Azizullah Vs Farah Naz etc

Judgment Sheet

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

Writ Petition No.9313-P/2025

Azizullah..........................................Petitioner. Versus mused Farah Naz and others....................Respondents.

Present:

Mr. Amir Ur Rehman Yusufzai, Advocate, for the petitioner.

Miss Ayesha Malik, Advocate, for the respondents.

Date of hearing:

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through this single judgment, I intend to decide the instant (W.P. No.

9313-P/2025) as well as the following four connected writ petitions;

i. W.P No. 9317-P/2025 Major Aziz Ullah vs. Mst. Farah Naz etc ii. W.P No. 9318-P/2025 Aziz Ullah vs. Mst. Farah Naz etc iii. W.P No. No. 68-P/2026 Farah Naz etc vs. Aziz Ullah

iv. W.P No. 69-P/2026 Farah Naz etc vs. Aziz Ullah etc

as all these petitions have arisen out from a common judgment and decree of the learned Additional District Judge-V, Nowshera, dated 18.11.2025, whereby five (05) appeals filed by both the parties were decided through a consolidated judgment, and both the parties are aggrieved of the same; therefore, they have now approached to this Court through these five petitions.

2.The facts giving rise to the filing of these petitions, precisely, are that initially, and at the very first instance, the present petitioner-husband, namely Aziz Ullah, filed a Guardianship Petition No.104/2 of 2024 for appointing him as legal guardian of the three minors, namely, Zarar Khan, Salar Khan and Muhammad Zoraiz Khan, and it was during the pendency of the said petition when respondent-wife, namely Mst. Farah Naz, also filed Petition No.2/FC of 2024 under section 25 of The Guardians and Wards Act, 1890 for the custody of minors and, on the said date, she also filed Suit No.1/FC of 2024 for the recovery of her dower, comprising of 10 tola gold, dowry articles, and maintenance, etc. Both the aforesaid petitions and suit were consolidated, and then consolidated issues were framed, and thereafter evidence of the

parties was recorded, and ultimately both these petitions and suit were decided by the learned Judge Family Court vide consolidated judgment and decree dated 18.07.2025 in the following manner:-

41.The derivative of the above discussion is that the petitioner-father in petition No. 104/2 is entitled to be appointed as legal guardian of the person of the minors for managing their affairs. He is directed to submit surety bonds in the sum of Rs.10,00,000/-, with two local reliable sureties up to the satisfaction of this court where after guardianship certificate will be issued to him. His guardianship petition No.104/2 stands disposed of accordingly.

42.Petitioner-mother in the case No.2/FC has proved that welfare of minors lies with her. Hence custody petition stands accepted whereas the respondent-father is given visitation right, in accordance with the schedule mentioned in the issue No.4. Parties shall submit surety bonds to the tune of Rs. 10,00,000/- each qua the safety of the minors and as an undertaking that they shall not remove the minors from the jurisdiction of this court, without permission of the court.

43.Plaintiffs in the suit No.1/FC have succeeded in proving their claims against the defendant, in the following manner:

i. Plaintiff No.1 is entitled to recovery of 10 tolas gold ornaments or their market value as dower. ii. Plaintiff No.1 is entitled to the recovery of maintenance allowance for her iddat period @ of Rs.20000/- per month. It is worth mentioning that during case trial, the defendant has submitted Rs.20000/- as a token amount with Civil Nazir on 19.09.2024, which the plaintiff has already withdrawn on 24.09.2024. Said amount shall be liable to deduction.

iii. Plaintiff No.1 is entitled to the recovery of dowry articles specified in the list dated 22.04.2024 of the defendant along with one fridge. Needless to state that if any proved dowry article is found missing, damaged or broken, the plaintiff would be entitled to the recovery of market value, which would be determined during execution proceedings. iv. Plaintiffs No.02 to 04 are entitled to the recovery of maintenance allowance at the rate of Rs.15000/- per month per head till attaining the age of majority, with 10% annual increase. It is specified that interim maintenance paid during trial

shall be liable to deduction and adjustment. A decree is passed accordingly.

Feeling aggrieved of the aforesaid judgment and decree, both the parties preferred their respective appeals, which were five in number, to the Court of learned Additional District Judge-V, Nowshera, which were consolidated, and the learned appeal Court, vide impugned consolidated judgment and decree dated 18.11.2025, decided the same with certain modifications in the following manner, which is reproduced as below:-

18.However, limited modification is warranted only to the extent of enhancement of the minors' maintenance allowance, in order to ensure that their educational, social, and day-to-day needs are adequately met. Accordingly, Appeal No. FCA-69 of 2025 is partially allowed, whereas Appeals No. FCA-65, FCA-66, FCA- 67, and FCA-68 of 2025 are dismissed. The remaining findings and operative parts of the impugned judgment and decree are upheld, subject to the following adjustments.

 Dower: Plaintiff/mother: Farah Naz is entitled to recovery of 10 tala gold ornaments or their market value, as dower, since the defendant failed to prove payment.

 Dowry Articles: Plaintiff is entitled to recovery of dowry articles in used condition. Missing, damaged, or broken items shall be compensated at market value, to be determined during execution proceedings.

 Maintenance during Iddat: Plaintiff/mother is entitled to Rs. 20,000/- per month for the Iddat period as determined by the trial court.

 Guardianship: Petitioner/father, Aziz Ullah, is entitled to be appointed as legal guardian of the minors for managing their affairs as determined by the learned trial court.

 Custody: Primary custody of the three minor sons (Zarar Khan, Salar Khan, and Zoraiz Khan) is confirmed with the mother, Mst. Farah Naz. The father is granted visitation rights as granted by the Family Court subject to payment of their monthly maintenance.

 Maintenance of Minors: The father shall pay maintenance of R. 25,000/- per month per minor with an annual enhancement of 10%, commencing from July 2026. Interim maintenance paid during trial shall be deducted and adjusted during execution.

 Visitation and Parental Rights: The father shall maintain meaningful interaction with the minors, while major decisions regarding education, health, and welfare shall require mutual consultation between both parents.

 Adjustments: Any token or interim amounts paid during the trial will be deducted from the final recovery to avoid duplication during execution proceedings.

Both the parties, being aggrieved of the aforesaid judgment and decree of the learned appeal Court, have now approached to this Court through this and connected petitions.

3.I have mused over the arguments advanced by the learned counsel for the parties and perused the record with their assistance.

4.The appended record, pleadings, and evidence produced by the parties would show that it was the present petitioner who, at the very first instance, approached The Guardian Judge at Nowshera through Petition No. 104/2 of 2024 for appointing him as guardian of the three minors, namely, Zarar Khan, Salar Khan and Muhammad Zoraiz Khan, and the content of the said petition would manifestly show that the petitioner had rushed to the Court of Guardian Judge with serious allegations against the respondent-mother, asserting that she, being suffering from mental disorder, and, as such, in routine life, she is acting in a violent manner and thus, any further custody of minors with her may endanger their lives. It was also pleaded that even his wife has caused him injuries on many occasions, but he bore those due to the mental condition of the respondent-wife. Similarly, the petitioner has also levelled allegations that the respondent-wife has been beating the minors;

therefore, he, under compulsion, had filed the instant petition seeking his appointment as their legal guardian. Para-3 and 5 of his petition, being relevant, are reproduced below:-

کہ ذہنی2 يہ کہ مسؤل عليہا نمبر ۔٣ مريضہ ہے اور انتہائی شدت پسند ہے جس

کا علاج سائل کروا رہا ہے۔ ڈاکٹران کی ہدايت کے مطابق مسؤل عليہا نمبر 2کی ذہنی کيفيت انتہائی خطرناک ہے جس سے مسؤل عليہا نمبر 2کو اکيلے نہ چهوڑنے کی ہدايت کی گی تهی کيونکہ مسؤل عليہا نمبر 2خود کو يا ديگر موجوده افراد/نابالغان کو انتہائی نقصان پہنچاسکتی ہے۔ )ڈاکٹری رپورٹس لف ہيں( ٥۔ يہ کہ شادی کے اس عرصہ کے دوران مسؤل عليہا نے من سائل پر کئی بار حملہ کرکے انتہائی چوٹيں پہنچائيں ہيں ليکن من سائل مسؤل عليہا کی ذہنی کيفيت کو مدنظر رکه کر تمام تشدد کو نظرانداز کيا ہے اور بچوں کی خاطر انتہائی اقدام نہ اُٹهايا تها۔ Similarly, in the written statement filed by the present petitioner to the suit of respondent-wife, he too, in para No.2 and 4 of the reply, has pleaded as ;under

-٢کہ فقره نمبر 2درست ہے۔ مدعيہ شادی سے قبل ہی ذہنی مريضہ ہے اور اس امر کو والده مدعيہ نے من مد عاعليہ سے چهپا کر رکها تها۔ مدعيہ کے والد کی وفات بهی من مدعا عليہ کے روبرو ہوئی ہے۔ من مدعا عليہ نے شادی کے بعد مدعيہ کے ذہنی مرض کا علم ہونے اور والد مدعيہ کی رحلت کے بعد مدعيہ بالکل اکيلی ره گئی تهی اور مدعيہ کا بهائی چهوٹا تها۔ شادی کے بعد من مدعا عليہ نے خدا ترسی کر کے تاحال يہ رشتہ انتہائی ايمانداری سے نبهايا ہے اور اس دوران بهی مدعيہ کا علاج بہترين ڈاکٹرز سےکروايا گيا ہے۔ ليکن مدعيہ جوکہ انتہائی لا پرواه عورت ہے اور اپنی والده ہی کی مانتی ہے والده کے کہنے پر ادويات استعمال کرتی ہے جس وجہ سے مدعيہ کی حالت ميں انتہائی شدت پسندی آئی ہے اور شدت کی حالت ميں صحيح غلط کا فرق بهول جاتی ہے بديں وجہ ڈاکٹرز کے مطابق مدعيہ کی ذہنی کيفيت انتہائی خطر ناک ہو چکی ہے اور اکيلے نہ چهوڑنے کی

ہدايت کی گئی تهی تاکہ مدعيہ خود و يا نا بالغان کويا من مدعا عليہ کو کوئی نقصان نہ پہنچائے۔ مدعيہ کی والده بهی مدعيہ کے ہمراه کئی دفعہ دہنی امراض کے ڈاکٹرز کے

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-٤کہ فقره نمبر 4سرا سر غلط ہے مدعيہ من مدعا عليہ پر ہاته اُٹهاتی تهی ،دانتوں سے کاٹتی تهی۔ ناخنوں سے خروچتی تهی اور آپے سے باہر ہو جاتی تهی۔ اس عرصہ کے دوران مدعيہ نے مدعا عليہ کوسر پر بهی مارا تها جسميں چارٹا نکے لگے تهے اور گلے پر ناخنوں سے زخمی کيا تها۔

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Likewise, when petitioner appeared in the witness box as PW-2, he has produced his medical report as Ex.PW-2/4, and pictures as Ex.PW-2/5, alleging that the said injuries were caused by the respondent- wife. The petitioner has also produced the prescriptions of the respondent-wife as Ex.PW-2/6, comprising of 18 sheets, showing that she has remained under psychiatric treatment for a considerable period, and, during the cross- examination, the present petitioner was confronted with the contents of his written statement, filed to Suit No.1/FC, where he has pleaded that:

قبل ہی ذہنی مدعيہ شادی سے مريضہ ہے ا ور اس امر کو والده مدعيہ نے من مدعا عليہ سے چ ُهپا کر رکها ہے۔

He, in his cross-examination, has further stated that:

رشتہ ہونے کے بعد مدعيہ کے والدين من مدعا عليہ کے روبرو فوت ہوئے من مدعا عليہ کو مدعيہ کی ذہنی بيماری کا علم ہوا تو من مدعا عليہ نے خدا ترسی کرتے ہوئے شادی کی تهی ۔

;In his cross-examination, he has further stated that يہ درست ہے کہ ميں نے اپنے دعوی ميں يہ بيان کيا ہے۔ مدعا عليہ ايک ذہنی مريض شادی کے پہلے دن سے ہی تهی اور ادويات بهی استعمال نہيں کرتی تهی ;He, in his cross-examination, has further stated that يہ درست ہے۔ کہ ميں نے مدعا عليہ کی مارپيٹ اور ناخنوں سے منہ نوچنے کی کوئی رپورٹ يہاں پربهی پيش نہيں کی ۔ از خود کہا ہے ميں نے اپنی medical report پيش کی ہے۔

;He has further stated that يہ درست ہے۔ کہ ميں نے مدعا عليہ پر جو ذہنی مريضہ ہونے کا الزم لگايا ہے اور جو مارپيٹ کا ذکر کيا ہےجو صرف ميرے حد تک ہے ۔ يہ درست ہےکہ ميرے دعوی اور بيا ن ميں کسی ٰ دعوی جواب اورکو مارنے کا ذکر نہ ہے۔ ازخود کہا کہ جب ميں اسکی والده کو شکايت کرتا تو انکی والده بہن اور بهائی يہی کہتے کہ اس نے ہمارا بهی سر توڑا ہے۔ Similarly, when the brother of the petitioner, namely Irfan Shah, appeared in the witness box as PW-3, he, in his cross-examination, has also stated as ;under

نکاح کے بعداور رخصتی سے پہلے ہميں پتہ چلا کہ مدعا عليہ ذہنی مريضہ ہے۔

He has further stated that;

کہ جب بهی اپنے بهائی عزيز سے ملتا اور مارپيٹ کی نشانياں ديکهتا تو وه خود بتلاتا کہ ميرے بيوی نے مجهے مارا ہے۔ جن ميں ناخن اور دانتوں کے نشان ہوتے تهے ۔

5.In view of the above, on one hand, it was the case of present petitioner, from the very inception, that the respondent-wife is suffering from mental disease, and, on the other, the learned trial Court, while framing consolidated issues, has not even bothered to frame any issue regarding the mental status of the respondent-wife to the effect that whether the mental disorder affects her capacity to provide adequate care to her minor children; and the said issue was more important and essential in the present case, as it was going to decide the interim as well as the permanent custody of the minors, but it, instead, by adopting a shortcut, has just brushed aside the aforesaid pleadings and evidence of the parties, and has dealt with the said allegations in a routine manner in its impugned judgment and decree dated 18.07.2025, where para-21, being relevant, is reproduced below;

21.As regards the serious allegations of the petitioner-father qua the respondent-mother's mental health and his claim that she had caused her physical injury during the

subsistence of marriage, he failed to prove his stance through solid and cogent evidence. Oral statements of the petitioner-father and his family members being not duly corroborated through the testimony of a psychiatric or psychologist who allegedly treated the respondent-mother, do not qualify as the credible witness testimony to establish the alleged illness of the respondent-mother. As to the photographic evidence, which the petitioner-father submitted regarding alleged violence, it is not the admissible piece of evidence being remained unverified, lacking authentication or corroborative evidence. Baseless allegations against the respondent- mother, without proper psychiatric evaluation or proof, are disregarded. These allegations appear to be just an attempt to show disqualification of the respondent-mother for the custody of minors, but without any substantive basis. On record, applications of the petitioner-father for medical examination and constitution of medical board for assessing the mental condition of the respondent-mother are found pending. Apart from alleging physical harm inflicted by the respondent-mother, the petitioner-father failed to cite any specific incident in which she attempted to harm the minors or any third party. Besides, during the trial, the respondent-mother appeared before several courts, including the Hon'ble Peshawar High Court, Peshawar, and throughout the entire judicial record, not a single incident has been recorded that casts doubt on her mental stability. She behaved normally while presenting evidence and responded to the questions during cross-examination with a

natural, human flow. Hence, her mental stability is proved on record; eliminating the need for a medical examination. With this all, the relevant applications of the petitioner-father are turned down.

6.The record further shows that, when the Judge, Family Court, decided the aforesaid cases, the present petitioner filed an appeal, and, in that appeal too, the aforesaid issue of mental condition of respondent-wife was agitated, and ground “D” of the said memo of appeal, being relevant, is also reproduced below;

“D. That incapability of Respondent No.1 for custody of minors has specifically been pleaded by appellant, particularly by mentioning her serious psychological disorder and, to this effect, also submitted application before the learned trial court for conducting medical examination through board, but unfortunately neither the said disability of Respondent No.1 was considered nor application for conducting medical examination through board was considered (Para 21 of the Impugned judgment), although both the queries were of paramount consideration, for the welfare of minors. therefore, on this score too, impugned judgment / decree is liable to be set at naught to the extent of refusal of custody of minors to the appellant /father.”

however, the learned appeal Court, too, in para “L” of its impugned judgment dated 18.11.2025, has

dealt with the said important issue, keeping in view the sensitivity of the controversy qua the grant of custody of minors has decided the same in a casual manner, without conducting any inquiry into the mental condition of the respondent-wife. Para “L” of the appeal Court’s judgment, being relevant, is reproduced below;

“L. The plea raised by the father regarding the alleged mental instability of the mother is unsupported by medical records or any reliable evidence. The case file contains no certificate, treatment history, or profession opinion suggesting that she suffers from a condition impairing her ability to care for the minors. Mere assertions or isolated domestic disagreements do not justify depriving a mother of custody when the welfare of the minors remains adequately safeguarded in her care.”

and, as such, both the Courts below have not properly exercised their jurisdiction and, thus, have erred in law, as they were required to have dealt with the matter properly.

7.As stated and reproduced hereinabove, that the learned trial Court, in Para No.21, and the learned appeal Court, in para “L” of their respective judgments, have rendered their opinions that, during the course of proceedings, they have observed the respondent-wife to be acting normally and, as such,

they have assumed the role of a psychiatrist/doctor, which their practice could not be appreciated, as it was a matter that could only be properly assessed by a professional psychiatrist; nevertheless, the Courts, being seized with such matters, have to render the final findings, but such professional assessment in cases requiring expert opinion would help and assist the Court in arriving at a proper decision, especially in those cases where the custody of a minor is involved. It may be reiterated that the personal observation by the Court is also mandatory and essential, but, equally, the Court has a duty to order for the medical examination of such party when the circumstances of the case so warrant. The relationship between a judicial observation and medical evidence is nuanced, as, in some cases, the court's personal examination may be sufficient to dismiss a patently frivolous petition; however, where a party has consistently and emphatically pressed a plea of mental disorder against another party, then the medical examination of such party becomes necessary, and, in such cases, the judges should not assume the role of a professional psychiatrist/doctor, especially in family matters when both the spouses are living in a single room and could observe each other round the clock.

The aforesaid exercise of medical examination of a party in cases of mental disorder has a statutory backing and has also been approved by the superior judiciary from time to time. In Muhammad Amin Khan’s1 case, the Additional District Judge had dismissed the petition on the ground that the appellant had failed to produce any medical evidence. The Lahore High Court reversed this order, holding that the Additional District Judge had misconstrued the spirit & scope of the law on the subject and has held as under;

“If he was of the view that the matter could not be decided without medical evidence and indeed it should not have been decided, he should have himself directed the medical examination of Abdul Ghani. It appears that towards the end of the proceedings, an application was filed by the appellant praying that Abdul Ghani be medically examined and also that he be summoned and examined by the Court itself. Both prayers were unfortunately refused by the Additional District Judge on 22 June 1989 on the ground that the application had been filed at a belated stage. This refusal, to say the least, was wholly unjustified.”

“Muhammad Amin Khan vs. General Public and others” reported as 1991 CLC 394

Similarly, in Mst. Zainab Bibi’s2 case, the Hon’ble Lahore High Court articulated this distinction with exceptional clarity. The petitioner had described Mst. Zainab Bibi as an idiot who did not know anything about the management of her property, and the only witness described her as a simple-minded woman. The District Judge had examined her in court and based on his own observations, declared her to be of unsound mind.

The High Court reversed this findings, holding that;

"Unsoundness of mind is an entirely different state of one's mind than his merely being a simple-minded person. It must be established that the person has some sort of mental derangement which makes him incapable of managing his affairs. Such a state of mind should not be confused with or regarded as analogous to a mere mental weakness or lack of intelligence. A person with a weak and undeveloped mind cannot be held to be a person of unsound mind."

In view of the above, both the fora below ought not to have been assumed the role of medical practitioners and psychiatrics, and when the pleadings, as well as the evidence produced by the parties, were full of assertions that the respondent- “Mst. Zainab Bibi vs. Ghulama Nabi and another” reported as PLD 1964 (W.P.) Baghdad-ul-Jadid 1

wife is suffering from a mental disease, then they should have had her examined by a professional psychiatrist/doctor; however, instead, they have decided the said plea on their own observations, which is neither in accord with the law of the land nor with the judicial consensus as referred to hereinabove.

8.It would also be relevant to mention here, and as reproduced hereinabove, that the learned trial Court, in its para No.21, and the learned appeal Court, in para “L” of its judgment, have observed that since the petitioner-husband failed to produce any material evidence qua the mental disorder of the respondent-wife through any documentary evidence, therefore, the said plea has been brushed aside, without taking any exercise on themselves;

however, such approach of both the fora below is erroneous, as whenever the mental sickness, or any psychological disorder of a party to a suit is put in issue, then it becomes the duty of the Court to inquire into the same and, in such eventuality, it shall not treat it as a case of a party against a party, but rather, it becomes the duty of the court to drop adversarial proceedings and to adopt inquisitorial proceedings; and in such circumstances, the Court should act in a proactive manner, as such approach

is also in line with the spirit of all the laws of the land, including The Guardians and Wards Act, 1890, and other laws governing the cases of a party suffering from mental disorder, as well as judicially approved by the superior judiciary of the country from time to time.

9.It would also be relevant to mention here that whenever a plea of mental disorder, or of a party being a minor, or of a party having no mental intellect, is pleaded or raised before the Court, then the Court should act as parens patriae, which stipulates that, in such eventuality, the Court should not act as a passive arbiter between adversarial parties, but as an active inquirer must ascertain the truth for the protection of the vulnerable persons who are before it. The Hon’ble Lahore High Court in Mst. Jamila Begum’s3 case has clarified this principle with exceptional wisdom, observing that the learned District Judge had fallen into error by treating the application as a dispute between party and party. The Court held as under:

“The learned District Judge has treated this case as that of a dispute between party and party who are thereby thrown into the vortex of litigation, the intention of one party being merely to hit the

“Mst. Jamila Begum vs. Awam-un-Nass and 15 others” reported as PLD 1978 Lahore 1376

other, or to avenge itself. This is not the object of the Lunacy Act. This Act confers upon the Courts the powers of paler patriae as a father over his children, The Act deals with the care of lunatics and idiots in the same manner as the Guardians and Wards Act provides for the inherent prerogative of the Courts acting as a prudent natural parent of the infant.”

The aforesaid observations of the Hon’ble Lahore High Court would show that, in such like cases, the Court does not derive its power from the consent of the parties, but from the Court’s sovereign duty to prevent harm to vulnerable persons within its jurisdiction. In Muhammad Amin Khan's case (supra), the Hon’ble Lahore High Court reinforced the aforesaid principle to the effect that whenever a plea of mental disorder or being minor, etc., is agitated in proceedings before a court of law, then it has to adopt inquisitorial proceedings instead of adversarial proceedings. Similarly, the Hon’ble Lahore High Court in Muhammad Ashraf’s4 case has observed that in cases where pleas of mental disorder, etc., are agitated, then in such cases, the Courts have inherent power and prerogative to act “Muhammad Ashraf vs. Sher Muhammad and others” reported as PLD 2006 Lahore 189

as a prudent and natural parent of an infant or a person with mental disorder.

10.There is yet another aspect which the Court must keep in mind is to the effect, especially in cases, when a mother, who is alleged or found to be suffering from a mental disorder, seeks custody of a minor child, or when such a mother already has custody and the child’s welfare is called into question, then the Court must apply the aforesaid principles, as discussed hereinabove within the specific framework of guardianship and custody law.

The Court, on one hand, must protect the vulnerable mother from discrimination and ensure that her mental condition does not become a sole basis for an automatic disqualification from custody, while, on the other, safeguarding the welfare of the minor child, who may be at risk if placed in an environment that is not conducive to help his/her development;

and that’s why under sub-section (1) of section 17 of The Guardians and Wards Act, 1890, mandates that the Court shall be guided by what appears to be for the welfare of the minor, and this principle is paramount in custody matters. Whenever a mother is alleged to be mentally disorder, the court must not assume that any mental disorder automatically disqualifies her from custody, rather the court must

assist the specific nature and severity of the disorder and its actual impact on the mother’s ability to fulfill her parental responsibilities and in such process, the Court must obtain the opinion of a medical examiner.

11.It would also be relevant to mention here that, in this case, three minors, namely, Zarar Khan, Salar Khan and Muhammad Zoraiz Khan, are by now respectively 15, 10, and 5/6 years of age, therefore, the fora below, which was seized with their custody, should have been obtained their consent, and due respect and regard should have been given to their emotional inclination as well;

however, in the present case, both the fora below have not sufficiently follow the said exercise to decide their custody in line with their consent which aspect of the case too requires a proper attendance.

In Ahmad Bilal’s5 case, the Hon’ble Islamabad High Court emphasized the importance of professional assessment in custody cases involving mental health issues. The Court appointed a consultant psychiatrist as an amicus curiae for his professional opinion so that the court may also consider the emotional, psychological, and social needs of the “Ahmed Bilal vs. Khurram Javed” reported as PLD 2023 Islamabad 83

child, which was an assessment which the courts concerned are not trained to make independently.

12.During the course of arguments, learned counsel representing the respondent-wife also raised an objection qua the mental disorder of the petitioner, Aziz Ullah, and in this regard she produced an application submitted by her for his medical examination before the trial Court, and produced the copy of the same, which is placed on file and is to be treated as part and parcel of this case; however, the grounds mentioned in the said application is to the effect that since the petitioner in not complying with the repeated court orders to produce the minors in the Court for visitation, and that he is not cooperating with the Court; however, such grounds could not be considered as sufficient for referring a party for medical examination, especially when it is an admitted fact that the respondent-wife has neither in her plaint nor in her written reply has pleaded such facts as against the petitioner-husband.

13.In view of the above discussion and exposition of law, the instant as well as connected writ petitions are allowed, the impugned consolidated judgment and decree of the learned

appeal Court dated 18.11.2025 is set aside, and, consequently, the cases are remanded back to the learned appeal Court, where appeals bearing Nos.

FCA-68 of 2025, FCA-69 of 2025, FCA-65 of 2025, FCA-66 of 2025 and FCA-67 of 2025, filed by both the parties, shall be deemed pending before it, and it shall, at the first instance, inquire into the mental condition of the respondent-mother, as per its own wisdom, including by referring her to a duly constituted medical board or a professional psychiatrist/doctor, as the case may be, requiring from it/him/her to determine that;

i. Whether the respondent-mother suffers from a mental disorder and, if so, its diagnosis and severity?

ii. Whether the mental disorder affects her capacity to provide adequate care to her minor children and, if so, in what specific ways?

iii. Whether the respondent-mother is capable of managing herself and her affairs?

iv. Whether the respondent-mother has lucid intervals and, if so, their frequency and duration?

v. Whether the respondent-mother is receiving or could benefit from treatment that might improve her parenting capacity?

vi. Whether the respondent-mother poses any danger to herself or to the children? and

vii. Whether the mental disorder affects her capacity to provide adequate care to her minor children?

and thereafter, after obtaining such report, the learned appeal Court, if deemed necessary, may examine the person who renders the aforesaid opinion, and then shall decide the pending appeals afresh in the light of the outcome of the report qua the mental status of the respondent-mother, as well as the evidence already recorded by the parties, in accordance with law.

14.Since the instant proceedings have arisen from the Family Court, and the parties have suffered for the last more than two years, therefore, the learned appeal Court is directed to conclude the aforesaid exercise within sixty (60) working days, from receipt of the order of this Court; and, in the meanwhile, both the parties shall strictly observe the visitation schedule, as set by the learned trial Court vide judgment/decree dated 18.07.2025.

Announced:

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Shahid Nawaz, Steno)