LHC upholds minor's right to choose custodian

Court dismisses father's petition, stresses emotional, psychological welfare

LAHORE:

The Lahore High Court (LHC) has dismissed a constitutional petition challenging the custody of a 12-year-old girl, holding that a child's intelligent preference is decisive and cannot be treated as a mere formality.

In the ruling highlighting the importance of a child's welfare and 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 such a preference must be given due and meaningful consideration.

The court emphasised that the "voice of the child" lies at the heart of custody determinations.

Relying on settled jurisprudence, the court ruled that the concept of welfare is a dynamic and comprehensive standard that extends beyond material comfort to include emotional, psychological and developmental well-being.

During an in-camera interaction, the minor, described by the court as confident, articulate and well-presented, clearly stated her desire to live with her maternal grandmother, with whom she has resided since birth and where she feels emotionally secure.

The court noted that the child expressed discomfort with her father, citing perceived neglect, and reaffirmed her strong attachment to her grandmother.

The father had sought custody under Section 25 of the Guardians and Wards Act, 1890.

While a Guardian Judge in Sialkot granted him custody on April 11, 2023, the District Judge, Sialkot, 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 examining the record, the LHC upheld the appellate 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 found to be healthy, attentive and devoted—the court directed the father to pay regular maintenance.

It also ordered the concerned court to immediately enforce and finalise a workable visitation schedule to safeguard the child's best interests.

The court further noted that placing minor daughters in the custody of maternal grandmothers during sensitive developmental years is a well-recognised practice in law, supported by consistent judicial precedents.