MUhammad Rameez KHan vs Iram Iftikhar Ss — 2026 YLR 1078 HIGH-COURT-AZAD-KASHMIR

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MUhammad Rameez KHan VS Iram Iftikhar Ss. 17(1), 17(2) & 25 --- Custody of minor---Entitlement of father---Scope---Welfare of minor---Intelligent preference of minor---Importance---Father preferred appeal against handing down custody of minors to mother (respondent)---Held: Welfare of the minor is the paramount consideration; which is not merely a fixed criteria but the ultimate yardstick against which every fact including the child's age, sex and religion must be measured under the provisions of Ss.17(1) & 17(2) of the Guardians and Wards Act, 1890 ---It is an inviolable principle that no order be passed that is inimical to the child's demonstrated welfare --- For the safe administration of justice, and acknowledging the minors' current residence with the father, this/High Court summoned the children for an election between their parents; the minors, having been offered the choice, unequivocally refused to reside with their mother ---While the welfare of the minor remains paramount, a father's subsequent marriage does not, ipso facto, remove his constructive custody just like mother's second marriage does not remove hers--- Furthermore, the opinion of a minor is a vital component of their welfare, and S.17(3) of the Guardians and Wards Act, 1890 mandates that the Court may consider the intelligent preference where it is clearly expressed --- The father, by virtue of his status as the natural guardian, always retains the natural and constructive guardianship of the minor--- Therefore, excluding the father from the custodial arena while determining the welfare of the minor especially when the minors have clearly demonstrated their intelligent preference to remain with the father, and their educational and financial welfare demonstrably lies with him, is fundamentally misplaced and legally untenable ---Minors possess a separate legal entity, thus, keeping in view the paramount aim of the law when deciding custody of the minor, choice and tendency of the minor should be given preferential edge coupled with the other aspects --- It is not interest of the parent which is required to be taken into consideration but the primary consideration is the interest and welfare of the minor; therefore, when the matter of custody is before the Guardian Judge, he assumes the role of controller of the minor's welfare to determine the guardian's suitability from the record--- In said sense, no specific yardstick can be applied--- The factor of welfare must be judged from record/evidence and the overall circumstances, and it may vary from case to case --- High Court set-aside the impugned judgment/decree passed by the Guardian Judge and directed that the custody of the minors be immediately entrusted to the appellant / father, who, however, would be bound by law to arrange the meeting of the minors with the respondent/mother ---Appeal, filed by father, was accepted.

MUhammad Rameez KHan vs Iram Iftikhar Ss — 2026 YLR 1078 HIGH-COURT-AZAD-KASHMIR

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