Custody means physical or material possession of the children,

 Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE / 691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents.

Writ Petition No.3228 of 2020
Nosheeba Nazeer Vs. Sajjad Ahmed and 2 others

ORDER SHEET
IN THE LAHORE HIGH COURT RAWALPINDI BENCH, RAWALPINDI
JUDICIAL DEPARTMENT
Writ Petition No.3228 of 2020
Nosheeba Nazeer Vs. Sajjad Ahmed and 2 others
11.01.2021

Raja Muhammad Faraz Khan, Advocate fo the applicant/respondent No.1.

Mr. Shabbir Ahmed Mirza, Advocate with the petitioner.

Mr. Saleem Murtaza Mughal, Additional Advocate General with Muhammad Zaheer Inspector/SHO P.S. Chountra, District Rawalpindi.

In compliance of the order dated 28.12.2020 the minor detenu namely Ali Raza, aged about 7 years, has been produced before the Court by Sajjad Ahmed (respondent No.1), his father.

2. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor son namely Ali Raza by Sajjad Ahmed (respondent No.1). As per contents of this petition, the minor was removed from the custody of the petitioner by Sajjad Ahmed (respondent No.1) on 18.11.2020. The petitioner has also appended her affidavit alongwith the present petition regarding the correctness of the contents of this petition. No counter affidavit has been filed by Sajjad Ahmed (respondent No.1 and the father of the alleged detenue) so as to challenge the contents of the affidavit. The minor Ali Raza had been living with his mother since his birth and had joined his father only recently i.e. on 18.11.2020. Learned counsel for the respondent No.1 has presented an alleged sworn affidavit of the petitioner dated 18.11.2020 executed on a stamp paper, to the effect that in compliance with the decision of the Jirga the petitioner had surrendered custody of the minor Ali Raza of her own accord and with her own consent to respondent No. l namely Sajjad Ahmed on 18.11.2020. It is further stated in the alleged affidavit that the petitioner shall not approach any forum or Court to seek the return of her minor son namely Ali Raza. The petitioner when confronted with the said affidavit, has repudiated the same. She denies under oath that she had executed this document. She states that the minor was taken from her on the pretext of visiting the father and was not returned to her. I have examined the document, which purports to be executed in compliance of some decision of Jirga. The circumstances of handing over of the minor to his father namely Sajjad Ahmad (respondent No.1) are mired in controversy as the respondent No.1 is claiming that the minor was handed over to him in consequence of the agreement effected between him and the petitioner on the intervention of the Jirga whereas the petitioner is claiming that the minor was removed from her custody on the pretext of visiting the father. It is not disputed by both the parties that the child was born when already the parties were living separately from each other and it is also not disputed that divorce was effected between the parties in the year 2018.It is also not disputed that prior to 18.11.2020 the minor had been living with the petitioner. The child has also been questioned by this Court who stated that he had been living with his mother since his birth and had only recently been handed over to his father (respondent No.1). On Court query, the minor namely Ali Raza has stated that he wanted to live with his mother, the petitioner. Prima facie no bond of love and affection exists between the minor and his father as he had not lived with his father ever prior to his handing over to him only recently. Any agreement, though disputed by the petitioner, even if executed with regard to the handing over the custody of the minor, has no value in the eyes of law and cannot be relied upon. There can be no dispute that questions concerning the custody and guardianship of minors cannot be settled by a private compromise or even by arbitration. An agreement of this nature, therefore, cannot be enforced. If an agreement is entered into by a female which appears unconscionable on the face of it, there is a rebuttable presumption that the agreement was entered into by coercion and undue influence. No effective rebuttal is forthcoming to show as to why the petitioner would voluntarily part with her minor son. Hence the purported agreement to hand over the custody of the minor to the respondent No.1 has no value in the eyes of the law. Reliance is placed on the cases of “Mst. SHEHNAZ BIBI Versus MUHAMMAD AKRAM and others” (1995 PCrLJ 307),. “Mst. RIFFAT BIBI versus AMANAT ALI”(1997 M L D 1562), “AFSHAN NAUREEN Versus NADEEM ABBAS SHAH” (1997 M L D 197) and “Mst. TAHERA BEGUM Versus SALEEM AHMED SIDDIQUI” (P L D 1970 Karachi 619). It would only be the learned Guardian Judge who would be in a position to determine the welfare of the child in proceedings if initiated before the same. At present this Court finds it proper and in the interest and for the welfare of the minor to hand over the custody of the minor Ali Raza to his mother, the petitioner, with whom he had lived since his birth and the bond of love and affection exists between the mother and the child and at present there does exist no reason to break the same. It is true that a Guardian court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody. In Arabic language, guardianship is termed as wilayat and custody as hidhanat. Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE / 691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents. Reliance is placed on the case of “Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others” (2018 SCMR 427). Reliance is also placed on the case of “Mst. MADIHA YOUNUS Vs. IMRAN AHMED” (2018 SCMR 1991).

3. In view of the above discussion, this petition is allowed and the custody of the minor namely Ali Raza is ordered to be handed over to the petitioner. It has been brought to the notice of the Court that respondent No.1 intends to file an application under section 25 of the Guardian & Wards Act, 1890. It is, therefore, directed that if and when such an application is filed by the respondent No.1, the learned Guardian Judge shall decide the same strictly in accordance with the law and expeditiously, preferably within a period of two months of the filing of the same. It is also directed that the petitioner shall produce the minor before the learned Guardian Judge if, as and when directed by the said court so as to allow Sajjad Ahmad, the father of the minor, to meet with the minor. However, Sajjad Ahmad shall not be allowed to take the minor out of the premises of the court of learned Guardian Judge. It is also made clear that any such petition filed before the court of the learned Judge Guardian Court shall be decided on its own merits, without being influenced in any manner by any observation made in this order. (SADIQ MAHMUD KHURRAM)JUDGE

Approved for reporting.

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Neither petitioner file written statement on day when he entered appearance before Judge Family Court nor submitted written statement on successive five adjourned dates for a period converting more than five months--

 PLJ 2022 Lahore 584

Family Courts Act, 1964 (XXXV of 1964)--

----S. 9--Punjab Family Courts (Amendment) Act, 2015--Closing of petitioner--Non-filing written statement by petitioner--Judge Family Court proceeded to close right of petitioner--Neither petitioner file written statement on day when he entered appearance before Judge Family Court nor submitted written statement on successive five adjourned dates for a period converting more than five months--Petitioner willfully and by design tried to prolong litigation and did not comply with order of court for submission of written statement.

                                                               [Pp. 584, 585 & 587] A, B & C

PLD 1981 SC 246; PLD 1974 SC 139 ref.

Mr. Mujeeb-ur-Rehman Hashmi, Advocate for Petitioner.

Haji Dilbar Khan Mahaar, AAG for State.

Mr. Aftab Hussain Malik, Advocate for Respondent No. 2.

Date of hearing: 2.2.2022.

 PLJ 2022 Lahore 584

[Multan Bench Multan]
Present: Shakil Ahmad, J.
ABDUL ZAHOOR--Petitioner
versus
JUDGE FAMILY COURT, MULTAN and another--Respondents
W.P. No. 220 of 2022, decided on 2.2.2022.

Order

Instant petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to assail order dated 20.11.2021 passed by learned Judge Family Court, Multan, whereby right of Abdul Zahjoor (petitioner herein) to submit written statement was closed.

2. Heard learned counsel for the parties and record so annexed with the petition perused.

3. Learned counsel for the petitioner contends that learned Judge Family Court proceeded to close the right of petitioner in undue haste on technical ground. Learned counsel, however, could not refute the fact that the petitioner through his counsel entered appearance before learned Judge Family Court on 14.06.2021. Neither petitioner filed written statement on the day when he entered appearance before learned Judge Family Court nor submitted written statement on successive five adjourned dates for a period covering more than five months till 20.11.2021 when impugned order was passed by learned Judge Family Court. Procedure for submission of written statement has been specified in Section 9(1) of the Family Courts Act, 1964 (hereinafter referred to as the 'Act, 1964'). For the facility of ready reference, said provision is reproduced hereunder:

"[S. 9. (1) Written statement.--On the date fixed under clause (a) of sub-section (1) of Section 8, the plaintiff and the defendant shall appear before the Family Court and the defendant shall file his written statement, and attach therewith list of his witnesses alongwith a precise of the evidence that each witnesses is expected to give."

Section 9(1) ibid has been amended by the Punjab Family Courts (Amendment) Act, 2015 (hereinafter referred to as 'Punjab Amendment'), which is reproduced hereunder for the facility of ready reference:

14(1) On the date fixed under Section 8, the defendant shall appear before the Family Court and file the written statement, a list of witnesses and gist of evidence, and in case the written statement is not filed on that date, the Family Court may, for any sufficient reasons which prevented the defendant from submitting the written statement, allow the defendant to submit the written statement and other documents on the next date which shall not exceed fifteen days from that date."

            In view of above hinted provision of law, the petitioner/defendant was required to have filed written statement on the date of his appearance before the learned Judge Family Court and an adjournment to submit his written statement could have only be granted to the petitioner only for the sufficient reasons so disclosed by him that prevented him from submitting the same on the date of his appearance and next date allowed by the learned Judge Family Court should not exceed 15 days from the date when the petitioner/defendant appeared before the learned Judge Family Court and in case petitioner fails to submit written statement on the subsequent date, his defence has to be struck off in view of newly inserted seb-section (5 A) of Section 9 through Punjab amendment. For the facility of ready reference, section (5A) is reproduced hereunder: -

17(5A) If the defendant fails to submit the written statement on or before the date under seb-section (1), the defence of the defendant shall stand struck off and the Family Court shall decide the case under the law."

As per above referred provisions, petitioner's right to submit written statement was to be struck off on the next date of hearing i.e 12.07.2021 when he failed to file written statement, although next date was granted in utter disregard of provisions of Section 9 (1) of the Punjab Amendment, whereunder next date should not have been granted beyond period of fifteen days. Despite the grace rather unnecessary leniency shown by learned Judge Family Court and that too in disregard of above hinted provisions of law, petitioner failed to file written statement and case was again adjourned for 11.09.2021 but on that date petitioner again failed to file the written statement. Submission of learned counsel for the petitioner that on these two dates learned Presiding Officer was on leave therefore non-filing of written statement on these two dates cannot be attributed to petitioner, on the face of it, is not only naive but also ridiculous, for the simple reason that absence of learned Presiding Officer in no way could have caused any hindrance in the way of the petitioner to comply with the order for submission of written statement by submitting written statement before the Court even the learned Judge Family Court was on leave as it was the judge who was on leave not the Court. It may further be seen that on the subsequent adjourned date i.e 13.10.2021 again written statement was not filed and learned Judge Family Court again proceeded to adjourn the case merely on the request of learned counsel for the petitioner by remaining in total oblivion to the above hinted provisions of the Punjab Amendment and finally on 20.11.2021, learned Judge Family Court proceeded to close the right of the petitioner to submit written statement. Learned counsel for the petitioner failed to advance any plausible reason or ground for not submitting written statement before the learned Judge Family Court for the period of more than five months. It may be advantageous to refer at this juncture that the provisions of Section 12-A of the Act, 1964 provide period of six months for the decision of a family case whereas in the instant case, it took period of around more than five months requiring the petitioner to file his written statement and even the same was not submitted till the impugned order was passed on 20.11.2021. Instant is a classic example of indolence on the part of the petitioner at one hand and on the other, showing of unnecessary and undue grace by learned Judge Family Court in granting successive dates in a mechanical manner for submission of written statement and that too in disregard of the provisions inserted through Punjab Amendment Undeniably, right of defence is fundamental right of the opposing party but at the same time parties to a lis have to show due diligence in-safeguarding their legal rights

and a party cannot be allowed to unnecessarily prolong the legal proceedings at his own whims and caprice. The Courts are well within jurisdiction to regulate the trial proceedings as per the dictates of relevant provisions of law and make their best efforts to conclude the trial within the prescribed period and would not allow a latish litigating party to jeopardize the ends of justice by procrastinating the lis and by militating against the provisions of law aimed at swift decision of family matters. It is well established principle of law that this Court in exercise of constitutional jurisdiction has only to see that whether the Court/tribunal acted without jurisdiction or had violated the statute or law laid down by the superior Courts. Reliance in this regard may safely be placed on cases reported as "Muhammad. Sharif and another v. Muhammad Afzal Sohail etc."(PLD 1981 Supreme Court 246), and "Muhammad Hussain Munir and others v. Sikandar and others" (PLD 1974 SC 139). At the cost of repetition, it may be observed that learned counsel for the petitioner failed to point out even a single instance/reason justifying non-submission of written statement on the part of the petitioner for the period of more than five months and this is clearly suggestive of the fact that the petitioner willfully and by design tried to prolong the litigation and did not comply with the order of the Court for submission of written statement. Law indeed favours the vigilant and not the indolent. In the instant case, it was not merely indolence on the part of the petitioner rather his conduct qua non-compliance of order for submission of written statement was contumacious. Learned counsel for the petitioner has failed to point out any valid ground wherefrom it may even remotely be considered that learned Court below while passing the impugned order has acted either without jurisdiction or the impugned order has been passed in violation of any law.

4.  The upshot of above discussion is that petition in hand is devoid of any force, therefore, the same is dismissed.

(K.Q.B.)

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شوھر نے بیوی کو اراضی ھپہ کی اور بعد میں ھبہ کی منسوخی کے لیے دعوی دائر کر دیا. لاھور ہائیکورٹ نے شوھر کے خلاف اور ھمارے معاشرے میں خواتین کی حالت زار کے بارے میں انتہائی سخت ریمادکس دیتے ھوئے شوھر کی نگرانی خارج کردی اور قرار دیا کہ شوھر ایک باراراضی بیوی کو ھبہ کرنے کے بعد اسکو واپس نہ لےسکتا

 PLD 2021 Lahore 33

شوھر نے بیوی کو اراضی ھپہ کی اور بعد میں ھبہ کی منسوخی کے لیے دعوی دائر کر دیا. لاھور ہائیکورٹ نے شوھر کے خلاف اور ھمارے معاشرے میں خواتین کی حالت زار کے بارے میں انتہائی سخت ریمادکس دیتے ھوئے شوھر کی نگرانی خارج کردی اور قرار دیا کہ شوھر ایک باراراضی بیوی کو ھبہ کرنے کے بعد اسکو واپس نہ لےسکتا ھے

Man and woman are of equal rank, but they are not identical. They are a peerless pair, being supplementary to one another, each helps the other, so that without the one the existence of the other cannot be conceived, and, therefore, it follows as a necessary corollary from these facts, that anything that will impair the basic right of a woman to be treated with decency and proper dignity will not only involve the infringement of Article 9 of the Constitution which guarantees that no person shall be deprived of life or liberty save in accordance with law but also ruin our social fabric which is interwoven with the family bond. Prophet Muhammad (Peace Be Upon Him) said: “the best of you is the best to his family and I am the best among you to my family. The most perfect believers are the best in conduct and best of you are those who are best to their wives” (Ibn-Hanbal No.7396).

When a woman gets married, she has financial rights over her husband in that he must provide her with all the necessities for her to live a comfortable life. It is thus, incumbent upon the husband to offer the provisions of house, food, clothing, healthcare and other tools required for her subjective standard of living.

It is now well settled that once mutation of names has been proved, the natural presumption arising from the relation of husband and wife existing between them is that the husband’s subsequent acts with reference to the property were done on his wife’s behalf and not on his own . This principle indicates that the theory of constructive possession is very well applicable to gifts between husband and wife.

Sahih alMuslim that the Holy Prophet

“the person who revokes his gift, is like the dog that licks up what it disgorges”

If a husband makes a gift of anything to his wife or a wife to her husband, it cannot be retracted because the object of the gift is an improvement of affection and as the object is obtained, the gift cannot be retracted.

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Section 17(A) of the West Pakistan Family Courts Act, 8 19. 1964 provides that a family court shall decree the suit for maintenance straightaway if a defendant fails to pay interim maintenance so fixed.

 Section 17(A) of the West Pakistan Family Courts Act, 8 19. 1964 provides that a family court shall decree the suit for maintenance straightaway if a defendant fails to pay interim maintenance so fixed. In the present matter the petitioner has not failed once but twice on the same count, has evidently tried to avoid and wriggle out of the liability so imposed, has been recalcitrant in honouring his commitment before the court and has even failed to appear voluntarily in the execution proceedings where he was arrested and produced before the court. Even otherwise, instead of one opportunity the petitioner has been granted ample opportunities to follow the law but he has failed. The petitioner cannot be allowed to abuse the process of law!

Section 17-A makes the right of any defendant to defend the suit against him, otherwise guaranteed to him, conditional upon his payment of interim maintenance already fixed by the court. Such condition, though not assailed by the Petitioner, has been applied strictly by the Hon‟ble Superior Courts of Pakistan consistently.

The right of any litigant to defend his cause before passage of any adverse order, as sacrosanct as it is, cannot be allowed to interfere in the dispensation of justice especially in a manner so as to endorse his repeated defiance of valid orders passed against him. The Petitioner neither challenged the order fixing the maintenance allowance nor that of the Appellate Court imposing condition of payment of interim allowance. It seems that the petitioner did not intend to pay the outstanding maintenance but merely agreed to pay the same to get the judgment & decree dated 07.02.2022 reversed and only prolong the litigation. Coming to his aid will reverse centuries old jurisprudence i.e. Ex turpi causa non oritur actio (from a dishonorable cause an action does not arise).

The social, legal and religious responsibilities of the petitioner also bind him to support his own biological daughters, provide for their maintenance and do so in a good and respectable way. It seems that the petitioner is not acquainted with the age-old saying „no other love in the world is like that of the love of a father for his girl‟. Moreover, „and clothing and maintenance must be borne by the father in a fair manner’ (Al-Baqarah, 233).

W.P. No. 43023 of 2022
Muhammad Naveed Akhtar Versus Mst. Ghazala Batool, etc.
05-07-2022

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-A “decision given” on afore referred application/objection petition of petitioner against execution of decree, hence, amounts to a final decision, therefore, said order is appealable before appellate Court in terms of Section 14 of Family Courts Act, 1964.

 PLJ 2021 Lahore 40

Present: Muzamil Akhtar Shabir, J.

JABRAN MUSTAFA--Petitioner

versus

JUDGE FAMILY COURT etc.--Respondents

W.P. No. 69574 of 2020, decided on 1.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Attorney of judgment debtor--Execution proceedings--Non-service of warrants of arrest of judgment debtor--Issuance of arrest warrants of petitioner--Application for cancellation of warrants--Dismissed--Issuance of non-bailable warrants--Maintainability--Challenge to--It is observed that it is not a case wherein warrants of arrest have been simplicitor issued against petitioner for this Court to treat same as an interlocutory order to look into its legality rather in present case vide impugned order executing Court while dismissing petitioner’s application for cancellation of warrants of arrest, issued against him, has refused to recall its earlier order by application of its mind to facts of matter pending before it. [P. 41] A

Family Courts Act, 1964--

----S. 14--Objection petition--Final decision--Appealable order--A “decision given” on afore referred application/objection petition of petitioner against execution of decree, hence, amounts to a final decision, therefore, said order is appealable before appellate Court in terms of Section 14 of Family Courts Act, 1964. [P. 41] B

Mirza Kazim Ali Baig, Advocate for Petitioner.
Mr. Adeel Ahmad Kamran, Assistant Attorney General and Sardar Qasim Hassan Khan, AAG.
M/s. Nasrullah Khan Babar, Ch. Muhammad Shahid Iqbal, Ch. Muhammad Naseer and Faisal Anwar Minhas, Advocates. (Amici curiae).
Date of hearing: 1.1.2021.

Order

Through this constitutional petition, the petitioner, who is the brother and was attorney of the judgment debtor (Ghulam Murtaza) in the family suit filed by Respondent Nos. 2 to 5/decree holders, has called in question orders dated 21.10.2020 and 09.12.2020 respectively, whereby due to non-service of warrants of arrest of the judgment debtor, at the request of the decree holders/respondents, warrants of arrest of the present petitioner in execution proceedings of decree passed by the Judge Family Court have been issued and the application of the petitioner for cancellation of warrants of arrest against him has been dismissed and he has been summoned through non-bailable warrants to appear in said Court on 04.01.2021.

2. It is contended by the learned counsel for the petitioner that as the petitioner was neither a judgment debtor nor stood as surety or guarantor for him, therefore, issuance of warrants of his arrest, initiating recovery proceedings against him were not justified.

3. It is observed that it is not a case wherein warrants of arrest have been simplicitor issued against the petitioner for this Court to treat the same as an interlocutory order to look into its legality rather in the present case vide impugned order dated 09.12.2020 the learned executing Court while dismissing the petitioner’s application for cancellation of warrants of arrest, issued against him, has refused to recall its earlier order dated 21.10.2020 by application of its mind to the facts of the matter pending before it and placing reliance on judgment of the Supreme Court reported as Muhammad Pervez vs. Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352), which in the opinion of this Court is a “decision given” on the afore referred application/objection petition of the petitioner against execution of decree, hence, amounts to a final decision, therefore, the said order is appealable before the appellate Court in terms of Section 14 of the

Family Courts Act, 1964. Reliance in this behalf may also be placed on the judgment reported as Rahim Bukhsh vs. Mst. Shehzadi and others (2018 CLC 1789), wherein it has been held that dismissal of an objection petition is an appealable order.

4. As regards the question whether the facts of the petitioner’s case are distinguishable from the facts in the afore referred reported case (2004 SCMR 1352) is concerned, the same can be taken into consideration by the appellate Court, in case any appeal is filed before it.

5. For what has been discussed above, in view of availability of alternate remedy, this petition is dismissed as premature and not maintainable. However, the petitioner, if advised, is at liberty to approach the appropriate forum for redress of his grievance.

(M.M.R.) Petition dismissed

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-Custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can husband demand such surrender-

 PLJ 2021 SC 50

[Appellate Jurisdiction]

Contract Act, 1872 (IX of 1872)--

----S. 25--Constitution of Pakistan, 1973, Arts. 9, 14, 25 & 212(3)--Guardian and Wards Act, (VIII of 1890), S. 25--Application for custody of minor--Agreement between husband and wife--Physical disability of mother--Concurrent judgments--Mother was give up custody of minor--Public policy--Principles of policy--Right to hizanat--Rules of hizanat--Determination for custody of minor--Direction to--Constitutional mandate--Muslim personal law prescribes rules of hizanat (custody); a mother in whom hizanat vests cannot be compelled to surrender it nor can such surrender constitute consideration for an agreement of khula--Custody of a child or rights to his/her custody cannot be surrendered to obtain khula nor can husband demand such surrender--Agreement to extent that mother surrendered custody of her child or which stopped mother to claim his custody is not lawful consideration; it is contrary to Islamic principles governing hizanat and law determining custody of minors and thus forbidden--Welfare of minor cannot be relegated to personal interest of father and such a clause or condition is against public policy--Father dragged out proceedings and then unnecessarily invoked constitutional jurisdiction of High Court--There was no reason for High Court to exercise its constitutional jurisdiction in terms of Art. 199 of Constitution and to set aside perfectly well-reasoned and legal judgments--Appeal allowed. [Pp. 54, 55 & 59] A, B, D & E

Contract Act, 1872 (IX of 1872)--

----S. 23--Public policy--Object of agreement--What considerations and objects are lawful and what not--consideration or object of an agreement is lawful, unless - it is forbidden by law; or is of such a nature that, if permitted, it would defeat provisions of any law; or is fraudulent; or involves or implies injury to person or property

of another; or Court regards it as immoral, or opposed to public policy--Consideration or object of an agreement is said to be unlawful--Every agreement of which object or consideration is unlawful was void.

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Wife with held best evidence which was available with her and made her claims doubtful by virtue of this she lost some claims,

 2021 MLD peshawar 109

Family Court Act.1964.Sec.5.

Sched..

Suit for maintenance allowance,etc.

Wife with held best evidence which was available with her and made her claims doubtful by virtue of this she lost some claims,

Therefore High court modified judgments of the lower court

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