IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE MAQBOOL BAQAR 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
CIVIL PETITION NO.1665 OF 2020 
(Against the judgment dated 27.02.2020 of 
the Islamabad High Court, Islamabad 
passed in Writ Petition No.3950 of 2019) 
 
 
Rashid Hussain 
 
…Petitioner(s) 
VERSUS 
Additional District Judge, Islamabad (East) and others 
 
…Respondent(s) 
 
For the Petitioner(s): 
Agha Muhammad Ali Khan, ASC a/w 
Petitioner in person 
 
 
For the Respondent(s): 
Syed Nayab Hassan Gardezi, ASC a/w 
Respondents No.2 to 5 in person 
 
 
Date of Hearing: 
02.11.2021 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this petition 
under Article 185(3) of the Constitution of the Islamic Republic of 
Pakistan, 1973, the petitioner seeks leave to appeal against the 
judgment dated 27.02.2020 passed by the Islamabad High Court, 
Islamabad whereby Writ Petition No.3950/2019 filed by him was 
dismissed. 
2. 
 
The brief facts of the case are that the petitioner is 
working abroad in Saudi Arabia as a Cab Driver and as such the 
instant petition was filed through his father on the basis of the 
power of attorney executed by him. The petitioner got married with 
one Mst. Kausar Naseem (since dead) and during their wedlock 
respondents No.3 to 5 were born. It is claimed by the petitioner that 
he was enjoying happy matrimonial life but unfortunately on 
06.11.2015 his wife sustained burns in an accident and she was 
admitted in the hospital. On 19.08.2016 when the wife of the 
petitioner was still in the hospital, respondent No.2 took away the 
minor children of the petitioner and as such they are in the custody 
of respondent No.2 till filing of the instant petition. The tragic episode 
CIVIL PETITION NO.1665 OF 2020 
-: 2 :- 
of the matter is that wife of the petitioner passed away on 
03.09.2016. The petitioner claimed that he made several attempts to 
get back the children but the efforts made by him proved futile. 
Hence the petitioner had no other option except to file petition under 
Section 25 of the Guardian and Wards Act, 1890 claiming custody of 
the minor children from the maternal grandfather on the basis of 
preferential right. The Family Court after recording of evidence 
accepted the petition vide judgment dated 03.09.2019 and declared 
that under Section 19 of the said Act, the father has preferential 
right to custody of minor children, however, the maternal 
grandparents were allowed to have meetings with the minors and in 
this regard a visitation schedule was chalked out. The judgment of 
the Family Court was assailed through appeal under Section 47 of 
the Guardian and Wards Act, 1890, before the Appellate Court, 
which was allowed vide judgment dated 15.10.2019 by setting 
aside the judgment of the Family Court dated 03.09.2019 whereas 
the visitation schedule was kept intact. The petitioner being 
dissatisfied with the judgment of the Appellate Court approached 
the High Court in its constitutional jurisdiction but it also met the 
same fate vide judgment dated 27.02.2020. The crux of the 
judgment passed by the High Court was that the petitioner resides 
and works in Saudi Arabia, whereas the wife of the petitioner had 
died on account of incident of burning and the allegation was made 
against in-laws, though it ended into their acquittal but still it is not 
appropriate to handover the custody to the petitioner or his parents 
which may impair personality flaws with minors. Further it was 
observed by the High Court that during the course of proceedings the 
parents of the petitioner never showed any inclination to take the 
responsibility of the minor children whereas the sole criterion to 
decide the petition under Section 17 read with Section 25 of the 
Guardian and Wards Act, 1890 is meant for “welfare of the minor”, 
which is sine qua non of proceedings before the court of competent 
jurisdiction. 
3. 
 
Learned counsel for the petitioner tried to persuade us 
on the ground that the petitioner being the natural guardian has 
preferential right to enjoy the custody of the minors and in the 
presence of the petitioner the custody of the minor children cannot be 
handed over to maternal grandfather. Contends that the petitioner 
CIVIL PETITION NO.1665 OF 2020 
-: 3 :- 
was residing abroad but now he has placed an affidavit on the 
record to take care of the minor children and that he would 
relinquish his stay in Saudi Arabia and will reside with the minor 
children in Pakistan. Further contends that the Family Court has 
passed the judgment in favour of the petitioner, however, the 
Appellate Court as well as the High Court had given contrary 
findings resulting into handing over of custody of the minor children 
to maternal grandfather against the law. Lastly, it has been 
contended that the petitioner has sound financial antecedents and 
as such he can bear the expenses of the minor children for their 
brought up. Thus prays for acceptance of the instant petition. 
4. 
 
 On the other hand, the learned counsel appearing on 
behalf of the maternal grandfather has vehemently opposed the 
contentions raised by the learned counsel for the petitioner. The crux 
of the arguments advanced by the learned counsel for the 
respondents is that in ordinary circumstances there is no denial to 
this fact that the petitioner has the preferential right to retain the 
custody of the minor children but the purpose of the legislature qua 
Guardian and Wards Act is “welfare of the minor”. He has referred 
the statement of the petitioner before the Court which was read 
before us in detail. Lastly, contended that the preferential right of 
handing over of the custody of the minors to the father is not 
absolute in nature especially when he has re-married and there is a 
daughter born out of the wedlock. At the end it is argued that this 
Court has ample powers to take a contrary view in the spirit of law. 
 
5. 
 
We have heard the learned counsel for the parties and 
gone through the record. 
 
 
The framers of the law relating to Guardians and Wards 
Act, 1890 legislated it as a special enactment with an intent to 
secure the interest and welfare of the minors living within the 
jurisdiction while highlighting the degree of preference to establish 
guardianship. The sole criterion which depicts the intent of the 
legislature is nothing except welfare of the minors as grundnorm of 
the enactment. As a general principle the degree of preference is 
confined to relationship depending upon the order of preference due 
to closeness of blood relationship and other aspects which are 
essential in upbringing of the minors within four corners of law. Any 
deviation from the general principle, where the blood relationship 
CIVIL PETITION NO.1665 OF 2020 
-: 4 :-
has to be departed, there should be very strong and compelling 
reasons to have a contrary view which includes upbringing, 
education, healthcare, congenial domestic atmosphere, physical and 
psychological advantages, sect, religion, character and capacity of 
the claimant to whom if it is assigned to take care of the minors. In 
short words, while ignoring/bypassing the general principle there 
must be very strong and exceptional circumstances which could be 
brought forth with reference to the intent of the legislature regarding 
the sole purpose of “welfare of minor”. As in the instant case, the 
ordinary order of preference is under question, keeping in view the 
facts and circumstances wherein the petitioner being the real father 
of all the three minors, namely, Muhammad Haseeb Ullah, Iraj Noor 
and Muhammad Shahmir, all aged about 06 to 09 years, claiming 
guardianship on the basis of the preferential right, a detailed 
scrutiny of the aforesaid facts and circumstances are to be adjudged 
in the spirit of the law relating to guardianship. The background of 
the instant petition is that the petitioner entered into wedlock with 
the deceased mother of the minors. He was a cab driver in Saudi 
Arabia and all the three minor children were born out of the 
wedlock. On 06.11.2015, the wife of the petitioner was burnt; she 
remained hospitalized in a critical condition and subsequently died 
of the said injuries. In this regard, a case bearing FIR No.171 dated 
24.6.2017 under Section 302/34 PPC was registered at Police 
Station Sihala, Islamabad against the parents of the petitioner with 
an allegation that petitioner’s wife was intentionally burnt to death 
by the parents of the petitioner. The petitioner alleges that his wife 
was still in the hospital when his minor children were removed from 
the lawful custody and taken over by the maternal grandfather. The 
petitioner has not lodged any report in this regard to police though it 
is a criminal act, rather he preferred to file a petition under the 
Guardians and Wards Act, 1890. During the course of the 
proceedings before this Court, learned counsel for the respondents 
read before us the statement of the petitioner, Rashid Hussain (PW-
1) recorded before the Family Court. The relevant portion of which 
reads as under:- 
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� � � ن�� � � ا� �اد ى�د � � � �رد � ۔ں�………… نآ� �� ى� ى�
 ا� � � ى� ى� �و � ۔� �� � � ہزور و ز� روا � �ر ��� � � �د روا �
CIVIL PETITION NO.1665 OF 2020 
-: 5 :-
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 ۔� � �� � �� �ا � � � د� زا ۔� ا� �اد � ل� � � � ے� � � �
�ر ھ� � س� � � � � � م� � � �ا ۔� � �� � �ا � �� � 
 � � ل�2  � � ل� ۔� ل� ت� ےڑ� � ت� �� � �2  �ا� �ر� �
2013 -07-17  � � ل� روا �3  �ا� �ر� �2015 -02-01  � � ۔�
� �� ہو � � � � � روا � � �� � �ا � � � � � ۔� �� � س
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�او �ا � � � �رد � ۔� راد � � ،� � ہ�و �� � ب� ىد� � �
� � �� �� �ار ہا� � ب� ىد� � ى� �ا �“………  
 
A bare perusal of the statement of the petitioner (PW-1) clearly 
reflects that the petitioner had not discharged his duties as father in 
any manner towards the minor children or his deceased wife. It 
appears that he was most reluctant to take care of his wife or minor 
children because they were under the patronage of maternal 
grandfather and he thought it an opportunity just to skip moral, legal 
or religious duty bestowed towards him. The provisions of Section 
17 of the Guardians and Wards Act, 1890 expressly reflect 
consideration by the court for appointing guardian. It has been 
clearly mentioned that welfare of the minor is of paramount 
consideration with reference to so many other aspects narrated 
above. To evaluate the contents of the provisions of Section 17, it 
seems advantageous to reproduce the relevant provisions which 
read as under:- 
“17. Matters to be considered by the Court 
in appointing guardian.- (1) In appointing or 
declaring the guardian of a minor, the Court 
shall, subject to the provisions of this section, 
be guided by what, consistently with the law to 
which the minor is subject, appears in the 
circumstances to be for the welfare of the 
minor. 
 
(2) 
In considering what will be for the 
welfare of the minor, the Court shall have 
regard to the age, sex and religion of the minor, 
the character and capacity of the proposed 
guardian and his nearness of kin to the minor, 
the wishes, if any, of a deceased parent, and 
any existing or previous relations of the 
CIVIL PETITION NO.1665 OF 2020 
-: 6 :-
proposed guardian with the minor or his 
property. 
(3) 
If the minor is old enough to form an 
intelligent preference, the Court may consider 
that preference.” 
 
The bare language of sub-section (2) of Section 17 reveals that for 
considering the welfare of the minor the Court has to keep in mind 
age, sex, and religion of the minor and the character and capacity of 
the proposed guardian and his nearness of kin to the minor. At the 
same time, the Court has to look at the wishes of a deceased parent, 
if any, and any existing or previous relations of the proposed 
guardian with the minor or his property. Sub-section (3) of Section 17 
postulates that if the minor is old enough to form an intelligent 
preference, the Court may consider that preference. In the judgment 
reported as Khalid Mehmood Vs. Additional District Judge, 
Islamabad and 2 others (2011 CLC 889), it was held “In appointing 
the guardian of the minor paramount consideration for the court should be 
welfare of the minor. Court must see as to who was the most likely to 
contribute to the well being of the minor and who would be in better 
position to look after and take care of the minor”. Similarly, in the 
judgment reported as Mst. Rasheedan Bibi Vs. Additional District 
Judge and 2 others (2012 CLC 784), it was held “Mere entitlement of 
father as natural guardian of minors would not be sufficient to decide such 
question. Prime consideration while deciding custody of minors would be 
their welfare keeping in view character and capacity of their proposed 
guardian”. Today, the minor children were present in the Court. They 
were brought before the Court under the orders and they were very 
well dressed up showing mature manners and they plainly refused 
to accompany their own father, rather they categorically stated to 
reside with the maternal grandparents. It is not a matter of surprise 
that their body language clearly demonstrated a sign of hatred 
towards him. It only happened because the father of the minor 
children has not performed his legal, moral and religious obligation 
in the manner as it is provided in an Islamic society. Though there is 
no denial of this fact that the petitioner has remarried and there is a 
daughter born out of the wedlock but this aspect cannot be 
considered as a valid ground to defeat the preferential right of the 
CIVIL PETITION NO.1665 OF 2020 
-: 7 :-
father, rather it can have only persuasive value with respect to other 
aspects which compel deviation, if any, as per the dictates of justice 
and “welfare of the minor”. Further, Articles 2 and 2A of the 
Constitution of the Islamic Republic of Pakistan, 1973 clearly 
envisage that Islamic social order has to be observed while leading 
life within the four corners of the law. In an Islamic culture, the 
father has been bestowed with so many responsibilities towards his 
children. Even the mother of the children can claim compensation of 
breast feeding from her husband which is well within the tenants of 
Islamic fiqah. Where this responsibility has been ignored, how a 
father while forgetting his obligations towards minor children and 
that too at a belated stage, can claim the guardianship on the basis 
of bald claims. As an abundance of caution, we have asked the 
maternal grandfather about his worth to which he stated that he is 
the owner of 19 acres of agricultural land which is sufficient to bear 
the expenses of the minor children and they are already enjoying 
reasonable living status in the custody of their maternal 
grandfather. Another aspect of this case is that the children are well 
aware of the fact that their mother died due to unnatural 
consequences which must be in the back of the mind of the children 
that it was their father who was involved in that episode. At this 
stage any adventure by this Court to dislodge the custody and 
handover the same to the father would be instrumental into 
impairment of the mental faculty of the minor children which could 
imprint negative impact on their personality in future and that would 
squarely be against the dictates of “welfare of the minor” which is 
an attire of Guardian and Wards Act, 1890. 
6. 
 
In view of the facts and circumstances narrated above, 
this petition is dismissed. However, the visitation schedule made by 
the Family Court for the grandparents shall be considered to be 
made for the petitioner and the same shall be followed. 
 
 
JUDGE 
 
 
JUDGE 
Islamabad, the 
2nd of November, 2021 
Approved for reporting 
Waqas Naseer/*