Mst. RAFIQAN AND 2 OTHERS vs JALAL DIN
This matter concerns a custody dispute over a minor girl, Mst. Surayya, born to Mst. Habiban and Jalal Din, whose marriage was dissolved in 1973. Following the mother's remarriage in 1979, the minor remained with her maternal relatives. The father's application for custody was granted by the trial court, and subsequent appeals and revisions were dismissed. The core legal question before the Supreme Court was whether the custody order properly prioritized the welfare and expressed wishes of the minor. Upon interviewing the minor, who was over ten years old and intelligent, the Court observed her strong preference to live with her mother, noting her unhappiness with the father. The Court held that the welfare of the minor is the paramount consideration in custody matters. Consequently, the Court allowed the appeal, restored the minor's custody to the mother, and established specific visitation rights for the father, while prohibiting the removal of the minor from Faisalabad without consent. The principle laid down is that the welfare and expressed preference of a minor are decisive factors in determining custody arrangements.
- Does the welfare of a minor take precedence over the father's right to custody in a dispute between parents?
- Can the court consider the expressed wishes of a minor child when determining custody?
- Is it permissible for an appellate court to grant visitation rights to a parent while awarding custody to the other?
ORDER
M. S. H. QURAISHI, J.-The case concerns the custody of Mst. Surayya, a minor girl who is the daughter of M:st. Habiban petitioner No. 3 from her marriage with Jalal Din respondent. The marriage was dissolved by a decree passed on 4-12-1973. The girl lived with her mother but when the latter re-married on 2-5-1979, she remained in the custody of Mst. Rafiqan petitioner No. 1 and Khair Din petitioner No. 2, the step-mother and father respectively of Mst. Habiban. Jalal Din moved an application for custody of the minor, which was allowed, against which the petitioners' appeal before the Additional District Judge, Faisalabad, and revision petition before the High Court failed.
2. The grievance taken before us was that the girl had not been produced before the Court in order to ascertain her wishes nor had any provision been made in the order for enabling the mother to meet the child. Notice was, therefore, issued by this Court on 10-1-1983 to the respondent to produce the girl.
3. Today all the petitioners and the respondent with the minor are present in Court. It is stated that the girl was born on 6-4-1972 and as such is over ten years of age. Even otherwise, she appears to be intelligent. She has tearfully beseached us to let her go with her mother. She does no appear to be at all happy to live with her father. Learned counsel for the petitioners has submitted that the minor can now live with her mother without the step-father being there as she has come back to her parents and is seeking dissolution of her second marriage.
4. After hearing the parties we consider that it will be in the interest of the welfare and happiness of the minor that she lives with her mother. We accordingly convert this petition into appeal and allow it. The girl is restored to the custody of her mother, with the direction that she will not be removed from Faisalabad Town without the consent of the respondent. The respondent will also have the facility to meet the minor every Friday for two hours from 10-30 a. m. At the house of Mr. Bashir, Councilor from Ward No. 40, Ghulam Muhammadabad, Faisalabad.
Cited by 3 cases
- Mst. Raees Begum vs Addl. District Judge, etc 2020 YLR 2575, 2020 LHC 162
- Mrs. SEEMA CHAUDHRY and another vs AHSAN ASHRAF SHEIKH and others 2003 PLD Supreme Court 877
- Mst. RAZIA Ball. vs DISTRICT JUDGE, BAHAWALNAGAR and 3 others 1992 CLC 1981