Amjad Ali Versus Additional District Judge, Pattoki

ABID HUSSAIN CHATTHA, J.--- This constitutional Petition is directed against the impugned Judgments and Decrees dated 11.03.2022 and 18.10.2022 passed by Judge Guardian Court and Additional District Judge, Pattoki, District Kasur, respectively.

2. Precisely, the Petitioner instituted a Custody Petition under Section 25 of the Guardians and Wards Act, 1890 against Respondent No. 3 (the "Respondent") seeking custody of Rehan Amjad (the "Minor") on the grounds that Para 357 of the Muhammadan Law entitles him to seek custody of the Minor son who is beyond seven years of age; and the Respondent herself executed an agreement agreeing to handover custody of the Minor in case of second marriage which she has contracted which also attracts Para 354 of the Muhammadan Law disentitling the Respondent from retaining custody of the Minor upon her second marriage.

3. The claim was resisted by the Respondent. The Trial Court after framing of issues and recording of evidence dismissed Custody Petition of the Petitioner and chalked out a visitation schedule in his favour. The Petitioner preferred an Appeal but the same was also dismissed.

4. The Courts below while determining welfare of the Minor on the basis of evidence on record discarded the agreement qua custody of the Minor on the ground that custody of the Minor cannot be settled through a private compromise or even by arbitration and is liable to be determined on the touchstone of the principle of welfare. It was also noted that it is trite law that second marriage of a female is not an impediment for a mother to retain custody of a child if she is otherwise found suitable for custody of the child on the principle of welfare. This is particularly so when in the present case even the Petitioner has contracted second marriage and has a daughter from his existing wife. Rather, the Petitioner has presently contracted his 4th marriage with one Shahnaz Bibi and in such a situation, the Minor cannot be left at the mercy of a stepmother when the Petitioner is a police officer who remains on assignments out of his house for most of the time. More so, the Minor is living with the Respondent since his birth and has developed deep love and affection with her who is being raised in a cordial and comfortable atmosphere and is being properly educated.

5. It is importantly noted that in compliance with the Order dated 06.02.2024, the Minor was produced and he was examined by this Court. He candidly stated that he is studying in Class-V in J.W Grammar School, Phool Nagar and wants to reside and be raised by his mother. Hence, this Court finds no illegality, infirmity or jurisdictional defect in the impugned Judgments for the reasons that welfare of the Minor is prime consideration to decide custody matters. Neither any agreement qua custody of the Minor which is in derogation of the right of a child with respect to his welfare nor contracting of a second marriage by divorced mother of the child are impediments for such a mother to retain custody of her child. Rather, the matter of custody is to be decided on the touchstone of the principle of welfare. Reliance is placed on cases titled, "Mst. Beena v. Raja Muhammad and others" (PLD 2020 SC 508) and "Shaista Habib v. Muhammad Arif Habib and others" (PLD 2024 SC 629).

6. In view of the above, this constitutional Petition, being devoid of any merit, is dismissed, accordingly.

MQ/A-15/L Petition dismissed.