Mst. NAYYAB ABBAS vs ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE Ss

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Mst. NAYYAB ABBAS VS ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE Ss. 17 & 25---Custody of the minor---Preferential right of real parents over an adoptive parent---Minor adopted by her paternal uncle---Uncle and his wife subsequently separating---Custody of minor retained by wife of uncle after separation---Plea of love and affection raised by non-parent for keeping custody of minor---Welfare of the minor in custody matters, significance of---Mother's right of 'hizanat'---Brief facts of the case were that the custody of the minor, was initially handed over to her paternal uncle/respondent No. 4 (adoptive parent), who was married at the time to the petitioner---This transfer of custody was formalized through an adoption deed, executed by the minor's biological father/ respondent No. 5, whereby it was stipulated that the custody of the minor would remain with the uncle and none else---The petitioner, as wife of respondent No. 4 (adoptive parent) at that time, became the primary caregiver of the minor---The minor resided with the petitioner and respondent No. 4 (adoptive parent) for a brief period until their marriage dissolved---Despite the divorce, the petitioner continued to retain the custody of the minor---The biological mother of the minor then sought custody which was allowed by the Guardian Judge and the decision was upheld on appeal---The question for determination before the High Court was as to "whether the petitioner (wife of adoptive parent) or the real parents were entitled to custody of the minor in terms of her welfare"---Held: Though adoption is permitted under principle of Islamic laws but compelling circumstances, under which adoption was imperative, were required to be established---As per admission by the petitioner for not having any blood relationship with the minor but still claiming her custody, in presence of her real parents, has a greater threshold and standards to be qualified by the petitioner for grant of her claim---The parentage of the minor was an admitted fact---A careful perusal of the petition under S. 25 of the Guardians and Wards Act, 1890 (the "Act 1890") filed by respondent No.3 reveals that the custody of the minor was handed over to respondent No.4/uncle by respondent No.5/real father, without consent of respondent No.3/real mother---The adoption deed reflected that respondent No.5/real father handed over custody of the minor to respondent No.4/uncle with a clear stipulation that custody of the minor would remain with respondent No.4/uncle and none else---Perusal of the adoption deed and petition under S. 25 of the Act, 1890 also revealed that respondent No.3/real mother claimed and sought custody of the minor in a year's time---Petitioner, who had no blood relationship with the minor and had even been divorced by respondent No.4/adoptive parent/paternal uncle, was a stranger to the family of the minor---Minor being of a tender and gullible age of seven years was not old enough to formulate her opinion or even to understand and realize the bonding of real blood relationship, therefore, her intelligent preference could not be obtained---However, the minor joining her family, which included her real parents and real sisters, would be an environment of true love, affection and care, and also in the best interest and welfare of the minor---The assertion that the minor was deeply attached with the petitioner was without any substance since a child naturally becomes associated and attached with any person, who raises him/her from the stage of infancy---This case was not of adoption simpliciter as the adoption deed was only in favour of respondent No.4/uncle and none else---The petitioner being not related to the minor at all and in presence of real parents of the minor, the custody of the minor could not be handed over to the petitioner as welfare of the minor best lay with her real/biological parents---Admittedly, respondents Nos. 3 and 5 were real parents of the minor and as per Ss. 17 and 25 of the Act 1890, welfare of the ward/minor lay with the real parents---Petitioner had no biological link to the minor and was only connected through a now-dissolved marriage with the minor's uncle, therefore, her claim was not only weak in statutory terms but also found no backing under the Shariah---No case for interreference was made out, consequently, the Constitutional petition was dismissed, in circumstances.

Mst. NAYYAB ABBAS vs ADDITIONAL DISTRICT AND SESSIONS JUDGE, LAHORE Ss — 2025 CLC 1761 LAHORE-HIGH-COURT-LAHORE

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