The Welfare of the Child and Biological Parents’ rights take precedence in Custody Disputes --- Lahore High Court Upholds Biological Parents’ Custody
Islamabad 08-02-2025: In a significant ruling, the Lahore High Court dismissed a constitutional petition filed by a couple seeking custody of their adopted nephew, reaffirming that the welfare of the minor and preferential custodial rights of biological parents take precedence in child custody cases. The judgment also highlighted the urgent need for comprehensive legislation to regulate adoption procedures in Pakistan.
The case, Erum Shahzadi & another Vs. Additional District Judge, Sialkot & 04 others (W.P. No. 9573 / 2024), revolved around the custody of minor born in July 2021, who was adopted by his paternal great-uncle and great-aunt shortly after birth. However, after 20 months, the biological mother, Respondent No. 3, filed for custody, claiming she was coerced into the adoption and alleging that the adoptive parents had unlawfully registered themselves as the child’s parents on his birth certificate.
Mr. Justice Abid Hussain Chattha, presiding over the case, emphasized that the welfare of the minor is the paramount consideration in custody disputes. He ruled that while adoption is recognized under Islamic jurisprudence, it does not sever the biological relationship between the child and the real parents. The Court concluded that the biological mother had a preferential right to custody, especially since there was no evidence that her custody would harm the child’s welfare.
- “There is no justification for depriving a mother of her natural right to raise her child, particularly in the absence of any allegations of neglect or incapacity,” the judgment stated.
While the Court acknowledged that adoption is permissible under Islamic law, it clarified that such adoption does not permit altering the child’s parentage in official records. Referring to Quranic injunctions (Surah Al-Ahzab 33:4), Mr. Justice Abid Hussain Chattha stated that adopted children must be identified by their biological fathers’ names, and any alteration of this is against the injunctions of Islam.
The judgment highlighted procedural deficiencies in the adoption, pointing out that the Petitioners failed to execute a formal adoption deed or obtain a guardianship certificate from the Guardian Court. Mr. Justice Abid Hussain Chattha emphasized that while there is no comprehensive statutory framework for adoption in Pakistan, certain legal procedures must be adhered to, especially concerning the preservation of a child’s biological identity.
In a notable directive, Mr. Justice Abid Hussain Chattha ordered that a certified copy of the judgment be sent to the Secretary of Law & Parliamentary Affairs, Government of Punjab, urging the initiation of appropriate legislation on adoption. The Court stressed the need for a clear statutory framework outlining the conditions, procedures, and legal consequences of adoption to prevent legal ambiguities and protect the welfare of minors.
Concluding the case, the Lahore High Court dismissed the Petition and upheld the concurrent decisions of the Family Court and the Additional District Judge, Sialkot, which had granted custody of the minor to his biological mother.
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