LAHORE:
The Lahore High Court (LHC) has dismissed a constitutional petition challenging the custody of a 12-year-old girl, holding that the intelligent preference of a child is decisive and cannot be treated as a mere formality.
In the ruling highlighting the importance of the welfare of the child and the right to be heard, Justice Rasaal Hasan Syed observed that under Section 17(3) of the Guardians and Wards Act, 1890, a child who has attained sufficient maturity has the legal right to express a preference in custody matters, and that preference must be given due and meaningful consideration.
The court emphasized that the “voice of the child” is at the center of custody determinations.
Based on established case law, the court ruled that the concept of well-being is a dynamic and comprehensive standard that extends beyond material comfort to include emotional, psychological, and developmental well-being.
During an on-camera interaction, the minor, described by the court as confident, articulate and well-presented, clearly expressed her desire to live with her maternal grandmother, with whom she has resided since birth and where she feels emotionally safe.
The court noted that the girl expressed discomfort with her father, alleging perceived neglect, and reaffirmed her strong attachment to her grandmother.
The father had applied for custody under section 25 of the Guardians and Wards Act, 1890.
While a Sialkot guardianship judge granted her custody on April 11, 2023, the Sialkot district judge set aside that order on June 2, 2023 and entrusted custody to the maternal grandmother.
Both parents have since remarried and have children from their second marriages.
After reviewing the record, the LHC affirmed the appeals court’s order, holding that the decisive factor was the child’s informed and independent preference.
The court cited the Supreme Court judgment in Dr Muhammad Asif v Dr Sana Sattar (CRP No 458 of 2024), reiterating that listening to a child is a constitutional and international obligation, not a symbolic exercise.
While maintaining custody with the maternal grandmother, who was present in court and was deemed healthy, attentive, and devoted, the court ordered the father to pay regular support.
It also ordered the court concerned to immediately enforce and finalize a workable visitation schedule to safeguard the best interests of the child.
The court further noted that placing minor daughters in the custody of maternal grandmothers during sensitive developmental years is a well-recognized practice in law, supported by consistent judicial precedents.
