Custody of minor—Alien environment—Matters to be considered by Court

2020 M L D 55
[High Court (AJ&K)]
Before Ch. Khalid Yousaf, J
Hafiz SHAHID KHAN and another—Appellants
SADIA REHMAN and 2 others—Respondents

S. 25—Custody of minor—Alien environment—Scope— Appellant/ father assailed order of Guardian Judge whereby his application for custody of minor was dismissed—Validity—Both the parents of minor had contracted second marriage—Minor had remained with her mother from her childhood; therefore, she was more familiar and akin to her mother as compared to her father—Mother was looking after the minor in an appropriate manner and the minor was also studying in the same school where her mother was teaching– -Minor was a female child of 4 years of age, who required constant care of her mother—Nothing had been brought on record which indicated that the minor child was not being brought up and looked after in an appropriate manner—Father was performing his duties in Army, where he was not permanently stationed at one place—Putting minor in an alien environment was not in her interest—Paramount factor in case of female minor child was guidance of her mother which had no substitute as no one could look after the minor as compared to her mother—No infirmity or illegality was found in the impugned order—Appeal was dismissed.
(b) Guardians and Wards Act (VIII of 1890)—
—-S. 17—Custody of minor—Matters to be considered by Court—Scope—Paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view of the age, sex and religion—Muslim Personal Law has also to be taken into consideration—Mother, under Sharia Law, is entitled to retain the custody of her male child until he attains the age of 7 years and custody of female child till her puberty—Mother’s right continues even though she is divorced—Where mother contracts second marriage, she loses the right of custody of her minor child—Where husband also contracts second marriage then the court has to see the convenience and welfare of the minor with more care

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