Chairman does not render the divorce ineffective

Judgment “Mst. Zahida Shaheen and another v. The State and another” (1994 SCMR 2098), Hon’ble apex Court has further elaborated the effectiveness in following terms:-

“Failure to send a notice to the Chairman does not render the divorce ineffective”

Part of Judgment of
Lahore High Court
Writ Petition-Family-Maintenance
27820-13
2017 LHC 2268

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Surety is relinquished and he cannot be held liable for satisfaction of the decree.

Learned counsel for the petitioner contends that when the judgment debtor is available and was also sent to imprisonment by the learned Executing Court, therefore, the liability of surety is relinquished and he cannot be held liable for satisfaction of the decree. He relied upon “Muhammad Ramzan vs. Ali Hamza and others” (PLD 2016 Lahore 622).

Used in Judgment of
Lahore High Court
Writ Petition-Family-Miscellaneous
9483-17
2017 LHC 3061

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Real concept of welfare of minors,

Likewise in 1998 MLD 1697, it has further been held that:

 “It is not the duty of the Guardian Judge to find out the right of mothers or fathers regarding custody of minors but the real duty of the concerned Court is to search out in whose custody the welfare of minor lies. Large number of facts have to be taken into consideration with reference to the real concept of welfare of minors, such as factors of health, educations, mental affiliation of minors with custodian’s religion, sex, age, expected efforts of remarrying by the divorcee or divorce upon minors etc. Male minors and female minors have different psychologies. The female minor requires longer association of her mother till for puberty on account of several reasons. For example, in our society, the female child is usually bashful, mostly tender hearted and symbol of delicacy in her nature. Such female child is not expected to disclose the signs of awakening of her sex to her father. On account of this reason, a female minor must remain with her mother provided she does not lose her right of Hizanat on account of certain established rules and principles.”

Part Judgment  of
Lahore High Court
Writ Petition-Family-Guardianship
5828-13

2017 LHC 2776

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Question of custody on the basis of welfare of minors

Reliance is placed on case reported as “Mehmood Akhtar v. District Judge, Attock and 2 others”. (2004 SCMR 1839) wherein it has been laid down as under:-

 "The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of minor which is the prime consideration in determination of the question of custody."

Part Judgment  of
Lahore High Court
Writ Petition-Family-Guardianship
5828-13

2017 LHC 2776

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Mother contracting marriage, has right to retain the custody of minors-

So far as the re-marriage of respondent No.1, it has been specifically laid down in PLD 2000 Peshawar 23, which reads as under:-
“Ss. 17 & 25—Retaining the custody of minor children---Mother contracting marriage, has right to retain the custody of minors---Scope----Marriage of mother with a person not related to the minors and who was a stranger, would not disentitle and disqualify her to retain the custody of the minors on such ground provided welfare of minors lay in their remaining in the custody of their mother---Mother was entitled to retain the custody in circumstances.”


Part Judgment  of
Lahore High Court
Writ Petition-Family-Guardianship
5828-13

2017 LHC 2776

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Mother of minor had re-married to a stranger

Much stress has been laid down by the petitioner counsel that mother of minor had re-married to a stranger real father was the most suitable person to take care of a girl. Reliance is placed on the cases reported as “Mst. Shaheen Bibi (Nusrat Shaheen) v. Zulfiqar Ali Shah Kazmi and 2 others” (1995 CLC 306) and “Mst. Rani v. Bilal Ahmad and 2 others” (2000 MLD 1967).

Part Judgment  of
Lahore High Court
Writ Petition-Family-Guardianship
5828-13

2017 LHC 2776

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Re-marriage of the mother did not disqualify her for the custody

So far as the re-marriage of respondent No.1, it has been specifically laid down in PLD 2000 Peshawar 23, which reads as under:-

“Father neither had any source of income, nor he owned any property----

Mother was graduate and a teacher in a school of good standard and was leading a responsible life and there was nothing on record to indicate that she was woman of bad character--- Application for appointment of guardian filed by the father was dismissed by the Guardian Judge whereas Lower Appellate Court accepted the same in appeal--Contention raised by the father was that the mother had contracted marriage with a person stranger to the minor---

Validity, Basic criteria for the appointment of the guardian and the restoration of the custody was welfare of the minors---While dealing with such an application, the Court had to pass its findings on the conditions laid down in Ss.17 & 25 of Guardian and Wards Act, 1890---

Right of parents regarding the interest and control of the children was not to be exercised in the interest and the benefits of the parents but in the interest and welfare of children themselves---

Father was, though, a natural guardian yet his right was also subordinate to the welfare of the minors---Lower Appellate Court had failed to consider the fundamental criteria of welfare of the minors while dealing with appeal filed by the father---

Re-marriage of the mother did not disqualify her for the custody of her children in circumstances--- Factors of re-marriage of a woman and custody of minors had not been made reciprocal in Guardian and Wards Act, 1890-- -

Order passed by Lower Appellate Court was set aside and that of the Guardia Judge was restored.”

Part Judgment  of
Lahore High Court
Writ Petition-Family-Guardianship
5828-13

2017 LHC 2776

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