SC irked by judge’s conduct in child custody case

Reverses decision taken on jirga’s recommendation of handing over minor to father

ISLAMABAD: The apex court has expressed displeasure over the Hangu district judge’s conduct of handing over the custody of a minor to her father on the decision of a jirga (tribal committee).

Supreme Court judge Justice Qazi Faez Isa observed that a jirga does not have the authority to decide the guardianship of a child; thus, it was a breach of law.

"The learned judge had also relied upon a so-called decision of a jirga. A jirga has no legal authority to decide the custody of children and in doing so it violated the law, and Islamic injunctions. The law and precedents of this court have stressed the welfare of the minor as the paramount consideration in determining the custody and to abide by the principles of hizanat [take care of] unless there are valid reasons not to do so. A mother cannot be compelled to part with her child by a jirga. She cannot be called upon to barter the right to her child’s custody, to secure a divorce nor can a child be used to settle personal scores," said the judgement authored by Justice Isa.

The order said that the district judge had disregarded the welfare of the minor and the precedents of the court which had extensively elaborated on the matter.

"Instead, the learned district judge relied on a so-called decision by a jirga. The high court was; therefore, correct to set aside the judgement of the district court which was based, as mentioned above, on untenable considerations," said the order.

The top court observed that the father's retention of her daughter, Saima, was wholly unjustified.

The court noted that the man continued to keep the custody of the child which was in violation of Peshawar High Court’s (PHC) orders of November 12, 2018, wherein the court had directed “peaceful handing over of the minor to the mother”. But the orders had not been implemented despite the passage of three months.

Resultantly, an innocent child continued to be deprived of the love and care of her mother.

Since the petitioner (father) continued to illegally keep custody of the child, the court called upon Additional Advocate General (AAG) of Khyber-Pakhtunkhwa to ensure that the judgement of the Peshawar High Court was implemented with immediate effect.

The AAG informed that the social welfare department of the provincial government which among its different functions included the care and welfare of women, children and underprivileged sections of the society.

Therefore; the court, directed the father to immediately handover the child to her mother.

In case of non-compliance, the court directed social welfare department
to ensure that the custody of Saima was given to her mother.