Law: Guardians and Wards Act, 1890

Section: 17(3),25

Law: Constitution of Pakistan, 1973

Section: 199

Guardians and Wards Act (VIII of 1890)--- ----Ss. 17(3) & 25---Constitution of Pakistan (1973), Art.199---Constitutional petition---Custody of minors---Welfare of minors---Determination---Preference of minors---Family Court allowed application for custody of minors in favour of mother but Lower Appellate Court, relying upon preference of minors to live with their father, set aside the order passed by Family Court---Validity---Court was authorized under S.17 (3) of Guardians and Wards Act, 1890, to consider an intelligent preference of minor in the matter of custody---Lower Appellate Court recorded statements of minors on the date of , when parties had already been in Court for the last two years, and minors had come along with their father---High Court only relied upon statement of the eldest son who was of the age and had grown a beard as well, but statements of remaining two children were not intelligent preference in the matter---Mother of minors had not re-married after divorce and was constantly fighting for custody of her children, while father of minors had contracted marriage and had three children from new wedlock---Daughter and younger son were of tender age and required care which only a mother could provide---High Court in exercise of constitutional jurisdiction declared passed by Lower Appellate Court to be without lawful authority and set aside the same to the extent of daughter and younger son, who would remain with their mother---Petition was allowed accordingly. THIS JUDGMENT DELIVERED BY: MAULVI ANWARUL HAQ, J.--- On 27-7-2003 the petitioner filed an application against the respondent No.1 and some of his family members. It was stated that she was married to the respondent on 26-10-1988 and born him two sons and two daughters. One daughter has died. The respondent left for England about six years ago and came to Pakistan only once, three years ago. He adopted an indifferent attitude towards the petitioner and the children; and the in-laws also started treating her with habitual cruelty. On his visit to Pakistan about three years ago, he turned the petitioner and the children out of his house. He again left for England without even meeting…

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