'Mother can't be denied child custody after remarriage'

LHC rules welfare of child must always take precedence over all else

LAHORE:

The Lahore High Court (LHC) has ruled that a mother's remarriage cannot be the sole basis for denying her custody of a minor child, emphasising that the welfare and best interests of the child must always take precedence over all other considerations.

Justice Syed Ahsan Raza Kazmi, presiding over the Bahawalpur bench, issued the ruling while setting aside the decisions of both the trial and appellate courts, which had previously awarded custody of a 10-year-old boy to his father.

The court ordered the immediate transfer of the child, Muhammad Rehman Khan, back into the custody of his mother, from whom he had been taken.

Justice Kazmi observed that while under traditional legal interpretation a mother may forfeit custody rights upon remarriage, this is not an absolute rule.

"In exceptional circumstances, and if deemed in the best interest of the minor, custody can be awarded to a mother who has remarried," the judge noted.

"The paramount consideration in all custody matters is the child's welfare. Parental rights are secondary."

Citing Sections 7 and 17 of the Guardian & Wards Act, 1890, Justice Kazmi reiterated that the child's emotional, psychological, and physical well-being must guide all decisions regarding guardianship.

"It is an admitted fact that the minor had lived his entire life with the petitioner (mother), and to remove him from her custody solely due to her remarriage is not a legally or morally sufficient standard," the judgment stated.

"Unfortunately, the lower courts overlooked this key aspect," it added.

The mother had challenged the earlier rulings on grounds of legal error and misapplication of judicial discretion.

Her counsel argued that she, as the biological mother, was best placed to care for the child's health, education, and emotional needs and that the father's custody could adversely affect the child's development.

Conversely, the father's legal team contended that the mother was no longer eligible for custody due to her second marriage, financial dependence on her new husband and the birth of another child from the second union. They argued the father was in a better position to raise the child.

However, the High Court disagreed. Justice Kazmi noted that the core legal questions were whether the mother's remarriage alone disqualified her from custody and whether her financial status had been fairly assessed.

He concluded that both lower courts had erred by relying exclusively on these two factors to award custody to the father.

The case originated when the father filed a guardianship petition under Section 25 of the Guardian & Wards Act before a Guardian Judge in Hasilpur, seeking custody of his son.

The couple had married in 2012 and later separated through a court decree.

The trial court, after hearing evidence from both sides, granted custody to the father—a decision upheld by an appellate court before being overturned by the LHC.