| Case ID |
100fc04e-abe5-4ca3-8695-a3e527a162f6 |
| Body |
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| Case Number |
Writ Petition No. 41017 of 2022 |
| Decision Date |
Feb 03, 2023 |
| Hearing Date |
Oct 05, 2022 |
| Decision |
The petitioner, Saima Nazir, successfully appealed against the order dated 28.04.2022 by the Guardian Judge (IV), Lahore, which had declined her application under section 12 of the Guardians and Wards Act, 1890, for interim custody of her minor daughter Wania due to mental disability, in favor of maintaining the family court's exclusive jurisdiction. Additionally, her request for interim custody of minors Hareem Fatima and Meerab, aged 16 and 10 respectively, had also been declined, although visitation rights were allowed. The High Court set aside the impugned order, deeming it unsustainable in law, and directed that the application for interim custody be pending with the Family Court Lahore for decision afresh. The court emphasized the exclusive jurisdiction of the Family Courts Act, 1964, in matters of custody and guardianship of minors, regardless of any mental disabilities, and rejected the conflicting jurisdiction of the Mental Health Ordinance, 2001. The decision upheld that the covenants of the Family Courts Act prevail in such matters, ensuring that custody disputes among parents remain within the Family Court’s domain. |
| Summary |
In the landmark case of Writ Petition No. 41017 of 2022, decided on February 3, 2023, by the Lahore High Court, significant rulings were made regarding the jurisdiction of family courts versus mental health ordinances in matters of minor custody and guardianship. Saima Nazir, the petitioner, challenged an order by the Guardian Judge (IV), Lahore, which had declined her application under section 12 of the Guardians and Wards Act, 1890, for interim custody of her minor daughter Wania, who suffers from cerebral palsy, and for interim custody of minors Hareem Fatima and Meerab, aged 16 and 10 respectively. The respondent, Guardian Judge (IV), had cited the Mental Health Ordinance, 2001 (MHO 2001) as justification for restricting the petitioner's custody applications, arguing that the MHO 2001's provisions related primarily to psychiatric management and property affairs of the mentally disabled, thus rendering the Family Courts Act, 1964 (FCA 1964) inapplicable in this context.
The High Court, presided over by Judge Raheel Kamran, overturned the initial decision, emphasizing the exclusive jurisdiction of the Family Courts under the FCA 1964 in matters concerning custody and guardianship of minors, irrespective of any mental disabilities the minor might have. The court held that the MHO 2001 does not contradict or repeal the FCA 1964 provisions regarding custody disputes among parents, even when the minor has a mental disability. The petitioner’s argument was strengthened by precedents such as Muhammad Khalid Karim v. Mst. Saadia Yaqoob PLD 2012 SC 66 and Yasmin Jang v. Advocate General, Punjab and others PLD 2022 Lah. 495, which underscored the Family Court's exclusive jurisdiction in such matters.
Furthermore, the High Court criticized the Guardian Judge’s reliance on the MHO 2001 as being insufficient and misplaced regarding custodial decisions about minors with disabilities. It clarified that while the MHO 2001 deals extensively with psychiatric facilities and the management of properties and guardians of persons with mental disabilities, it does not extend to parental custody disputes, which remain firmly within the domain of the Family Courts. The court also highlighted the separation between custody and guardianship under the Guardians and Wards Act, 1890, delineating the responsibilities and rights associated with each role, and reinforcing that a parent's right to custody—particularly in the best interest of the child—is paramount over any asserted rights of guardianship by the other parent.
In her arguments, Saima Nazir effectively demonstrated that her request for interim custody was legally sound and underscored the lack of statutory provisions that would exclude her from seeking custody based on her daughter's condition. Conversely, the respondents failed to present a compelling legal basis under the MHO 2001 to override the Family Courts Act’s established jurisdiction. The court’s decision to set aside the impugned order signifies a strong affirmation of the Family Courts' authority in adjudicating matters pertaining to the custody and welfare of minors, regardless of any disabilities.
This ruling has profound implications for family law in Pakistan, ensuring that parents retain their fundamental rights to custody while maintaining judicial oversight to protect the welfare of minors. The case underscores the necessity of adhering to established legal frameworks over overlapping or conflicting legislation, thereby providing clarity and stability within the judicial system regarding family disputes. Parents and legal practitioners can now be more assured of the Family Courts' precedence in such cases, promoting timely and fair resolutions in family-related legal matters. The judgement also highlights the importance of precise legal interpretations in ensuring that different statutes operate harmoniously without unintended overlaps or conflicts, ultimately safeguarding the rights of vulnerable individuals in familial settings. |
| Court |
Lahore High Court
|
| Entities Involved |
Lahore High Court,
Family Court Lahore,
Family Courts Act, 1964,
Guardians and Wards Act, 1890,
Mental Health Ordinance, 2001,
Court of Protection,
Advocate General Punjab
|
| Judges |
Raheel Kamran, J
|
| Lawyers |
Ms. Aaminah Qadir,
Rai Shahid Saleem Khan,
Hamid Shabbir Azar,
Birjees Tahir,
Ch. Shamshad Ullah Malhi,
Bilal Awais,
Iftikhar Gull Khan
|
| Petitioners |
SAIMA NAZIR
|
| Respondents |
another,
GUARDIAN JUDGE (IV), LAHORE
|
| Citations |
2023 PLD 433,
2023 SLD 1914
|
| Other Citations |
Muhammad Khalid Karim v. Mst. Saadia Yaqoob PLD 2012 SC 66,
Anne Zahra v. Tahir Ali Khilji and 2 others 2001 SCMR 2000 rel.,
Sabar Khan v. Amir Hussain and another PLD 1995 Pesh. 14,
Aurangzeb v. Public at large PLD 2006 Pesh. 116 ref.,
Yasmin Jang v. Advocate General, Punjab and others PLD 2022 Lah. 495,
Zahida Tahir v. Javed Iqbal and others 2019 YLR 785,
Sarosh Sikander and others v. Guardian Judge, Lahore and others 2021 YLR 1989 ref.,
Mst. Feroze Begum v. Lt-Col. Muhammad Hussain 1983 SCMR 606,
Munawar Bibi v. Muhammad Amin 1995 SCMR 1206,
Mst. Razia Bibi v. Riaz Ahmad and another 2004 SCMR 821,
Mst. Atia Waris v. Sultan Ahmed Khan PLD 1959 Lah. 205,
Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252,
Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828,
Nazan Bibi v. Additional District Judge, Jhang and others 2009 YLR 991,
Habib-ur-Rehman v. Hina Saeed 2010 MLD 544,
Masroor Hussain v. Additional District Judge, Islamabad 2011 CLC 851,
Bushra Asghar v. Dr. Rehmat Ali and 3 others 2012 MLD 1755,
Ms. Shazia Akbar Ghalzai and another v. Additional District Judge, Islamabad (East) and 2 others 2021 MLD 817 ref.,
Syed Mushahid Shah and others v. Federal Investment Agency and others 2017 SCMR 1218
|
| Laws Involved |
Family Courts Act, 1964,
Guardians and Wards Act, 1890,
Mental Health Ordinance, 2001,
Constitution of Pakistan
|
| Sections |
5,
12,
60,
29,
32,
199
|