Introduction
Muhammad Saleem Jessar, J. – The petitioner filed this Constitutional Petition challenging the judgment dated 15.01.2018, passed by the learned XI-Additional District Judge, Karachi South. The appellate court dismissed G & W Appeal No. 77/2017, thereby upholding the orders of the learned XVII-Civil and Family Judge, Karachi South, dated 05.10.2017. The Family Judge had decreed G & W Suit No. 1401/2015, directing the petitioner, Mst. Zainab, to hand over custody of the minor, Master Ayan Ahmed, to the respondent, Urooj Ahmed.
Factual Background
The respondent, Urooj Ahmed, filed a Guardianship and Welfare Petition seeking custody of his son, Ayan Ahmed, born on 05.05.2010. He contended that he married the petitioner in 2008, and they had a son together. In 2011, they moved to Islamabad, where the respondent assumed responsibility for the child’s upbringing. Despite living separately, the petitioner obstructed the respondent’s access to the minor, leading to ongoing legal disputes, including the present custody petition.
Petitioner’s Allegations and Defense
The petitioner denied all allegations made by the respondent. She asserted that she had consistently provided proper care and support for the child, emphasizing that her primary concern had always been the child’s best interests. Additionally, the petitioner claimed that she had been the child’s primary caregiver, enrolling him in a reputable school in Karachi. Furthermore, she argued that her remarriage should not influence her custodial rights or disqualify her from retaining custody.
Respondent’s Allegations and Defense
In response, the respondent argued that the petitioner’s neglect, her remarriage, and her failure to provide financial support for the child made her unfit to retain custody. He asserted his right as the natural guardian, emphasizing that, under Islamic law, he was entitled to custody of his son, particularly since the child had reached the age where custody typically transfers to the father. According to the respondent, the child’s welfare would be best ensured in his care.
Family Court’s Decision
The Family Judge ruled in favor of the respondent, granting him custody of the minor. The court noted that the petitioner failed to provide sufficient evidence to retain custody. Moreover, the respondent was found to be more capable of ensuring the child’s welfare. The petitioner’s appeal was subsequently dismissed, as the appellate court upheld the Family Judge’s decision.
Appellate Court’s Findings
The appellate court affirmed the decision of the Family Judge. It agreed that the respondent was a more suitable guardian for the minor. The court further emphasized that the petitioner had failed to provide enough evidence to challenge the lower court’s findings. Most importantly, the welfare of the child was the paramount concern, which the court believed was better served under the respondent’s care.
Legal Considerations and Islamic Law
Under Islamic law, the custody of a male child typically passes to the father once the child reaches the age of seven. However, a mother can retain custody unless she remarries or engages in conduct deemed harmful to the child’s welfare. In this case, the court examined these legal principles in relation to the petitioner’s actions, particularly her remarriage, which contributed to her disqualification from maintaining custody.
Evaluation of Evidence
The court closely examined the evidence presented by both parties. It considered the child’s upbringing, the petitioner’s role as the primary caregiver, and the respondent’s active involvement in the child’s welfare. The court noted that the respondent had provided consistent financial and emotional support, while the petitioner’s actions—including frequent absences and her remarriage—undermined her custodial claim.
Conclusion
In conclusion, the court determined that the welfare of the minor would be best served by the respondent. Given the petitioner’s remarriage and her failure to sufficiently demonstrate her capability to care for the child, the court found her unfit to retain custody. Therefore, the petition was dismissed, and the Family Judge’s decision to grant custody to the respondent was upheld.