Mst. TAHIRA PARVEEN vs DISTRICT JUDGE, LAYYAH Ss — 2022 MLD 1693 LAHORE-HIGH-COURT-LAHORE

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Mst. TAHIRA PARVEEN VS DISTRICT JUDGE, LAYYAH Ss.17 & 25 ---Custody of minor---Welfare of minor as paramount consideration rather than the right of the parents---Minor boy aged seven year---Mother (petitioner) contracted second marriage and had children from second marriage---Father failing to make maintenance and develop closeness---Respondent (father) filed a petition for custody of minor ,which was dismissed by the Trial Court---Appeal filed by the respondent was allowed---Case of the petitioner/mother was that minor was not interested in residing with the respondent/father as latter had always neglected the minor and had not made any attempt to strengthen bonding between them, would run counter to the welfare of minor to compel the minor to live with such a parent - Respondent/father denied petitioner/mother's assertion and claimed that Islamic Law mandated the handling over of a male child to father after the child attained the age of seven years---Exercise of choice by the minor was not relevant, more particularly, when petitioner (mother) was married to a stranger---Validity---Question as to who was entitled to hold custody of a child under the law did not normally arise during the subsistence of a marriage---Only after separation and /or divorce between the parents the parties become bitter and angry and such separation in itself creates tension between them, which generally leads to hostile and vengeful behaviors in the society---Such like situation is imperative to understand that children are a trust from Allah (Subhanahu Wa Ta"ala) and they should be treated and looked after in a proper manner and hence, while dealing with issues of custody of a child, his or her welfare is always the supreme consideration---Law that a mother has right to the custody of her son till the age of seven years and thereafter it goes to father, is not an absolute and invariable rule----Welfare of the child is given paramount importance ---Court has to consider child's welfare and interest over that of parents rights as Courts in the cases of custody and guardianship exercise parental jurisdiction----Welfare is to be determined by taking in to many factors including the choice of a minor provided such minor is capable of forming such preference---Welfare of a minor being a question of fact has to determined on case to case after appraising evidence---Admittedly, respondent had stopped paying the maintenance to the minor---Failure of respondent/father to develop closeness with the minor coupled with failure to make payment of maintenance and intelligent preference of minor disentitled the respondent from the guardianship of minor---Judgment of learned appellate court below was set aside and that of trial court was restored---Constitutional petition was allowed, in circumstances.

Mst. TAHIRA PARVEEN vs DISTRICT JUDGE, LAYYAH Ss — 2022 MLD 1693 LAHORE-HIGH-COURT-LAHORE

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