The Welfare of the Child must take Precedence over Preferential Rights under Personal Law --- Lahore High Court Upholds Father’s Custody of Minor
Islamabad 26-12-2024: The Lahore High Court (Rawalpindi Bench) has delivered a significant judgment in the case of Irfan Arshad Vs. Mst. Zainab Noor, restoring the custody of an eight-year-old minor to her father. The Court overturned decisions of the Additional District Judge and the Family Executing Court, emphasizing that the welfare of the child is the paramount consideration in custody disputes.
The case revolved around the custody of minor Zuria Noor following the death of her mother in 2020. The maternal grandmother (Respondent No. 1) filed a custody petition under Section 25 of the Guardians and Wards Act, 1890, claiming superior rights as per Muslim personal law. The Senior Civil Judge (Family Division), Rawalpindi, initially granted custody to the father (Petitioner), citing his ability to provide better care. However, the Additional District Judge reversed this decision, awarding custody to the grandmother.
The father challenged the appellate Court’s decision through a constitutional petition under Article 199 of the Constitution of Pakistan, 1973, asserting that the appellate Court overlooked critical evidence regarding the welfare of the minor.
Mr. Justice Jawad Hassan of the Lahore High Court, in a comprehensive judgment, restored the findings of the Family Division Court, declaring that the welfare of the child must take precedence over preferential rights under personal law. The Court observed:
- “Custody is about the care and comfort of the child, and the paramount consideration is always the welfare of the minor, not the entitlement of the parties.”
The judgment highlighted key factors that favored the father:
- The grandmother’s advanced age (80 years) and health issues rendered her incapable of independently caring for the minor.
- The father demonstrated financial stability, emotional availability, and active involvement in the minor’s upbringing and education in Lahore.
The Court also addressed allegations against the father, including claims of misconduct and withdrawal of funds from the deceased mother’s bank account, stating that the father’s acquittal in a related criminal case negated the allegations.
The Lahore High Court took strong exception to the actions of the Family Executing Court, which transferred temporary custody to the grandmother despite a stay order. Mr. Justice Jawad Hassan directed the District Judge, Rawalpindi, to investigate the conduct of the executing Court and submit a report within a month.
The Lahore High Court allowed the father’s petition, setting aside the judgments of the Additional District Judge and the Family Executing Court. Custody of the minor was restored to the father, while the Court reaffirmed the Senior Civil Judge’s original decision.
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