Law: Guardians and Wards Act, 1890

Section: 17,12,25

Law: Constitution of Pakistan, 1973

Section: 227,8,199

(a) Guardians and Wards Act (VIII of 1890)--- ----S.17---Custody of minor---Preferential right---Age factor---Intelligent/reasonable preference by minor---Welfare of minor---Scope---Ex-parte proceedings were initiated against the petitioner (mother)-- -Application under S.12(2), C.P.C., of petitioner was dismissed also made a ground to dismiss the appeal of the petitioners---Minors’ ages being 16 and 15 years were considerable point---Welfare of the minor coupled with his/her own wish, particularly when he/her can make a reasonable preference on account of his/her age, is the primary consideration for a court of law for the decision of such cases---Intelligence preference of the minor could be the way to reach at the consideration regarding the entitlement of the custody, but it was not the sin qua non for the court to make it the basis for its decision---Any force applied in the matter of custody against their wishes, when they had attained sufficient maturity in exercising their preference would not be consistent with their welfare and rather may have adverse effect---High Court set-aside the ex-parte order of Guardian Judge, subject to special cost of Rs.20,000/-; and remanded the case to the Guardian Judge---Constitutional petition was allowed accordingly. Mst. Ayesha Abdul Maleek v. Additional District Judge, Sahiwal and 2 others 2020 YLR 401; Tariq Mehmood and others v. Additional District Judge and others 2016 MLD 1767 and Tahira Bibi v. Muhammad Saeed and another 2009 MLD 33 ref. (b) Islamic law--- ----Hizanat---Preferential right---Holy Quran and Sunnah did not bar for mother or even the father to hold the custody nor was there any provision which would stipulate that the preferential right of custody lies with the father or the mother; or in their absence grand-parents/uncles/cousins would be eligible to claim custody---Mother had the preferential right of Hizanat till the minor attained the age of 7 years in the case of males and the age of puberty in case of female minors. Mst. Razia Rehman v. Station House Officer and others PLD 2006 SC 533 rel. (c) Constitution of Pakistan--- ----Art.227---Quran and Sunnah, injunctions…

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