Summary: (a) Guardians and Wards Act (VIII of 1890)--- ----Ss. 25 & 17---Custody of minor---Matters to be considered by court in appointing guardian---Right of mother to custody of minor daughter---Mother, when disqualified for custody---Marriage of mother with a person not related to the child within the prohibited degree---Scope---Mother of minor assailed order passed by Appellate Court whereby judgment passed by Guardian Judge was set aside and the custody of minor was handed over to the father of minor---Contention of father was that the mother of minor had contracted second marriage and her husband was in the prohibited degree with the minor---Contention of mother was that the father of minor had contracted second marriage; that he had two daughters from said marriage and that she had no other child from her second marriage--- Validity---Minor, since birth, had developed bonding with her mother; separating her from real mother and forcing her to live with step-mother (who had her own two daughters) in the house of her father would not only be harsh, unjust and traumatizing for her personality but would also disturb her mentally---Minor wanted to live with her mother and there was no reason not to respect her wish---Father of minor himself had admitted that he had no business or job---Mother of minor had married to a person who did not fall in the prohibited degree to the ward, therefore, High Court held that once the minor attained the age of puberty, her father could approach the court for her custody---Writ petition was allowed, order passed by Appellate Court was set aside, that of Guardian Judge was restored and father was allowed to have frequent meetings with the minor.

Summary: Petition seeking the recovery of her minor daughter, Mst. Sana Fatima, from the alleged improper or illegal custody of respondents No.4 to 8. The petitioner had previously filed a petition under Section 491 of the Code of Criminal Procedure, 1898, before the Additional Sessions Judge, Jhang, which was dismissed on 02.01.2020.The petitioner, who is the mother, argued that she was divorced by respondent No.5 in 2015 when Mst. Sana Fatima was just three months old. Despite a decree in her favor for the recovery of maintenance allowance for the minor, respondent No.5 avoided legal responsibilities and became a fugitive from the law. Warrants of arrest were issued against him during execution proceedings.The court heard arguments from both parties, and after considering the facts, it was noted that prior to the disputed date of 21.12.2019, Mst. Sana Fatima was not residing with her father (respondent No.5) and was not being maintained by him since 2015. The court acknowledged the differing stances on the change of custody but emphasized that the petitioner, as the mother, had the primary right to the custody of the minor.The court allowed the writ petition, granting interim custody of Mst. Sana Fatima to the petitioner. However, it also specified that respondent No.5 could continue to seek permanent custody through the competent Guardian Court. The order emphasized that the observations made in the order were specific to the present case and should not influence the proceedings in the Guardian Court.

Summary: (a) Guardians and Wards Act (VIII of 1890)-------S.25---Custody of minors---Welfare of minors---Financial status of mother---Scope---Father's petition for custody of two male minors and one female minor was accepted to theextent of male minors while the custody of female minor was entrusted to her mother tillpuberty---Validity---Petitioner/father was a contractor who remained out of the house mostof the time for business purposes---Petitioner had failed to point out the person who wouldlook after the baby girl at his home---Minor was about 4/5 years of age and in such age theattention of mother for capacity and intellectual development of female minor was muchrequired---Association of female children with their mother was more important as comparedto the father---Poor financial status of mother did not disentitle her from the custody of theminor---None could take care of minors more than their real mother for being their firstinstitution and depriving minors of the company of their real mother would createdeprivation in their lives which could not be restored back---No misreading or non-readingof evidence could be attributed to the judgments of the courts of below---Constitutionalpetition was dismissed.(b) Guardians and Wards Act (VIII of 1890)-------S.17---Guardian, appointed of---Matters to be considered by the Court in appointingguardian---Welfare of minor---Scope--- Mother, under Muslim Personal Law, is entitled tothe custody of daughter even after she has attained the age of puberty and until she ismarried, whereas the father can claim custody of his male child after seven years---Welfareof the minors is to be determined while keeping in view their mental, intellectual, moral andspiritual well being---Guardian Court has to look into qualification of parents, the age,gender, religion of minor, the character and capacity of the proposed guardian and his/hernearness of kin to the minor as provided under S.17 of the Guardians and Wards Act, 1890---Welfare of minor prevails as the supreme consideration for deciding the issue of her or hiscustody.(c) Guardians and Wards Act (VIII of 1890)-------S.17---Matters to be considered by the Court in appointing guardian---Financial status ofmother---Scope---Poor financial status of mother does not disentitle her from the custody ofminors.(d) Constitution of Pakistan-------Art. 199---Constitutional jurisdiction---Misreading of evidence---Non-reading ofevidence---Jurisdictional defect---Scope---Appraisal of evidence is the function of courtsbelow and if the findings are based on proper appraisal of evidence then the same cannot beinterfered with lightly, in exercise of constitutional jurisdiction---Party approaching the HighCourt under Art. 199 of the Constitution has to demonstrate that there is gross misreading ornon-reading of the evidence or any jurisdictional defect floating on the surface.

Summary: Family Courts Act (XXXV of 1964)-------Ss. 14 & 25---Guardians and Wards Act (VIII of 1890), Ss. 7, 47 & 4(5)---Petition forappointment as guardian---Family Court deemed to be a District Court for purposes ofGuardians and Wards Act, 1890---Petitioner's petition for appointment as guardian of theminor was dismissed by the Guardian Judge---Appeal filed thereagainst was dismissed byDistrict Judge in view of S.47 of Guardians and Wards Act, 1890---Validity---Section 4(5) ofGuardians and Wards Act, 1890 had to be read with S.25 of Family Courts Act, 1964, whichdeemed the Family Court to be a District Court for the purposes of Guardians and WardsAct, 1890---Matters pertaining to guardianship and custody of minors laid within theexclusive jurisdiction of Family Court, who while dealing with the matter had to adopt theprocedure laid down in Guardians and Wards Act, 1890---Order passed by Family Court didnot amount to an order of a District Judge nor right of appeal became available before HighCourt rather the appeal had to be preferred under S.14 of the Family Courts Act, 1964 whichclearly described the forum of appeal---Petition for appointment of guardian was heard anddecided by the Family Court not having the status of a District Judge, therefore, the appealhad to be filed before a District Judge---Constitutional petition was allowed and the appellatecourt was directed to decide the appeal on merits.

Summary: Guardians and Wards Act (VIII of 1890)-------Ss. 25, 7 & 19(b)---Custody of minor---Guardian not to be appointed by the Court of aminor whose father is living---Father, living abroad---Scope---Petitioner (father of minor)and respondent (maternal grandmother of minor) both sought custody of minor---Petitionersought custody of minor on the grounds that the mother of minor was murdered by unknownassailants; that he (father), among others, was nominated in the FIR; that he himself hadhanded over the custody of minor to the respondent for some days, however she later onrefused to hand over the custody; that she was an aged woman and that she had no source ofincome---Trial Court dismissed both the petitions whereas appellate court accepted theappeal of respondent and dismissed that of petitioner---Validity---Petitioner and stepmotherof minor were nominated in the FIR for murder of minor's mother---Petitioner was abusinessman who remained outside the country for his business and in such situation minorwould have to live with the stepmother who was an absconder in murder case of her realmother---Petitioner could not prove that the environment of respondent's house was notconducive to upbringing of the minor---Order passed by appellate court in respect ofappointment of respondent as guardian of minor in view of S.19(b) of Guardians and WardsAct, 1890 was set aside---Judgment and decree passed by Trial Court was upheld---Petitionswere dismissed.

Summary: Guardian and Ward Act, 1890 (Section 7, 8 and 25) The natural guardians/mother and father of minors are not required to seek declaration of their guardianship through the Court. The Court under Section 7 of the Guardian and Ward Act, 1890 is not empowered to decide title of guardian about custody of the ward.

Summary: Court, in guardianship cases, exercised a parental jurisdiction as if it was in loco parentis to the minor. Parental jurisdiction could not be hampered with undue interference of technicalities. Application for condonation of delay in filing appeal in guardianship matters had to be decided keeping in view the welfare of minor even if the said ground was raised or not by the party.

Summary: The petitioner, had filed an application under Section 25 of the Guardian & Wards Act, 1890, seeking custody of her 10-year-old daughter. The respondent, opposed the application and filed a separate application under Section 7 of the same Act to be appointed as the guardian of the minor. The petitioner appealed, but the appellate court affirmed the decision while outlining a visitation schedule. The petitioner then filed a constitutional petition, and the respondent filed a writ petition challenging the visitation schedule. The court emphasized that the welfare of the minor is the paramount consideration in custody matters, as stipulated in Section 25 of the Guardians & Ward Act, 1890. It further highlighted the factors to be considered under Section 17, including the age, sex, religion, and welfare of the minor, as well as the character and capacity of the proposed guardian. The court noted that both lower courts had appropriately considered the intelligence preference of the minor, who expressed a desire to live with her father. Consequently, the court found no legal infirmity in the decisions of the lower courts and dismissed both the constitutional petition and the connected writ petition.

Summary: The petitioner, Mst. Bushra, filed a petition alleging the illegal and improper detention of her minor son, Muhammad Hassan alias Abdul Rehman, by respondent No. 3, Muhammad Asif Hanif, who is the father of the minor. The petitioner claimed that her son was taken from her custody on 01.02.2019.The court noted that no counter affidavit challenging the contents of the petitioner's affidavit had been filed by Muhammad Asif Hanif. The court also considered the fact that the marriage between the parties was still intact, suggesting no adverse circumstances against the petitioner for custody. The petitioner was living with her parents.The respondent No. 3's counsel argued that appropriate proceedings were initiated before the Guardian court, and the matter was pending there. The counsel asserted that the question of custody and welfare of the minor should be left to the competent jurisdiction of the Guardian court for a fair trial and evidentiary hearing.The court, however, asserted its jurisdiction under Section 491 Cr.P.C. to ensure the welfare of the minor and prevent harm or damage to him physically or emotionally. The court referred to the case of Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore, and others (2018 SCMR 427).Consequently, the court allowed the petition, ordering the custody of the minor to be handed over to the petitioner, Mst. Bushra. The court acknowledged the pending application under section 25 of the Guardian & Wards Act, 1890, before the Guardian court and directed the petitioner to facilitate respondent No. 3 to meet with the minor. It emphasized that the petitioner should produce the minor before the learned Judge Guardian Court as directed by that court.The court allowed respondent No. 3 to meet his son but prohibited taking him out from the premises of the Guardian Court. The court made it clear that the decision in the Guardian court should be based on its own merits, unaffected by any observations made in this order.

Summary: Although delay of each and every day in filing appeal had to be explained in the matters relating to adversarial proceedings but in the cases of guardianship or custody of minor, such technicalities could not be strictly adhered to because in such like matters the court exercised parental jurisdiction as if it was loco parentis to the minor whose welfare was the paramount consideration. Where aspect of welfare of minor was not considered while dismissing appeal as barred by time, said order was set-aside and case was remanded for decision afresh, while considering said aspect on its own merits. Reliance was placed on PLD 1967 SC 402 & PLD 1967 LHR 977 & 2011 MLD 1983.