PLJ 2024 SC 537
[Appellate Jurisdiction]
Present:
Amin-ud-Din Khan and Athar Minallah, JJ.
SHAISTA
HABIB--Petitioner
versus
MUHAMMAD
ARIF HABIB and others--Respondents
C.P. No.
3801 of 2022, decided on 6.3.2023.
(Against
the order dated 21.09.2022 of the Lahore High Court, Rawalpindi Bench passed in
Writ Petition No. 2582 of 2022)
Guardian and Wards Act, 1890 (VIII of 1890)--
----S.
25--Constitution of Pakistan, 1973, Arts. 37 & 199--Question of custody of
a child--welfare of minor--Second marriage--Petitioner and respondent were
blessed with a son, minor--Petitioner appeared in person along with minor--The
latter was smartly dressed and we found him to be visibly confident and mature
for his age--Although he acknowledged respondent to be his father but he was a
stranger to him, since they had hardly met after leaving his house--Petitioner
and respondent are litigating over custody of minor since 2017--Marriage had
ended in a divorce--The minor was an infant when he had left house of
respondent and since then he had lived with petitioner--The petitioner had
contracted another marriage after her divorce and second husband had children
from his first wife--The welfare of a minor and latter’s best interest is
foundational principle for deciding custody disputes--The question of custody
involves taking into consideration factors which are relevant to upbringing,
nursing and fostering of child--The court has to adopt a course that would be
in best interest of child because his welfare must always be paramount
consideration--The minor was definitely not prepared nor willing to live with
his father at that stage--He preferred to remain in custody of his mother with
whom he had lived since his birth--The psychological and emotional impact on
minor would had breached foundational principle of his welfare and of adopting
a course in his best interest--The custody of minor should be retained by
petitioner--A visitation schedule will also be settled by them in such manner
which would not breach principle of welfare of minor--The children are
vulnerable and traumatic experiences early in life can leave lifelong scars
which may profoundly affect quality of their lives--Insensitivity or lack of
special expertise on part of presiding judges while dealing with matters
relating to litigation involving rights of children can gravely affect their
rights and thus impact their lives adversely--Petition was allowed. [Pp. 539, 540, 541, 542, 543 & 544] A,
B,
C,
D, E, F, G, I, J, K, L, M, N, O, P
PLD 1967 SC 402; 1999 SCMR 1834; 1993 SCMR 2303;
1998 SCMR 1593; 1983 SCMR 606; PLD 2020 SC 508; 2011 SCMR 1329; 2022 SCMR 2123;
1970 (H.L.(E).668; 2000 SCMR 707; PLD 2006 SC 533; 2018 SCMR 427; 1999 SCMR
1834 ref.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Natural guardian--Father is natural guardian while mother
is entitled to custody (hizanat) of a male child till age of seven years while
in case of a female till she attains puberty. [P.
540] G
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--It is duty of court to form an opinion and adopt a course
on basis of paramount principles of welfare of child. [P.
542] I
In person a/w Ibrahim (minor) for Petitioner.
Raja Muhammad Sattar, ASC a/w for Respondent No. 1.
Date of hearing: 6.3.2023.
Judgment
Athar Minallah, J.--The High
Court has dismissed the petition of Shaista Habib (“petitioner”), who
had invoked the jurisdiction vested under Article 199 of the Constitution of
the Islamic Republic of Pakistan, 1973 (“Constitution”). She had
challenged the orders of two competent Courts, whereby the question of custody
of a child, Mohammad Ibrahim, was decided against her. Through this petition
she has sought leave against the judgment, dated 21.09.2022, of the High Court.
2. Muhammad Arif Habib (“respondent”) and the petitioner
had tied the knot on 21.6.2012. They were blessed with a son, Muhammad Ibrahim
(“minor”) on 17.4.2013. The matrimonial differences which developed
between the spouses had initially led to their separation but, subsequently,
the marriage ended in a divorce on 22.11.2016. The petitioner and the minor
moved to the house of the former’s mother after separation. The relationship
between the parties became unpleasant to such an extent that, on acceptance of
the respondent’s petition, the Justice of the Peace, vide order dated
02-01-2017, ordered registration of a criminal case against the petitioner. The
respondent filed an application on 28-01-2017 under Section 25 of the Guardian
and Wards Act, 1890 (“the Act of 1890”) seeking the custody of the
minor. The Guardian Judge/Judge Family Court, Kahuta, allowed the application
on 30.06.2021 while the appeal preferred by the petitioner was dismissed by the
Additional District Judge on 20.06.2022. The constitutional petition filed by
the petitioner did not succeed and it was dismissed by the High Court vide the
impugned judgment dated 21.09.2022.
3. The petitioner appeared in person along with the minor,
Mohammad Ibrahim. The latter was smartly dressed and we found him to be visibly
confident and mature for his age. He responded to our queries intelligently and
his self assured demeanor was noticeable, despite having been exposed to the
vicissitudes of separation followed by the divorce of his parents. He has
unequivocally stated that although he acknowledged the respondent to be his
father but he was a stranger to him, since they had hardly met after leaving his
house. He, therefore, unequivocally expressed his reluctance to be separated
from his mother i.e the petitioner so as to live with his father. It was
obvious that the respondent and the minor did not have a relationship or a bond
in order to justify uprooting the latter from the custody of his mother. The
learned counsel for the respondent was also heard.
4. The petitioner and the respondent are litigating over the
custody of the minor since 2017. The marriage had ended in a divorce in 2016
and the respondent had filed an application before the family Court in 2017 for
obtaining the custody of the minor. The minor was an infant when he had left
the house of the respondent and since then he has lived with the petitioner.
The record shows that the respondent had not made a serious and meaningful
effort to enable him to spend time with the minor, either through intervention
of the Court or otherwise. Admittedly, the petitioner has contracted another
marriage after her divorce and the second husband has children from his first
wife. It appears from the reasoning recorded in the judgments rendered by the
Guardian Judge/Judge Family Court as well as the appellate Court that the
petitioner’s second marriage and the age of the minor were the two factors that
had prevailed for granting custody of the minor to the respondent. The
variables in the context of assessing the welfare of the minor were not taken
into consideration. The evidence produced by the parties appears to have been
found sufficient to decide the custody dispute. The evidence relied upon by
both the Courts was not in the context of those factors which should have been
considered in order to assess the welfare of the minor. The Courts also did not
seek professional assistance in order to assess the crucial factor of the
welfare of the minor, nor such a professional service or facility appears to
have been accessible to the Courts. The minor was at the centre stage of the
custody battle between feuding parents and the assessment of his interests and
welfare was most crucial. This was definitely an overarching principle which
ought to have been considered while deciding the custody dispute. The rights of
the parents were subservient to the welfare of the minor and thus it was the
duty of the Courts to assess and determine a course that would have served the
best interest of the minor. Any decision regarding the custody of a child
without assessment and determination of the latter’s welfare and best interests
by taking into consideration the relevant factors and variables cannot be
sustainable, nor can the exercise of discretion be lawful. The welfare of a
minor and the latter’s best interest is the foundational principle for deciding
custody disputes. In order to appreciate the significance of the principle governing
custody disputes it would be beneficial to highlight the settled law which
ought to guide a Court.
5. It
is settled law that the father is the natural guardian while the mother is
entitled to the custody (hizanat) of a male child till the age of seven years
while in case of a female till she attains puberty. This right continues
notwithstanding a divorce or separation. As a natural guardian it is the
obligation of the father to maintain the child even if the custody is with the
mother. The inability of the mother to financially support the child is not a
determinate ground to deprive her from custody because in such an eventuality
the father’s obligation regarding maintenance is not extinguished. The rule
that the father is a natural guardian and, therefore, entitled to the custody
of the child nor that the mother loses the right of hizanat after the minor has
attained the prescribed age or puberty, as the case may be, is not absolute,
rather subject to exceptions.[1]
The decision regarding custody of a child is governed on the fundamental
principle, the paramount and overarching consideration is the welfare of the
child i.e to ascertain the course which is in the latter’s best
interest. The crucial criterion is, therefore, the best interest and welfare of
a child while determining the question of custody. The rights or aspirations of
the parents or some other person are subservient to this principle and each
case of custody must be decided on the basis of ascertaining a course which is
in the ‘best interest of the child’. The factors or variables that may be taken
into consideration while determining the question of custody of a child are not
exhaustive but they would depend on the facts and circumstances of each case.
The guiding principle is to ensure that the determination of custody promotes
the rights of the child as well as the latter’s wellbeing. The overriding
consideration must be to protect the child from any physical, mental or
emotional injury, neglect or negligent treatment. The mother’s disability,
illiteracy or financial status are not the sole determinant factors.[2]
The second marriage contracted by the mother also cannot become a stand-alone
reason to disqualify her from obtaining the custody of the child.[3]
The question of custody involves taking into consideration the factors which
are relevant to the upbringing, nursing and fostering of the child. It
essentially extends to the emotional, personal and physical wellbeing of a
child. The sole object is to ensure that the overall growth and development of
the child is guaranteed. The process adopted in order to determine the best
interest has been described by the House of Lords[4]
“ ....... connotes a process, whereby all the relevant facts, relationship,
claims and wishes of parents, risks, choices and other circumstances are taken
into account and weighed, the course to follow will be that which is best in
the interest of the child.”
6 &
7. The overarching principle in cases involving the question of custody and
visitation rights of the parents is, therefore, determination of the welfare of
the child, i.e. to ascertain a course that would serve the best interest
of the child. Sections 17 and 25 of the Act of 1890 set out the broad
guidelines which are to be taken into consideration while deciding custody
disputes. It is the duty of the Court to form an opinion and adopt a course on
the basis of the paramount principle of the welfare of the child. Section 17
explicitly provides that a Court shall be guided by what appears in the
circumstances to secure the welfare of the minor, consistent with the law to
which the minor is subject. Sub-section (3) provides that if the minor is old
enough to form an intelligent preference then the Court may consider that
preference. As already noted above, while determining the welfare of the child
in the context of custody disputes the Court may grant the custody to a person
other than the parents e.g the grandparents or aunt, if doing so would
promote the welfare and best interest of the child.[5]
As a general rule the guardian and family Court is the final arbiter for
determining the question of custody, except when it has made a determination in
an arbitrary, capricious or fanciful manner i.e when the fundamental
principle of welfare of the child has not been considered or determined in the
light of the variables which are relevant in the given circumstances.[6]
If the Court has ignored the welfare of the child and the latter’s best
interest or has given preference to some other ground then the decision would
not be sustainable. The Court, in its endeavor to assess and determine the
welfare of a child, is not bound to follow rigid formalities, strict adherence
to procedure or rules or technicalities if doing so may hamper the
determination or undermine the fundamental criterion of the best interest of
the child.[7]
In a nutshell, the overarching and fundamental principle that must prevail and
guide a Court in determining custody disputes is the welfare of a child. The
Court has to adopt a course that would be in the best interest of the child
because his/her welfare must always be the paramount consideration.
8. In
the case before us, the minor was confident, intelligent and mature enough to
form his own preferences. He had unambiguously stated before us that his father
was no more than a stranger because he had not had the opportunity to spend
time with him. He had also stated that he was not familiar with the other
members of his father’s family and thus for him they too were strangers. He
visibly appeared to be happy and comfortable with his mother and his
relationship with his step father also seemed to be pleasant. It is obvious
from the record that the respondent, despite being his father, had not made a
serious and meaningful effort to assert his visitation rights. The minor was
definitely not prepared nor willing to live with his father at this stage. He
unambiguously stated that he preferred to remain in the custody of his mother
with whom he had lived since his birth. The crucial factor of the welfare of
the minor and his best interest was not taken into consideration by the Courts.
In such an eventuality the minor would have been compelled, without his
consent, to abruptly shift to a new abode where all the inhabitants would have
been strangers to him. It would have definitely exposed him to unimaginable
mental and emotional trauma. It could have resulted in irreversible lifelong
psychological scars. It is obvious from the record that neither the family
Court nor the appellate Court had taken appropriate steps to assess the welfare
of the minor and, instead, the question of custody was decided on the basis of
other factors. The factors taken into consideration could not override the
criterion of adopting the course which would have been in the best interest of
the child. The Courts had erred in failing to inquire into or assess the
emotional and psychological impact on the minor in case of an abrupt
displacement from the custody of his mother with whom he had lived since his
birth. There is nothing on record to even remotely show that the Courts had
undertaken an effective exercise to assess and determine the welfare of the
minor and, thereafter, adopt a course that would have been in his best
interest. The Courts appear to have treated the delicate and sensitive dispute relating
to child custody as if it was an ordinary civil matter. The judges who had
dealt with the case may not have been professionally trained in order to enable
them to identify the relevant variables and to assess and determine the
question of custody of the child on the basis of the foundational principle of
welfare of the child and then adopt a course that would have been in the
latter’s best interest. The relevant factors such as the parenting capacity,
relationship of the child with each parent, the mental health of both the
parents as well as the minor, the latter’s emotional and mental needs and such
other relevant factors in the context of determining the welfare of the child
were not taken
into consideration let alone assessment and determination of a course that
would have been in the best interest of the child. The order regarding giving
custody of the minor to the respondent in the circumstances could not have
served his best interests. The psychological and emotional impact on the minor
would have breached the foundational principle of his welfare and of adopting a
course in his best interest. The impugned judgments are, therefore, not
sustainable because the paramount fundamental criterion, the welfare of the
minor, was not even considered, let alone its assessment and determination.
10. For
the above reasons, we convert this petition into an appeal and the same is
allowed. The impugned judgments/orders are hereby set-aside. Consequently, the
custody of the minor shall be retained by the petitioner. We expect that as
reasonable and responsible parents the respondent and the petitioner will
amicably settle the custody dispute having regard to the best interest and
welfare of the minor. We also expect that a visitation schedule will also be
settled by them in such manner which will not breach the principle of the
welfare of the minor. In case they fail to agree upon a schedule then the
respondent shall be at liberty to approach a competent Court to assert his
visitation rights. In the meanwhile, the schedule, if any, settled by a
competent Court shall continue to be observed until it has been modified and
varied.
11. We cannot turn a blind eye to the apparent failure of the
State to fulfill its constitutional obligations in the context of safeguarding
the rights of the children embroiled in litigation between the parents
regarding their custody. The children are vulnerable and traumatic experiences
early in life can leave lifelong scars which may profoundly affect the quality
of their lives. The exposure of a child to the environment generally prevalent
in the ordinary Courts could profoundly affect their impressionable minds.
Moreover, insensitivity or lack of special expertise on part of the presiding
judges while dealing with matters relating to litigation involving the rights
of children can gravely affect their rights and thus impact their lives
adversely. The litigation involving the rights of children, such as custody
disputes, requires special expertise, training and professional aptitude on part
of the presiding judges. The environment of a Court dealing with the rights of
the children must also cater to their emotional and psychological needs. The
Courts must also be adequately equipped and enabled to professionally assess
and determine the welfare of a child in each case. The Courts must have access
to professional consultation and advice of qualified experts such as
psychologists. The parents and the Courts must also have access to child
welfare and social assistance services to protect and fulfill the rights of
each child. Article 35 of the Constitution has explicitly made it an obligation
of the State to protect the marriage, the family, and the mother and the child.
The State has been defined in Article 7. It is a constitutional duty under
Article 29(3) of the President or the Governor of the Province, as the case may
be, to cause to be prepared and laid before the respective legislatures a
report in respect of each year, inter alia, regarding observance and
implementation of the obligation relating to children under Article 37 of the
Constitution. Likewise, it is an obligation of the State to ensure that the
fundamental rights enshrined in the Constitution are protected and fulfilled in
the case of children. It is, therefore, implicit
in the obligation
of the State towards protecting the rights of the children to provide child
friendly Courts presided by specially trained professional judges. It is also
the duty of the State to enable the child friendly Courts to assess the welfare
of the child in family matters, such as custody disputes, by providing access
to professional consultation and opinions of experts e.g. psychologists
etc. It is the State’s responsibility to provide affective child care and
social services to protect and facilitate fulfilling the rights of those
children who get entangled in custody disputes between feuding parents. It is
an obligation of the State of Pakistan under the United Nation Convention of
Rights of the Child to ensure the protection and to take all necessary steps
for child welfare. We direct the Registrar of this Court to send copies of this
order to the President and the Governors of the Provinces to ensure compliance
with their respective obligations under Article 29(3) of the Constitution in
the context of Article 35 ibid. The Registrar is further directed to send
copies of this order to the Chief Secretaries of the Provinces and the Chief
Commissioner of Islamabad Capital Territory for fulfilling the obligations of
the State in relation to the rights of the children as highlighted herein
above. In addition, copies of the order is directed to be sent to the Director
Generals of the Federal and Provincial Judicial Academies for their
consideration to include special training courses for judges and staff of
family Courts, relating to dealing with child custody cases and to develop
their capacity to assess and determine the criterion of welfare of the child.
(K.Q.B.) Petition allowed
[1]. Malik Khizar Hayat Khan Tiwana and
another v. Mst. Zainab Begum and others (PLD 1967 Supreme Court 402), Mst.
Rubia Jilani v. Zahoor Akhtar Raja and others (1999 SCMR 1834), Mst. Zahida
Kiani and another v. Capt. (Rtd.) Shahid Ali Khan (1993 SCMR 2303) Mst. Nighat
Firdous v. Khadim Hussain (1998 SCMR 1593), Mst. Feroze Begum v. Lt.Col.
Muhammad Hussain (1983 SCMR 606).
[2]. Mst. Beena v. Raja Muhammad and others
(PLD 2020 Supreme Court 508) Bashir Ahmed v. Incharge (Female) Darulaman,
Mianwali and others (2011 SCMR 1329).
[3]. Raja Muhammad Owais v. Mst. Nazia Jabeen
and others (2022 SCMR 2123).
[4]. J. v. C. 1970 (H.L.(E.) 668.
[5]. Raja Muhammad Owais v. Mst. Nazia Jabeen
(2022 SCMR 2123), Zahoor Ahmad v. Mst. Rukhsana Kausar and others (2000 SCMR
707) and Mst. Razia Rehman v. Station House Officer (PLD 2006 SC 533).
[6]. Mirjam Aberras Lehdeaho v. SHO Police
Statoin Chung and others (2018 SCMR 427).
[7]. Mst. Rania Jilani v. Zahoor Akhtar Raja
and others (1999 SCMR 1834).