Mst. SURRAYA BIBI vs ABDUR RASHID
The petitioner, former wife of the respondent, sought leave to appeal against the dismissal of her appeal by the Lahore High Court, which had affirmed the Guardian Judge's order directing the custody of their minor son Ghulam Farid to be restored to the respondent father upon attaining the age of seven years, pursuant to a prior compromise decree. The core legal question concerned whether the welfare of the minor was properly considered, given the father's alleged lack of livelihood and the child's established bonding with the mother. The Supreme Court of Pakistan held that both lower courts duly considered the welfare of the minor alongside personal law and the compromise, finding no material on record to disentitle the father from custody. The Court laid down the principle that while the welfare of the minor remains paramount, a father is entitled to custody of a male child after a particular age under personal law unless compelling adverse circumstances are established on record. Consequently, leave to appeal was refused.
- Whether the welfare of a minor is adequately considered when custody is restored to the father in accordance with a compromise and personal law?
- Does a father lose his right to the custody of his minor son merely due to allegations regarding his source of livelihood and the whereabouts of his relatives?
- Is a mother bound by a pre-existing compromise regarding the transfer of a minor child's custody upon attaining a specific age?
ORDER
SHAFI-UR-REHHAN, J.-The petitioner, a former wife of Abdur Rashid respondent, seeks leave to appeal against the judgment of the Lahore High Court dated 5-11-1979 whereby her appeal against a direction to restore the custody of the minor son Ghulam Farid to respondent was dismissed with no order as to costs.
2. The petitioner and respondent were married and had an issue Ghulam Farid. The petitioner sought the dissolution of her marriage and obtained it by a compromise entered into whereby she undertook to restore the custody of the minor on his attaining the age of seven years to the respondent in accordance with the personal law, and not to claim any maintenance for him till then. The compromise was given effect to and after the minor attained the age of seven years, the respondent sought the custody of the child. The petitioner contested. The only issue framed was whether it is in the welfare of the minor to restore its custody to Abdur Rashid. The Guardian Judge held that in view of the compromise, in view of the personal law applicable to the parties and considering the welfare of the minor and the presumptions arising from the situation and law applicable the respondent was entitled to his custody. He ordered accordingly. The learned Judge in the High Court did not interfere with the order on appeal by the petitioner.
3. The learned counsel for the petitioner contended that the question of welfare of the minor has not received the attention which it should have received and instead the decision had proceeded entirely on the basis of the compromise and the personal law applicable to the parties entitling the father to the custody of the son after he had attained the age of seven years. In order to disentitle the respondent, the learned counsel for the petitioner contended that for the last four years the whereabouts of the respondent are not known, he has no independent source of livelihood as he is living with his brother and the child is receiving good education and is on intimate terms with his mother.
4. Not only the issue framed in the case centred the controversy on the welfare of the minor, the two courts have kept that factor in view and have referred to the compromise and the personal law applicable to the parties only to show that in the context there was nothing on the record which may disentitle the respondent from having the' custody. A male child does require paternal care and guidance after a particular age and even the petitioner considered it fair to let him have the custody after seven years. On the record we do not find any such material as may disentitle him to the relief granted by the two Courts on the finding that if is in the welfare of the minor that his custody should rest with whom the law requires it to rest. Leave to appeal is, therefore, refused.
Cited by 1 case
- Mst. NASEEM KAUSAR vs MUHAMMAD SALEEM and 2 others 2003 MLD 1306