𝐓𝐡𝐞 𝐑𝐢𝐠𝐡𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐏𝐚𝐫𝐞𝐧𝐭𝐬 𝐢𝐧 𝐂𝐮𝐬𝐭𝐨𝐝𝐲 𝐌𝐚𝐭𝐭𝐞𝐫𝐬 𝐚𝐫𝐞 𝐒𝐮𝐛𝐬𝐞𝐫𝐯𝐢𝐞𝐧𝐭 𝐭𝐨 𝐭𝐡𝐞 𝐑𝐢𝐠𝐡𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐌𝐢𝐧𝐨𝐫/𝐂𝐡𝐢𝐥𝐝

𝐓𝐡𝐞 𝐑𝐢𝐠𝐡𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐏𝐚𝐫𝐞𝐧𝐭𝐬 𝐢𝐧 𝐂𝐮𝐬𝐭𝐨𝐝𝐲 𝐌𝐚𝐭𝐭𝐞𝐫𝐬 𝐚𝐫𝐞 𝐒𝐮𝐛𝐬𝐞𝐫𝐯𝐢𝐞𝐧𝐭 𝐭𝐨 𝐭𝐡𝐞 𝐑𝐢𝐠𝐡𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐌𝐢𝐧𝐨𝐫/𝐂𝐡𝐢𝐥𝐝.

𝐓𝐡𝐞 𝐖𝐞𝐥𝐟𝐚𝐫𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐌𝐢𝐧𝐨𝐫/𝐂𝐡𝐢𝐥𝐝 𝐌𝐮𝐬𝐭 𝐓𝐚𝐤𝐞 𝐏𝐫𝐞𝐜𝐞𝐝𝐞𝐧𝐜𝐞 𝐨𝐯𝐞𝐫 𝐚𝐥𝐥 𝐨𝐭𝐡𝐞𝐫 𝐂𝐨𝐧𝐬𝐢𝐝𝐞𝐫𝐚𝐭𝐢𝐨𝐧𝐬, 𝐈𝐧𝐜𝐥𝐮𝐝𝐢𝐧𝐠 𝐭𝐡𝐞 𝐂𝐮𝐬𝐭𝐨𝐝𝐲 𝐑𝐢𝐠𝐡𝐭𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐏𝐚𝐫𝐞𝐧𝐭𝐬.

𝐓𝐡𝐞 𝐒𝐞𝐜𝐨𝐧𝐝 𝐌𝐚𝐫𝐫𝐢𝐚𝐠𝐞 𝐨𝐟 𝐭𝐡𝐞 𝐌𝐨𝐭𝐡𝐞𝐫 𝐢𝐬 𝐚𝐥𝐬𝐨 𝐧𝐨𝐭 𝐚 𝐒𝐭𝐚𝐧𝐝-𝐚𝐥𝐨𝐧𝐞 𝐑𝐞𝐚𝐬𝐨𝐧 𝐭𝐨 𝐃𝐢𝐬𝐪𝐮𝐚𝐥𝐢𝐟𝐲 𝐡𝐞𝐫 𝐟𝐫𝐨𝐦 𝐭𝐡𝐞 𝐂𝐮𝐬𝐭𝐨𝐝𝐲 𝐨𝐟 𝐭𝐡𝐞 𝐌𝐢𝐧𝐨𝐫: 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐀𝐭𝐡𝐚𝐫 𝐌𝐢𝐧𝐚𝐥𝐥𝐚𝐡 𝐨𝐟 𝐭𝐡𝐞 𝐒𝐂

Custody of a minor is one of the most litigated and contested matter in family laws in our country. Time and again, the higher judiciary has held that the pivot to decide the issue of custody of a minor is to see where the welfare of the minor lies: whether it lies with the mother, the father or with a third party such as grandfather or grandmother etc. It is not to see it is whose right among the parents to have the custody of the minor.

The Supreme Court in this background has decided a custody case of a minor where both of the parents were contesting for the custody of the minor since 2017. The Court held that the subordinate judiciary must consider in custody cases that where the welfare of the minor lies, and the decide the case on this score alone. However, there could be numerous considerations and variables for determination of the welfare of the minor. The criterion for determination of welfare must not be a specific factor or fact of a given case, rather the courts must appreciate the whole facts and circumstances of the case and decide with whom the welfare of the minor lies among the parents.

The Court further clarified a very crucial aspect of the custody cases. In most of the case where the mother has contacted second marriage, it is asserted by the father that the custody of the minor shall prevail with him, not the mother as she has remarried. The Court held to this effect that second marriage of a mother is not a stand-alone reason to disqualify her from the custody of the minor. The Court went a step further and ruled that even a mother’s illiteracy, disability and financial status   are also not the sole determinants for deciding the welfare of the minor.  Other factors, such as the age, a minor’s preference if he/she can make judgment, religion, education, emotional attachment and environment etc must be taken into consideration.

The Court ends the judgment by issuing directions to the relevant state functionaries, the President, Governors, Chief Commissioner of Islamabad, for ensuring protection and welfare of children in the light of Articles 29 (3) and 35 of the Constitution. The Federal Judicial Academy was also directed to arrange special courses to train the family courts judges on how to decide the family matters in friendly and congenial environment.

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