MUNAWAR BIBI vs MUHAMMAD AMIN and another
The petitioner sought leave to appeal against the judgment of the High Court which had restored the order of the Guardian Judge denying her custody of her minor children. The marriage between the petitioner and the respondent was dissolved by Talaq in July 1992, after which the petitioner applied for the Hizanat (custody) of their five children. The Guardian Judge dismissed the application based on an allegation that the petitioner was living in an immoral union with her brother-in-law, a finding relied upon despite her acquittal of Zina charges. On appeal, the Additional District Judge granted custody of the daughters to the petitioner while leaving the son with the father. However, a constitutional petition filed by the respondent in the High Court set aside the appellate order and restored the Guardian Judge's dismissal. Upon petition, the Supreme Court granted leave to appeal to examine whether the High Court was justified in depriving the petitioner of the custody of her minor daughters, noting that her acquittal reinforced her presumption of innocence and that maintenance was the father's obligation.
- Was the High Court justified in depriving the mother of the custody of her minor daughters based on allegations of an immoral union despite her acquittal?
- Does the pendency of an appeal against an acquittal for Zina destroy the presumption of innocence in child custody matters?
- Can a mother be denied the custody of her minor children on the ground of financial inability when maintenance is the father's legal responsibility?
ORDER
' SAAD SAOOD JAN, J.---The petitioner was married to the respondent in 1978-79. There were five issues of the marriage. In February, 1993 their ages ranged between 10 years and 4 years. The eldest is the son by the name of Shahbaz Ahmed. The other four are daughters. The spouses could not pull on together and the marriage ended in a Talaq on 25-7-1992. The petitioner moved an application for the Hizinat of the children before the Guardian Judge at Bahawalnagar. The learned Judge found that she was living with her sister's husband in an immoral union and as such the custody of the children could not be given to her. Accordingly, he dismissed the petitioner's application. The petitioner filed an appeal before the Additional District Judge, Bahawalnagar. The learned Additional District Judge partly accepted the appeal inasmuch as he allowed the custody of the son to remain with the father but granted the custody of the daughters to the petitioner. To call in question the legality of the order of the learned Additional District Judge the respondent filed a Constitution petition in the High Court. It was allowed and the order of the learned Guardian Judge was restored by the High Court. The petitioner seeks leave to appeal from this Court.
2. In support of this petition it is inter alia contended that the finding of the Guardian Judge with regard to her living in an immoral union with her brother-in-law was perverse. It is not unusual these days after the enforcement of the Hudood Ordinance for ex-husbands to involve their former wives in false cases of Zina in order to deprive them of the custody of the children; the petitioner had done the same. She has already been acquitted by the trial Court which re-in forced the presumption of innocence in her lavour. The mere fact that the respondent has filed an appeal before the Federal Shariat Court does not destroy that presumption. In the circumstances, the High Court ought not to have paid any attention to the allegation of bad character being levied against her by the respondent. The observation of the High Court that the petitioner was not in a position to maintain her children was entirely insufficient to deprive her of their custody for it was in any event the responsibility of the respondent to provide for them.
3. Leave to appeal is granted to consider whether the High Court was justified in depriving the petitioner of the custody of her minor daughters.
Cited by 9 cases
- Asjad Ullah vs Mst. Asia Bano and others 2025 SCP 156, 2025 PLJ SC 307
- ASJAD ULLAH Versus Mst. ASIA BANO 2025 PLD 541
- Dr. Muhammad Asif vs ADJ Layyah, etc 2024 LHC 2704, 2024 CLC 1520
- Mirza Waqar Ahmad etc vs Ayesha Zeeshan, etc 2023 LHC 965
- Mirza WAQAR AHMED and others vs AYESHA ZEESHAN and others 2023 MLD 1000
- Saima Nazir vs Guardian Judge (IV), Lahore and another 2023 LHC 354
- SAIMA NAZIR Versus GUARDIAN JUDGE (IV), LAHORE 2023 PLD 433
- Ms. Shazia Akbar Ghalzai, etc vs Additional District Judge etc 2021 MLD 817, 2021 PLJ Islamabad 110, 2021 IHC 62
- MUHAMMAD NAWAZISH ALI Versus FAMILY JUDGE 2021 CLC 1841