Family/Dissolution of Marriage on the Ground of Khulla

 With regard to the question raised before us by the petitioner as to whether Family Courts in Pakistan have jurisdiction to entertain the case when the plaintiff/wife is a dual citizen of Pakistan and the USA and is residing in the USA at the time of the institution of the suit, whereas, the husband is national and permanent resident of Pakistan. In this regard Rule 6 of the West Pakistan Family Courts Rules, 1965 is relevant .

In the above-proviso, the Legislature has intentionally used the word "ordinarily" which has a different meaning than that of permanent residence. According to Black’s Law Dictionary (VIth Edition) word "ordinary" means “usual, common, settled, customary, and reasonable”.
In the present case, although the Respondent is living in the USA at the time of the institution of the suit through her duly constituted attorney. However, the respondent usually comes to Pakistan; have acquired her education in Karachi and visits her family in Karachi from time to time.
By this proviso, the rigour of normal rule providing for territorial jurisdiction for trial of cases in Family Court have been relaxed in favour of female filing a suit for dissolution of marriage or recovery of dower. The words "Ordinarily resides" and "shall also have jurisdiction" used in proviso demonstrate the intention of parliament is to facilitate things for the wife and off-set her handicap. Therefore, the option of instituting such suits vests with the wife and the Court is bound to take her convenience subject to law. Hence, Family Courts in Pakistan have jurisdiction to entertain the matter and the trial court has rightly exercised so.
West Pakistan Family Courts Act, 1964 (“Act”) was promulgated for the expeditious settlement and disposal of disputes with regard to the marriage and other family affairs and also provides special procedure to achieve such object. Being special law, it creates the special courts for determination of the family disputes in order to advance justice and to avoid technicalities.
The Legislature while introducing amendment in the Family Court Act, 1964 has derived wisdom from Quran and Sunnah. Islam confers the right of Khula to woman by virtue of which a Muslim woman can get herself released from the bond of marriage if she feels, due to any reason, that she could not live with her husband within the limits prescribed by Allah Almighty. The right and mode of "Khula" has been described by Almighty Allah in verse No. 229 of Surah Baqra.
The proviso to section 10 empowers the Family Courts to pass a preliminary decree for the dissolution of Marriage forthwith upon the failure of reconciliation and further provides that wife shall be ordered to return the Haq Mehr received by her.
Section 10(3) imposes a legal obligation on the Family Courts to make a genuine attempt for reconciliation between the parties. Trial Court shall remain instrumental and make genuine efforts in resolving the dispute between the parties. In case if despite of genuine efforts, reconciliation fails, the Trial Court under proviso of section 10(4), without recording evidence is empowered to pass a decree of dissolution of marriage forthwith. At this juncture if the court observes that the wife without any reason is not willing to live with her husband, then under proviso (ibid) the Court is left with no option, but to dissolve the marriage.
Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation.
C.P.488-K/2023
Sohail Ahmed v. Mst. Samreena Rasheed Memon & others
Mr. Justice Syed Hasan Azhar Rizvi
20-12-2023

بچوں کا عبوری خرچہ نان ونفقہ ادا نہ کرنے اور تاخیری حربے استعمال کرنے پر سپریم کورٹ نے باپ پر ایک لاکھ روپیہ جرمانہ عائد کردیا ۔

 2024 SCMR 1292

Interim maintenance --- Father failing to comply with order for payment of maintenance to the minors --- Contumacious conduct --- Costs , imposition of --- Family Court , in accordance with Section 17-A of the Family Courts Act , 1964 , had the lawful authority to strike off the defence of the petitioner ( father ) and decree the suit for maintenance on the basis of averments in the plaint and other supporting documents on record of the case , once the petitioner failed to pay the interim maintenance allowance by fourteenth day of each month during the pendency of proceedings --- Petitioner was also put to notice by the Family Court to clear the arrears of interim maintenance allowance otherwise the provisions of Section 17-A of the Act would be invoked , which the petitioner failed to comply with -- Moreover , the determination of the amount of maintenance by the Family Court was neither arbitrary nor capricious --- Hence , the High Court had rightly declined to interfere with the findings of the Family Court with regard to the quantum of maintenance allowance --- In view of the callous disregard of the petitioner for the court order to pay interim maintenance and his attempts to delay the payment of decreed maintenance allowance for his minor children , the Supreme Court imposed costs on the petitioner in the sum of Rs . 1,00,000 / - ( Rupees one hundred thousand only ) to deter such conduct in the future with the direction that the costs shall be recovered by the executing court as part of the decree for maintenance ---
C.P.L.A.3155-L/2023 Shahzad Amir Farid v. Mst. Sobia Amir Farid

*فیملی کورٹ کے چند منفرد فیصلے جو روٹین سے ہٹ کر ہیں اور امید ہے آپ کی نظر سے نہیں گزرے ہوں گے

 ۔*_

_فیملی کورٹ کی یہ ذمہ داری ہے کہ وہ یکطرفہ ڈگری پاس ہونے کے بعد مدعا علیہ کے پتہ پر ڈگری کی مصدقہ کاپی بھیجے۔_
_*2017 CLC N 69*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_فیملی عدالت یکطرفہ ڈکری پاس کرنے سے پہلے مدعا علیہ کو نوٹس حاضری بھیج سکتی ہے۔_
_*2017 PLJ Pesh 01*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_جہیز کیس کے اجراء میں ضامن کی یہ قانونی ذمہ داری ہے کہ وہ کسی بھی ڈیفالٹ کی صورت میں جہیز ادا کرے۔_
_*2016 PLD Pesh 109*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_خلع کے علاوہ باقی حقائق کے خلاف درخواست منسوخی ڈگری کی مدت اس وقت شروع ہوگی جب مدعا علیہ/ججمنٹ ڈیٹر کو اس ڈکری کا علم ہوگا۔_
_*2017 CLC N 69*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_بیوی کو حق مہر ادا نہ کرنا بھی ظلم/Cruelty ہے۔ جوکہ خلع کے لیے بہترین گراؤنڈ ہے۔_
_*2018 CLC 93*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_فیملی کیس میں Interim Order کے خلاف رِٹ پٹیشن نہیں ہوسکتی۔_
_*2018 CLC N 47*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_فیملی کورٹ کے لیے یہ ضروری ہے کہ وہ فیملی کیس کا 6 ماہ کے اندر اندر فیصلہ کرے۔_
_*2018 YLR 1231*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_باپ اپنے بچے کو خرچہ نان و نفقہ دینے کا پابند ہے۔ اس کا یہ بہانہ نہیں سنا جائے گا کہ اس کے پاس ذرائع آمدن نہیں ہیں۔_
_*2018 CLC N 47*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_بیوی خاوند کی Cruelty ثابت نہ کرسکی۔ عدالت نے حکم دیا کہ بیوی شادی کے تحائف واپس کرے اور شوہر حق مہر ادا کرے۔_
_*2018 PLD Pesh 34*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_فیملی لاء ایک سپیشل لاء ہے۔ اس میں خاوند کے لیے Past Maintenance کے لیے کوئی میعاد مقرر نہ ہے۔_
_*2018 YLR 1501*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_پردہ نشیں عورت اپنے والد کے ذریعے اپنی شہادت ریکارڈ کروا سکتی ہے اگر اس کے والد کو کیس حالات کا اچھی طرح سے پتہ ہوتو۔_
_*2002 CLC 1336*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_فیملی لاء ایک سپیشل لاء ہے۔ اس میں اجراء کی درخواست کے لیے کوئی میعاد مقرر نہ ہے۔_
_*2018 YLR 1501*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_ہائی کورٹ فُل بینچ نے فیملی قوانین کی تشریح کرتے وقت یہ قرار دیا کہ فیملی کورٹ ایکٹ 1964 اور مسلم فیملی لاز آرڈینیس 1961 کی متعلقہ دفعات غیرقانونی ہیں کہ خلع کی صورت میں بیوی کو حق مہر کی رقم بھی واپس کرنی پڑے گی جبکہ اسلامی اصولوں کے تحت اسے صرف شادی کے تحائف واپس کرنے چاہئیں۔_
_*PLD 2009 Pesh 92*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_جہاں بیوی/عورت رہتی ہوگی اسی جگہ فیملی کیس دائر کیا جاسکتا ہے۔ علاقائی اختیار سماعت نہیں دیکھا جائے گا۔_
_*PLD 2006 Pesh 189*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_طلاق یافتہ بچی اگر ماں کے پاس ہوتو باپ اس کا خرچہ نان و نفقہ دینے کا پابند ہے۔_
_*2014 MLD 351 Pesh*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_شادی کی تاریخ کے بعد منتقل کی گئی پراپرٹی حق مہر یا گفٹ کے ضمرہ میں نہیں آتی۔_
_*PLD 2012 Lah 43*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_ماں بچے کا خرچہ باپ کو معاف بھی کردے تو باپ دینے کا پابند ہے۔_
_*2014 MLD 351 Pesh*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_نکاح نامہ میں لکھی گئی پراپرٹی حق مہر یا گفٹ کے ضمرہ میں آتی ہے اور فیملی کورٹ اس حوالہ سے ڈکری پاس کرسکتی ہے۔_
_*PLD 2016 SC 613*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_شادی کی تاریخ کے بعد منتقل کی گئی پراپرٹی حق مہر یا گفٹ کے ضمرہ میں نہیں آتی۔_
_*PLD 2009 Lah 227*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_جہیز کی رقم مدعیہ کے والد کے بنک اکاؤنٹ میں جمع کروائی گئی۔ اب Controversy باپ اور بیٹی کے درمیان ہے۔ خاوند کو اس بات کا ذمہ دار نہیں ٹھہرایا جاسکتا۔ یہ سول کورٹ کا معاملہ ہے فیملی کورٹ کا نہیں۔_
_*2013 YLR 1903*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_شادی کی تاریخ کے بعد منتقل کی گئی پراپرٹی حق مہر یا گفٹ کے ضمرہ میں نہیں آتی۔_
_*PLD 2011 Kar 196*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_جہاں طلائی زیورات یا انکی قیمت واپس کرنے کی ڈکری پاس ہوجائے تو اس صورت میں قیمت Date of Payment کے حساب سے دیکھی جائے گی۔_
_*2013 SCMR 1049*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_جس کیس میں مدعیہ صرف طلائی زیورات کی بابت استدعا کرے اور ان کی مالیت کرنسی میں نہ بتائے تو اس صورت میں مدعاعلیہ کے پاس آپشن ہوگی کہ وہ یاتو طلائی زیورات بمطابق وزن واپس کرے یا پھر اتنی رقم ادا کرے جس سے اس وزن کے طلائی زیورات اوپن مارکیٹ سے خریدے جاسکیں۔_
_*2014 CLC 895*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_ہر باپ کا حق ہے کہ وہ اپنے بچے سے ملاقات غیر مشروط طریقے سے کرے۔ ملاقات کے لیے Surety Bonds مشروط کرنا غیرآئینی ہے اور اسے 199 کے تحت چیلنج کیا جاسکتا ہے۔_
_*2014 CLC 1168*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_اگر Pendency کے دوران دعویٰ Partly واپس لیا جائے تو نیا سوٹ فائل کیا جاسکتا ہے۔ اس پر Res Judicata کا اصول لاگو نہیں ہوگا۔_
_*2012 MLD 1795*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_معزز ہائیکورٹ نے مشاہدہ کیا کہ 99 فیصد سامان جہیز کے کیسز میں جھوٹ بولتی ہے کہ لِسٹ شادی کے وقت تیار کی گئی تھی۔ اور 1 فیصد کیسز میں وہ ضِد کرتی ہے کہ وہ جھوٹ نہیں بول رہی۔_
_*2013 MLD 939 Lah*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_خرچہ نان و نفقہ ایک فائدہ نہیں بلکہ حق ہے۔ اگر خلع کے کیس میں خرچہ نان و نفقہ کو بطور شرط معاف کیا گیا تو یہ غیرقانونی ہے اور اسکی کوئی قانونی حیثیت نہیں۔_
_*2012 MLD 1943*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_چونکہ CPC فیملی لاء پر اپلائی نہیں ہوتی مگر پھر بھی جو طریقہ کار CPC میں دیا گیا ہے انصاف کے بہترین حصول کے لیے وہ فیملی لاء میں اختیار کیا جاسکتا ہے۔_
_*2012 MLD 1795*_
۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔
_فیملی کورٹس ترمیمی ایکٹ 2015 کے تحت خرچہ نان و نفقہ 10 سے 5 فیصد کیا گیا۔ لیکن اس فیصلہ میں معزز سپریم کورٹ آف پاکستان نے دوبارہ خرچہ نان و نفقہ 10 فیصد بحال کردیا۔_
_*2016 SCMR 2069*_

تنسیخ نکاح کی یکطرفہ ڈگری کی قانونی و شرعی حیثیت

آج کل اکثر خواتین شوہر کے خلاف تنسیخ نکاح کا کیس کر کے شوہر کا فرضی ایڈریس لکھ کر یا پیادا عدالت سے ملی بھگت کر کے یکطرفہ ڈگری تنسیخ حاصل کر لیتی ہے جب کے شوہر کو اس بات کا علم بھی نہیں ہوتا ۔
لہذا آج ہم تنسیخ نکاح کی یکطرفہ ڈگری کی قانونی و شرعی حثیت کا جائزہ لینگے اور یہ بھی دیکھیں گے کہ اس صورت میں شوہر کے پاس کیا چارہ کار ہے
شریعت میں خلع کے لیے شوہر کی رضا مندی ضروری ہے دوسری بات یے یکطرفہ ڈگری ہے
فیملی کورٹس ایکٹ 1964 کی دفہ 9 (7) کے تحت عدالت یکطرفہ ڈگری کی صورت میں شوہر کے ایڈریس پر ڈگری کی نقل بھیجے گی تاکہ اسے ڈگری کا علم ہو سکے
مزید کوئی بھی پارٹی یکطرفہ ڈگری کی صورت میں مذکورہ قانون کی دفہ 9(6) کے تحت درخواست منسوخی ڈگری گزار سکتی ہے .
جس میں عدالت یکطرفہ ڈگری منسوخ کر سکتی ہے اس کے علاوہ بھی اگر ڈگری یکطرفہ نا بھی ہو تو بھی تنسیخ کی ڈگری ایک طلاق شمار ہوتی ھے .
مذکورہ قانون کی دفہ 21(ب) کے تحت فیملی کورٹ ڈگری کی نقل فریقین کی متعلقہ یونین کونسل میں بھیجے گی جو دونو ن فریقین کے درمیان راضی نامہ کروانے کی کوشش کرے گی ,ناکامی کی صورت مین 90 دن بعد یونین کونسل تنسیخ /طلاق کا سرٹیفکیٹ جاری کرے گی
ہائی کورٹ ملتا ن بینچ نے اپنے ایک حالیہ فیصلہ میں طلاق سرٹیفکیٹ نا ہونے کی بنا پر خاتون کے دوسرے نکاح کو کالعدم قرار دے کر اس کے شوہر کی ضمانت خارج کر دی اور قرار دیا کے صرف تنسیخ نکاح کی ڈگری سے نکاح ختم نہی ہوتا
اس کے علاوہ بھی اگر سرٹیفکیٹ بھی جاری ہو جائے پھر بھی دونو ن کے درمیان کسی بھی وقت راضی نامہ ہوسکتا ہے .مگر دونوں کو دوبارہ نکاح کرنا پرے گا کیو نکہ تنسیخ ڈگری کی صورت میں حلالہ کی ضرورت نہی.
حلالہ صرف شوہر کی طرف سے دی گیی طلاق کی صورت میں ہوتا ہے.
اس اہم قانونی نقطہ پر علی عدالتی نظیر بھی موجود ہیں.
Pld 2013 lah 88
Pld 2014 fsc 43
تاہم مناسب یہ ہے کے اگر تنسیخ نکاح کی ڈگری یکطرفہ بھی ہو گئی ہو اور راضی نامہ ہو جائے تو فیملی کورٹ میں ایک درخواست دے کے اس کو منسوخ کروا لیا جائے .

" Dissolution of marriage & Return of Dower amount".

2014 YLR 105 SINDH

Ss. 10 (4) & 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), Form II, Column 15---Constitution of Pakistan, Art.199---Constitutional petition---Suit for dissolution of marriage on the basis of khula and recovery of dowry articles---Restoration of dower amount to the husband by the wife---Scope---Contention of wife was that dower amount was not paid to her; however; husband contended that he had paid the same to her after marriage according to a 'faisla'---Validity---Parties had adopted divergent stances with regard to payment of dower amount---Family Court could not adjudicate such controversy without recording evidence and providing opportunity to the parties to substantiate their claims---Husband had not mentioned in his written statement as to when, where and amongst whom the alleged "faisla" was made or whether the same was brought in black and white or not---Dower amount was not paid by the husband to the wife at the time of marriage---Right to exercise khula by the wife was dependent upon restoration of dower amount to the husband but same was qualified with the word 'at the time of marriage'---Matter of defendant did not fall within the ambit of purview of proviso to S. 10(4) of West Pakistan Family Courts Act, 1964---Restoration of dower amount to the husband received by the wife in consideration of marriage at the time of marriage must be in consonance with the amount referred to in column 15 of the nikahnama---Dower amount paid at any other time except at the time of marriage could not be restored at the time of dissolution of marriage when reconciliation failed---Constitutional petition was dismissed in circumstances.

S. 10 (4)---Dissolution of marriage on failure of reconciliation---Object of S.10(4) of West Pakistan Family Courts Act, 1964 was to provide the specific remedy without any undue delay so as not to keep the woman in a state where she might be deprived of her right to remarry while she was of marriageable age in addition to the mental agony and tension which was the objective to meet the ends of justice.
2014 YLR 105 SINDH
Before: Zafar Ahmed Rajput J.

CUSTODY OF MINOR

Citation Name : 2020 YLR 401

LAHORE-HIGH-COURT-LAHORE
 Side Appellant : Mst. AYESHA ABDUL MALEEK
Side Opponent : ADDITIONAL DISTRICT JUDGE, SAHIWAL

Ss. 25 & 17---Custody of minor---Welfare of minor---"Intelligence preference" of minor---Scope---Petitioner/mother filed petition for custody of minor daughter whereas father moved application for appointment as guardian ---Petition for custody of minor daughter filed by the mother was dismissed whereas father's application for appointment of guardian was allowed--- Validity--- Paramount consideration while deciding application for custody of minor was welfare of minor and nothing else---Character and capacity of proposed guardian as well as age and sex were important factors to be considered while determining the welfare of minor---court s below summoned the minor for the purpose of "intelligence preference" and she denied to have company with the petitioner mother and showed her willingness to reside with her father---court s below had rightly concluded that petitioner mother was not entitled to the custody of minor daughter and respondent father was entitled to retain her custody as he had sound financial status---Respondent father was looking after the minor properly---Petitioner mother of minor daughter was entitled for visitation rights---No illegality or jurisdictional error had been pointed out in the impugned orders passed by the court s below---Constitutional petition was dismissed, in circumstances.

Custody of minor P L D 2024 Supreme Court 629

P L D 2024 Supreme Court 629

PLJ 2024 SC 537
SHAISTA HABIB Versus MUHAMMAD ARIF HABIB and others
Civil Petition No.3801 of 2022
Custody of minor---Welfare of child---Scope---Any decision regarding the custody of a child without assessment and determination of the latter's welfare and best interests by taking into consideration the relevant factors and variables cannot be sustainable, nor can the exercise of discretion be lawful---Welfare of a minor and the latter's best interest is the foundational principle for deciding custody disputes.
Principles governing custody of a minor and guidelines which are to be taken into consideration by courts while deciding custody disputes stated.
The father is the natural guardian while the mother is entitled to the custody (hizanat) of a male child till the age of seven years while in case of a female till she attains puberty. This right continues notwithstanding a divorce or separation. As a natural guardian it is the obligation of the father to maintain the child even if the custody is with the mother. The inability of the mother to financially support the child is not a determinate ground to deprive her from custody because in such an eventuality the father's obligation regarding maintenance is not extinguished. The rule that the father is a natural guardian and, therefore, entitled to the custody of the child nor that the mother loses the right of hizanat after the minor has attained the prescribed age or puberty, as the case may be, is not absolute, rather subject to exceptions. The decision regarding custody of a child is governed on the fundamental principle, the paramount and overarching consideration is the welfare of the child i.e. to ascertain the course which is in the latter's best interest. The crucial criterion is, therefore, the best interest and welfare of a child while determining the question of custody. The rights or aspirations of the parents or some other person are subservient to this principle and each case of custody must be decided on the basis of ascertaining a course which is in the 'best interest of the child'. The factors or variables that may be taken into consideration while determining the question of custody of a child are not exhaustive but they would depend on the facts and circumstances of each case. The guiding principle is to ensure that the determination of custody promotes the rights of the child as well as the latter's wellbeing. The overriding consideration must be to protect the child from any physical, mental or emotional injury, neglect or negligent treatment. The mother's disability, illiteracy or financial status are not the sole determinant factors. The second marriage contracted by the mother also cannot become a stand-alone reason to disqualify her from obtaining the custody of the child. The question of custody involves taking into consideration the factors which are relevant to the upbringing, nursing and fostering of the child. It essentially extends to the emotional, personal and physical wellbeing of a child. The sole object is to ensure that the overall growth and development of the child is guaranteed.
The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child. It is the duty of the court to form an opinion and adopt a course on the basis of the paramount principle of the welfare of the child.
While determining the welfare of the child in the context of custody disputes the court may grant the custody to a person other than the parents e.g. the grandparents or aunt, if doing so would promote the welfare and best interest of the child.
The court, in its endeavor to assess and determine the welfare of a child, is not bound to follow rigid formalities, strict adherence to procedure or rules or technicalities if doing so may hamper the determination or undermine the fundamental criterion of the best interest of the child.
Welfare of child---Scope---Mother contracting second marriage---Not a bar to granting custody to the mother---In the present case admittedly, the petitioner (mother) has contracted another marriage after her divorce and her second husband had children from his first wife---From the reasoning recorded in the judgments rendered by the Guardian Judge/Judge Family Court as well as the appellate court it appeared that the petitioner's second marriage and the age of the minor were the two factors that had prevailed for granting custody of the minor to the respondent (father)---Validity---In the present case, the minor was confident, intelligent and mature enough to form his own preferences---He had unambiguously stated before the Supreme Court that his father was no more than a stranger because he had not had the opportunity to spend time with him---He had also stated that he was not familiar with the other members of his father's family and thus for him they too were strangers---Minor visibly appeared to be happy and comfortable with his mother and his relationship with his step father also seemed to be pleasant---It was obvious from the record that the respondent, despite being his father, had not made a serious and meaningful effort to assert his visitation rights---Minor was definitely not prepared nor willing to live with his father at this stage---He unambiguously stated that he preferred to remain in the custody of his mother with whom he had lived since his birth---Crucial factor of the welfare of the minor and his best interest was not taken into consideration by the courts---In such an eventuality the minor would have been compelled, without his consent, to abruptly shift to a new abode where all the inhabitants would have been strangers to him---It would have definitely exposed him to unimaginable mental and emotional trauma---It could have resulted in irreversible lifelong psychological scars---It was obvious from the record that neither the family court nor the appellate court had taken appropriate steps to assess the welfare of the minor and, instead, the question of custody was decided on the basis of other factors---Factors taken into consideration could not override the criterion of adopting the course which would have been in the best interest of the child---Courts had erred in failing to inquire into or assess the emotional and psychological impact on the minor in case of an abrupt displacement from the custody of his mother with whom he had lived since his birth---Relevant factors such as the parenting capacity, relationship of the child with each parent, the mental health of both the parents as well as the minor, the latter's emotional and mental needs and such other relevant factors in the context of determining the welfare of the child were not taken into consideration let alone assessment and determination of a course that would have been in the best interest of the child---Petition was converted into an appeal and allowed; the impugned judgments/orders were setaside, and consequently it was directed that the custody of the minor shall be retained by the petitioner (mother)---Supreme Court expected that as reasonable and responsible parents the respondent and the petitioner would amicably settle the custody dispute having regard to the best interest and welfare of the minor, and that a visitation schedule would also be settled by them in such manner which would not breach the principle of the welfare of the minor.

JUDGMENT

---The High Court has dismissed the petition of Shaista Habib ("petitioner"), who had invoked the jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). She had challenged the orders of two competent courts, whereby the question of custody of a child, Mohammad Ibrahim, was decided against her. Through this petition she has sought leave against the judgment, dated 21.09.2022, of the High Court.
2. Muhammad Arif Habib ("respondent") and the petitioner had tied the knot on 21.6.2012. They were blessed with a son, Muhammad Ibrahim ("minor") on 17.4.2013. The matrimonial differences which developed between the spouses had initially led to their separation but, subsequently, the marriage ended in a divorce on 22.11.2016. The petitioner and the minor moved to the house of the former's mother after separation. The relationship between the parties became unpleasant to such an extent that, on acceptance of the respondent's petition, the Justice of the Peace, vide order dated 02-01-2017, ordered registration of a criminal case against the petitioner. The respondent filed an application on 28-01-2017 under section 25 of the Guardians and Wards Act, 1890 ("the Act of 1890") seeking the custody of the minor. The Guardian Judge/Judge Family Court, Kahuta, allowed the application on 30.06.2021 while the appeal preferred by the petitioner was dismissed by the Additional District Judge on 20.06.2022. The constitutional petition filed by the petitioner did not succeed and it was dismissed by the High Court vide the impugned judgment dated 21.09.2022.
3. The petitioner appeared in person along with the minor, Mohammad Ibrahim. The latter was smartly dressed and we found him to be visibly confident and mature for his age. He responded to our queries intelligently and his self assured demeanor was noticeable, despite having been exposed to the vicissitudes of separation followed by the divorce of his parents. He has unequivocally stated that although he acknowledged the respondent to be his father but he was a stranger to him, since they had hardly met after leaving his house. He, therefore, unequivocally expressed his reluctance to be separated from his mother i.e. the petitioner so as to live with his father. It was obvious that the respondent and the minor did not have a relationship or a bond in order to justify uprooting the latter from the custody of his mother. The learned counsel for the respondent was also heard.
4. The petitioner and the respondent are litigating over the custody of the minor since 2017. The marriage had ended in a divorce in 2016 and the respondent had filed an application before the family court in 2017 for obtaining the custody of the minor. The minor was an infant when he had left the house of the respondent and since then he has lived with the petitioner. The record shows that the respondent had not made a serious and meaningful effort to enable him to spend time with the minor, either through intervention of the court or otherwise. Admittedly, the petitioner has contracted another marriage after her divorce and the second husband has children from his first wife. It appears from the reasoning recorded in the judgments rendered by the Guardian Judge/Judge Family Court as well as the appellate court that the petitioner's second marriage and the age of the minor were the two factors that had prevailed for granting custody of the minor to the respondent. The variables in the context of assessing the welfare of the minor were not taken into consideration. The evidence produced by the parties appears to have been found sufficient to decide the custody dispute. The evidence relied upon by both the courts was not in the context of those factors which should have been considered in order to assess the welfare of the minor. The courts also did not seek professional assistance in order to assess the crucial factor of the welfare of the minor, nor such a professional service or facility appears to have been accessible to the courts. The minor was at the centre stage of the custody battle between feuding parents and the assessment of his interests and welfare was most crucial. This was definitely an overarching principle which ought to have been considered while deciding the custody dispute. The rights of the parents were subservient to the welfare of the minor and thus it was the duty of the courts to assess and determine a course that would have served the best interest of the minor. Any decision regarding the custody of a child without assessment and determination of the latter's welfare and best interests by taking into consideration the relevant factors and variables cannot be sustainable, nor can the exercise of discretion be lawful. The welfare of a minor and the latter's best interest is the foundational principle for deciding custody disputes. In order to appreciate the significance of the principle governing custody disputes it would be beneficial to highlight the settled law which ought to guide a court.
5. It is settled law that the father is the natural guardian while the mother is entitled to the custody (hizanat) of a male child till the age of seven years while in case of a female till she attains puberty. This right continues notwithstanding a divorce or separation. As a natural guardian it is the obligation of the father to maintain the child even if the custody is with the mother. The inability of the mother to financially support the child is not a determinate ground to deprive her from custody because in such an eventuality the father's obligation regarding maintenance is not extinguished. The rule that the father is a natural guardian and, therefore, entitled to the custody of the child nor that the mother loses the right of hizanat after the minor has attained the prescribed age or puberty, as the case may be, is not absolute, rather subject to exceptions.1 The decision regarding custody of a child is governed on the fundamental principle, the paramount and overarching consideration is the welfare of the child i.e. to ascertain the course which is in the latter's best interest. The crucial criterion is, therefore, the best interest and welfare of a child while determining the question of custody. The rights or aspirations of the parents or some other person are subservient to this principle and each case of custody must be decided on the basis of ascertaining a course which is in the 'best interest of the child'. The factors or variables that may be taken into consideration while determining the question of custody of a child are not exhaustive but they would depend on the facts and circumstances of each case. The guiding principle is to ensure that the determination of custody promotes the rights of the child as well as the latter's wellbeing. The overriding consideration must be to protect the child from any physical, mental or emotional injury, neglect or negligent treatment. The mother's disability, illiteracy or financial status are not the sole determinant factors.2 The second marriage contracted by the mother also cannot become a stand-alone reason to disqualify her from obtaining the custody of the child.3 The question of custody involves taking into consideration the factors which are relevant to the upbringing, nursing and fostering of the child. It essentially extends to the emotional, personal and physical wellbeing of a child. The sole object is to ensure that the overall growth and development of the child is guaranteed. The process adopted in order to determine the best interest has been described by the House of Lords4 "…….connotes a process, whereby all the relevant facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to follow will be that which is best in the interest of the child."
7. The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child. Sections 17 and 25 of the Act of 1890 set out the broad guidelines which are to be taken into consideration while deciding custody disputes. It is the duty of the court to form an opinion and adopt a course on the basis of the paramount principle of the welfare of the child. Section 17 explicitly provides that a court shall be guided by what appears in the circumstances to secure the welfare of the minor, consistent with the law to which the minor is subject. Subsection (3) provides that if the minor is old enough to form an intelligent preference then the court may consider that preference. As already noted above, while determining the welfare of the child in the context of custody disputes the court may grant the custody to a person other than the parents e.g. the grandparents or aunt, if doing so would promote the welfare and best interest of the child.5. As a general rule the guardian and family court is the final arbiter for determining the question of custody, except when it has made a determination in an arbitrary, capricious or fanciful manner i.e. when the fundamental principle of welfare of the child has not been considered or determined in the light of the variables which are relevant in the given circumstances.6 If the court has ignored the welfare of the child and the latter's best interest or has given preference to some other ground then the decision would not be sustainable. The court, in its endeavor to assess and determine the welfare of a child, is not bound to follow rigid formalities, strict adherence to procedure or rules or technicalities if doing so may hamper the determination or undermine the fundamental criterion of the best interest of the child.7 In a nutshell, the overarching and fundamental principle that must prevail and guide a court in determining custody disputes is the welfare of a child. The court has to adopt a course that would be in the best interest of the child because his/her welfare must always be the paramount consideration.
8. In the case before us, the minor was confident, intelligent and mature enough to form his own preferences. He had unambiguously stated before us that his father was no more than a stranger because he had not had the opportunity to spend time with him. He had also stated that he was not familiar with the other members of his father's family and thus for him they too were strangers. He visibly appeared to be happy and comfortable with his mother and his relationship with his step father also seemed to be pleasant. It is obvious from the record that the respondent, despite being his father, had not made a serious and meaningful effort to assert his visitation rights. The minor was definitely not prepared nor willing to live with his father at this stage. He unambiguously stated that he preferred to remain in the custody of his mother with whom he had lived since his birth. The crucial factor of the welfare of the minor and his best interest was not taken into consideration by the courts. In such an eventuality the minor would have been compelled, without his consent, to abruptly shift to a new abode where all the inhabitants would have been strangers to him. It would have definitely exposed him to unimaginable mental and emotional trauma. It could have resulted in irreversible lifelong psychological scars. It is obvious from the record that neither the family court nor the appellate court had taken appropriate steps to assess the welfare of the minor and, instead, the question of custody was decided on the basis of other factors. The factors taken into consideration could not override the criterion of adopting the course which would have been in the best interest of the child. The courts had erred in failing to inquire into or assess the emotional and psychological impact on the minor in case of an abrupt displacement from the custody of his mother with whom he had lived since his birth. There is nothing on record to even remotely show that the courts had undertaken an effective exercise to assess and determine the welfare of the minor and, thereafter, adopt a course that would have been in his best interest. The courts appear to have treated the delicate and sensitive dispute relating to child custody as if it was an ordinary civil matter. The judges who had dealt with the case may not have been professionally trained in order to enable them to identify the relevant variables and to assess and determine the question of custody of the child on the basis of the foundational principle of welfare of the child and then adopt a course that would have been in the latter's best interest. The relevant factors such as the parenting capacity, relationship of the child with each parent, the mental health of both the parents as well as the minor, the latter's emotional and mental needs and such other relevant factors in the context of determining the welfare of the child were not taken into consideration let alone assessment and determination of a course that would have been in the best interest of the child. The order regarding giving custody of the minor to the respondent in the circumstances could not have served his best interests. The psychological and emotional impact on the minor would have breached the foundational principle of his welfare and of adopting a course in his best interest. The impugned judgments are, therefore, not sustainable because the paramount fundamental criterion, the welfare of the minor, was not even considered, let alone its assessment and determination.
10. For the above reasons, we convert this petition into an appeal and the same is allowed. The impugned judgments/orders are hereby set-aside. Consequently, the custody of the minor shall be retained by the petitioner. We expect that as reasonable and responsible parents the respondent and the petitioner will amicably settle the custody dispute having regard to the best interest and welfare of the minor. We also expect that a visitation schedule will also be settled by them in such manner which will not breach the principle of the welfare of the minor. In case they fail to agree upon a schedule then the respondent shall be at liberty to approach a competent court to assert his visitation rights. In the meanwhile, the schedule, if any, settled by a competent court shall continue to be observed until it has been modified and varied.
11. We cannot turn a blind eye to the apparent failure of the State to fulfill its constitutional obligations in the context of safeguarding the rights of the children embroiled in litigation between the parents regarding their custody. The children are vulnerable and traumatic experiences early in life can leave lifelong scars which may profoundly affect the quality of their lives. The exposure of a child to the environment generally prevalent in the ordinary courts could profoundly affect their impressionable minds. Moreover, insensitivity or lack of special expertise on part of the presiding judges while dealing with matters relating to litigation involving the rights of children can gravely affect their rights and thus impact their lives adversely. The litigation involving the rights of children, such as custody disputes, requires special expertise, training and professional aptitude on part of the presiding judges. The environment of a court dealing with the rights of the children must also cater to their emotional and psychological needs. The courts must also be adequately equipped and enabled to professionally assess and determine the welfare of a child in each case. The courts must have access to professional consultation and advice of qualified experts such as psychologists. The parents and the courts must also have access to child welfare and social assistance services to protect and fulfill the rights of each child. Article 35 of the Constitution has explicitly made it an obligation of the State to protect the marriage, the family, and the mother and the child. The State has been defined in Article 7. It is a constitutional duty under Article 29(3) of the President or the Governor of the Province, as the case may be, to cause to be prepared and laid before the respective legislatures a report in respect of each year, inter alia, regarding observance and implementation of the obligation relating to children under Article 37 of the Constitution. Likewise, it is an obligation of the State to ensure that the fundamental rights enshrined in the Constitution are protected and fulfilled in the case of children. It is, therefore, implicit in the obligation of the State towards protecting the rights of the children to provide child friendly courts presided by specially trained professional judges. It is also the duty of the State to enable the child friendly courts to assess the welfare of the child in family matters, such as custody disputes, by providing access to professional consultation and opinions of experts e.g. psychologists etc. It is the State's responsibility to provide affective child care and social services to protect and facilitate fulfilling the rights of those children who get entangled in custody disputes between feuding parents. It is an obligation of the State of Pakistan under the United Nation Convention of Rights of the Child to ensure the protection and to take all necessary steps for child welfare. We direct the Registrar of this Court to send copies of this order to the President and the Governors of the Provinces to ensure compliance with their respective obligations under Article 29(3) of the Constitution in the context of Article 35 ibid. The Registrar is further directed to send copies of this order to the Chief Secretaries of the Provinces and the Chief Commissioner of Islamabad Capital Territory for fulfilling the obligations of the State in relation to the rights of the children as highlighted herein above. In addition, copies of the order is directed to be sent to the Director Generals of the Federal and Provincial Judicial Academies for their consideration to include special training courses for judges and staff of family courts, relating to dealing with child custody cases and to develop their capacity to assess and determine the criterion of welfare of the child.
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