A Mother’s Remarriage does not automatically Disqualify her from Custody especially when Welfare of the Minor lies with her and Minor’s Father resides Abroad having Lack of Active Involvement in Minor’s Lives --- Supreme Court of Pakistan
Islamabad 07-12-2024: In a landmark judgment, the Supreme Court of Pakistan dismissed a Petition seeking the father’s custody of two minor children, emphasizing that the welfare and best interests of minors remain paramount in guardianship disputes.
A bench comprising Mr. Chief Justice Yahya Afridi and Mr. Justice Shahid Bilal Hassan upheld the decisions of the lower Courts, which had granted custody of the minors to their mother, despite the father’s claim as the natural guardian under Islamic law.
The case arose when the Petitioner, Gul Sadem Khan, filed a guardianship petition against his former wife, Mst. Halima, for custody of their two minor sons. The trial Court dismissed the petition, and the appellate Court upheld the mother’s custody with minor modifications. Dissatisfied with these rulings, the petitioner approached the Peshawar High Court, which also rejected his plea. The petitioner subsequently sought leave to appeal in the Supreme Court of Pakistan.
The Supreme Court of Pakistan reaffirmed that:
- Sections 25 and 17 of the Guardians and Wards Act, 1890 prioritize the welfare and betterment of minors above all else.
- While a Muslim father is the natural guardian, his right to custody is conditional and subject to the welfare of the child.
The Court noted that under Islamic principles, a mother’s remarriage does not automatically disqualify her from custody if the welfare of the minor lies with her.
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