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The Welfare of the Child must take Precedence over the Procedural Technicalities of Section 26 of the Guardians and Wards Act, 1890 and same should not prevent access to better opportunities abroad --- Lahore High Court, Lahore

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Islamabad 18-09-2024: In a significant ruling, the Lahore High Court has allowed a mother to take her minor son to the United States for educational purposes, overriding the objections of the Guardian Court and Appellate Court. The Court’s decision, delivered by Mr. Justice Sultan Tanvir Ahmad, underscores the paramount importance of a child’s welfare in custodial cases, even when the non-custodial parent remains absent from proceedings.

The petitioner, Saadia Khalil, had initially sought the custody of her son, Rayyan Muhammad Yamin, who was born in the United States on October 28, 2015. After the child’s father failed to appear in Court, an ex-parte judgment was passed by the Guardian Court on March 21, 2024, granting the mother custody. However, the Court refused to grant the mother permission to take the child abroad, citing Section 26 of the Guardians and Wards Act, 1890, which restricts the removal of a ward from the jurisdiction without leave from the Court.

Dissatisfied with this condition, the petitioner filed an appeal, which was subsequently dismissed by the Appellate Court. This led her to file the present writ petition before the Lahore High Court.

The petitioner argued that the minor’s welfare should be the primary consideration, particularly as the child was born in the United States and was enrolled in school there. The petitioner’s counsel, Barrister Syeda Maqsooma Zahra Bokhari, emphasized that the child’s education and future prospects would be compromised if he was prevented from returning to the USA.

The Court also heard from Barrister Maryyam Hayat, acting as Amicus Curiae, who supported the petitioner’s position. She highlighted the respondent father’s complete disinterest in the visitation schedule set by the Guardian Court and argued that Section 26 should not be used to limit the child’s access to better educational opportunities abroad.

In its judgment, the Court highlighted that the welfare of the child must take precedence over the procedural technicalities of Section 26 of the Guardians and Wards Act, 1890. Mr. Justice Sultan Tanvir Ahmad noted that the intent of the law was not to impose a blanket restriction on the movement of a minor but to ensure that the child’s welfare is safeguarded.

The Court referred to several precedents, including:

“Scherazade Jamali Vs Hisham Gillani” (PLD 2018 Sindh 377), which stressed that a child should not be penalized due to parental disputes, especially when better educational opportunities exist abroad.
“Dr. Aisha Yousuf Vs Khalid Muneer” (PLD 2012 Sindh 166), where a custodial mother was allowed to take her child abroad for work, citing the modern-day need for both parents to pursue careers.

The Court also pointed out that the respondent father had shown no interest in either contributing to the child’s welfare or participating in Court proceedings. This led the Court to prioritize the mother’s request to relocate the child to the USA, where he could resume his education without further disruption.

The judgment has set a crucial precedent regarding the interpretation of Section 26 of the Guardians and Wards Act, 1890, affirming that a child’s welfare, particularly their educational future, is of paramount importance. The Court allowed the petitioner to take the minor abroad, provided that she keeps the Guardian Court informed of any changes to her residential address or the child’s educational institution.

The ruling is seen as a victory for custodial parents seeking to relocate their children for better educational or career opportunities. It reaffirms the Lahore High Court’s commitment to prioritizing the best interests of the child in custodial matters, particularly in cases where the non-custodial parent is uninvolved.

The case is expected to have far-reaching implications for future custodial disputes, especially where international relocation is a factor.