgment be dispatched to the Registrars of all High Courts for further circulation to judges of the District Judiciary, for their information and future guidance.

1 Janusz Korczak (1878-1942) was Polish doctor, educator, author, and advocate for children's rights, known for his dedication to orphaned children. He established and directed an orphanage in Warsaw and was a prominent figure in Polish education and children's literature. Tragically, he perished in the Treblinka extermination camp during the Holocaust, along with the children under his care.

2 For the sake of confidentiality, the names of the children have been kept anonymous.

3 The petitioner challenged the visitation rights given to respondent No. 1, while respondent No.1 assailed the order passed by the Senior Civil Judge.

4 Federal Public Service Commission v. Kashif Mustafa 2025 SCP 170 (SCP citation); Justice Qazi Faez Isa v. President of Pakistan PLD 2022 SC 119; M/s Habib and Co. v. Muslim Commercial Bank PLD 2020 SC 227; Engineers Study Forum v. Federation of Pakistan 2016 SCMR 1961; Government of Punjab v. Aamir Zahoorul-Haq PLD 2016 SC 421; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049 and Mehdi Hassan v. Province of Punjab 2007 SCMR 755.

5 The United Nations Convention on the Rights of the Child ("CRC") was adopted on 20 November 1989. In interpreting the Articles of CRC and in particular Articles 3 and 12 of the United Nations Convention on the Rights of the Child (CRC) constitute foundational pillars of child-centered justice, requiring that in all actions concerning children, their best interests shall be a primary consideration and that children capable of forming their own views shall be heard and those views given due weight in accordance with age and maturity. These principles are not to be applied in isolation but are to be interpreted in the light of the broader international legal framework that operationalizes and reinforces them. General Comment No. 14 (2013) provides authoritative guidance on the application of Article 3, offering a structured approach to determining and balancing best interests in judicial proceedings, while General Comment No. 12 (2009) elaborates the procedural and substantive dimensions of Article 12, affirming that the right to be heard is not merely formal but must be meaningful, safe, and age-appropriate. These general comments are complemented by instruments such as the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005), the Guidelines for the Alternative Care of Children (2009), and regional conventions including the European Convention on the Exercise of Children's Rights (1996) and the African Charter on the Rights and Welfare of the Child (1990), all of which underscore the legal and moral imperative to integrate the child's voice and best interests in every decision affecting them. Courts, therefore, are under a binding obligation, both moral and legal to embed these interpretive tools in their reasoning, thereby transforming child justice from a paternalistic paradigm to one that upholds the agency, dignity, and evolving capacities of the child.

6 17. Matters to be considered by the Court in appointing guardian.---(1) ...

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and 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.

(3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.

7 Shaista Habib v. Muhammad Arif Habib PLD 2024 SC 629; Rashid Hussain v. Additional District Judge, Islamabad PLD 2022 SC 32; Raja Muhamamd Owais v. Nazia Jabeen 2022 SCMR 2123; Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267; Mst. Talat Nasira v. Mst. Munawara Sultana 1985 SCMR 1367; Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606; Rahimullah Choudhury v. Helali Begum 1974 SCMR 305 and Khizar Hayat Khan Tiwana v. Zanib Begum PLD 1967 SC 402.

8 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; S v. M [2007] ZACC 18; Re G (Children) [2006] UKHL 43; Troxel v. Granville 530 U.S. 57 (2000); Minister for Welfare v. Fitzpatrick [2000] ZACC 6; Gordon v. Gordon [1996] 2 SCR 27; Young v. Young [1993] 4 SCR 3; 18; J v. C [1970] AC 688 and Santosky v. Kramer 455 U.S. 745 (1892).

9 M and M v. Croatia [2015] ECHR 759; Re D (A Child) [2010] UKSC 12 and S v. M [2007] ZACC 18.

10 See P St J Langan (ed), Maxwell on the Interpretation of Statutes (10th edn, Sweet & Maxwell 1953) and Fakir Muhammad v. Federation of Pakistan PLD 1958 SC 118.

11 Meera Shafi (Meeshah Shafi) v. Ali Zafar PLD 2023 SC 211.

12 Pakistan ratified the United Nations Convention on the Rights of the Child on 12 November 1990 which provided broader guidelines for the promotion and protection of child rights.

13 See Laura Lundy, John Tobin and Aisling Parkes, 'The Right to Respect for the Views of the Child' in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (OUP 2019).

14 See UN Committee on the Rights of the Child, 'General Comment No. 12: The Right of the Child to be Heard' (CRC/C/GC/12, 20 July 2009). The UN General Comments are authoritative interpretations and clarifications issued by the United Nations treaty bodies, especially the Human Rights Committee and the Committee on the Rights of the Child (CRC Committee), among others. These General Comments elaborate on the meaning, scope, and application of specific articles in international human rights treaties.

15 Albie Sachs, The Strange Alchemy of Life and Law 69 (Oxford Univ. Press 2009).

16 Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and Universal Declaration of Human Rights, UN Convention on the Elimination of All Forms of Discrimination against Women, UN Convention on the Rights of Persons with Disabilities, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. UN Framework Convention on Climate Change and UN Genocide Convention.

17 UNICEF, Introduction to the Five Advocacy Briefs on Child Justice and Child Friendly Justice (November 2022).

18 Ursula Kilkelly and Stefaan Pleysier, ‘Rights of the Child in the Justice System’ (2023) 23(2) Sage Journal.

19 Pakistan ratified the CEDAW on 3 December 1996. See CEDAW, Article 11.

20 Ibid, Article 16.

21 Committee on the Elimination of Discrimination against Women (CEDAW), 'General recommendation No 21: Equality in marriage and family relations' (1994) UN Doc A/49/3 8/Rev. 1 at 112 (CEDAW General Recommendation 21).

22 UN Committee on the Rights of the Child, ‘General Comment No. 12: The Right of the Child to be Heard’ (CRC/C/GC/12, 20 July 2009), p. 68-70.

23 James Baldwin (1924-1987) was an American writer, essayist, novelist, and civil rights activist whose work profoundly shaped discussions on race, identity, and justice in the 20th century. He is best known for his incisive explorations of the Black experience in America, particularly the intersection of race, sexuality, and class.

C.R.P. No. 458 of 2024

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