Right of the father to claim the custody of a minor son is not an absolute right,

In “Mst. Rabia Bibi v. Abdul Qadir and others” (2016 CLC 1460) it was observed to the effect that mere fact of remarriage of mother would not ipso facto disentitle her from retaining custody of minor and handing him over to the father when it is not otherwise in the welfare of the minor and that the welfare of the minor is the paramount consideration in determining the custody of a minor. In “Mst. Firdous Iqbal v. Shafaat Ali and others” (2000 SCMR 838) it was observed by the honourable Supreme Court as follows: 

“15. As stated earlier, the main consideration which weighed with the learned Judge in Chambers of the High Court for making the order of delivery of custody of the minor to the father was only that after attaining the age of seven years, the right of ‘Hizanat’ of the male minor child under the Muslim Personal Law vested in the father as he is the natural guardian under section 25 of the Guardians and Wards Act (VIII of 1890). The welfare of the minor, however, remains the paramount consideration in determining the custody of a minor notwithstanding the right of the father to get the custody after seven years of age of the male minor child. The custody of a minor can, however, be delivered by the Court only in the interest of the welfare of the minor and not the so-called right of the one parent or another. It is true that a Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. It would, thus, be noticed that right of the father to claim the custody of a minor son is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct in the light of the facts and the circumstances of each case. In the instant case, the evidence on the record showed that the respondent father who sought custody of the minor, neglected the child since the separation of the spouses inter se and had voluntarily left the custody to the petitioner-mother. She had brought him up and educated him till she had to opt for her second marriage…”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20

2020 LHC 162

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Second marriage could not be made a ground to disentitle the mother to the custody of the minors.

In “Sardar Hussain v. Mst. Parveen Umer and six others” (2003 YLR 3054) while considering the objection on the basis of second marriage of the mother, in custody matters, it was observed that: 

“6. The second plea is also not sufficient to disentitle the respondent No.1 from having the custody of the minors. She was deserted along with the 3 minors and was thrown into a tide of hostile social conditions with uncertain future and that too within our male dominated society thus she legitimately felt insecure and defenceless was therefore justified to contracting second marriage for securing her own future as well as of the minors. As discussed above, the petitioner did not pay a single penny to respondent No.1 for the maintenance of the 3 minors and the present husband took on himself such responsibility without any hesitation and exception. The minors have been brought up by this way by their mother with the help of the present husband, therefore, the second marriage could not be made a ground to disentitle the mother to the custody of the minors.”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20

2020 LHC 162

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Granting permanent custody of a male minor of tender age to his father

The petitioner who was paternal grandmother and also having statedly entered second wedlock herself after the death of her husband, could not be given preference to the real mother of the minors who since their birth was looking after them and bringing up the children along proper and better lines. In “Mst. Noor Afshan v. Muhammad Ghalib and 3 others” (2019 CLC 1787) it was observed as follows:

“…Learned appellate court granted permanent custody of the minor to respondents No.1 on sole ground that the petitioner has re-married and is now living with her second husband. In my humble opinion such ground could not be applied in the present case as the same could have been applied had been subject minor been a girl. Except for the above, no other justifiable reason has been assigned by the learned appellate court for granting permanent custody of a male minor of tender age to his father…”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Guardianship
1795-20

2020 LHC 162

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Marriageable age by the time she get decided her suit for dissolution of marriage.

Hon’ble Supreme Court in case Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others (2011 SCMR 1361) at page 1373 are quite relevant which are reproduced as under: 

“So, if the provisions of the Code and the Evidence Act were made applicable, it would have frustrated the very object of the Act, which requires the Special Court shall be constituted and such Court hall have exclusive jurisdiction in respect of the matrimonial disputes. The object of the Act is to shorten the agony of litigant parties and to provide them justice as early as could be possible. Matters pertaining to the Family Court be of dissolution of marriage, restitution of conjugal rights, entitlement of a child or children or of wife to the maintenance, payment of dower, all such issues are required to be decided in speedy manner, because no such issue can be left undecided for decades; because a minor, seeking maintenance, may become major by the time his case is decided by the Family Court or a wife, seeking dissolution of marriage, may go out of marriageable age by the time she get decided her suit for dissolution of marriage.”

Part Of judgment of
LAHORE HIGH COURT, MULTAN BENCH, MULTAN
Writ Petition-Family-Maintenance
2932-20

2020 LHC 758

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Does not pay the decretal amount he will pay the same

5. It is established from the record that the petitioner was not party in the suit. It is also established from bare perusal of the execution petition that the same was filed against Muhammad Nasir, judgment-writer. It is also established from the record that no decree has been passed against the petitioner. The petitioner never stood surety or guarantor on behalf of the judgmentdebtor. The petitioner did not give any undertaking that in case his son (judgmentdebtor) does not pay the decretal amount he will pay the same, therefore, decree could not be executed against the petitioner. The executing court has exceeded his jurisdiction by executing the decree against the petitioner who is the paternal grandfather of respondents No.3 and 4. Reference may be made to the case law titled as “Muhammad Jameel v. Mst. Tahira Bibi and 4 others” (2013 CLC 1529 (D.B.), “Muhammad Aslam v. Ayaz Ghazanfar and 2 others” (PLD 2012 Lahore 392) and “Mst. Nasreen v. Government of Sind and 2 others” (PLD 1989 Karachi 28).

Part of Judgment of
Lahore High Court
WP- Family Law
11914-15

2015 LHC 6866

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Sole property of the petitioner cannot be attached by the learned executing court.

3. It is mainly contended by the learned counsel for the petitioner that any order against a person who is not party to the proceedings is not executable against him. He has placed reliance on 2006 SCMR 913. He submits that the attached property is under the exclusive ownership and possession of the petitioner and the judgment-debtor has no concern with this property. He further contends that the petitioner never stood guarantor of the judgment debtor during the proceedings and in such circumstances the sole property of the petitioner cannot be attached by the learned executing court. He lastly contends that the impugned orders dated 16.10.2014 and 19.02.2015 passed by the learned lower courts are liable to be set aside. On the other hand learned counsel for respondents No.3 and 4 has supported the impugned orders. He also relied upon case law titled as “Sultan Ahmad v. Judge Family Court and 5 others” (PLD 2012 Lahore 148).

Part of Judgment of
Lahore High Court
WP- Family Law
11914-15

2015 LHC 6866

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File fresh suit on the same cause of action

6. In case titled “Sh. Shajar Hussain v. Haji Abdul Majeed and others” (2006 SCMR 913), it has been held as under:-

“After hearing the learned counsel for both sides and taking into consideration the fact that the property was originally owned by the Panjnad Textile Mills, therefore, it was incumbent upon the plaintiff/petitioner to have impleaded it as party and in absence of the original owner decree passed shall cause injustice to it and such order would not be executable against a person who was not a party to the proceedings. Therefore, we accept the request of the learned counsel for the petitioner. As a result whereof petition is converted into appeal the impugned judgment dated 1-3-2000 as well as judgments dated 2-2-1998 and 15-7-1996 passed by the trial Court and First Appellate Court are set aside and permission is accorded to the petitioner to withdraw the civil suit and file fresh suit on the same cause of action in accordance with law. Parties to bear their own costs”

Part of Judgment of
Lahore High Court
WP- Family Law
11914-15

2015 LHC 6866

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