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Official Citation: 2025 IHC 548
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2025
Decision Date: 2025-07-14
Parties: Farrah Mehmood & 2 Others vs Adnan Amin & 2 others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2025-07-14, officially reported as 2025 IHC 548. In this matter between Farrah Mehmood & 2 Others and Adnan Amin & 2 others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025IHC548
Court Name: Islamabad High Court Judge(s): Muhammad Azam Khan Title: Farrah Mehmood & 2 Others vs Adnan Amin & 2 others Case No.: Writ Petition No.2010 of 2025 Date of Judgment:2025-07-14 Reported As: 2025 IHC 548 Result: Petition Disposed of
JUDGMENT
JUDGMENT MUHAMMAD AZAM KHAN, J. 1. Through the instant Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution"), the Petitioners have assailed the Order dated 15.05.2024 ["Impugned Order-I"] passed by the learned Family Court/Guardian Judge, East, Islamabad ["Trial Court"] whereby the application filed by the Petitioners for modification of visitation schedule, has been dismissed. The Petitioners also assailed the Order dated 30.11.2024 ["Impugned Order-II"] passed by the learned Additional District & Sessions Judge-1, East, Islamabad [ "Appellate Court"] whereby the appeal filed by the Petitioners under Section 14 of the Family Courts Act, 1964 read with Rule 22 of the West Pakistan Family Courts Rules, 1965 against the Impugned Order-I passed by the learned Trial Court, has also been dismissed. 2. The brief facts of the case as per the memo of the petition are that the Petitioner No. 1 and Respondent No. 1 got married on 06.09.2006. However, due to irreconcilable differences, the Petitioner No. 1 filed a Suit for Dissolution of Marriage, which was decreed by the Family Court, Islamabad in March 2016. Thereafter, the Respondent No. 1 filed a Suit for Custody and Guardianship of Petitioners No. 2 & 3 (hereinafter referred to as the "Minors") before the learned Trial Court, Islamabad in 2017. The learned Trial Court vide Order dated 30.06.2017 prepared a visitation schedule, whereby the Respondent No. 1 was granted night stay with the Minors at his house. The Petitioner No. 1 assailed the said Order before the learned District Court, Islamabad which was dismissed vide Order dated 31.10.2017, thereby upholding the decision of night stay every week with Respondent No.1. The Petitioner No. 1 further approached the Islamabad High Court,
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Islamabad and challenged the Orders of the learned fora below, which is still pending adjudication. It is pertinent to mention herein that in compliance with the Orders of the learned fora below, the Minors started visiting the Respondent No. 1 twice a month and stayed at night as per the visitation schedule chalked out by the learned Family Court. 3. During the Summer Vacation in 2019, a tragic incident occurred at the house of Respondent No. 1 (father of minors) involving the Petitioner No. 3 (minor girl) where the paternal uncle of Petitioner No. 3 sexually harassed her. This prompted the intervention of the Executing Court Judge, who, after consulting with the children, decided to halt the night stay arrangement at the house of Respondent No. 1 (Adnan Hameed) vide Order dated 02.10.2020. According to the Order, the minors were to visit their father from 10:00 AM to 4:00 PM, without overnight stays. Petitioners filed an application for modification of visitation schedule of the Petitioners No.2 & 3 with their father i.e. Respondent No.1 contending therein that earlier an application filed by the Respondent No.1 for custody of Petitioners No.2 & 3 was dismissed by the learned Trial Court vide Order dated 30.06.2017 and fixed the visitation schedule as under:- Fortnightly visitation per month 2nd and 4th weekend (Saturday 06:00pm to Sunday 04:00pm) Summer Vacations (yearly) First two weeks Winter Vacations (yearly) 1st half of vacations Eid-ul-Fitr & Eid-ul-Azha 2nd Day of Eid (from 10:00am to 05:00pm) Birthday of minors, Father's Day From 04:30pm to 07:30pm 4. It was contended that Petitioner No.1 had arranged the visitation in accordance with the schedule, in compliance with the aforementioned Order. However, during the last meeting between Petitioners No.2 & 3 and Respondent No.1, Petitioner No.3 [Sarah Adnan] was reluctant to visit her father, which caused distress to her, as she was experiencing discomfort and anxiety symptoms that had been progressively increasing since June 2019. This situation compelled Petitioner No.1 to consult a psychiatrist for Petitioner No.3. After three consecutive visits to Dr. Ambreen Ahmed, a renowned psychiatrist in the country, certain facts pertaining to the paternal uncle of Petitioner No.3 were disclosed, which were shocking for the Petitioner No. 1. The psychiatrist also provided her professional opinion and recommendations in light of the situation. In such circumstances, Petitioner No.1 felt aggrieved and uncomfortable in sending the minors to Respondent No.1 for overnight stay, particularly in view of the psychiatrist's report and the prevailing condition of both Minors, who had shown absolute reluctance to visit their father. Consequently, she filed an application for modification of the visitation schedule. The said application was contested by Respondent No.1 through a written reply, wherein he raised certain preliminary objections, categorically denied the allegations levelled by Petitioner No.1, and prayed for its dismissal. The learned Trial Court, after hearing arguments from both sides, dismissed the Petitioners' application vide Impugned Order-I . Feeling aggrieved by the said Order, the Petitioners preferred an appeal before the learned Appellate court, which also met the same fate vide Impugned Order-II . Hence, the Petitioners have approached this Court by filing the instant Writ Petition. 5. The learned counsel for the Petitioner contends that the learned Trial Court as well as the learned Appellate Court failed to appreciate the material facts and medical evidence on record, particularly the psychiatrist's report, which clearly reflected the mental health concerns and emotional discomfort experienced by the minor Petitioner No.3 due to the existing visitation arrangements; that both the learned Courts below erred in law by dismissing the application for modification without giving due weight to the reluctance and emotional state of the minors, who are the most affected parties in custody and visitation matters, thus failing to uphold the welfare of the Minors, which is the paramount consideration in such proceedings; that the learned Courts below did not consider the professional opinion and findings of a qualified and reputed psychiatrist, Dr. Ambreen Ahmed, which disclosed disturbing facts and recommended revisiting
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the visitation schedule to safeguard the minors' well-being; that the learned Courts below adopted a mechanical approach in dismissing the Petitioners' application and appeal, without appreciating that the circumstances had materially changed since the issuance of the original visitation Order dated 30.06.2017, thereby justifying the request for modification; that the consistent and absolute reluctance of both minors to meet their father, especially for overnight stays, demonstrated a significant psychological impact that warranted serious judicial consideration and an adaptive visitation arrangement rather than rigid adherence to a schedule issued years earlier; and that dismissal Orders are not sustainable in the eyes of law as they amount to denial of the Petitioners' right to be heard and violate the principle of natural justice, in particular the right to a fair hearing in matters affecting the mental and emotional well-being of minor children. In the last, the learned counsel for the Petitioners prayed that instant Writ Petition may kindly be accepted and both the Impugned Orders may kindly be set aside. 6. On the other hand, the learned counsel for Respondent No.1 vehemently opposed the arguments of the learned counsel for the Petitioners and contends that the application filed by the Petitioners is not maintainable in law, as there has been no substantial change in circumstances warranting modification of the visitation schedule already settled by the competent Court vide Order dated 30.06.2017; that the Petitioner No.1 is willfully attempting to alienate the Minors from their father (Respondent No.1) and is creating undue psychological barriers in the mind of the children to frustrate his visitation rights, which is contrary to the settled principle that a child's welfare includes regular interaction with both parents; that the visitation schedule was set after full adjudication and consideration by the competent Court, and the same was in force without objection for a substantial period; that the psychiatrist's report, relied upon by the Petitioners, is unilateral, based solely on information provided by Petitioner No.1, and lacks any independent or Court-supervised evaluation of the children; that the Respondent No. 1 was neither consulted nor given an opportunity to participate in the said psychiatric evaluation, which renders the findings one-sided and questionable; that the alleged reluctance of the Minors to meet Respondent No.1 has been deliberately cultivated by Petitioner No.1 through manipulation and repeated negative portrayal of the Respondent No.1, amounting to parental alienation; that this is a common tactic in custodial disputes and cannot be taken at face value without a neutral assessment; that the Respondent No.1 has always complied with the Court Orders and has made sincere efforts to maintain a healthy and nurturing relationship with his children; that the visitation schedule as framed ensures that the children maintain emotional ties with both parents, which is essential for their balanced development; that the application filed by the Petitioners was rightly dismissed by the learned Trial Court, and the learned Appellate Court rightly upheld that decision, as the Petitioners failed to establish any cogent legal or factual grounds to justify interference with the settled visitation regime, therefore, it is requested that the instant Petition may kindly be dismissed. 7. I have heard the learned counsel for the parties and perused the record with their able assistance. 8. Perusal of the record reveals that visitation schedule was prepared by the learned Trial Court vide Order dated 30.06.2017, wherein the Respondent No. 1 was granted night stays with the Minors at his house. Petitioner No. 1 had assailed the aforementioned Order before the learned District Court, Islamabad, which was dismissed vide Order dated 31.10.2017, thereby affirming the direction for overnight visitation with Respondent No. 1 on a weekly basis. Petitioner No. 1, thereafter, invoked the Constitutional jurisdiction of the Islamabad High Court by challenging the Orders passed by the subordinate fora, where the matter is presently sub-judice. It is pertinent to note that, in compliance with the directions issued by the learned Courts below, the Minors commenced visitation with Respondent No. 1 twice a month, including overnight stays, in accordance with the visitation schedule. However, during summer vacations in 2019, the Petitioner No. 3 was allegedly
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sexually harassed by her paternal uncle at the house of Respondent No. 1, which made the Minors reluctant to stay overnight at the house of their father/Respondent No. 1. The Petitioners, due to change in circumstances, had moved an application seeking modification of the visitation schedule chalked out earlier by the learned Trial Court. The said application was dismissed vide Impugned Order-I by the learned Trial Court. The Petitioners assailed the Impugned Order-1 before the learned Appellate Court, however, the appeal was dismissed vide Impugned Order-II. A. To thoroughly examine the merits and legal complexities of the present case, it is essential to articulate the moot questions that have emerged for determination by this Court Whether any subsequent change in circumstances could allow modification, alteration and/or revocation of an earlier visitation schedule chalked out by the Guardian Court? B. Whether the voice of the children holds substance in matters pertaining to custody? C. Whether there are any pertinent factors/aspects that need to be considered by the Courts whilst preparing the visitation schedule? D. Whether mediation should be the first recourse for reaching an amicable solution within a reasonable timeframe? 9. There remains no dispute as to the settled principle that the welfare of the minor is of the paramount consideration before any Court seized of a custody matter. The rights of the parents are necessarily subordinate to the welfare of the child, and there is an obligation on the Courts to ascertain and determine a course of action that best serves the well-being of the minors. Any decision qua custody, rendered without proper evaluation of the minors' welfare, and without considering all relevant factors and circumstances, lacks legal sustainability and cannot be regarded as a proper exercise of judicial discretion. Therefore, the welfare and best interests of the minors form the foundational basis upon which determinations related to custody and visitation must rest. In this regard, it is imperative to refer to the established legal principles in such matters. The august Supreme Court of Pakistan in the case titled Raja Muhammad Owais Versus Mst. Nazia Jabeen and others (2022 SCMR 2123) has observed the following:- "Time and again, this Court has held that the paramount consideration where custody is concerned is the welfare of the minor, that is to consider what is in the best interest of the child. The court's jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional well being of the child." (Emphasis added) Similar view has been expressed by the apex Court in the latest judgment titled as Shaista Habib v. Muhammad Arif Habib and others (PLD 2024 SC 629) wherein the august Supreme Court has ruled as under:- "The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child." 10. Reliance is further placed on the latest judgment cited as Irfan Arshad Versus Mst. Zainab Noor and 2 others (2025 MLD 401), wherein the Lahore High Court has observed the following regarding the welfare of the minors:-
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"Before adverting to the merits of the case, the Court is of the considered view that the utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well- being. This is the reason, law provides a parental jurisdiction to the Guardian Judge in such cases. The objective of the law is not just handing over the custody of the minor, but to examine all the aspects which are ancillary to it. The power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare. The word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values. The Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents." (Emphasis added) 11. Although the Guardian Court is deemed as the final arbiter for determining matters relating to custody of minors, this authority is subject to exception where the Court has rendered its decision in an arbitrary, capricious, or fanciful manner, particularly in situations where the foundational consideration of the minor's welfare has neither been adequately evaluated nor determined with reference to the relevant and prevailing circumstances. In instances where the welfare and best interest of the minor has been disregarded or subordinated to extraneous considerations, such a decision cannot sustain in the eyes of law. It is well-established that in adjudicating custody disputes, the Court is not required to adhere rigidly to procedural formalities or technical rules if such adherence is likely to impede or frustrate the primary objective of ascertaining the welfare of the child. The determinative criterion in all such matters is the best interest of the minor, which stands as the overarching and settled principle. Therefore, the Guardian Courts must adopt a course that best serves the welfare of the child, as such welfare is to be treated as the paramount consideration in all custody-related adjudication. A. Whether any subsequent change in circumstances could allow modification, alteration and/or revocation of an earlier visitation schedule chalked out by the Guardian Court? 12. The Guardian Courts have been empowered not only to modify, set-aside or alter an earlier Order, but also to pass appropriate Orders at any subsequent stage to safeguard the interest and welfare of the minors. Thus, an Order rendered prior in time qua visitation of minors would not operate as a bar of jurisdiction on the Guardian Courts for all future time to come. Reliance in this regard is placed on Shabana Kausar Versus District Judge and others (2020 CLC 2099), wherein it was held that:- "At this juncture, it is relevant to observe that order relating to custody of child is by its very nature not final but is interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child." Furthermore, in the case of Ayesha Tahir Shafiq Versus Saad Anamullah Khan and 2 others (PLD 2001 Karachi 371), the Court observed the following:- "It may be mentioned here to this regard that an order passed by the Guardian Court in respect of the custody of the minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same may not serve as such. It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context will not operate as a bar of jurisdiction for the Guardian Court for all future time to come." Similar view has been taken by the apex Courts in Amna Nawaz Versus District Judge and others (2021 YLR 2030) and Dewan Abdullah Ahmed Farooqui Versus Court of Family Judge South,
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Saddar Karachi and another (2022 YLR 2095). 13. In view of the foregoing legal position and jurisprudence settled by superior Courts, it is evident that in matters pertaining to the custody of minors, the welfare and best interest of the child is the overriding and paramount consideration. An Order previously passed by the Guardian Court with respect to custody is not of a conclusive or permanent nature, rather it is interlocutory and inherently susceptible to modification upon proof of a material change in circumstances. The passage of time, coupled with the evolving physical, emotional, and psychological needs of a child, may warrant a re-evaluation of an earlier custody arrangement. Therefore, the filing of a subsequent application is not barred where new grounds or developments have arisen, although the prior Order must still be accorded its due legal weight during such reconsideration. 14. It is well-recognized that no fixed age can be determined for assessing when a minor is capable of expressing a meaningful preference in custody matters. However, the maturing capacity of the child and his or her ability to comprehend the circumstances are relevant factors that must be evaluated by the Courts. In the instant case, the emergence of new allegation qua sexual harassm ent, which directly concerns the wellbeing of the Minors, coupled with the fact that the children have since grown significantly older, necessitates judicial scrutiny. The Guardian Court is duty-bound to examine new developments and changed circumstances by affording the Minors a fair opportunity of hearing, thereby ensuring that any future custody determination conforms to the constitutional (as guaranteed under Articles 9, 14, 25, and 34 of the Constitution) and statutory mandate of safeguarding the best interests of the Minors. Hence, in light of the above findings, the Guardian Courts have been empowered to modify, set-aside or alter an earlier Order, at any subsequent stage, to safeguard the interest and welfare of the minors. B. Whether the voice of the children holds substance in matters pertaining to custody? 15. Whilst observing custody disputes, it has been oft-noted that the child is frequently casted as a lone figure standing at the border of two sovereign territories; each claimed by a parent, each demanding allegiance. One parent stands to the East, the other to the West. Albeit the child shares their identity, love, and history, yet the child is made to choose between parents as though love could be partitioned. The children are often saddled with the burden to carry the emotional baggage alone, which the Courts can never fully understand or carry. In such moments, the courtrooms should not become a site of border, rather the child's preference must be heard above all arguments, and their best interest must not be governed by parental control and desires, but discerned with compassion, empathy and dignity. 16. The august Supreme Court of Pakistan, in a recent judgment cited as Dr. Muhammad Asif Versus Dr. Sana Sattar and others (2025 SCP 192), has stated that the voice of the child must be heard and respected in every custody and guardianship matter. Relevant portion is reproduced hereunder: "We underline that a child must be heard so that her best interests can be properly understood and protected. The participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects the dignity and agency of the child. Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process. As clarified in the UN General Comment No. 12, the views of the child must be seriously considered, not merely acknowledged. Listening to a child does not mean obeying them, but rather understanding their perspective deeply enough to act in their best interests." 17. Therefore, there is no cavil to the proposition that in every matter concerning custody and guardianship, the voices of the children must not be treated as a mere whisper, but rather as a vital guiding source in the judicial proceedings with a view to determining their welfare, prosperity and safety. The child is not a passive subject to be moved like property, but a sentient being with fears and aspirations that deserve to be heard with sincerity and weighed with reverence. To
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silence that voice is to darken the very soul of the dispute, for in the quiet truth of a child's heart often lies the clearest path to their well-being. 18. Moreover, Article 3 of United Nations Convention on the Rights of the Child, 1989 (UNCRC) establishes that the best interest of the child shall be a primary consideration in all actions concerning them. This is not merely a rhetorical or aspirational directive, but rather a binding legal standard that necessitates a holistic and child-centric evaluation encompassing the child's emotional, psychological, developmental, and relational needs, as well as considerations pertaining to their safety, security, and long-term welfare. Furthermore, Article 12 of UNCRC confers upon every child, capable of forming their own views, the right to freely express those views in all matters affecting them, with such views to be accorded due weightage in accordance with the child's age and degree of maturity. In the Judgment cited supra, the august Supreme Court observed the following:- "Article 3 requires that the best interests of the child be a primary consideration in all actions concerning them. This is not a vague or aspirational goal; it is a…
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