Law: Guardians and Wards Act, 1890

Section: 17,25

Law: Family Courts Act, 1964

Section: 5, Schedule

Law: Civil Procedure Code (V of 1908)

Section: O.XLI,R.33

Law: Constitution of Pakistan, 1973

Section: 199

(a) Guardians and Wards Act (VIII of 1890)--- ----Ss. 25 & 17---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Condition-Welfare of minor--- Preference of minor---Scope---Father filed an application for custody of minors which was dismissed by the Guardian Court but same was accepted by the Appellate Court to the extent of male children-- Validity---Basic criteria for appointment of guardian and restoration of custody was the welfare of minor---Appellate Court was required to pass its findings on the condition laid down in Ss.17 & 25 of Guardians and Wards Act, 1890---Right of parents with regard to custody and control of children was not to be exercised in their interest but in the interest and welfare of children themselves---Father was though the natural guardian but his right of custody was also subordinate to the welfare of minors---Father had contracted second marriage and there were issues from the said marriage while mother had not contracted second marriage and custody of male children could not be handed over to the step-mother---Minors were with their mother since birth and change of their custody would naturally damage their personality psychologically which would not be in the welfare of minors---Minors had reached an age where they could formulate an opinion for preference and court might also consider their choice---Welfare of minors would lie with the mother in the present case---Findings of Appellate Court that the age of male children were more than 7 years and father was entitled for their custody were not tenable as such right was always subject to welfare of minor which was paramount consideration for determining the question of custody of minor--- Source of income was also not a ground for determination of welfare of minor---Appellate Court had mis-appreciated the evidence on record and its findings were not correct---Impugned and decree passed by the Appellate Court to the extent of handing over the custody of male children to the father were set aside---Constitutional petition was accepted in circumstances. Zahoor Ahmad v. Mst. Rukhsana Kausar and 4 others 2000 SCMR 707; Mst. Firdous Iqbal v.…

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