1

IN THE COURT OF SHERAZ KHAN CIVIL JUDGE/FAMILY COURT

JUDGE BANDA DAUD SHAH DISTRICT KARAK.

Family Court Case No ……………51/6 of 2013

Date of Institution…………………….20.11.2013
Date of Decision………………………13.10.2014

Hayat Noor S/O Saraar Khan R/O Sanda Khurram, Tehsil Banda Daud Shah,
District Karak..……………………………………..…………………Petitioner

VERSUS

Razi Rehman S/O Mir Zaman 2. Mst.Gul Shapiray D/O Mira Khan R/O Sanda
Khurram, Tehsil Banda Daud, Shah, Karak............................................ Respondent

PETITION FOR THE CUSTODY OF MINOR

JUDGMENT

Through this detailed judgment, the above titled petition will be

disposed of.

The brief facts of the case are that the petitioner and respondent

NO.2 had entered into marriage, which was later on dissolved. Respondent

NO.2 has contracted second marriage and Minor Zeenat Shaheen, the

daughter of petitioner and respondent No.1, is in the custody of respondent

No.1 (Maternal uncle of minor). Petitioner averred that he can better look

after the minor, hence the instant petition.

 2

Respondents were summoned, who appeared and contested the

petition by submitting their joint written reply.

The following issues are framed.

ISSUES

1. Whether the petitioner has got cause of action?

2. Whether the petitioner is entitled to the custody of minor?

3. Relief.

Opportunity was given to the parties to produce evidence of their own

choice. Petitioner himself appeared as APW-1. In rebuttal, minor recorded

her statement as RDW-1 and respondent NO.1 appeared as RDW-2.

Arguments heard and record perused.

Petitioner relied upon the following case law of the Honourable Superior

Courts reported in;

A. 1999 MLD 2960 Lahore.

B. 2002 YLR 2854 Karachi.

C. 2005 CLC 894.

My issue wise discussion and findings are as under

ISSUE NO. 1 & 2

Both these issues are interlinked hence, taken together for joint discussion.

Petitioner himself appeared as APW-1 and narrated that the minor is

his daughter, who is in the custody of respondent. Divorced had taken place
 3

between him and respondent NO.2. Respondent NO.2 has contracted

second marriage. Minor is now days residing with his maternal uncle,

which is against the injunction of Sharia. He pays her maintenance. APW-

1 further deposed that he is serving in Army and he can better look after the

minor as compared to the respondents. He sought for the custody of minor.

In rebuttal, minor herself appeared as RDW-1 and deposed that the

petitioner has spread rumors in his village that after getting her custody

from the court he will keep her as servant of his second wife. RDW-1

further alleged that the petitioner also said that he will receive back

maintenance amount paid by him and will also sell her. RDW-1 further

deposed that the petitioner never viewed her as his daughter and she does

not want to go with the petitioner at any cost. She also alleged that the

petitioner tried to abduct her.

RDW-2 deposed that the minor alongwith respondent NO.2 were

expelled by the petitioner from his house and after that he sent a respectable

person towards the petitioner but he refused to take back respondent NO.2

and the minor. RDW-2 alleged that the petitioner never inquired about the

minor either in Eid or in other festivals. RDW-2 also supported the

allegations of RDW-1.

Perusal of record vis-à-vis the arguments reveals that admittedly the

minor is the real daughter of petitioner and respondent No.2. Admittedly,

divorce had taken place between the petitioner and respondent NO.2.
 4

admittedly, the respondent NO.2 has contracted as second marriage with

another person not related to the minor within the prohibitory degree of

marriage. Therefore, in such like circumstances, the respondent NO.2 has

become disqualified for the custody of minor in view of Islamic Law. It is

also admitted in the evidence that the minor is residing with respondent

No.1, who is her maternal uncle. Copy of FATAWA produced by the

petitioner clearly shows that in such like situation, when the mother has

contracted second marriage with a stranger to the minor, the right of

Hizanat transfers to the maternal grandmother and in default, the father has

got the right to the custody of minor. Respondents have admitted that the

grandmother of the minor is not alive therefore, legally, the custody belongs

to the father of minor and Maternal uncle has got no right of the custody of

minor under the Islamic Law.

So far the welfare of the minor is concerned, admittedly, the

petitioner is severing in Army/Malysha and having a hand some amount of

salary as well as other free facilities for the children i.e education and

medical etc. On the other hand, the respondent NO.1 has no permanent

source of income. Moreover, it is in the evidence of the respondents that the

respondent No.1 is living in a joint house, with joint families of his

brothers. It is also in the evidence of respondents that respondent NO.1 has

got a separate room in his house. It is also admitted in respondent evidence

that some of nephews of respondent No.1 have grown up therefore, in such

 5

like circumstances, it will also be not wise and safe to allow the minor in

the custody of respondent No.1, so as to safeguard the honour of the minor.

On the other side, the petitioner has second wife and no children from her

therefore, the company of female inmate will also be available to the minor

if she is handed over into the custody of petitioner. It is pertinent to mention

that petitioner is already paying the maintenance of minor by the order of

court.

The learned counsel for the respondents argued that the minor

herself has grown up and she is also not willing to go with her father.

Further contended that the petitioner never met the minor either in Eid or

other festivals which is admitted by him during his evidence. The learned

counsel for the petitioner resisted the said arguments by producing the

relevant case law of the Honourable Superior Courts.

So far the will of the minor is concerned, the question would be that

whether the minor can opt for a make a better choice for herself in

particular circumstances. Another question would be that whether the minor

is making choice with prudent mind and not charged by emotion or under

the influence of her mother?

It is admitted in the evidence of the parties that due to strange

relation between the petitioner and respondent NO.2 their marriage was

dissolved since long and the minor is since then residing with her mother

(Respondent NO.2). Thereafter, after her mother contracted second

 6

marriage, she is residing with her Maternal uncle. Therefore, she is the

witness of strange relations between her father and mother during the age of

her minority, which could also be inferred from her statement as RDW-1,

therefore, naturally, when she lived with her mother since her infancy, she

might be influenced by her mother view. Hence, the will of the minor could

not held to be unemotional. Moreover, the case law reported in 1999 MLD

2960 is relevant to the facts and circumstances of the present case. The

relevant portion is hereby reproduced for ready reference.

“ Minor had made a statement before appellate court that she was not ready

to live with her real father and her step father was better then her real

father--- continuous living of minor with her mother prompted her to make

such a charged and emotional statement”

The respondents have also leveled other allegations against the

petitioner like, the petitioner will sell the minor, he will make her the

servant of his second wife and that the petitioner tried to abduct her, does

not appeal to a prudent mind. Moreover, these are merely hearsay

allegations rather these are mere rumors having no concrete proof. Even

otherwise, the petitioner is the real father of the minor, serving in

responsible institution of security force, having no such history, therefore,

in absence of strong and independent proof, these allegations could not be

accepted and considered.

 7

The outcome of the above discussion is that not only the respondent

are disqualified for the custody of minor but the welfare of the minor also

demands that she be given into the custody of her father.

Keeping in view the above discussion, the petitioner has

successfully proved his stance. Keeping in view the welfare of minor,

petitioner has got a valid cause of action and entitled to the custody of

minor as prayed for. Both the issues are decided in positive.

RELIEF

As up shot of my above discussion/findings, the instant petition is accepted

and respondents are directed to hand over the minor into the custody of his

father/petitioner. No order as to cost. File be consigned to general record

room after completion and compilation.

ANNOUNCED
12.09.2014

SHERAZ KHAN
Judge Family Court Judge
Banda Daud Shah, Karak

CERTIFICATE

Certified that my this judgment consist of Seven (07) pages. I have signed
each page after necessary correction.
D a t e d
12.09.2014
SHERAZ KHAN
Judge Family Court Judge
Banda Daud Shah, Karak.
 8

Or………18
13.10.2014

Petitioner alongwith counsel present. Respondent alongwith counsel

present.

Arguments heard and record perused.

Vide my detailed judgment of today, consists of Seven (07)

pages, placed on file, the instant petition is accepted and

respondents are directed to hand over the minor into the custody of

his father/petitioner. No order as to cost. File be consigned to

general record room after completion and compilation.

ANNOUNCED
13.10.2014

SHERAZ KHAN
Judge Family Court Judge
Banda Daud Shah, Karak