Summary: S. 121 Guardian & Ward Act, 1890... guardian judge is empowered to make interlocatory orders for production of minor and interim protection of his person and his property.Temporary custody being interim in nature would be subject to decision in main case.

Summary: the petitioner, sought relief concerning the alleged illegal detention of her minor childrenóMoqaddas Bibi, Muhammad Arslan, and Muhammad Farhanóby respondent No. 2, Muhammad Akhtar, their father. The petitioner claimed that the minors were taken from her custody on 25.01.2019.The court, considering the ages of the minors and the petitioner's rights as the mother, found that no counter affidavit challenging the petitioner's claims had been filed. Although the marriage between the parties was not intact, there was nothing adverse against the petitioner to deny her custody. The court interviewed Muhammad Farhan, one of the detained minors, who revealed that he worked at a motorcycle shop and did not attend school.Respondent No. 2's counsel argued that the matter was pending before the Guardian court, and decisions related to custody and welfare should be left to that court. However, the court, invoking its power under Section 491 Cr.P.C., emphasized its duty to ensure the welfare of the minors and prevent harm due to the breakdown of family ties. The court cited the case of Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore (2018 SCMR 427).Consequently, the court allowed the petition, ordering the custody of the minors to be handed over to the petitioner. The petitioner was directed to facilitate respondent No. 2's meetings with the children as directed by the Guardian court, emphasizing that the Guardian court's decision would be independent of the observations in this order.

Summary: Background:In Civil Petition No. 809-P of 2018, Mir Bat Khan appealed the decision of the Peshawar High Court, which granted custody of the minor girl, Saima, to her mother, Mst. Sherin Bibi. The High Court's decision overturned the judgment of the District Judge, Hangu.---Issues:Whether the lower court erred in awarding custody to the mother despite the child's alleged lack of recognition.Whether the decision of a local jirga, which awarded custody to the petitioner and required the respondent to return her dowry, was valid.---Holding/Reasoning/Outcome:The Supreme Court of Pakistan held that the lower court erred in its decision. It reasoned that the child's lack of recognition of her mother should not be used as a basis for depriving the mother of custody. The court emphasized the paramount consideration of the child's welfare in custody matters. Additionally, it ruled that the decision of a jirga regarding custody was not legally binding and violated Islamic injunctions. The petitioner was directed to peacefully hand over custody of the child to the mother. Failure to comply would result in intervention by the Social Welfare Department to ensure the child's placement with her mother.---Citations/Precedents:Razia Bibi v Riaz Ahmad (2004 SCMR 821, 823[A])The Guardians and Wards Act, 1890 (Section 17 and 25)Feroze Begum v Muhammad Hussain (1978 SCMR 299, 302[A])Khan Muhammad v Surayya Bibi (2008 SCMR 480, 482[A])Rubia Jilani v Zahoor Akhtar Raja (1999 SCMR 1834, 1836[A])Firdous Iqbal v Shifaat Ali (2000 SCMR 838)Al-Quran, surah Al-Baqarah (2) verse 233---Quote:The law and precedents of this Court have stressed the welfare of the minor as the paramount consideration in determining the custody of a minor and to abide by the principles of hizanat unless there are valid reasons not to do so.

Summary: The brief facts presented in the petition indicated that the petitioner's daughter, was married to respondent No.3, and Noor Fatima was born out of this marriage. After Abida's death, Noor Fatima used to live with the petitioner. However, about one month before the petition was filed, respondent No.3, along with his father and uncle, forcibly took away Noor Fatima from the petitioner. The court observed that the petitioner had previously filed an application under Section 491 of the Criminal Procedure Code (Cr.P.C.) for the recovery of the minor, but it was dismissed by the learned Additional Sessions Judge. The court also noted that there was no police report or complaint against respondent No.3 regarding the alleged forcible taking of Noor Fatima. The court referred to the dismissal of the earlier application, stating that the custody of Noor Fatima with her father, respondent No.3, was neither illegal nor improper. The court emphasized the natural right of Hizanat (custody) of the father after the death of the mother, citing the precedent case of "Nasir Raza versus Additional District Judge, Jhelum and another." Consequently, the court dismissed the writ petition, allowing either party to approach the Guardian Court for the settlement of custody on a regular basis.

Summary: Article 199 of the Constitution of 1973, Sec. 25 of the Guardian & Ward Act, 1890... The general rule is that mother on contracting second marriage forfeits her rights of custody of a female child but the said rule is not absolute & if the interest & welfare of child require that custody should be retained by the mother, then the Court may, in the larger interest of the welfare of minor, allow the mother to retain the custody of minor. WP dismissed.

Summary: Order under section 12 of the Guardian & Wards Act, 1890 is appealable----The petitioner had married respondent No. 2 on May 6, 2011, and they had a son named Muhammad Danial, born on February 11, 2012. Due to strained relations, the petitioner and respondent No. 2 mutually agreed to divorce on April 23, 2012. Subsequently, respondent No. 2 entered into a second marriage with Muhammad Ikhalq on June 21, 2013.The dispute arose when respondent No. 1 filed an application for his appointment as the guardian of the minor, Muhammad Danial, on September 21, 2015. The application stated that the child had been living with respondent No. 1 since birth, a fact that respondent No. 2 confirmed during her testimony on October 9, 2015. The petitioner submitted a reply to this guardian petition and, on November 14, 2015, filed a guardian petition for the custody of his son under section 25 of the Guardian & Wards Act, 1890.Respondents No. 1 and 2 filed written replies to the petitioner's petitions. Additionally, respondent No. 2 filed a suit for the recovery of maintenance, dower amount, and dowry articles against the petitioner on May 11, 2016.After reconciliation attempts failed, the trial court consolidated the suit and the petitioner's guardian petition on May 29, 2017. The trial court's order, dated June 12, 2017, dismissed the application under section 12 of the Act, allowing the petitioner to meet his son twice a month on certain conditions within the court premises.The petitioner filed a constitutional petition challenging this order. The respondent's counsel argued that the constitutional petition was not maintainable, as appealable orders could be appealed under the Family Courts Act, 1964. The petitioner's counsel contended that the order was not appealable, and therefore, the constitutional petition was competent.The court ruled that the order was appealable before the District Court under the Family Courts Act, 1964. Consequently, the constitutional petition was dismissed. The court also advised the petitioner to file an appeal or repeat the application under section 12 of the Act, as interim custody orders could be modified based on changing circumstances.

Summary: Family Courts Act, 1964 (section 14(1)(b)), Uniform Child Custody Jurisdiction and Enforcement Act, 1997 (sections 105), Guardian and Ward Act, 1890 (Section 25), Guardian and Ward Act, 1890 (47), Uniform Child Custody Jurisdiction and Enforcement Act, 1997 (Section 102 subsection 15 ), Guardian and Ward Act, 1890 (Section 9), West Pakistan Family Court Rules, 1965 (Rule 6), Citizenship Act, 1951The primary object of the Guardian & Ward Court or for that matter appellate Court was to discover as to where the welfare of the ward lies and how such welfare can be effectively achieved and maintained and should not have concerned with the visitation rights of father.--Jurisdiction Issue-The child may be an American national by birth and he may have been permanently residing in Kuwait with parents but he is a dual national. When the respondent/ father surrendered to the jurisdiction of the trial Court by moving an application under section 25 of the Guardian & Wards Act, it was promptly responded and replied by filing written statement and jurisdiction conceded by petitioner.--Once petitioner acquiesced to the jurisdiction, she cannot approbate and reprobate at the same time. The question of jurisdiction even if made dependent on ordinary residence of ward, it may not be a pure question of law that can be assailed at any forum or at any time. For that it has to be specifically pleaded so that the facts in this regard be brought to the notice of the Court. It is, thus, not a simple question of law rather a mixed question of law and facts which requires determination through evidence.--Movement or Restriction in Movement of ward-The ward belongs to a family which can afford a better upbringing, education and environment either in Pakistan or anywhere in the world which was restricted and curtailed by restriction in his movement. The Courts below should not have seen welfare only from the angle that the father/respondent must not miss his opportunity to see his child but it must also be seen from the angle as to whether a ward who is capable of studying abroad, in case the opportunities are available to him, should he be deprived of on account of the fact that father must not miss a visiting opportunity? --In any other case it would have been the welfare considering the situation of the ward while being at Karachi and only Pakistani national but the situation here is different as the child is privileged to have access to any educational institution around the world including Pakistan. An educational institute or an environment for which most of the children could only dream for. Every child has its own peculiar circumstances and the welfare demands may vary. The restriction in the movement in the present case appeared to be a tool to settle score with mother/petitioner but it will not serve as the welfare of the child. The father/respondent who had raised serious allegations against the mother/petitioner as he claimed that she is not fit to take care of ward yet is not serious in having the custody of the ward, although none of them stands proved in evidence. There are ways and mechanism to regulate the movement which is not achieved by of restricting the movement.

Summary: (a) Guardians and Wards Act (VIII of 1890)-------S.25---Custody of minor---Entitlement of mother--- Scope--- Petitioner was mother of minorgirl aged about 3-4 years and dispute was with regard to her custody---Application filed by fatherwas dismissed by Guardian Court but Lower Appellate Court reversed the findings and decidedthe matter in favour of the father---Validity---Father, under Islamic law, was natural guardian ofminors who had preferential right of custody of minor especially in the circumstances whenminor was male and above age of 7 years--- In order to challenge such preferential right offather, mother was bound to establish some exceptional circumstances and to prove herself thatshe had preferential right over father---Minor, in the present case, was female and mother waslooking after the minor ever since her birth and was maintaining her in a good environment---Cogent and confidence inspiring evidence came on record to prove that application for custodyof minor was filed after fixation of maintenance allowance against her---Father was leastinterested in welfare of minor who had filed application for custody of minor in order to frustratethe decree for maintenance allowance---Minor was in custody of mother who was upbringing herproperly and getting her educated in a private school--- Lower Appellate Court while passingjudgment in question had given much focus on remarriage of mother of minor but had not givenparamount consideration to welfare of minor and also ignored the fact rather misread theevidence that minor was getting education in a private school and she was also of such age whereshe needed much love and affection of her mother as compared to her father--- High Court setaside judgment passed by Lower Appellate Court and restored that of Guardian Court---Constitutional petition was allowed in circumstances.Mehmood Akhtar v. District Judge Attock and (b) Guardians and Wards Act (VIII of 1890)-------S.25---Custody of minor---Mother, right of---Scope---No substitute of mother for a minor and no one can take care of minor more than his/her mother for being first institution--- Deprivingminor of the company of his/her mother creates deprivation in life of minor.Amiad Masih v. Mst. Bushra Bibi 2010 YLR 1468; Mst. Naziran Bibi v. AdditionalDistrict Judge, Mianwali and 2 others 2006 MLD 493; Mehmood Akhtar v. DistrictJudge Attock and 2 others 2004 SCMR 1839 and Mst. Naziran Bibi v. Additional DistrictJudge, Mianwali and 2 others 2006 MLD 493 rel. (a) Guardians and Wards Act (VIII of 1890)-------S.25---Custody of minor---Entitlement of mother--- Scope--- Petitioner was mother of minorgirl aged about 3-4 years and dispute was with regard to her custody---Application filed by fatherwas dismissed by Guardian Court but Lower Appellate Court reversed the findings and decidedthe matter in favour of the father---Validity---Father, under Islamic law, was natural guardian ofminors who had preferential right of custody of minor especially in the circumstances whenminor was male and above age of 7 years--- In order to challenge such preferential right offather, mother was bound to establish some exceptional circumstances and to prove herself thatshe had preferential right over father---Minor, in the present case, was female and mother waslooking after the minor ever since her birth and was maintaining her in a good environment---Cogent and confidence inspiring evidence came on record to prove that application for custodyof minor was filed after fixation of maintenance allowance against her---Father was leastinterested in welfare of minor who had filed application for custody of minor in order to frustratethe decree for maintenance allowance---Minor was in custody of mother who was upbringing herproperly and getting her educated in a private school--- Lower Appellate Court while passingjudgment in question had given much focus on remarriage of mother of minor but had not givenparamount consideration to welfare of minor and also ignored the fact rather misread theevidence that minor was getting education in a private school and she was also of such age whereshe needed much love and affection of her mother as compared to her father--- High Court setaside judgment passed by Lower Appellate Court and restored that of Guardian Court---Constitutional petition was allowed in circumstances.Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839; Mst. RabiaBibi v. Abdul Qadir and others 2016 CLC 1460; Muhammad Ayub v. Mst. Nasim Begum andanother 1996 CLC 1534; Mst. Nazir v. Hafiz Ghulam Mustafa and others 1981 SCMR 200;Shabana Naz v. Muhammad Saleem 2014 SCMR 343 and Sardar Hussain v. Parveen Umar PLD2004 SC 357 rel.(b) Guardians and Wards Act (VIII of 1890)-------S.25---Custody of minor---Mother, right of---Scope---No substitute of mother for a minor and no one can take care of minor more than his/her mother for being first institution--- Deprivingminor of the company of his/her mother creates deprivation in life of minor.Amiad Masih v. Mst. Bushra Bibi 2010 YLR 1468; Mst. Naziran Bibi v. AdditionalDistrict Judge, Mianwali and 2 others 2006 MLD 493; Mehmood Akhtar v. DistrictJudge Attock and 2 others 2004 SCMR 1839 and Mst. Naziran Bibi v. Additional DistrictJudge, Mianwali and 2 others 2006 MLD 493 rel.

Summary: Father filed for Custody In his favour --- Dismissed with direction Settled In Guardian Court. --- The impugned order had awarded the temporary custody of a minor girl to her mother, citing welfare and paramount consideration for the minor. It was highlighted that the minor had been unlawfully taken from the mother's custody and raised concerns about potential influence or harassment by the father (Opponent No.1) who had another wife.The petitioner, presumably the father, challenged this order, seeking to nullify it and to have the minor's custody transferred to him. The petitioner's argument was based on legal precedents emphasizing that matters of custody should be addressed under the Guardians and Wards Act and that the High Court's jurisdiction under Section 491 Cr.P.C. is to be exercised sparingly.The High Court, after reviewing the submissions and the relevant legal precedents, decided not to interfere with the impugned order. The Court found no exceptional or extraordinary circumstances warranting its intervention. It was noted that a guardianship application was already pending before the appropriate Family Court, which was competent to decide on the custody issue.The High Court concluded that the impugned order was passed with due consideration, including conditions that were in the minor's best interest, such as the requirement for a P.R Bond and the stipulation that the minor's custody could not be removed from the District of Matiari.Thus, the High Court dismissed the petition, maintaining that the observations made were tentative and would not impact any ongoing or future litigation between the parties regarding this matter.

Summary: Guardians and Wards Act (VII of 1890)--- ----Ss. 7 & 25---Custody and guardianship of minor children after death of their mother---Father as the natural guardian ofminors in comparison to maternal grandmother---Petitioner/father was the natural guardian of the children after theirmother's death---On account of their respective ages, the right of Hizanat of the minors (in the present case) no longer vestedin their maternal grandmother---Father of the children was ready and willing to look after them and had the financialresources to fulfil their material needs and educational requirements---Father had neither returned to his job abroad norremarried keeping in view the welfare and best interest of his children---Children could not be deprived of the company,love and affection of their real father---Paternal grandmother of the children was also available in the father's house to helphim look after and raise the children---Father did not suffer from any legal disability that may deprive him from his legalright to have custody of his children---Prima facie, the best interest and welfare of the minors laid in handing over theircustody to their real father---Supreme Court directed that the custody of the minors shall be handed over to their fatherwithin one week, and that the father shall ensure that the minors spent week-ends with their maternal grandmother for aspecified time period.