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Official Citation: Const. P. 76/2025 (SHC)
Court / Jurisdiction: Sindh High Court
Petitioner: Const. P. 76/2025 (S.B.) Sindh High Court, Circuit Court, Mirpur Khas - Mst. Zubaida (Petitioner)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as Const. P. 76/2025 (SHC). In this matter between Const. P. 76/2025 (S.B.) Sindh High Court, Circuit Court, Mirpur Khas - Mst. Zubaida (Petitioner) and the Respondent, 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.
COURT: Sindh High Court CASE NO: Const. P. 76/2025 (S.B.) Sindh High Court, Circuit Court, Mirpur Khas CITATION: 2026 SHC MPK 1 PARTIES: Mst. Zubaida (Petitioner) ORDER DATE: 31-DEC-25 BENCH: Hon'ble Mr. Justice Riazat Ali Sahar(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS
Constitutional Petition No.S-76 of 2025 [Mst. Zubaida v. Muhammad Ashraf and another]
For the Petitioner: Mr. Afzal Karim Virk, Advocate.
For the Respondent No. 1: Mr. Muhammad Yousuf Narejo, Advocate.
For the Respondent No. 2: Mr. Muhammad Sharif Solangi, Assistant Advocate General Sindh.
Date of Hearing: 17.12.2025
Date of Judgment: 31.12.2025
JUDGMENT
RIAZAT ALI SAHAR, J.: This matter pertains to the custody and guardianship of a femal e child, Eshal Fatima, which is disputed between her real father, Muh ammad Ashraf (Respondent No. 1) and her maternal grandmother, Mst. Zubaida (Petitioner). 2. It would appear that the Respondent No. 1 filed Guardianship Application No. 02 of 2021 under sections 7 and 10 read with section 25 of the Guardians and Wards Act, 1890 (“1890 Act”) before the learned Guardian Judge, Samaro, against the Petitioner, for the custody and guardianship of Eshal Fatima. In the application, he pleaded that the Respondent No. 1 was married to the daughter of the Petitioner namely, Mst. Sidra on 12 .05.2018, who was a patient of Cancer at the time of marriage but this was concealed from the Respondent No. 1. It is further alleged that right from the beginning of the marriage, the Respondent No.1 provided complete maintenance to Mst. Sidra and in the month of March 2019 due to her illness she was shifted from the house of the Respondent No.1 to the Petitioner‟s house with the Responent‟s permission; that on 07.08.2019, Mst. Si dra gave birth to Eshal Fatima of which delivery expenses w ere borne by the Respondent No. 1; that on 28 .05.2020 when Mst. Sidra was on her death bed, the sons of the Petitioner who are polic e officials got Family Suit No. 10 of 2020 filed before Family Cour t by producing a dubious lady in place of the wife of the Respondent No. 1 whereas Mst. Sidra passed away on 30 .06.2020 at 07:55 p.m. and the said suit was dismissed as infructuous vide Order dated 10 .02.2021; that the
2 Respondent No.1 and his family members were not allowed to attend the funeral of Mst. Sidra; that the Pet itioner filed Family Appeal No. 01 of 2021 against the Order dated 10 -02-2021 which was also dismissed; that such facts show that the Petitioner and her family has extraordinary level of mala fide and bad blood towards the Respondent No.1 as well as the welfare and wellbeing of Eshal Fatima; that the Respondent No. 1 has not been allowed to meet his own daughter nor her custody is being provided to him by the Petitioner and her family; that th e Respondent No. 1 earns well having his own private business and, being the father of Eshal Fatima, is her natural guardian as well having a preferential right of Hizanat; that the Petitioner is an old -aged woman and is not able to properly upbring Eshal Fatima on such account; that the best interests of the min or lies with the Respondent No. 1 who is willing to maintain her properly and take care of her material needs and educational requirements; that the Petitioner is an illiterate lady having no educati on and depending upon the limited income of her sons who have their own families whereas the husband of the Petitioner (maternal grandfather of Eshal Fatima) has already expired; that the atmosphere of the house of the Petitioner is not good as her son is an addict of intoxication; that for the purpose of appointment of guardian/custody, the Court has to consider welfare of the minor, nearness of kin, age as well as sex and all of these ingredients lie in favour of the Respondent No.1; that the Respondent N o.1 is sending money orders of Rs. 3,000/- per month to the house of the Petitioner to maintain Eshal Fatima which are constantly being refused by the Petitioner. On these facts, the Respondent No. 1 prayed to appoint him as the legal guardian ad litem of th e Minor as well as to handover her custody to him. 3. Against the Application, the Petitioner filed her Objections/Written Statement in which she denied the case o f the Respondent No. 1 and pleaded that Mst. Sidra was not ill at the time of marriage and that s he was physically and mentally tortured by the Respondent No. 1 and his family members; that her medical treatment was afforded by the Petitioner and her family members and the Respondent No. 1 did not provide any expenses; that Mst. Sidra was shifted to her parents‟ house because she was maltreated by the Respondent who did not maintain her properly nor bore the delivery expenses; that the signatures of Mst. Si dra on Family Suit No. 10 of 2020 were genuine and the learned Guardian Judge did not pass any order s on it; that the Applicant and her family
3 members take great care of Eshal Fa tima whereas the Respondent No. 1 only started sending money orders few weeks prior to filing the G&W application; that Eshal Fatima is living peacefully and in a great environment with the Petitioner and her family members who are providing good love and affection to her; that they have not illegally confined the Minor; that the Petitioner being the maternal grandmother of Eshal Fatima is fully able to take care of her while the Respondent No.1 is engaged in business which means that he is mostly out of the house and will not be able to take care of his daughter; that the maintenance of the Minor should be decided judicially rather than the personal p reference of the Respondent No.1; that the Respondent No.1 is not legally entitled to be appointed the guardian of Eshal Fatima. Finally, the Petitioner prayed for dismissal of the G&W application with costs. 4. From the pleadings of the parties, the learned Trial Court framed four relevan t issues on which the parties recorded the ir evidence. The Respondent No. 1 being the Applicant examined himself and four other witnesses, whereas the Petitioner examined herself and three other witnesses. Thereafter, a post -trial was held (which ended in f ailure) and finally the learned Guardian Judge passed Order dated 23.08.2024 the operative part of which reads as follows: “From the detailed discussion on Issues No. 01 to 03, it is borne out on the record that the welfare of minor baby Eshal Fatima lies with Opponent No. 1 Mst. Zubaida and Applicant Muhammad Ashraf is not entitled to be appointed as Guardian of person or property of minor or to receive custody of minor from Opponent No. 01. Moreover, since, the welfare of the minor lies with Opponent No. 01 Mst. Zubaida hence she is entitled to be appointed as Guardian of the person and property of minor and to retain custody of minor. However, being natural father of minor, Applicant Muhammad Ashraf is entitled for visitation rights with minor Baby Eshal Fatima. Therefore, Guardian & Wards Application filed by Applicant is hereby disposed of in following terms: (i) Custody of minor namely Baby Eshal Fatima shall remain with the Opponent No. 01 Mst. Zubaida who is maternal grandmother of minor. (ii) Opponent No. 01 shall not remove the minor Baby Eshal Fatima abroad without prior permission of this Court. (iii) Applicant Muhammad Ashraf being father of the minor is entitled for visitation/temporary custody of minor Baby Eshal Fatima for one day twice in a month for which p urpose Opponent No. 01 shall handover custody of minor Eshal Fatima to Applicant on every 01st and 03rd Saturdays of each month at time 04:00 pm and Applicant shall return the custody of the minor to Opponent No. 01 on every such upcoming Sunday at time 04:00 PM. (iv) Applicant shall be entitled for visitation rights/ temporary custody of minor on 02nd day of occasions of Eid -ul-Fitr and Eid -ul-Azha for which purpose Opponent No. 01 shall handover custody of minor Eshal
4 Fatima to Applicant on 02nd day of each of such Eid at time 10:00am and Applicant shall return the custody of minor to Opponent No. 01 on same day at time 06:00pm. (v) Applicant shall be entitled for visitation rights/ temporary custody on each birthday of minor i.e. 07th day of August for three hours for which purpose Opponent No. 01 shall handover custody of minor Eshal Fatima to Appliant on each Birthday of minor at time 03:00pm and Applicant shall return the custody of minor to Opponent No. 01 on same day at time 06:00pm. (vi) Applicant being father of the minor is entitled for visitation rights/temporary custody of minor Eshal Fatima for fifteen (15) days during Summer vacation each year for which purpose Opponent No. 01 shall handover custody of minor Eshal Fatima to Applicant on 15th day of June each year at time 10.00am and Applicant shall return the custody of minor to Opponent No. 01 on 30th day of June of same year at time 10:00am. (vii) Applicant being real father of the minor is entitled for visitation rights/temporary custody of minor Eshal Fatima for four (04) days during Winter Holidays each year for which purpose Opponent No. 01 shall handover custody of minor Eshal Fatima to Applicant on 25th day of December each year at time 10.00 am and Applicant shall return the custody of minor to Opponent No. 01 on 29th day of December of the same year at time 10:00 am. (viii) The manner of taking and handing over custody of minor would be such that Applicant shall receive custody of minor in person from house/address of Opponent No. 01 and after completion of time of meeting/interim custody, Applicant in person will return custody of minor to Opponent No. 01 in person or any of her authorized family member at house/ address of Opponent No. 01. Opponent No. 01 will submit names of her authorised family members within 0 7 members. In case no such list is submitted by Opponent No. 01, any family member present at address of Opponent No. 01 may hand over custody for minor to Applicant as per schedule detailed above and receive the same from Applicant after completion of visitation hours. (ix) If the Opponent No. 01 delays in handing over custody of the minor to the Applicant at the specified time, the Applicant may extend the custody period by the duration of the delay. Similarly, if the Applicant commits late in returning custod y to the Opponent No. 01, the corresponding time will be adjusted during the next scheduled meeting, as detailed above. (x) Since the Applicant resides in Kot Ghulam Muhammad, approximately 15 kilometres from Samaro town where the minor lives with the Opponent No. 01, the Applicant will arrange private conveyance/transportation, according to his means, to take the minor to his residence and return her to the Opponent No. 01‟s residence at the end of the visitation period. (xi) In case both or any of the parties do n ot observe discipline and punctuality in taking and handing over custody of minor to entitled party and any commplaint in such respect is received from either side, for all future meetings/interim custody proceedings, the Bailiff of this Court will undertake the responsibility of taking custody of minor from house/address of Opponent No. 01 and handing over the same to Applicant at his house/address and after completion of time of meeting/interim custody, the Bailiff of this Court will take the custody of minor from house/address of Applicant and return the same to the Opponent No. 1 at her residence/house. In such respect, charges of Rs. 2000/- rupees will be paid by Applicant to the Bailiff at the time of receiving custody of minor and charges of Rs. 2000/ - will be paid by
5 Opponent No. 01 to the Bailiff at the time of return of custody of minor to him. However, transportation charges of both sides will be paid by Applicant. In case both or either of parties do not comply the directions contained in this ord er and do not allow access to Bailiff, the Bailiff will seek assistance from Police of nearest Police Station for carrying the order of the Court. For such purpose, let the directions contained in this order be communicated to SHO PS Samaro and SHO PS Kot Ghulam Muhammad. (xii) All the meetings shall be held in peaceful atmosphere. (xiii) Applicant will furnish inemdnity bond in the sum of Rs. 500,000/ - (Five lac) rupees before this Court within 07 days of passing of this order to indemnify himself from not committing b reach of directions/orders in respect of handing over/returning custody of minor to Opponent No. 01 and with respect to undertaking of taking proper car eof minor during period custody of minor remains with him. (xiv) Both parties will be responsible for good he alth and care of minor during the period minor remains with them. (xv) In order to monitor proper health and wellbeing of minor, Opponent No. 01 or any one of her authorized family members will take minor Eshal Fatima at Agha Khan Maternal & Child Care Center, Hyderabad, once every year for routine checkup of minor Eshal Fatima before a Pediatrician practicing at such Hospital and ensure proper screening/diagnosis of minor if and as adviced by such Medical Practitioner. Applicant Muhammad Ashraf may attend such visit of minor at such Hospital in person alone for which purpose, Opponent No. 01 will inform date and time of appointment to Applicant in advance. The costs on such consultations and diagnosis will be shared equally by Applicant and Opponent No. 01 while both parties will pay travelling expenses at their own. In case date of appointment is not communicated to Applicant by Opponent No. 01 side, all expenditures will be paid by Opponent No. 01 herself. First of such consultation is to be made in the month o f September 2024 and annual consultation to be followed in month of September each year. In case the Pediatrician refers the minor for further assessment to Agha Khan University Hospital, Karachi, the consultations and diagnosis and all expenses will be sh ared by both parties equally. Applicant is directed to provide his Cell/WhatsApp number to Opponent No. 01/her Attorney and submit the same through statement in the Court for record. (xvi) In order to monitor proper education of minor, the Opponent No. 01 is directed to submit assessment/result card of minor issued by Schoool of minor on annual basis along with other academic record of minor. All other prayers unless expressly allowed herein above shall be deemed to have been declined. All interim orders passed stand modified accordingly. Parties will bear their own costs. Application for taking action against Opponent‟s Attorney and one Shahzeb (brother of Attorney of Opponent) and direction to opponent to provide treatment to minor from Agha Khan Hospital, Kara chi stands disposed of in terms of paragraph 40(xv) of this Order.” Against the Order dated 23.08.2024, the Petitioner filed G& W Appeal No.5 of 2024 while the Respondent No.1 filed G&W Appeal No. 06 of 2024. Both were heard together by the learned II nd Additional District Judge, Umerkot and finally disposed of by him vide Judgment dated 11.04.2025
6 whereby he set-aside the Order dated 23.08.2024 and passed the following order:- “In view of my finding on points supra, the G&W Appeal bearing No. 05/2024 filed b y Mst. Zubeda through her Attorney Qamar -Ul-Zaman is hereby dismissed. The G&W Appeal bearing No. 06/2024 filed by Muhammad Ashraf is hereby allowed. The impugned order is hereby set -aside. Mst. Zubeda (maternal grandmother of the child) is hereby directed to handover the custody of the child to the appellant/father within 10 days hereof without any court-motion notice. In the event that the mother -in-law fails to comply with the order, the learned Trial Court shall take efforts to enforce the order passed by this Court in order to handover the custody of the minor to the father. Since the minor also require to be meet with the grandmother side the learned trial Court is directed to issue schedule of meeting with the consent of the parties for meeting of the minor with the grandmother and her maternal uncles in Court.” 5. This case is now before this Court as a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”) by which the Petitioner (Mst. Zubaida) has prayed as follows: “Prayer that this Honourable Court may be pleased to ascertain the legality, propriety and correctness of the impugned judgment and set -aside it, dismiss the Guardian Appeal No. 06 of respondent grant the stay till disposal of this Revision Application (Call the R&P from Additional Session Judge -II of Appeal No. 06 and from trial court of Guardian Application No. 02) or pass any appropriate order on consideration of the facts and grounds mentioned below.” 6. During the hearing of the case, the l earned Counsel for the Petitioner reagitated the grounds of the petition. He submitted that the impugned Judgment is contrary to the law and facts; that the Respondent No.1 deliberately avoided to pay the delivery expenses and maintenance of the minor; tha t the Respondent No. 1 has cruel tendencies; that the guardianship application was filed by the Respondent No.1 after almost an year of the birth of the minor which shows that he was negligent towards the welfare of the child; that the Petitioner regularly conducted the visitation meetings of th e minor with the Respondent No. 1 as per the directions of the learned Trial Court; that the child has been living with the Petitioner since her birth with peace and affection; that she has been getting all religious a nd other education and her upbringing is being done perfectly and that t he income of the Respondent No. 1 is low and he is unable to maintain the minor. 7. On the other hand, the learned Counsel for the Respondent No. 1 vehemently opposed the petition and conte nded that the same is not mainainable in law and that it must be dismissed. He defended the
7 findings of the learned Additional District Judge in the impugned Judgment and argued against the conduct of the Petitioner and her family members towards the Respo ndent No. 1 and his family. He specifically highlighted the instances of failing to avoiding to produce the Minor before the learned Guardian Judge for vis itation with the Respondent No. 1 and causing hindrances in such meetings (the same also being observed by the learned Additional District Judge). He lastly prayed for the dismissal of this petition with costs. 8. Heard. Perused. 9. In his Order dated 11.04.2025, the learned Additional District Judge has carried out an in -depth appraisal of the evidence and facts of the case and also applied the law in detail. There are various observations in the impugned Order which are supported through documentary evidence, which have not been specifically challenged in this petition, and which clearly go against the conduct o f the Petitioner/grandmother. The learned Additional District Judge was of the clear view that this was a case of clear hostility between the parties , where the Petitioner/gran dmother was taking advantage of her custody to take revenge from the Respondent No.1 of his alleged role in the death of his wife (mother of the minor). The learned Additional District Judge also observed that the Petitioner and her family had a clear role in depriving the Respondent No. 1 from meeting with his daughter, including through remaining absent during visitation meetings, shifting the minor from the jurisdiction of the learned Guardian Judge to another place and causing hurdles during meetings which were held. These findings of the learned Additional District Judge are we ll- supported through the judicial record and evidence which has been reproduced in the Order dated 11.04.2025. The learned Additional District Judge also referred to the clear (and contradictory) observations of the learned Trial/Guardian Court in the Orde r dated 23.08.2024 regarding the adverse conduct of the Petiti oner towards the Respondent No. 1 and the minor: “Although the Opponent No. 1 admitted that they did not inform the Applicant about death of his wife and did not allow him to participate in the funeral, which is indeed regrettable, this does not overshadow her otherwise positive role in the minor’s life. Similarly, there are some unpleasant incidents which took place while residence of minor with Opponent No. 1 which include giving a pistol to min or as shown in the photographs produced by Applicant during his additional USB (Ex.A/1-N) and other photographs produced at Ex.A/1 -I [i to (iii)]; attempting to shift minor at Mirpurkhas during pendency of this
8 Guardianship Application on pretext of educat ion of minor; injury sustained by minor during pendency of this Guardianship Application on her head and contradictions in reply of Opponent No. 1 and her witnesses with respect to such injury; non -production of record of School of minor despite asserting that minor is admitted in Global Public, School, Samaro and report dated 07 -08-2024 of Dr. Nasrullah, Medical Officer, THQ Hospital, Samaro that minor was found to suffer from Anemia (shortage of blood). However, such incidents do not overshadow over all p ositive role of Opponent No. 1 and her family members in the life of minor.” (emphasis added) 10. The Petitioner has not raised a single ground to refute the above findings and observations of the learned Additional District Judge. The grounds advanced by the Petitioner have already been considered at length by the learned Additional District Judge who has properly justified his conclusion with reference to the evidence brought forward at trial as well as the judicial record. 11. Similarly, it is on record that the learned Additional District Judge called E shal Fatima in Court for interviewing her. The findings of the learned Additional District Judge as to the child‟s interview are recorded in the impugned Judgment, which have also not been challenged before this Court, and are taken to be admitted/ unchallenged: “During the courts of arguments in appeal under disposal I also called the minor in open Court to see her. I have observed that she lacks nutrition, not replying properly, even in reply to the question put to her: who is your father? And what is your father’s name? she pointed towards her maternal uncle Qamar -ul-Zaman (Attorney of Mst. Zubeda/grandmother); she was shivering. I have also observed that the Minor was in fear and was constantly looking towards t he Appellant’s Attorney. She was not looking towards her real father who was available in the Court in front of her. On questio ning, the Minor replied in a ve ry slow tone named her maternal uncle Qamar - Ul-Zaman is her father. When she was asked her name, s he again replied in a very slow tone that her name is “Sidrat -ul-Muntaha”. I have reason to believe that the Minor was giving answers to the questions asked as if she was already taught. During that family members of both the contesting parties along with their children were also present before this Court, although no such direction was given earlier but the minor was not looking towards any members of both the contesting parties.” (Emphasis added)
12. The above observations of the learned Additional Distr ict Judge regarding the condition of the Minor while in the custody of the Petitioner are serious in nature and show that the minor was not being properly maintained during her time with the Petitioner, although it is the Petitioner‟s case that she brought up the minor with all love and affection. As against this, the Respondent No. 1 has filed the photographs of Eeshal Fatima in this petition from before and after her custody with her father
9 and there is a huge difference in her condition for the better. Th e record shows that the minor has been admitted by the Respondent No. 1 in a school and he has been making good efforts to ensure a proper upbringing of the minor. The said photographs have been filed before this Court and the same are reproduced below for ready reference: While in the custody of the Petitioner:
While in the custody of the Respondent No. 1:
10 13. The record r eflects that the Respondent No. 1 has been making serious efforts to recover the custody of his daughter from the very inception of the case and he has not been successful in doing so due to the avoidant and vengeful conduct of the Petitioner which has been amply noted in the impugned Judgment and even accepted by the learned Guardian…
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