YASIR KALWAR vs Mst — 2025 PLD 134 KARACHI-HIGH-COURT-SINDH

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YASIR KALWAR VS Mst. FARZEEN S. 25---Custody of daughters---Welfare of child---Paramount consideration---Second marriage of mother---Effect---Right of Hizanat, loss of---Existence of exceptional circumstance for retaining the custody by mother---Burden of proof---Father filed application for custody of his daughters on the ground that their welfare was with him as the mother had contracted second marriage with a person, who was not related to the minors within the prohibited degree---Petitioner-husband's application for custody of daughters was dismissed by both the Guardian Court and the Appellate Court---Validity---Mother's second marriage to someone unrelated to her children within the prohibited degree (a stranger) does not automatically disqualify her from custody---While paragraphs-352 and 354 of Principles of Muhammad Law suggest that mother loses such right of Hizanat upon remarriage, the child's welfare remains the paramount consideration---Even though the mother loses the automatic right to Hizanat, especially after daughters reach puberty, the court must still determine their best interests, which includes considering the children's physical and emotional needs, medical care, the parents' ability to provide a safe home, and the quality of parent-child relationship---Court must ascertain if exceptional circumstances exist to justify the mother retaining custody, the burden of proving which falls on her---Nothing was produced by mother to show that the petitioner/husband, who himself was a well-placed person, could not sustain maintenance of the minors at his house or there were some special and exceptional circumstances to justify minors living with a stranger and not with their real father---Daughters living with a stranger, who might be husband of their mother but not related to them within prohibited degree, was not even sanctioned by Islam---In absence of any exceptional circumstances, which the mother had not pointed out through tangible evidence and which might disentitle the petitioner from custody of his daughters, the living of daughters with a stranger could not be perpetuated judicially at the alter of convenience of the minors, which they were used to by the dint of living with their mother for a considerable time---Petitioner was the real father of the minors, hence, was natural guardian, who was living in a joint family house, where apart from him, his parents were also residing, thus, minor daughters would be more comfortable in living with their father and grandparents than living with a stranger---Application was allowed, in circumstances, by handing over custody of daughters to father and establishing visitation rights of mother.

YASIR KALWAR vs Mst — 2025 PLD 134 KARACHI-HIGH-COURT-SINDH

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