Summary: S.114,151,O-XLVII,R-1 CPC:Scope of review,appointment of guardian ad litem

Summary: S.114,151,O-XLVII,R-1 CPC:Scope of review,appointment of guardian ad litem

Summary: (a) Guardians and Wards Act (VIII of 1890) ----Ss. 12 & 25—Criminal Procedure Code (V of 1898), S. 491—Custody of minors—Scope of jurisdiction—Interim custody—Declaration of permanent custody—High Court's jurisdiction under S. 491, Cr.P.C. is limited to cases of illegal or improper custody and not for making final determination regarding guardianship or long-term custody—Supreme Court held that S. 491, Cr.P.C. cannot be invoked to declare a guardian or to permanently decide custody matters—Final custody of minors must be adjudicated under Guardians and Wards Act by Guardian Judge in light of welfare of minors—Held, trial Court was competent to grant interim custody under S.12 of the Act and Supreme Court judgment did not place any bar on such exercise of jurisdiction. Cited Case: • Appeal No. 37/R-88, Supreme Court of Pakistan (b) Guardians and Wards Act (VIII of 1890) ----S. 12—Interim custody—Welfare of minors—Considerations—Father granted interim custody of two minor daughters by Guardian Judge—Mother objected based on fear of abduction and influence of stepmother—Court held that both minors were familiar and friendly with their father—Presence of stepmother not detrimental to welfare of minors as grandparents also resided in same household—Interim custody allowed for limited period with conditions including return of minors, provision of security, and tutorship arrangements—Grandfather of minors directed to stand as surety for Rs. 500,000 to ensure compliance. (c) Constitution of Pakistan (1973) ----Art. 199—Constitutional jurisdiction—Writ petition against interim custody order—Scope—Petitioner challenged interlocutory order of Guardian Judge granting temporary custody to father—High Court held that trial Court was competent to decide interim custody under S.12, Guardians and Wards Act and did not exceed jurisdiction—Petition dismissed accordingly.

Summary: Background:Mst. Zubaida Khanum filed an application for her appointment as the guardian of her two minor children, currently in her custody, against the respondent, Shah Nawab, the father of the minors. In response, Shah Nawab revealed he had also filed an application under section 25 of the Guardians and Wards Act for the custody of the minors in the Guardian Judge, Hyderabad. The Guardian Judge, Bahawalpur, stayed the proceedings based on section 14(1) of the Guardians and Wards Act, pending a decision from the Provincial Government on which court should try the petition.-----Issues:Whether the proceedings for the appointment or declaration of a guardian of a minor should be stayed under section 14 of the Guardians and Wards Act when there are simultaneous proceedings in different courts.Whether proceedings for securing the custody of a minor can be equated with those for the appointment or declaration of his guardian for the purpose of applying section 14 of the Act.-----Holding/Reasoning/Outcome:The court held that section 14 of the Guardians and Wards Act applies only to proceedings for the appointment or declaration of a guardian of a minor and not to all types of proceedings concerning the minor. Consequently, the Guardian Judge, Bahawalpur, erred in staying the proceedings under section 14 since the proceedings initiated by Shah Nawab in Hyderabad were for the custody of the minors and not for the appointment or declaration of a guardian. The proceedings in Bahawalpur and Hyderabad were not of the same category, and thus, the condition for invoking section 14 was not satisfied. The court accepted the revision, indicating that the order to stay the proceedings was incorrect.-----Citations/Precedents:-Guardians and Wards Act (VIII of 1890), Section 14: Outlines the procedure when simultaneous proceedings for the appointment or declaration of a guardian of a minor are taken in more than one court.-Guardians and Wards Act (VIII of 1890), Sections 14 and 25: Section 25 specifically deals with the custody of minors, differentiating it from the appointment or declaration of guardians under Section 14.

Summary: (a) Guardians and Wards Act (VIII of 1890) --- S. 25 --- Custody of minor daughters --- Second marriage of mother with stranger --- Effect --- Paramount consideration of welfare of minors. Petitioner, the biological father, sought custody of his minor daughters under S. 25 of the Guardians and Wards Act, 1890, on the ground that the mother (respondent) had contracted a second marriage with a man not related to the minors within the prohibited degree. Held, although under Muhammadan Law a mother forfeits her right of hazanat upon remarriage with a stranger, this rule is not absolute and may be departed from where welfare of the minor so requires. In the instant case, the daughters had attained puberty (ages 16/17 and 13/14 respectively), making the mother’s right of hazanat inapplicable. No exceptional circumstances were demonstrated by the mother to justify continued custody. Welfare of the minors, including emotional needs, living conditions, and religious considerations, demanded that custody be transferred to the father, who lived with his parents in a stable joint family home. Accordingly, the Court restored custody to the petitioner/father. Cited cases: Mst. Ansa v. Muhammad Ijaz (2014 SCMR 343) Muhammad Bashir v. Additional District Judge (1981 SCMR 200) Muhammad Abbas v. Mst. Saman (2018 YLR 1771) Mst. Parveen Akhtar v. Additional District Judge (2022 SCMR 2123) (b) Islamic Law --- Custody of daughters --- Living with stepfather --- Not permissible in absence of exceptional circumstances. Held, Islamic injunctions do not sanction minor daughters living with a non-mahram (stranger) man, even if he is the husband of their mother. In the absence of any evidence showing unfitness or inability of the father to maintain or care for the minors, judicial approval of continued custody with the mother—now married to a stranger—is untenable. Emotional convenience or existing arrangements cannot override religiously grounded norms unless supported by compelling and exceptional justification. (c) Guardians and Wards Act (VIII of 1890) --- Welfare of minor --- Considerations for determining custody --- Scope. Held, welfare of the minor remains the paramount criterion for determining custody. Courts must consider all relevant factors including physical, moral, and emotional well-being, capacity of parents to maintain a secure and stable home, quality of relationship with each parent, and religious and cultural norms. In the instant case, the father was a well-placed officer residing in a joint family home, and no disqualifying factor was established against him. Welfare considerations thus favored granting him custody. Disposition: Petition allowed. Impugned judgments set aside. Custody granted to father with visitation rights to mother.

Summary: (a) Guardians and Wards—Custody of minors—Visitation rights—Welfare of children: ----Custody dispute—Mutual agreement—Scope—Petitioner (mother) and respondent (father) disputed custody of two minor sons—Parties appeared before the Supreme Court and consented to an amicable arrangement regarding custody and visitation—Held, both minors shall remain in custody of the mother—However, a detailed schedule of visitation rights was granted to the father to ensure continued contact and bonding—Supreme Court emphasized the psychological wellbeing of minors and the obligation of both parents to refrain from any conduct that may prejudice the children's impressionable minds against the other parent—Visitation plan included alternate weekends, shared custody during summer and winter vacations, Eid holidays, unscheduled holidays, family events, and monthly financial contributions—Father was directed to bear all educational and personal expenses of the minors including a monthly allowance. (b) Guardians and Wards Act, 1890: ----S. 17—Welfare of minor—Paramount consideration—Held, custody arrangements must reflect the best interests and welfare of the minor—Where parties reach compromise, the terms must balance parental access and emotional stability of the child—In instant case, court-approved arrangement ensured sustained relationship with both parents without disrupting the minors' primary residence and educational routine. ----Disposition: Petition disposed of in terms of compromise recorded before Supreme Court—Custody retained by mother—Visitation rights granted to father—Detailed financial and custody obligations imposed.

Summary: (a) Constitution of Pakistan ----Art. 199---Habeas corpus---Illegal detention of minor---Custody of child---Scope of constitutional jurisdiction---Petitioner (maternal grandmother) sought recovery and custody of her minor grandson, alleging his illegal detention by the father (Respondent No.1) and his siblings (Respondents No.2 & 3)---Record revealed that after the death of the minor’s mother, the Petitioner raised the child until Respondent No.1 forcibly took him away in 2020---Guardian Court, vide order dated 07.06.2023, had already declared the Petitioner lawful guardian of the minor---Appeal filed by Respondent No.1 was dismissed for non-compliance, and the said order attained finality---Held, that continued withholding of the minor by the Respondents constituted illegal detention and a violation of lawful court orders---High Court, in exercise of constitutional jurisdiction, is competent to issue directions for the recovery of a minor illegally detained by any person acting contrary to judicial orders. (b) Guardians and Wards Act (VIII of 1890) ----S. 25---Custody of ward---Execution of guardianship order---Respondent’s failure to comply with guardian court’s decree---Effect---Once a person is declared guardian by a competent court and the order attains finality, refusal or failure to hand over the minor amounts to unlawful custody and contempt of lawful authority---Respondents No.1 to 3, despite final adjudication, failed to produce or surrender the minor, thereby frustrating execution proceedings---Held, such conduct undermines the authority of courts and warrants coercive measures for enforcement. (c) Administration of justice--- ----Defiance of court orders---Consequences---Courts’ authority cannot be rendered illusory by willful disobedience of judicial directions---Respondents’ failure to produce the minor despite warrants and CNIC blocking orders demonstrated deliberate obstruction---Held, that the court is bound to protect the sanctity of its orders and ensure compliance through appropriate penal action under the PPC and Cr.P.C. (d) Child welfare--- ----Best interest of minor---Custody to maternal grandmother---In absence of mother, welfare of the child is of paramount consideration---Petitioner had already nurtured the child since infancy and was declared lawful guardian---Held, that minor’s welfare lies in restoring custody to the Petitioner. Disposition: Petition allowed---Inspector General of Police, Islamabad, directed to recover the minor from illegal custody of Respondents No.1 to 3, produce him before the Guardian Court, and hand over custody to the Petitioner in compliance with the guardian court’s order dated 07.06.2023---Proceedings under relevant provisions of PPC and Cr.P.C. to be initiated against those obstructing compliance.

Summary: (a) Guardian and Wards Act, 1890---- ----S. 25—Custody of minor—Dismissal for want of evidence—Remand granting one final opportunity—Paramount consideration of welfare—Held, in custody matters the child’s welfare overrides procedural defaults; Appellate Court rightly set aside the dismissal for non-production of evidence and remanded the case granting respondent-father a single, time-bound opportunity to lead his entire evidence so that the Guardian Court may adjudicate on merits in the minor’s best interests. (b) Civil Procedure Code (V of 1908)---- ----O. XXVII, R. 3—Failure of a party to produce evidence—Proper course—Held, before invoking consequences for default, the Court ought to have recorded the defaulting party’s statement and then proceeded; record did not show such compliance by the Guardian Court—reference made to Hashim Khan v. Haroon-ur-Rashid (2022 SCMR 1793). (c) Family law—Administration of justice---- ----Merits over technicalities—Where the father has maintained contact and contributed to maintenance, shutting him out without a final chance would risk prejudice to both sides and hamper a fully informed welfare assessment—Limited remand with one chance was a balanced, lawful exercise of appellate jurisdiction. (d) Constitution of Pakistan---- ----Art. 199—Judicial review of appellate remand—Scope—No jurisdictional error, perversity, or illegality shown in the Appellate Court’s order; interference declined. Disposition: Writ Petition dismissed; Appellate Court’s order dated 07.03.2025 upheld; matter remanded to Guardian Judge with one final, fixed-date opportunity to respondent No.1 to produce complete evidence, thereafter to be decided on merits keeping the minor’s welfare paramount.

Summary: Convention on the Civil Aspects of International Child Abduction 1980 ---- (a) Family Courts Act, 1964 ----Ss. 5, 9 & Sch. Part I, Item 5---- Guardians and Wards Act, 1890 ----S. 25---- Muslim Family Laws Ordinance, 1961 ----S. 1---- Civil Procedure Code, 1908 ----S. 83---- Convention on the Civil Aspects of International Child Abduction, 1980 (Hague Convention) ----Arts. 3, 4, 5, 12, 13 & 19---- Custody of minors---Jurisdiction of Guardian/Family Court---Nationality of parents/minors---Effect---Application under S. 25 of the Guardians and Wards Act, 1890 for custody of two minor children (German nationals, domiciled in Germany, previously resident in England) dismissed by Guardian Court and Appellate Court on ground of lack of jurisdiction as parents and children were foreign nationals---Held, question of nationality or citizenship is not relevant in determining jurisdiction of courts in Pakistan for custody matters---Under S. 83, C.P.C., even a foreigner can sue in Pakistan unless an alien enemy, provided cause of action has arisen or defendant resides within jurisdiction---Under Family Courts Act, 1964, matters relating to custody of minors fall within exclusive jurisdiction of Family Court, having overriding effect over GWA-1890 in such cases---Territorial jurisdiction to be determined under S. 9, GWA-1890 on basis of ordinary residence of minors---Guardian/Family Court also vested with jurisdiction to determine disputes under Hague Convention in view of SRO 980(I)/2017 inserting Art. 6-A in Sch. (Part I) to FCA-1964---Lower courts erred in declining jurisdiction solely on basis of nationality without examining welfare of minors or merits of custody claim. Cited Cases: • Umar Ahmad Ghumman v. Government of Pakistan PLD 2002 Lahore 521 • Muhammad Zaman v. Uzma Bibi 2012 CLC 24 • Anne Zahra v. Tahir Ali Khilji 2001 SCMR 2000 • Saima Nazir v. Guardian Judge (IV) Lahore PLD 2023 Lahore 433 • Sohail Ahmed v. Mst. Samreena Rasheed Memon 2024 SCMR 634 (b) Hague Convention, 1980 ----Arts. 3, 4, 5, 12, 13 & 19---- Wrongful removal or retention---Habitual residence---Rights of custody---Scope and application---Terms “habitual residence”, “wrongful removal” and “retention” to be interpreted in a harmonized and literal manner to ensure uniformity among contracting States---“Habitual residence” is a factual determination involving voluntary presence and degree of integration into social/family environment; does not require intention to reside indefinitely---Wrongful removal entails breach of custody rights under law of habitual residence, exercised or would have been exercised but for the removal/retention---Under Art. 12, return of a child wrongfully removed/retained must be ordered forthwith if proceedings commenced within one year; after one year, return still to be ordered unless child is settled in new environment---Under Art. 13, return may be refused if custody rights were not being exercised, consent/acquiescence established, or grave risk to child shown---Court not to conduct best interest inquiry in Hague Convention proceedings beyond the scope of these Articles. Cited Cases: • Mark v. Mark [2005] UKHL 42 • Shah v. Barnet London Borough Council [1983] 2 AC 309 • Udny v. Udny [1869] LR 1 Sc • Re M (Children) (Abduction) [2007] UKHL 55 • In re D (a child) [2006] UKHL 51 (c) United Nations Convention on the Rights of the Child, 1989 (UNCRC) Welfare of minors---International obligations---Court emphasized that in matters of custody/relocation, welfare of minors is paramount consideration in light of UNCRC obligations---Supreme Court in Malik Mahmood Ahmad Khan and Dr. Muhammad Asif cases has issued binding guidelines for determining custody/relocation keeping in view best interest of child. Cited Cases: • Dr. Aisha Yousuf v. Khalid Muneer PLD 2012 Sindh 166 • Scherazade Jamali v. Hisham Gillani PLD 2018 Sindh 377 • Saadia Khalil v. Additional District Judge, Lahore 2025 CLC 478 • Malik Mahmood Ahmad Khan v. Malik Moazam Mahmood CPLA 2250-L/2016 • Dr. Muhammad Asif v. Dr. Sana Sattar CRP No. 458/2024 (d) Administration of justice Jurisdiction wrongly declined---Effect---Where both Guardian Court and Appellate Court declined jurisdiction solely on basis of nationality without considering ordinary residence, Hague Convention provisions, or welfare of minors, such approach resulted in failure to decide matter on merits and to protect rights of children---Orders of both courts set aside---Matter remanded to Guardian Court to decide custody on merits expeditiously. Disposition: Petition allowed; impugned orders set aside; case deemed pending before Guardian Court for decision on merits; parties directed to appear before Guardian Court on 25.07.2025; early disposal ordered.

Summary: (a) Guardians and Wards Act (VIII of 1890) –– Ss. 25 & 17 –– Custody of minors –– Paramount consideration –– Welfare of minor –– Petitioner's (father's) custody challenged by mother under S.25 for permanent custody of three minor children –– Family Court and Appellate Court allowed mother's application –– Held, under S.17, Guardians and Wards Act, the right of custody is not absolute and is subject to welfare of the minor –– Record showed that petitioner (father) was a government servant, financially stable, and had enrolled children in school –– Minors expressed clear desire to remain with their father and refused to meet their mother, alleging she had mistreated them –– Mother was living dependently with her brothers and had no independent source of income –– Courts below failed to consider these facts and welfare of minors –– Custody with father held to be in their best interest –– Petition accepted; custody application of mother dismissed –– Mother granted visitation rights. Relevant Provisions: Guardians and Wards Act, 1890, Ss. 17 & 25. Disposition: Petition allowed; custody restored to father; visitation rights granted to mother. **(b) Guardianship –– Custody of children –– Age and preference of minor –– Statement of minor children disfavoring custody with mother –– Relevance –– Held, while assessing welfare of minor, Court may consider preferences of children if they are of an age to form intelligent opinion –– In instant case, minors stated they preferred to remain with father and opposed custody with mother, stating she had neglected and mistreated them –– Court placed considerable weight on these statements while deciding the question of custody –– Rule of Hizanat under Muhammadan Law subject to the test of welfare –– Custody given to mother not justified where children's physical and emotional well-being better served with father. Disposition: Petition allowed; custody with father affirmed. **(c) Guardians and Wards Act (VIII of 1890) –– S. 17 –– Legal incapacity to maintain minors –– Financial stability of proposed guardian –– Comparative analysis –– Held, respondent (mother) had no independent income and lived dependently with her brothers after divorce –– Petitioner (father), being a government servant, was found to be in a better position to support minors educationally and financially –– Welfare of minor is better secured with parent who can provide emotional stability, security, and education –– Financial inability of mother weighed against her claim for custody. Disposition: Petition allowed; mother’s custody application dismissed.