Law: Constitution of Pakistan, 1973

Section: 199

Law: Guardians and Wards Act, 1890

Section: 4(2),(5),9(i),25

Constitution of Pakistan, 1973-- ----Art. 199--Illegal and improper detension of minor--Agreement to hand over custody of minor--Rebuttable presumption--Challenge to--Minor namely Ali Raza has stated that he wanted to live with his mother, petitioner--Prima facie no bond of love and affection exists between minor and his father as he had not lived with his father ever prior to his handing over to him only recently--Questions concerning custody and guardianship of minors cannot be settled by a private compromise or even by arbitration--An agreement of this nature, therefore, cannot be enforced--If an agreement is entered into by a female which appears unconscionable on face of it, there is a rebuttable presumption that agreement was entered into by coercion and undue influence--No effective rebuttal is forthcoming to show as to why petitioner would voluntarily part with her minor son--Hence purported agreement to hand over custody of minor to Respondent No. 1 has no value in eyes of law--This Court finds it proper and in interest and for welfare of minor to hand over custody of minor Ali Raza to his mother, petitioner, with whom he had lived since his birth and bond of love and affection exists between mother and child and at present there does exist no reason to break same.     [P. 28] A, B C 1995 PCr.LJ 307, 1997 MLD 1562, PLD 1970 Karachi 619 ref. Guardians and Wards Act, 1890 (VIII of 1890)-- ----Ss. 4(2), (5), 9(i) 25--Constitution of Pakistan, 1973, Art. 199--Guardianships custody--Parental jurisdiction--Direction to--It is observed that guardian as defined in S. 4(2) means a person providing de facto or de jure care of person or property of a minor--Such a person may or may not have custody of a minor--This Court, in exercise of its jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to welfare of minor and to ensure that no harm or damage comes to him physically or emotionally by reason of breakdown of family tie between parents--Custody of minor namely Ali Raza is ordered to be handed over to…

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