Law: Guardians and Wards Act (VIII of 1890)

Section: 17

Law: Family Courts Act, 1964

Section: 5

Law: Constitution of Pakistan

Section: 199

(a) Guardians and Wards Act (VIII of 1890) S. 17---Family Courts Act (XXXV of 1964), S. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Custody of minor---Continuity of care, principle of---Applicability---Settlement between parties---Scope---Petitioner / mother of minor contracted second marriage after divorce from respondent / father of minor and had sought custody of the minor in violation of settlement between the parties---Family Court and Lower Appellate Court decided the matter against petitioner / mother and in favour of respondent / father---Validity---Disentitlement of petitioner / mother from custody, due to second marriage, was not an absolute rule---Remarriage of petitioner / mother did not, by itself, disentitle her from retaining custody of the minor, especially when it was not in welfare of the minor---Any compromise or private arrangement entered into between the parents regarding custody of minor had no binding effect on the Courts---Any stipulation or condition that seeks to curtail or divest either parent of their rightful entitlement to custody or that subjects such entitlement to contingent circumstances, carries no binding effect upon the Court, which remains guided solely by the paramount consideration of minor s welfare---No agreement between adults, no matter how solemnly executed or mutually accepted, can surpass judicial determination of what constitutes welfare of minor---Principle of continuity of care finds universal recognition in comparative jurisprudence and aligns closely with Pakistan s welfare-oriented approach under S.17 of Guardians and Wards Act, 1890---Principle of continuity of care operates as a safeguard against unnecessary disruption in the child s upbringing, thereby acknowledging that stability, routine, and continuity of affection provided by the primary caregiver are essential to a child s sense of security and identity---High Court set aside judgments passed by two Courts below as the same were not sustainable in law; there was misreading and non-reading of evidence and were passed in a mechanical and arbitrary manner and without application of judicious mind---High Court directed to return…