MEMORANDUM

A. Background

1. We have been asked to respond to the following query by []:

a. Can a father obtain the custody of a two (2) year old child in a divorce proceeding?

2. Our response to the query is provided in verbatim.

B. Can a father obtain the custody of a two (2) year old child in a divorce proceeding?

3. The main law which governs and provides processes for obtaining guardianship and custody of
minor1 children and their property is the Guardianship and Ward Act, 1890 (the “Act”).

4. The term “guardian” as defined in Section 4(2) of the Act means a person who has de facto or de
jure care of the minor or his property. But there is significant confusion as to whether a guardian
is synonymous with the term “custody” which was main question that was perused upon by the
Karachi High Court in the case of Fahimuddin Khokar v Zaibunnisa (PLD 1968 Karachi 774). It was
held that the term “custody” is used to describe the actual or constructive possession for the
purposes of protection, however, guardian does not necessarily mean that they shall retain the
custody of the minor in the case of divorce. The court further stated that there is a presumption
that the residence of a ward2 is the residence of the guardian, however this can be easily rebutted.

5. It must be noted that the father of a minor, if alive, is the inherent and natural guardian of the
minor as well as the minor’s property after which is the mother, unless the father has appointed
another person as the guardian of his minor children as per the case of Feroze Begum v
Muhammad Hussain (1983 SCMR 606). It must be noted that the mother’s custody of the minor
does not detract the father’s right to supervision and control of the minor and is competent to
apply for restoration of custody of the minor as per the case of Muhammad Sadiq v Sadiq Safoora
(PLD 1963 Lahore 534).

6. In order for the father of a minor to gain the custody of his child under the Act, he must make an
application under Section 25(1) of the Act. Section 25(1) provides that if a ward leaves or is

1 “Minor” defined under Section 4(1) of the Act as a person who, under the provision of the Majority
Act, 1875, is to be deemed not to have attained his Majority.
2 “Ward” defined under Section 4(3) of the Act as a minor who has his 1) person and 2) property, or 3)

both, for whom there is a guardian.

 removed from the custody of the guardian, the court may make an order for the return of custody
to the guardian if it believes it is for the welfare of the child. It also must be noted that under
Section 25(3) of the Act, even if the ward resides with an individual who is not a guardian, it will
not terminate the guardianship of the original guardian. Any application that is submitted by an
applicant must comply with Section 10 of the Act which states that the applicant must submit a
petition that is signed and verified in a manner prescribed by the Code of Civil Procedure, 1908.
Furthermore, Section 10 also requires an applicant to provide the following information in order
for the petition to be accepted3:

a. Name, sex, religion, date of birth and ordinary residence of the minor;
b. If minor is female, whether she is married or not, and, if so, the name and age of her husband;
c. The nature, situation and approximate value of the property, if any, of the minor;
d. The name and residence of the person having custody or possession of the minor or his
property;
e. Near relations of the minor and where they reside;
f. Whether an application has at any time been made to the Court or any other Court with
respect to guardianship of the minor or his property;
g. Whether application is for appointment or declaration of a guardian of the i) minor, ii) his
property, or iii) both.
h. Qualifications of the proposed guardian;
i. Grounds of the applicant to be declared the guardian
j. Causes of making the application; and
k. Any other information that may be prescribed.

7. There have been very few recorded instances where the mother has been stripped of the custody
of the minor and subsequently awarded custody to the father. The reasons were provided in the
case of Feroze Begum v Muhammad Hussain (1983 SCMR 606) which held that normally under
Shariat Law, a mother is entitled to retain custody of her male child until the age of seven years
and female child until she has attained puberty. But, the Supreme Court in its judgement did
emphasize upon the issue that the father is the natural guardian of his minor children, while the
mother’s custody is a subordinate custody and is subject to the control of the father. The Supreme
Court also cited the case of Harbal v Usman (PLD 1963 Karachi. 888) which held that the mere
inability of a mother to maintain her children are not be grounds for depriving a mother of the
custody of her minor children. It was further emphasized by the Supreme Court in the Feroze
Begum case by citing Khizar Hayat Khan Tiwana v Zanib Begum (PLD 1067 SC 402) which stated
that the courts should not lose sight of the fact that the overriding consideration is always the
welfare of the minor which was described as the minor’s material, intellectual, moral and spiritual
well-being.

3 Not complete list of information required

8. In Rahimullah Choudhry v Helali Begum (1074 SCMR 305) the court observed that the main
question pertaining to Section 25 of the Act is not the right of the guardian to obtain custody of
the ward as the right given to him by the statute but the welfare of the ward. A natural guardian
may turn out to be an undesirable person or the Court may find it not in the welfare of the minor
to deliver him into the custody of the guardian. The court cited that even if the final analysis and
the fact that the father is the lawful guardian of his minor children, it will not compel the court to
pass an order for custody in the father’s favor unless it is in the minor’s welfare to do so.

9. However, the instances where the court has agreed to give custody to the child of the minor to
the father has been in cases where the mother of the minor has remarried and is living with her
new husband as seen in the Supreme Court case of Surraya Bibi v Abdur Rashid (1982 SCMR 892).
Similarly, in Nazir v Hafiz Ghulam Mustafa (1981 SCMR 200), the court held that awarding the
custody of a minor daughter from a previous marriage to the mother, who had since remarried,
would be tantamount to placing minor in the custody of the mother’s new husband, which in turn
led the Supreme Court to reject the mother’s application for the restoration of custody. Despite,
the trend of the courts to not grant custody to mothers who have remarried the case of Faisal
Mushtaq v Sumera Safdar (2018 MLD 862) provides evidence that the courts will still view a
minor’s welfare as the only deciding factor in granting custody. In the Faisal Mushtaq case, despite
the mother of the minor daughters having remarried, the Lahore High Court dismissed an
application made under Section 25 of the Act by the father for restoration of custody to the
guardian. The court established that the intention of the application of the father was to frustrate
an already pending decree for maintenance allowance for the mother and the minor children,
well as the fact that upon viewing the evidence maintained the minors welfare will be better
catered for under the custody of the mother. The court in Faisal Mushtaq case relied on the
Supreme Court case of Mehmood Akhtar v District Judge, Attock (2004 SCMR 1839), to show that
there is no objective test to determine which party is more deserving of custody of the minor,
which held the following:

“The right of custody of a minor is not an absolute right rather it is always subject to the
welfare of the minor. The Court in the light of law, on the subject and facts and
circumstances of each case considered the question of custody on the basis of welfare of
minors and there can be no deviation to the settled principle of law that in the matter of
custody of a minor, the paramount consideration is always the welfare of the minor. There
is no doubt that the general principle of Muhammad Law is that a Muslim father being
the natural guardian of the minor, has the preferential right of custody of minor but this
rule is always subject to the welfare of the minor which the prime consideration in
determination of the question custody.” [Emphasis added]

10. Similar to the mother of a minor remarrying, the court does not seem to prefer allowing the
maintenance of custody to mothers who intend to settle abroad with their minor children as per
the case Ammara Waseem v Khawar Hussain (2011 SCMR 148). The Supreme Court held the
mother had managed to obtain an immigration visa for the minor with no other purpose but to
 take the minor child away from the superintendence of the father for which the mother was
unable to provide any alternate reasoning. The Supreme Court observed that the father of a minor
is entitled to have the custody in the larger interest and welfare of the minor which is always a
predominating condition in cases involving the custody of a minor and directed the mother to
hand over custody to the father.

11. In conclusion, in order for a father to successfully gain custody of his minor child, he shall have to
make an application under Section 25(1) of the Act. However, for the application to have any
chances of success, the father must be able to prove that the welfare of the minor shall be
severely hindered if the minor child remains with the mother. Despite, cases involving the custody
of a minor being extremely subjective, the courts tend to lean in favour of awarding the custody
of the mother4. A father making an application under Section 25 of the Act, may have better
chances of success if: 1) the mother has remarried and hinders the welfare of the minor; or 2) the
mother intends to move abroad purely with the intention of restricting the oversight of the father
over the minor, who is his natural guardian.

4 Faisal Mushtaq v Sumera Safdar (2018 MLD 862)