๐๐ข๐ง๐จ๐ซ๐ฌ ๐๐ฎ๐ฌ๐ญ ๐๐ ๐๐๐๐ซ๐ ๐ข๐ง ๐ญ๐ก๐ ๐๐ฎ๐ฌ๐ญ๐จ๐๐ฒ ๐๐๐ญ๐ญ๐๐ซ๐ฌ: ๐๐ก๐ข๐ฅ๐-๐๐๐ง๐ญ๐ซ๐ข๐ ๐๐ฉ๐ฉ๐ซ๐จ๐๐๐ก ๐๐ฎ๐ฌ๐ญ ๐๐ ๐๐๐จ๐ฉ๐ญ๐๐: ๐๐
In a very recent case, where the question of custody of two minors was before the Court, Honorable Justice Syed Mansoor Ali Shah of the Supreme Court adopting dynamic and constructive interpretative approach to interpret the word “welfare of the minor”ย has ruled that welfare of the child includes his/her best interest. A child, whose custody is to be decided, must be afforded the opportunity of hearing in a very friendly environment where psychological distance between the court and the child is non-existent.
The Court read the best interest of the child and right to be heard into the word “welfare of the minor” mentioned in section 17 of the Guardians and Wards Act, 1890, to align the domestic law with our international obligations under the UN Convention on Rights of the Child, 1989 as Pakistan is a signatory state to the Convention. Articles 3 and 12 of this Convention give the child the right to heard and his/her best interest must be protected and looked into. The Court read these two rights under the Convention into our domestic law and declared them mandatory obligation.
The Court stated that courts must adopt constructive and dynamic interpretative approach where needed while interpreting laws. The provisions of law shall not be static. They should be evolving and speaking to the changes as legislation on every changing circumstances is not feasible. The courts are obligated to interpret the law in accordance with changing circumstances.
In this case, the Court called both the minors to the Bench, the judges shake their hands with them and made them comfortable before asking for their preference as to whom they wanted to live with and the psychological distance between the minors and the judges was removed. One of the minors preferred to live with both separated parents and the other one was unable to make any judgment. The Court dismissed the review petition and kept the custody intact with the mother treating her the best person who can protect the best interest of minors in the circumstances of the case in hand.
c.r.p._458_2024
