LAHORE: The Lahore High Court has ruled that being a working woman cannot be a disqualification for a mother to claim custody of her minor children.

“In this day and age, when pursuit of education and career does not attract any disqualification for a father to seek custody of minor, how a mother can be discriminated against on that basis,” Justice Raheel Kamran Sheikh observed, deciding custody of two minors of a divorced doctor-couple.

The judge remarked that working mothers are a reality of the day and their participation in the professional life is essential for the progress of societies.

He said it makes roles of women even harder, which needs to be recognised and appreciated rather than discouraged or made more onerous by attributing disqualifications vis-à-vis custody of the minors.

He asserted that the courts should not become insensitive to the needs of the minors merely because their mother is a working woman.

“Welfare of the minor remains the primary consideration for determining his or her custody,” the judge said.

It is only recognition and adjustment of expectation from a working mother in comparison to a stay-at-home mother so that the former is not unreasonably put to any disadvantage.

He rejected an argument of the father that the minors have been residing with him since their birth as the mother left them at a very tender age to complete her education and did not claim custody for quite some time, so she lost the right to seek custody of the children.

Dr Muhammad Asif and Dr Sana Sattar solemnised nikah in 2015, when the latter was a student of MBBS second year and her rukhsati took place when she was in fourth year.

The couple’s elder son was born in 2017 and the second son in 2018 while their separation took place in 2019.

A family court of Layyah denied the mother permanent custody of the minors, however, chalked out a meeting schedule. However, the decision of the trial court was overturned by a sessions court and the mother was allowed the custody of both kids.

Later, the father challenged the decision before the high court, saying the mother had been negligent towards her children. He said the mother, in her cross-examination, admitted that after a few days of birth of their first child she had gone to college and had not breastfed him.

Therefore, he said, it is manifest that she was negligent towards the upbringing of her child rather she preferred her career to the welfare of her child.

The father further contended that the mother is a working lady who lives alone in Lahore, therefore, there will be no one there to look after the minors whereas he lives in Layyah with his mother, sister and second wife who can properly look after the minors.

The father said he, being a child specialist, is properly taking care of the youngest minor, who is suffering from psychological disorder.

Justice Sheikh noted that the father admitted in his cross-examination that he performs duty in DHQ Layyah and also carries out private practice in the evening.

Therefore, the petitioner/father would not have much time to spend with his children who must have been brought up by their grandmother and aunt.

The judge said the mother is living in Lahore which, being a metropolitan city and capital of the province has better facilities as compared to Layyah and the sick minor can have better treatment in Lahore.

The judge further noted that the father has contracted a second marriage and has one daughter by the second wife.

He said unless established otherwise through cogent and reliable evidence, it cannot be presumed that a stepmother could be a substitute for the real mother in the matter of upbringing of the minor.

In the presence of her own child and presumably will have more children in future, she may have little care for the step-children, however, there may be exceptions to that which require proof which is not available in this case, the judge added.

On the other hand, the judge said, the mother has not contracted a second marriage and even stated in her cross-examination that she had no intention to do so.

Dismissing the petition of the father, Justice Sheikh also noted that the petitioner brainwashed the minors by keeping them away from their mother.

Published in Dawn, June 9th, 2024

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