Mst. Khansa Bibi Vs Javed Iqbal and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

W.P No. 145-D/2025 with C.M No. 119, 120 and 152-D/2025 (Against the Judgment dated 06.8.2025 passed by the Additional District Judge-V, D.I.Khan In Family Court Appeal No. 186 of 2024)

Mst. Khansa Bibi ... Petitioner

Versus Javed Iqbal and others ... Respondents

For petitioner Muhammad Abdullah Baloch, Advocate For respondent Malik Hidayatullah Malana, Advocate Date of hearing: 05.3.2026

JUDGMENT

Sadiq Ali, J.-

1.Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the judgement dated 06.8.2025 (“impugned judgment”) of learned Additional District Judge-V, D.I.Khan whereby the Family Court Appeals filed by both the parties against the judgement and decree dated 16.12.2024 passed by learned Senior Civil Judge/Judge Family Court-I, D.I.Khan were dismissed.

2.The brief facts of the case are that the marriage between the petitioner and respondent No. 1 was solemnized,

and out of the said wedlock, one son Muhammad Aune, and two daughters Mashal Iman and Dua Sakina (minors) were born.

However, the marriage contract could not be remained as parents of the minors had parted their ways. The respondent filed an application under Section 25 of the Guardian and Wards Act, 1890 before the learned Judge Family Court/Guardian Judge, D.I.Khan, seeking appointment as guardian of the minors daughter Mashal Iman and Dua Sakina. Learned trial Court, after recording the evidence of both parties and affording them ample opportunity of hearing, accepted the petition and appointed the respondent/father as guardian and custody of the minors was ordered to be given to respondent/father.

3.Being aggrieved of the said decision, both the parties preferred separate Appeals before the learned Additional District Judge-V, D.I.Khan. However, the findings of the trial Court were upheld and the appeals were dismissed vide judgment dated 06.8.2025. Thereafter, the petitioner has filed the present constitutional petition, assailing the impugned judgment passed by the appellate Court.

4.Learned counsel for the petitioner, inter alia, contended that the Courts below failed to undertake a holistic assessment of the minors’ welfare as envisaged under Sections 25 of the Act. The determination was made on the assumption of parental preference without evaluating the petitioner’s superior financial, educational, and environmental capacity to secure the minors daughters long-term welfare. He contended that re-

marriage of the petitioner is not a legal disqualification for custody. He maintained that the welfare, betterment and best interest of the minors daughter demands that custody of daughters remain with her mother. He further contended that the minors are getting qualifity education in a school and emotional security, proper moral upbringing, a strong educational foundation are of paramount importance for the daughters’ future growth and development, any unwarranted disturbance or change in her environment would likely cause irreversible harm to their personality and career, on this score too, the petitioner is entitled to be appointed as guardian of the minors’ daughters and custody be retained with mother. He argued that the appellate Court failed to exercise its jurisdiction effectively by affirming the trial Court’s findings without independent reasoning. The judgment is non-speaking and reflects mechanical concurrence, thus warranting interference.

5.Per contra, learned counsel for the respondent submits that both Courts correctly applied the paramountcy of welfare of the minors with the father. Learned counsel for the respondent contends that the impugned judgments and orders concurrently passed by the learned courts below are legal and justified. He voiced that the petitioner has contracted a second marriage with another person, who is a complete stranger to the minor daughters of the petitioner, therefore, she is not entitled to the custody of the minors and he, being the natural guardian, has a vested right to claim custody (Hizanat),

particularly as the minors are extremely attached to him. He maintained that the judgments reflect concurrent findings of fact based on proper appraisal of evidence

6.Arguments heard. Record perused.

7.The pivotal points raised in the instant petition are as under:-

1.Whether the learned Courts below failed to appreciate the welfare of the minor daughters as the paramount consideration under Section 25 of the Guardians and Wards Act, 1890?

2.Whether the remarriage of petitioner, coupled with the living environment of her new matrimonial home, was properly evaluated by the Courts below while determining the welfare of the minors?

3.Whether the petitioner is entitled for custody of minors merely on the basis of being the natural guardian, particularly when she has contracted a second marriage?

4.Whether the impugned judgments suffer from misreading and non-reading of evidence, thereby warranting interference by this Court in its constitutional jurisdiction?

5.Whether the petitioner, being the natural guardian and mother of the minors, has been unjustly deprived of her custody despite having better financial, educational, and moral capacity to ensure her welfare?

6.Whether the learned Appellate Court failed to exercise jurisdiction vested in it under the law, rendering the impugned judgment liable to be set aside?

Before addressing the said points/issues, it is imperative to reproduce the section 25 of the Act which is reproduced below:

25.Title of guardian to custody of ward.---

(1)If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

In the same vein, the determination of guardian of a minor is also governed by Section 17 of the Act, which provides as follows:

17.Matters to be considered by the Court in appointing guardian.---

(1)In appointing or declaring the guardian of the minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2). In considering what will be for the welfare of the minor the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3)If the minor is old enough to form an intelligent preference, the Court may consider that preference."

Bare perusal of Section 17 of the Act reveals that, in determining the appointment of a guardian for a minor, the courts must primarily take into consideration the welfare of the

minor.

8.It is a settled principle of law that the welfare and best interests of the minor shall be the prime and overriding consideration in determining an application for custody, with no other factor taking precedence as noted by the august Supreme Court in the case of Khan Muhammad v. Mst. Surayya Bibi and others (2008 SCMR 480). Now determination that what constitutes welfare of a minors is a question of fact that must be established through cogent and reliable evidence in each case rather than presumptions as observed earlier by the apex Court in the case of Rahimullah Choudhary v. Mrs. Sayeda Helali Begum and others (1974 SCMR 305).

9.The expression “welfare of the minor” includes the minor’s moral, spiritual, physical, psychological, educational, and material well-being. It further encompasses considerations relating to the minor’s health, academic progress, religious upbringing, and overall emotional development. In determining welfare, due weight must also be given to the minor’s happiness and emotional attachment to the proposed custodian.

10.A holistic examination of the record demonstrates that the pivotal question for determination remains the welfare of the minor, which is the controlling consideration under section 25 of the Guardians and Wards Act, 1890. In the present case, the record unequivocally reflects that the minors have a strong like towards the petitioner/mother. Naturally, the kids absorb the love of any person including real father from the feeling of her/his

mother because the kids remain in the womb of the mother being a piece of the body of the mother who have the same feeling of mother.

11.On perusal of the record, it transpires that the son, Muhammad Aune, is already in the custody of the respondent/father, whereas the two daughters, namely Mashal Iman and Dua Sakina, are presently in the custody of the petitioner/mother. It is also an admitted position that the minors are receiving quality education at a private school and has consistently been securing good positions in their class, which clearly reflects their academic excellence, proper upbringing, and a stable environment. At this delicate and formative stage of adolescence, when emotional security, proper moral upbringing, and a strong educational foundation are of paramount importance for the minor’s future growth and development, any unwarranted disturbance or abrupt change in their existing environment is likely to cause irreparable harm to their personality and academic career. In addition to the above, it is pertinent to mention that right of a child to choose between the parents has been recognised by Shariah as it was also made basis for decision by the Prophet Muhammad (Sallallahu Alaihi Wasallam). A woman came and asked “O Messenger of Allah my husband wishes to go away with my son” and the Prophet Muhammad (Sallallahu Alaihi Wasallam) said to the boy; “This is your father and this is your mother. Take the hand of either of them whom you like” and the boy caught the hand of his mother and she went away with him.

In the instant case, the minor daughters were called before this Court, where they candidly expressed their willingness to reside with their mother/petitioner. Their preference appears to be voluntary and reflective of their comfort and attachment with the petitioner. Therefore, keeping in view the paramount consideration of the welfare, betterment, and best interests of the minors, it is imperative that their custody remains with their mother.

12.The aspect of respondent No. 1’s remarriage was duly considered by the Courts below, and nothing adverse regarding the minor’s safety, upbringing, or environment has been brought on record. Mere remarriage, without tangible detriment to the minors, cannot be treated as a disqualification. The apprehensions raised by the respondent regarding the petitioner’s remarriage are speculative and unsupported by any adverse material. The petitioner’s assertions of superior financial means or status as natural guardian, though relevant, do not override the settled and emotionally secure welfare enjoyed by the minor in maternal custody.

13.As elucidated in D.F. Mulla’s Principles of Muhammadan Law (Paragraphs 352 and 354), while a mother’s right to custody continues even after divorce, it may be forfeited upon remarriage, particularly if the marriage is contracted with a person who is not related to the minor within the prohibited degrees. Nonetheless, Sections 17 and 25 of the Guardian and Wards Act, 1890 mandates that the welfare of the minor shall

remain the paramount consideration in determining custody disputes. The Hon’ble Supreme Court of Pakistan has consistently held that the disqualification of the mother under Muhammadan Law upon remarriage is not absolute and must yield to the overarching principle of the minor's welfare. In Shabana Naz v.

Muhammad Saleem (2014 SCMR 343), it was categorically affirmed that if the welfare of the minor is best served in the custody of the mother, such custody may be granted to her notwithstanding her remarriage.

Therefore, each case must be decided on its own facts, with the welfare of the minor remaining the paramount consideration. In such cases, if the welfare of the minors is best served by awarding custody to the mother, even after remarriage, the Court may grant her custody as held in the case of Raja Muhammad Owais v. Mst. Nazia Jabeen and others (2022 SCMR 2123). The august Supreme Court, in the case of Mst.

Shahista Naz v. Muhammad Naeem Ahmed and another (2004 SCMR 990), observed that the right of Hizanat having the force of Injunction of Islam is an accepted principle of Islamic Law.

Moreover a female, on account of re-marriage may be disqualified to exercise this right, but a mother on account of remarriage is not absolutely disqualified to be entrusted the custody of a minor child rather she may lose her preferential right of custody.

14.It is the duty of the Court to ensure that the welfare of the minor is of paramount concern, and that the actions of the litigating parties are not motivated by personal

vendettas, vanity, or emotional desires for affection, but solely in the best interest of the minors. In matters concerning the custody of a child, the Family Court is not obliged to delve into the intricacies or technicalities of the case but must focus on determining what is in the best interest of the minor. Reference may be made to the case of Mehmood Akhtar v. District Judge, Attock and 2 others (2004 SCMR 1839). Reliance is placed on the case reported as P L D 2025 Supreme Court 541 Asjad Ullah vs. Mst. Asia Bano and others, whereby the apex Court observed that:

The definition of "guardian" as provided under Section 4(2) of the Act appears to encompass the concept of custody, unless custody has been exclusively awarded by the Court to a party other than the natural guardian. Custody, within the meaning of the Act, primarily involves the right to the upbringing of the minor, whereas guardianship entails an overarching responsibility for the welfare of the minor, including in situations where the guardian does not have actual physical possession of the minor. A father, by virtue of being the natural guardian, remains obligated to provide financial support for the minor even after separation from the mother and even when the custody of the minor is granted to the mother. It is well-settled that the liability of the father to maintain the minor is not only religious and moral but is also a legal obligation. It has been consistently held that the right to custody is subordinate to the paramount consideration of the welfare of the minor. The inability of the mother to financially maintain the minor cannot, by itself, deprive her of custody, as the primary duty to provide maintenance rests upon the father. This principle was affirmed in Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain (1983 SCMR 606), Munawar Bibi v.

Muhammad Amin and another (1995 SCMR 1206), Mst. Razia Bibi v. Riaz Ahmad and another (2004 SCMR 821) and further reinforced in Mst. Beena v. Raja Muhammad and others (PLD 2020 SC 508).

Insofar as the contention of the learned counsel for the petitioner that respondent No.1 has contracted a second marriage with a person who is a stranger to the minor and, therefore, is not entitled to the custody of the minor, it is by now a settled principle of law that the

mere fact of a mother's remarriage does not ipso facto disentitle her from the custody of the minor.

Likewise, in the reported case i.e 2024 S C M R 486 [Supreme Court of Pakistan] Mst. Qurat-Ul-Ain vs. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others, it was held that:

Thus, it is apparent from reading of the two paras of the Muhammadan Law that though the mother is entitled to the custody (Hizanat) of her minor child but such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to the father. It has been construed by the Courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the Court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.”

In another pronouncement, the apex Court in Muhammad Owais v. Nazia Jabeen (2022 SCMR 2123) was of the view that:

“6. The basic issue is with reference to the custody sought by the mother for her four children. The emphasis by the father is on the mother's second marriage which it is argued disentitles her to custody under the Islamic Law. D.F. Mullah in Mohammadan Law in Para 352 provides that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Para 352 ibid provides that this right continues whilst she is divorced from the father of the child, however, in the event she marries a second time, custody then belongs to the father. Para 354 of Mohammadan Law provides that the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she marries a person not

related to the child within the prohibited degrees which are specified in paras 260-261 of Mohammadan Law.

Paras 352 and 354 of the Mohammadan Law were considered and the Court concluded that although Mohammadan Law provides that the mother is disentitled to custody if she remarries, this is not an absolute rule but one that may be departed from if there are exceptional circumstances to justify such departure and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody.

Reliance can further be placed on the reported cases as PLD 2024 Supreme Cour 291 Mst. Haseena Bibi vs. Abdu Haleem and others, 2022 CLC 762 (Lahore) Mst. Safia Bibi and others vs. Additional District Judge and others.

The aforesaid judgments clearly dispel the stance taken by the father/respondent that on account of the mother's second marriage, she has lost the right of custody over her four children.

15.In view of the foregoing legal analysis and discussion, and upon meticulous examination of the impugned judgments, this Court finds that the learned Courts below have wrongly applied the paramount welfare principle envisaged under Section 25 of the Guardians and Wards Act, 1890. The remarriage of the petitioner, the environment of her new matrimonial home, and the consistent preference expressed by the minors were not duly considered and appropriately weighed by the Courts below.

It is evident from the record that there has been apparent misreading as well as non-reading of material evidence, thereby

justifying interference by this Court in exercise of its constitutional jurisdiction. Consequently, the petition is allowed.

The impugned judgment dated 06.08.2025, passed by the learned Additional District Judge-V, Dera Ismail Khan and the judgment dated 16.12.2024 of learned trial Court, being afflicted with patent illegality and non-application of judicial mind, cannot be sustained in the eye of law and are hereby set aside. Resultantly, the petitioner Mst. Khansa Bibi is held entitled to be appointed as guardian of the persons and property of the minor daughters, namely Mashal Iman and Dua Sakina and she is also entitled to retain custody of minors

So far as to the visitation of minors daughters are concerned, the apex Supreme Court in a judgment reported as 2018 S C M R 1991 [Supreme Court of Pakistan] Mst. Madiha Younus vs. Imran Ahmed issued the comprehensive plan with regard to custody, visitation rights and maintenance of minors, and obligations of both parents. In view of the said directions, the parties shall observe the following orders:

i)Both the minors daughters shall remain with the petitioner Mst. Khansa Bibi (mother).

ii)On every alternate weekend minors may reside with respondent No.1 Javed Iqbal (father) i.e. respondent No.1 will pickup the minors from the house of the petitioner on Friday at about 8:00 p.m. late evening and shall drop the minors at the house of the petitioner on Sunday by 01:00 p.m. in the afternoon.

iii)During summer vacations the custody of the minors to be handed over to the respondent on the 1st Sunday of

the summer vacations so declared by the School/Government and shall be returned to the petitioner in evening of the 4th Sunday during the vacation so that minors may have four weeks to spent with his father i.e. respondent No.1.

iv)Winter vacations which are generally due from 21st December to 30th December. 1st week of the winter vacation shall be spent by the minors with respondent No.1 and 2nd week with the petitioner.

v)In Eid-ul-Fitr the minors will celebrate Eid with their father respondent No.1 from Chand Raat of Eid-ul-Fitar at 08:00 p.m. till second day of Eid upto 08 p.m.

vi)In Eid-ul-Adha the petitioner will allow the minors to celebrate Eid-ul-Adha with father i.e. respondent No.1 who shall pick the minors from the residence of petitioner on the second day of Eid-ul-Adha at 11:00 a.m. in the morning till 3rd day of Eid-ul-Adha at 10:00 p.m. or earlier.

Announced March 5, 2026 -Sd/- Hasnain JUDGE

Approved for Reporting

(S.B) Hon’ble Mr. Justice Sadiq Ali