LAHORE: The Lahore High Court has ruled that second marriage of a mother cannot be a sole ground to deny her custody of a minor child.

A ruling passed by Justice Mirza Viqas Rauf further says the paramount consideration for courts while deciding custody matters is always the welfare of the child.

The ruling sets aside two verdicts passed by a guardian judge and an additional district & sessions judge wherein a mother was denied custody of her minor daughter on the basis of remarriage.

It says a mother always has natural love and affection for her children having no substitute. “Apart from care, love and affection of a real mother of which there is no substitute, daughter requires her company and association for preparing her to shoulder responsibilities in future,” it rules.

The LHC ruling holds that although a mother loses her preferential right in case she marries a person not related to the child within prohibited degree, this is not an absolute rule.

The judge says according to the “Muhammadan Law” though the mother is entitled to custody of her minor child, such right discontinues when she takes second husband, who is not related to the child within the prohibited degree and is a stranger in which case the custody of minor child belongs to father.

However, the judge adds, it has been interpreted by the courts in Pakistan that this may not be an absolute rule but it may be departed from, if there are exceptional circumstances to justify such departure and in making of such departure the only fact, which the court has to see where the welfare of minor lies and there may be a situation where despite second marriage of the mother, the welfare of minor may still lie in her custody.

Justice Rauf observes that perusal of impugned judgments reveals that findings of both courts are solely influenced with the factum of second marriage of the mother (petitioner).

He says though no other material evidence is available on record other than the second marriage of the petitioner dis-entitling her from the custody of minor, both the subordinate courts disturbed the custody of minor on extraneous reasons.

The judge observes both the courts have grossly misread the material pieces of evidence convenient for adjudication of question of welfare of the minor and proceeded to bank upon only question of second marriage of the petitioner with a person who is not related to the minor within prohibited degree, which approach can never be termed as judicious and lawful.

The judge rules it is the primary duty of the high court to curb any illegality or perversity in the proceedings of the lower courts floating on the surface of the record, while embarking upon the constitutional jurisdiction in terms of Article 199 of the Constitution in order to achieve the ends of justice.

“This court cannot sit as a silent spectator, especially in the matter relating to the custody of minors and shut its eyes only on the ground that the courts below have concurrently arrived at some conclusion, despite being an erroneous and illegal,” the ruling says.

It holds that in the instant case the welfare of the minor, now eight-year-old, lies with the petitioner (mother). The court notes that the respondent (father of the minor) is living abroad and has been contesting the cases through his brother. The court allows the petition setting aside the two impugned judgments.

Published in Dawn, August 21st, 2016