Umar Farooq Vs Saif-ur-Rehman & others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department) W.P No.5326-P of 2026.

Umar Farooq Vs Saif-ur-Rehman & others.

Mr. Muhammad Amin Khattak Lachi, Advocate, Present: for petitioner.

Mr. Mr. Muhammad Abid Wazir, Advocate, for respondents.

Date of hearing: 14.10.2026

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- Through the instant civil revision petition, the petitioner has called into question the judgment and order dated 18.03.2026, passed by the learned Additional District Judge-VII, Kohat, whereby the appeal preferred by the respondents was allowed, and the judgment and order dated 16.10.2025, passed by the learned Judge Family Court, Tehsil Lachi, District Kohat, were set aside, resulting in the dismissal of the petitioner's application seeking custody of the minor.

2.The petitioner and respondent No. 4 were husband and wife and were blessed with a son, namely, Muhammad Daniyal. Owing to matrimonial discord, their marriage was dissolved in 2018, whereafter they separated. The minor remained in the custody of his mother, who contracted a second marriage in 2024. Subsequently, the minor started residing with his maternal grandfather, namely, Saif-ur-Rahman, at Shakardara. Claiming that the minor's welfare, particularly his education, health and overall upbringing, necessitated his custody being entrusted to him, the petitioner instituted a custody petition before the learned Family Court at Essa Khel, District Mianwali. During those proceedings, it transpired that the minor was residing with his maternal grandparents at Shakardara. Consequently, for want of territorial jurisdiction, the petitioner's application was dismissed vide order dated 18.11.2024, with liberty to approach the competent Court. Pursuant thereto, the petitioner instituted a fresh custody petition before the competent Family Court, which was contested by the respondents. The learned trial Court partially allowed the petition and granted custody of the minor to the petitioner,

while preserving the visitation rights of respondent No. 4, the minor's mother. Aggrieved thereby, the respondents preferred an appeal before the learned Additional District Judge-VII, Kohat, who, through the impugned judgment dated 18.03.2026, allowed the appeal and set aside the judgment and decree of the learned trial Court, thereby dismissing the petitioner's application for custody. Nevertheless, the petitioner was held entitled to visitation rights, subject to prior intimation to the mother and visitation at a mutually agreed and convenient place. Hence, the instant civil revision petition.

3.Arguments advanced by Mr. Muhammad Ameen Khattak, Advocate, learned counsel for the petitioner, and Mr. Muhammad Abid Wazir, Advocate, learned counsel for the respondents, have been heard. The submissions made by the petitioner, respondent No. 1 and respondent No. 3 have also been considered, and the available record has been examined.

4.The foremost consideration in all matters relating to the custody of a minor is his welfare, which must prevail over the competing claims, personal interests or legal entitlements of the parents. The question of custody cannot be determined merely by reference to the preferential right of either parent; rather, the Court must assess the circumstances as a whole, including the minor's age, emotional attachment, settled environment, educational needs, continuity of care and the capacity of the proposed custodian to provide a stable and secure upbringing. The paramount consideration is not the vindication of a parent's claim, but the protection of the minor's best interests. In the instant case, it is an admitted position that, since his birth, the minor, Muhammad Daniyal, has never remained in the petitioner's custody, not even for a single day. The petitioner, therefore, has not had the opportunity to develop a direct and sustained relationship with the minor through day-to-day care and upbringing. The minor is now approximately nine to ten years of age and has been residing within the maternal family environment. In these circumstances, an abrupt transfer of custody to the petitioner, without first establishing a meaningful relationship between father and son, would risk

disturbing the minor's emotional security and settled routine. It is further an admitted position that both the petitioner and respondent No. 4 have contracted second marriages and are living with their respective spouses. The petitioner is serving in the Frontier Constabulary and, owing to the nature of his employment, is frequently required to remain away from home in connection with his official duties. He has a second wife and children from his subsequent marriage. On the other hand, the minor's mother, Mst. Naila Kosar, is residing with her father, respondent No. 1, at Shakardara. Although she has contracted a second marriage, her husband is also employed elsewhere and visits home during his vacations. Consequently, the minor is presently residing with his mother and maternal grandfather, within an established family environment. Learned counsel for the petitioner forcefully contended that, following her second marriage, respondent No. 4 was no longer entitled to retain the custody of the minor. The contention, however, cannot be accepted as an absolute proposition. The mere fact that a mother has contracted a second marriage does not, by itself, furnish a conclusive ground for depriving her of custody. The legal position must be examined in the light of the governing law and the peculiar facts and circumstances of the case, with the welfare and best interests of the minor remaining the paramount consideration. It is a settled principle of law that, in determining the question of custody, the Court must be guided primarily by the welfare, well-being and overall betterment of the minor, which take precedence over all competing claims and considerations, including the preferential rights asserted by either parent. The ultimate object is not to vindicate the legal entitlement of one parent at the expense of the other, but to ensure an arrangement most conducive to the minor's physical, emotional, psychological, moral and educational development. This principle has consistently been reaffirmed by the Honourable Supreme Court of Pakistan in Raja Muhammad Owais v. Mst. Nazia Jabeen and others (2022 SCMR 2123), Mehmood Akhtar v. District Judge, Attack and 2 others (2004 SCMR 1839), and Shabana Naz v. Muhammad Saleem (2014 SCMR 821). The same principle finds reaffirmation in the recent judgment of the Honourable Supreme Court in Gul Sadem Khan v. Mst. Halima and others (PLD 2025 SC 47). Applying the foregoing principles,

a change in the mother's marital status, by itself, cannot constitute a decisive ground for depriving her of the minor's custody. Rather, the Court is required to undertake an objective assessment of the minor's existing circumstances, emotional attachment, settled environment, educational needs and the comparative suitability of the proposed custodial arrangements. The determination must ultimately rest on the facts of the individual case and the arrangement most conducive to the minor's welfare.

5.The record, as presently available, does not establish that the minor's welfare would be better served by transferring him to the petitioner. Rather, the petitioner's frequent absence from home due to official duties, coupled with the absence of any established history of the minor residing with him, raises a substantial concern regarding the practical arrangements for the minor's daily care, emotional adjustment and educational continuity. The minor has already been admitted to school and is passing through an important stage of his formative years. Displacing him from his existing environment in favour of a parent with whom he has never lived would constitute a significant change in his circumstances, without sufficient justification demonstrated on the available record. It must also be appreciated that the petitioner's employment-related absence cannot, in itself, be treated as a disqualification from custody. Nevertheless, when considered alongside the minor's age, settled residence, educational circumstances and the absence of an established paternal relationship, it becomes a relevant factor in determining whether an immediate transfer of custody would serve the minor's welfare. In these circumstances, the Court is not persuaded that the welfare of the minor would be served by transferring his custody to the petitioner at this stage. The impugned judgment, insofar as it declines to transfer custody, therefore, calls for no interference in the exercise of revisional jurisdiction.

6.The conclusion that the minor's existing custody should not be disturbed, however, does not justify the exclusion of the petitioner from the minor's life. The petitioner remains the minor's father, and the

preservation and development of that relationship are relevant to the minor's emotional and psychological well-being, provided that contact is arranged in a manner consistent with his welfare. The father's entitlement to maintain a relationship with his son must, therefore, be considered separately from his claim to immediate physical custody. Although the learned appellate Court recognized the petitioner's right to visitation, it left the actual arrangements dependent upon prior intimation to the mother and a mutually agreed place and time. Such an arrangement may prove ineffective where the parents are separated and their relationship is strained. In the absence of a definite schedule and an appropriate mechanism for its implementation, a right to visitation may remain merely nominal, giving rise to further disagreements and avoidable litigation. It is, therefore, necessary to restore and regulate the petitioner's visitation rights through a practical arrangement supervised by the competent Family Court. However, given that the minor has never previously remained in the petitioner's custody, contact should initially be restored in a gradual and structured manner, allowing the minor to become familiar with his father in a secure and reassuring environment. The arrangement must not expose the minor to emotional distress or compel him to adjust abruptly to circumstances with which he is unfamiliar.

7.Another material aspect requiring consideration is the pending execution proceedings concerning the maintenance allowance payable for the minor. It has been stated at the Bar by respondent No. 1 that an amount exceeding Rs. 300,000/- remains outstanding against the petitioner on account of maintenance. The petitioner is under an obligation to comply with the subsisting maintenance order, and the outstanding amount must be addressed through the competent executing Court in accordance with law. The obligation to maintain the minor and the right to visitation are, however, distinct matters. The father's failure to discharge his maintenance obligation does not, by itself, extinguish the minor's interest in maintaining a relationship with him. Conversely, the grant or restoration of visitation rights cannot be treated as a substitute for, or a ground to avoid, payment of the maintenance allowance legally due. Both matters must be addressed in accordance with law, keeping the

minor's welfare paramount. It has further transpired that execution proceedings for recovery of the outstanding maintenance allowance are pending before the competent Court at Essa Khel, District Mianwali, Punjab, whereas the parties and the minor are presently connected with District Kohat, Khyber Pakhtunkhwa. This geographical separation may create practical difficulties in ensuring regular visitation and effective supervision of the arrangements. The parties have expressed the view that the Family Court at Lachi, District Kohat, would be a convenient forum for supervising visitation and addressing matters connected with the minor's maintenance. Nevertheless, the transfer of pending judicial proceedings from one province to another must be effected by the competent forum in accordance with the applicable law. This Court cannot presume that the pending execution proceedings can be transferred merely on the basis of the parties' convenience or their statements at the Bar. Accordingly, either party shall be at liberty to approach the Honourable Supreme Court of Pakistan, through an appropriate application in term of Section 25-A (2b) of Family Court Act 1965 seeking transfer of the pending execution proceedings from the competent Court at Essa Khel, District Mianwali, Punjab, to the competent Family Court at Lachi, District Kohat, Khyber Pakhtunkhwa, subject to the applicable law and the orders of the competent forum. Until such transfer is lawfully ordered, the existing execution proceedings shall remain subject to the jurisdiction and orders of the Court presently seized of them.

8.In view of the foregoing discussion, the instant civil revision petition is disposed of in the following terms:

(i)The petitioner's claim for immediate transfer of the minor's custody is declined. The judgment of the learned appellate Court dated 18.03.2026, insofar as it sets aside the order granting custody to the petitioner, is maintained. The minor shall continue in his existing custodial arrangement, subject to any subsequent order passed by the competent Court in accordance with law and the minor's welfare.

(ii)The petitioner's entitlement to visitation is recognized and shall be implemented through a definite and workable schedule. Since the minor has never previously remained in the petitioner's custody, visitation shall initially take place within the premises of the Family Court at Lachi, District Kohat, under arrangements determined by the learned Judge Family Court. The initial meetings shall be structured to enable the father and son to establish familiarity and develop a relationship without disturbing the minor's emotional security.

(iii)The petitioner shall submit an appropriate application before the learned Judge Family Court at Lachi, District Kohat, seeking the fixation of a visitation schedule. Upon hearing the parties and, where appropriate, ascertaining the minor's wishes in a manner suited to his age and maturity, the learned Judge Family Court shall determine the frequency, duration and other conditions of visitation, keeping in view the minor's welfare and educational routine. The schedule shall be sufficiently definite to avoid repeated disputes, while retaining such flexibility as may be necessary in the minor's best interests.

(iv)The parties may, by mutual consent, propose an appropriate schedule for visitation, which may include meetings at regular intervals and during school vacations. Any proposal for visitation outside the Court premises or for overnight stays, including during the summer or winter vacations, shall not take effect automatically. Such arrangements shall be considered only after the learned Judge Family Court is satisfied that the father and minor have developed an adequate degree of familiarity and confidence, that the proposed arrangement is safe and practicable, and that it would serve the minor's welfare. The Court may gradually enlarge the duration and scope of visitation in accordance with the minor's adjustment and the circumstances prevailing at the relevant time.

(v)The petitioner shall regularly pay the maintenance allowance in accordance with the subsisting order of the competent Court and shall also discharge the outstanding arrears as determined by the executing Court. The amount claimed to be outstanding, including the sum stated at the Bar, shall be verified and dealt with by the competent executing Court in accordance with law. The petitioner shall not treat the grant of

visitation as a ground for withholding maintenance, nor shall visitation be withheld merely as a means of enforcing a maintenance claim, except where a competent Court, upon consideration of the circumstances, directs otherwise in accordance with law and the minor's welfare.

(vi)Either party shall be at liberty to approach the Honourable Supreme Court of Pakistan for the transfer of the pending maintenance execution proceedings from Essa Khel, District Mianwali, Punjab, to the competent Family Court at Lachi, District Kohat, Khyber Pakhtunkhwa. In the event of such transfer, the transferee Court shall deal with the execution proceedings in accordance with law and shall also supervise the visitation arrangements to the extent lawfully within its jurisdiction. Until then, the visitation application may be pursued before the competent Family Court at Lachi, while the maintenance execution shall continue before the Court presently seized of it.

(vii)Both parents are expected to cooperate in implementing the visitation arrangements and to refrain from conduct that may frustrate the minor's relationship with either parent. The minor shall not be exposed to the bitterness of the matrimonial dispute or made a vehicle for settling differences between the parties. The arrangements shall remain subject to variation by the competent Court if circumstances so warrant, always with the welfare of the minor as the paramount consideration. No order as to costs.

Announced.

Asif Jan Sr.S.S.

JUDGE

(SB)Hon’ble Mr. Justice Muhammad Naeem Anwar.