Mst. Shagufta vs Abdul Hafeez Ss — 2026 YLR 1308 KARACHI-HIGH-COURT-SINDH

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Mst. Shagufta VS Abdul Hafeez Ss. 561-a & 491---Inherent power of High Court---Matter of custody of children---Scope---Petitioner had filed Criminal Miscellaneous application against the order passed by additional Sessions Judge in habeas corpus petition for production of her minor children, whereby the Court handed over the custody of minors to the respondent---Validity---Muslim law provided that the mother was entitled to the custody (Hizanat) of her male child until he had completed the age of 7 years and of her female child until she had attained puberty, etc.---While it had been construed by the Courts that this might not be an absolute rule, and it might be departed from, if there were exceptional circumstances to justify such departure, yet, in making such a departure, the only fact that the Court had to see was where the welfare of the minor laid---District Court's observation that the minors appeared to be happy and healthy in the Court room and that the applicant appeared to be weak and depressed and because of the job of the respondent No. 1, were misconcieved, viz., the ancillary matter of handing over all the detenues to the respondent No. 1 while deciding an application under S.491, Cr.P.C.---Indeed, this Bench, while considering the welfare of the minor and notwithstanding the father's right for custody under Muslim Personal Law, was inclined to split the four children down the middle along gender lines, such that the applicant-mother got custody of the two girls and the respondent no.1-father retained custody of the two boys---Said division of custody between the parents, based on a 50:50 split, aimed to partially satisfy the emotional needs of each parent and child, as the case might be, while also triggering practical issues to prompt the parents to approach the proper forum, for guardianship/custody and/or maintenance, sooner rather than later, to secure the welfare of the children---Thus, the impugned Order passed by the District Court was upheld subject to the issues of guardianship/custody to be decided by the Guardianship Court/Family Court and until such time, the impugned order was modified to the extent of the guardianship/custody of the detenues as the minor daughter of the applicant and respondent no. 1, “NF” (2 years old), and the minor daughter of the applicant and her first husband, “R” (5 years old), were handed over to the applicant, who would retain custody of the two and, the minor boys, of the applicant and respondent No.1, “S” (3 years old) and “MR” (2 years old), would remain in the custody of the respondent No.1/father---Since the matter of custody, including paternity, required the recording of evidence and findings of fact to be recorded by a Court of competent jurisdiction observations of this Bench shall be treated as tentative and confined only to the impugned order and would not in any manner whatsoever influence the Guardian Court/Family Court, which shall decide the matter by independent application of mind to the facts, circumstances and the evidence before the same---application was disposed of, accordingly.

Mst. Shagufta vs Abdul Hafeez Ss — 2026 YLR 1308 KARACHI-HIGH-COURT-SINDH

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