Arshad Ali vs Mst — 2026 MLD 79 KARACHI-HIGH-COURT-SINDH

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Arshad Ali VS Mst. Uzma Ss. 7, 17 & 25---Custody of minor---Welfare of minor---Paramount consideration---Hizanat, right of---Plea of second marriage of wife/respondent---Right of the one of the parents versus welfare of minor---Preference---Trial court on the ground of second marriage of wife and mothering of another female child from second husband granted custody of minor to her first husband/petitioner---Appellate Court granted custody to mother/respondent on the ground of Hizanat---Validity---Right of Hizanat with respect to male child goes to the mother until minor becomes independent and capable of understanding things, that is to say, he becomes capable of easy walking, eating, drinking and performing other natural functions without assistance---Hizanat with respect to a boy ceases at the end of seven years of age---Although Muhammadan Law delineates that the mother loses her right to the custody of minor if she re-marries, however, this is not an absolute rule and may be departed from in exceptional circumstances to justify such departure, and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody---Guardianship Courts while dealing with matters relating to custody of minor children exercise parental jurisdiction---Custody of a minor can be delivered by the Court only in the interest and welfare of the minor and not as right of one parent or another---Muslim father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided if it is for the welfare of the minor---Similarly the right of the mother to claim the custody of a minor son aged below 7 years is not absolute, in that, the mother may disentitle herself to custody on account of her conduct in the light of the facts and circumstances---Respondent/mother neglected the child since the separation of the spouses and did not make arrangements for his schooling and opted for second marriage and mothered a baby girl leaving the minor exposed to the onslaught of step-motherly and step-fatherly treatment---All the factors disentitled respondent from custody of minor, yet in view of tender age of minor, he could not be deprived of the care of mother---High Court keeping the custody of the minor with respondent enhanced the visitation right of the petitioner from 03 hours in a week to 03 days in a week with liberty to initiate proper proceedings for permanent custody of minor after attaining the age of 07 years---Constitutional petition was disposed of accordingly. Citation Name: 2026 MLD 79 KARACHI-HIGH-COURT-SINDHBookmark this Case Arshad Ali VS Mst. Uzma Ss. 7, 17 & 25---Custody of minor---Determining factors/ considerations---Welfare of minor---Paramount consideration---Foremost consideration to decide the question of custody of a minor is his or her welfare and betterment---Welfare of the minor would overweigh against all other considerations---Under S. 17(2) of the Guardians and Wards Act, 1890, (Act) character and capacity of the proposed guardian as well as age and sex, is also an important factor to be considered while determining the welfare of the minor---Right of custody of minor is not an absolute right of any of the parent rather it is always subject to the welfare of the minor---Court in the light of facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to this settled principle---Under Muhammadan Law a Muslim father being the natural guardian of the minor has the preferential right of custody of minor but this rule does not apply rigidly.

Arshad Ali vs Mst — 2026 MLD 79 KARACHI-HIGH-COURT-SINDH

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