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Official Citation: 2025 IHC 238956
Court / Jurisdiction: Islamabad High Court
Parties: RAHEELA ZAHEER vs ADJ WEST ISB ETC
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 238956. In this matter between RAHEELA ZAHEER and ADJ WEST ISB ETC, 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: Islamabad High Court (Honourable Mr. Justice Muhammad Azam Khan) AUTHOR JUDGE: Honourable Mr. Justice Muhammad Azam Khan DECISION DATE: 03-NOV-2025 CASE NO: Writ Petition-2820-2025 CITATION: 2025 IHC 238956 PARTIES: RAHEELA ZAHEER VS ADJ WEST ISB ETC LAW / SECTION: - SUBJECT: Family Matter, Guardian & Ward REMARKS: Guardian: A Mother is aggrieved that due to her custody second Marriage daughter has been been given to her husband. Appeal also dismissed. ============================================================ JUDGMENT SHEET.
IN THE ISLAMABAD HIGH COURT, ISLAMABAD.
WRIT PETITION NO. 2820 OF 2025 RAHEELA ZAHEER & ANOTHER VS ADDITIONAL DISTRICT JUDGE WEST-ISLAMABAD & ANOTHER
Petitioners by : Mr. Imran Feroze Malik, Advocate. Respondents by : Mr. Muhammad Jahangir Khan, Advocate for the Respondent No. 2. Date of hearing : 23.10.2025
MUHAMMAD AZAM KHAN, J. 1. Through the instant Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Petitioners have challenged the Judgment dated 21.09.2024 (“Impugned Judgment-I”) passed by the learned Judge Family Court, West-Islamabad (“Family Court”). The Petitioners have also challenged the Judgment 01.07.2025 (“Impugned Judgment-II”) passed respectively by the learned Additional District Judge- XI, West-Islamabad (“Appellate Court”). 2. The brief facts of the case in hand, as per contents of the instant petition, are that Raheela Zaheer (“Petitioner No. 1”) married to Aamir Shahzad (“Respondent No. 2”) in accordance with Muslim rites. From the said wedlock, a daughter namely Eshaal Noor (“Petitioner No.2/Minor”) was born on 03.05.2016. Due to matrimonial disputes, the marriage was dissolved through divorce dated 11.05.2018. After the dissolution of marriage, a compromise deed was executed between the fathers of both parties on 04.07.2018, wherein it was mutually agreed that, in the event Petitioner No.1 contracted a second marriage, the custody of the minor would be transferred to Respondent No. 2. In August, 2022, the Petitioner No. 1 contracted second marriage with Muhammad Zaheer, whereafter the Respondent No. 2 filed a petition u/s 25 of Guardians and Wards Act, 1890, for the custody of a minor on 04.10.2022. The Petitioners/Respondents contested the petition by filing 2 Writ Petition No.2820 of 2025
written statement. After framing of issues, recording the evidence and hearing arguments, the learned Family Court vide Impugned Judgment-I dated 21.09.2024, decided the petition in terms as under: - i. The Petitioner namely Aamir Shahzad is entitled for return of the custody of minor daughter namely Eshaal Noor from the Respondent namely Mst. Raheela Bibi, for the welfare said minor under Section 25 of the Guardians and Wards Act, 1890. ii. The second Saturday and Sunday of every calendar month is scheduled for overnight visitation/meetings of the Respondent namely Mst. Raheela Bibi with the minor namely Eshaal Noor, for which the Petitioner namely Aamir Shahzad will depart the minor before sunset of Saturday at the Respondent’s residence and then pick the minor before sunset of Sunday of every calendar month. iii. The second half of the summer and winter vacations are hereby scheduled for the overnight visitation/meeting of the Respondent lady namely Mst. Raheela Bibi with the Ward/minor daughter namely Eshaal Noor. iv. The second half of each Eid Holidays are also scheduled for the overnight visitation/meeting of the Respondent lady namely Mst. Raheela Bibi with the Ward/minor daughter namely Eshaal Noor. v. That no one shall remove the custody of Ward/minor namely Eshaal Noor, from the territorial jurisdiction of this court without prior permission of this court. 3. Being aggrieved by the Impugned Judgment-I dated 21.09.2024, the Petitioners filed an appeal before the learned Appellate Court. After hearing the arguments of the parties, the learned Appellate Court, Islamabad, vide the Impugned Judgment-II dated 01.07.2025, dismissed the appeal. Being aggrieved by the Impugned Judgment-I dated 21.09.2024 passed by the learned Judge Family Court, West-Islamabad and the Impugned Judgment-II dated 01.07.2025 passed by the learned Appellate Court, the Petitioners have filed the instant Petition. 4. The learned counsel for the Petitioners contended that the Impugned Judgments passed by the learned Trial Court and the learned Appellate Court, are against the law and facts of the case, thus, passed without properly evaluating the welfare of the minor, which is of the paramount 3 Writ Petition No.2820 of 2025
consideration in all guardianship matters under section 17 of the Guardian and Wards Act, 1890; that the compromise deed relied upon by the courts below is not binding on the mother and cannot override the statutory right of custody and the best interest of the child; that the remarriage of the mother is not an absolute ground to deprive her of custody, and no evidence was presented by the Respondent to prove that the minor was unsafe, mistreated, or neglected in her custody; that the learned Family Judge deprived the Petitioner of her right to fair trial by striking off her right to evidence and deciding the case without hearing her; that the Impugned Judgments are reckless exercise of discretion, hence, liable to be set aside. Lastly, the learned counsel prayed for acceptance of the instant Writ Petition, setting aside of Impugned Judgments-I & II, and for remanding the matter to the Family Court for decision afresh after affording full opportunity of evidence to the Petitioner. 5. On the other hand, the learned counsel on behalf of the Respondent No. 2 argued that the learned Family Court and learned Appellate Court have passed well-reasoned judgments keeping in view the facts and evidence available on record; and that the learned counsel for the Petitioner has failed to point out any illegality or irregularity in the Impugned Judgments. In the last, the learned counsel prayed for the dismissal of the instant Petition. 6. I have heard learned counsel for the parties and perused the record with their able assistance. 7. Perusal of the record reveals that the minor had continuously remained in the custody of the Petitioner since birth until her custody was handed over to Respondent No. 2 through the Impugned Judgment-I dated 21.09.2024. It is also an admitted fact that the Respondent No. 2 had contracted a second marriage in 2018, shortly after pronouncing divorce to the Petitioner No. 1 on 11.05.2018. Whereas, it is also ostensible from the record that the Petitioner No. 1 had contracted a second marriage with Muhammad Zaheer in August 2022. Thereafter, on 04.10.2022, the Respondent No. 2 instituted a petition under Section 25 of the Guardians and Wards Act, 1890, seeking 4 Writ Petition No.2820 of 2025
custody of the minor. The learned Family Court allowed the petition mainly on the basis of the compromise deed dated 04.07.2018, and in view of the Petitioner’s second marriage, thereby further directing to transfer the custody of the minor to the Respondent No. 2 while extending visitation rights to the Petitioner No. 1. The learned Appellate Court subsequently maintained these findings. 8. The learned counsel for the Petitioner contended that both the courts below erred in treating the compromise deed as a determinative factor, that remarriage of the mother is not a disqualification under law, and that the welfare of the minor was not judicially assessed in its full amplitude. It was further argued that the learned Family Court proceeded without affording the Petitioner the opportunity to lead evidence. Conversely, the learned counsel for the Respondent supported the Impugned Judgments and asserted that they are well-reasoned. 9. The pivotal question before this Court is whether the mother’s remarriage, coupled with a compromise deed, can override the statutory and constitutional principle, qua welfare of the minor, which is the supreme consideration in custody disputes. 10. There is no cavil to the proposition that the welfare of the minor is the cornerstone of all custody and guardianship adjudications under the Guardians and Wards Act, 1890, particularly Sections 7, 12, 17, and 25. The welfare of a minor is a composite and dynamic concept as it encompasses physical safety, emotional stability, psychological continuity, educational progress, and moral development. Section 17 of the Guardians and Wards Act, 1890, unequivocally mandates that, in appointing or declaring a guardian, the Court shall be guided by the welfare of the minor, which encompasses not merely the child’s physical well-being, but also their emotional, psychological, moral, educational, and social development. Therefore, the concept of welfare has been expansively interpreted by the superior courts of Pakistan to include, but not limited to, care, affection, physical safety, emotional stability, and 5 Writ Petition No.2820 of 2025
educational progress that a child experiences in a healthy environment. The Honorable Supreme Court of Pakistan, dealing with a similar matter, in the judgement titled “Raja Muhammad Owais Versus Mst. Nazia Jabeen and others” (2022 SCMR 2123) observed the following qua the welfare of the minor: - “7. The aforesaid judgments clearly dispel the stance taken by the father that on account of the mother's second marriage, she has lost the right of custody over her four children. 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) 11. The August Supreme Court of Pakistan, recently in the case titled “Asjad Ullah Versus Mst. Asia Bano and others” (PLD 2025 Supreme Court 541), has held that the welfare and best interest of the minor shall be the prime and overriding consideration in determining an application for custody, with no other factor taking precedence. It would be relevant to mention herein that the determination of what constitutes the welfare of a minor is essentially a question of fact, which must be established in each case through cogent and reliable evidence rather than on the basis of presumptions. Therefore, the expression "welfare of the minor" includes the minor's moral, spiritual, physical, psychological, educational, and material well-being. It further encompasses considerations relating to the minor's health, academic progress, religious upbringing, and overall emotional development. In 6 Writ Petition No.2820 of 2025
determining the welfare and best interest of the minor, due weightage must be given to the minor's age, sex, religion, happiness, and emotional attachment to the proposed custodian, the latter’s character and capacity to maintain the child, preference of the minor, etc. Further reliance in this regard is placed on “Feroze Begum v. Muhammad Hussain” (1978 SCMR 299), “Khan Muhammad v. Mst. Surayya Bibi and others” (2008 SCMR 480), and “Rahimullah Choudhary v. Mrs. Sayeda Helali Begum and others” (1974 SCMR 305), “Tahira v. Additional District Judge, Rawalpindi and others” (1990 SCMR 852). 12. Moreover, it is incumbent upon the Court to ensure that, in determining the welfare of the minor, the conduct of the litigating parties is not driven by personal grievances, vanity, or emotional claims of affection; the welfare of the minor must always be the driving factor to ascertain the child’s best interest. In custody matters, therefore, the Family Court is not required to engage in technical or procedural complexities as its foremost duty is to ascertain what arrangement best serves the welfare and overall well-being of the minor. Reliance in this regard is placed on the judgment titled “Mehmood Akhtar v. District Judge, Attock and 2 others” (2004 SCMR 1839), wherein the Honorable Supreme Court of Pakistan has categorically held that:- "4. The right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor. The Court in the light of law, on the subject and facts and circumstances of each case considers the question of custody on the basis of welfare of minors and there can be no deviation to the settled principle of law that in the matter of custody of minor the paramount consideration is always the welfare of minor. No doubt general principle of Muhammadan Law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but this rule is always subject to the welfare of the minor which is the prime consideration in determination of the question of custody...." (Emphasis added) 7 Writ Petition No.2820 of 2025
13. The United Nations Convention on the Rights of the Child, 1989 (UNCRC), is an international instrument that comprehensively outlines the civil, social, economic, and familial rights of children. The UNCRC underscores that every child has the right to grow up in an atmosphere of love, happiness, and understanding. Article 3 mandates that in all actions concerning children, whether by courts of law, administrative bodies, or private welfare institutions, the best interests of the child shall be the primary consideration. Article 7 guarantees every child the right to be cared for by both parents, while Article 9 ensures that, in the event of parental separation, the child maintains contact with both parents unless such contact poses harm. Article 12 further affirms that a child capable of forming a view has the right to express it freely, and that such views must be accorded due weight. This recognition of the child’s voice makes clear that their preferences are an important factor in custody determinations. 14. It is now a well-settled principle that the second marriage of the mother, though a factor that may be considered in custody proceedings, does not ipso facto operate as an absolute disqualification to her right of hizanat or custody. The jurisprudence in Pakistan has evolved beyond the rigid application of classical interpretations of Muhammadan Law, which once treated a mother’s remarriage to a person not related to the child within prohibited degrees as a ground for disqualification. It would be apt to discuss the relevant portions from D.F. Mullah’s Muhammaden Law, qua second marriage contracted by the mother. Section 352 provides that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years, and of her female child until she has attained puberty. This right continues, though she is divorced by the father of his child, unless she marries a second husband, in which case the custody belongs to the father. Likewise, Section 354 stipulates the circumstances under which a female, including the mother, may be disqualified from the custody of a minor. One such instance arises when she contracts a marriage with a person who is not related to the child within the prohibited degrees, i.e., a stranger to the child. 8 Writ Petition No.2820 of 2025
However, this disqualification is temporary in nature, as the mother’s right to custody revives upon the dissolution of such marriage, whether by divorce or by the death of her subsequent husband. 15. The Honorable Supreme Court of Pakistan in the judgement Raja Muhammad Owais (Supra), whilst relying upon various judgements of the apex courts, observed the following, qua the second marriage of the mother and her entitlement to retain the custody: - “6. The basic issue is with reference to the custody sought by the mother for her four children. The emphasis by the father is on the mother's second marriage which it is argued disentitles her to custody under the Islamic Law. D.F. Mullah in Mohammadan Law in Para 352 provides that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. Para 352 ibid provides that this right continues whilst she is divorced from the father of the child, however, in the event she marries a second time, custody then belongs to the father. Para 354 of Mohammadan Law provides that the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she marries a person not related to the child within the prohibited degrees which are specified in paras 260-261 of Mohammadan Law. So as per the principles of Mohammadan Law by D.F. Mullah where she remarries, she can be disqualified for custody. Section 17 of the Act requires the Court to consider the welfare of the minor when appointing a guardian and welfare will be decided based on the age, sex and religion of the minor, as well as the character and capacity of the guardian and the preference of the minor where they are old enough to state their preference intelligently. These provisions and the principles of Mohammdan Law have been examined by this Court in several judgments where it has held that the conditions contained in Paras 352 and 354 of Mullah's Mohammadan Law are not absolute and are subject to the welfare of the child. In Muhammad Siddique v. Lahore High Court, Lahore through Registrar and others (PLD 2003 SC 887), it was held that although the general rule is that the mother on contracting a second marriage forfeits her right of custody, this rule is not absolute and if it is in the interest of the child, custody should be given to the mother. The Court further held that it is the welfare of the minor that must be considered while determining custody and there is no absolute rule or fixed criteria on the basis of which welfare of the minor can be determined or custody can be awarded. In Mst. Shahista Naz v. 9 Writ Petition No.2820 of 2025
Muhammad Naeem Ahmed (2004 SCMR 990), this Court concluded that the right of Hizanat having the force of Injunctions of Islam is an accepted principle of Islamic Law and a female on account of re-marriage may be disqualified to exercise this right, but a mother on account of re-marriage is not absolutely disqualified to be entrusted the custody of a minor child rather she may lose the preferential right of custody. The Court further held that there is no denying the fact that there can be no substitute for the mother of the minor child especially of tender age, therefore, the consideration for grant or refusal of custody will always be the welfare of the minor. In this case, the mother even on contracting second marriage was entitled to retain custody of the minor. Again while looking at the Islamic provisions on custody of minor, this Court concluded in Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC 267) that the question of custody of a minor child will always be determined on the basis of the welfare of the minor and notwithstanding the father's right for custody under Muslim Personal Law, this right is subject to the welfare of the minor. Again in Shabana Naz v. Muhammad Saleem (2014 SCMR 343), Paras 352 and 354 of the Mohammadan Law were considered and the Court concluded that although Mohammadan Law provides that the mother is disentitled to custody if she re-marries, this is not an absolute rule but one that may be departed from if there are exceptional circumstances to justify such departure and even in a situation of a second marriage if the welfare of the minor lies with the mother then she should be awarded custody.” (Emphasis added) This approach was further refined in “Asjad Ullah Versus Mst. Asia Bano and others” (PLD 2025 Supreme Court 541), “Shaista Habib v. Muhammad Arif Habib” (PLD 2024 SC 629), “Mst. Beena v. Raja Muhammad” (PLD 2020 SC 508) and “Irfan Arshad Versus Mst. Zainab Noor and 2 others” (2025 M L D 401), “Mst. Tahira Parveen Versus District Judge, Layyah and 2 others” (2022 MLD 1693), “Mst. Shabana Kausar Versus District Judge and others” (2020 CLC 2099).
16. Therefore, the law is well settled on this position that mere contracting second marriage of either the father or mother is not the sole criterion to determine the question of custody of the minor child. Ordinarily, a woman is entitled to custody of a minor, which she forfeits on contracting 10 Writ Petition No.2820 of 2025
a second marriage. Such a rule, however, has been held to not be absolute and depends on special consideration, which may require the custody of a minor to be retained by the mother despite having contracted a second marriage. At this juncture, it would also be apt to reproduce Ameer Ali's Muhammadan Law, page 257, Volume II, Edition 1929, wherein the entitlement of the mother, upon remarriage, has been discussed: - "Although ordinarily the woman entitled to the custody of a child forfeits her right on contracting a marriage with a stranger, special consideration regarding the interest of the child may require that its custody should be retained by her. For example if a woman separated from her first husband, were to marry a second time in order to secure for her infant child better and more comfortable living, she would not forfeit her right of hizanat." 17. Furthermore, it is equally well-settled that the principles contained in Muhammadan Law could only be consulted as a reference book; they cannot be termed to be statutory law having binding effect, upon which any presumption could be drawn against a person. It is neither a statute, nor a custom or usage, therefore, the opinion of the author of the book is not binding upon the courts. In the judgement titled “Messrs Najaat Welfare Foundation through General Secretary Versus Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 4 others” (PLD 2021 Federal Shariat Court 1), it has been held that: - “D.F. Mulla did acknowledge that he largely relied upon the translation of Hedaya by Hamilton and translation of Fatawa Alamgiri by Baillie. Hence, relying on secondary sources by D.F. Mulla is itself a question mark on the validity of the opinion contained therein and on the understanding of the Islamic Law by him...Finally, the book of D.F. Mullah titled "The Principles of the Mohammedan Law" is just a text book as stated by Mulla himself or it can be considered as a reference book but in no way it is a statute. This has already been decided by this Court in Shariat Petitions Nos.06/I and 13/I of 2013.” (Emphasis added) 18. It is pertinent to mention herein that the D.F. Mullah’s Muhammadan Law, in its traditional form, disqualifies a mother from retaining custody of her child upon contracting a second marriage with a man outside the 11 Writ Petition No.2820 of 2025
prohibited degree, yet it imposes no such disqualification upon the father, who may remarry without forfeiting his parental rights. This selective moral scrutiny, directed only towards the woman, betrays not only the principles of justice but also turns a blind eye towards the evolving understanding of parenthood and gender equity. It presumes unjustly that a mother’s love diminishes upon remarriage, while a father’s affection remains untouched. A woman’s new bond does not taint her fitness as a parent. Such archaic notions offend the very principles of welfare, equity, fairness, and public policy as envisaged in the Guardians and Wards Act, 1890, and indeed the Constitution itself. The welfare of a child cannot be chained to the prejudices of patriarchal beliefs. A mother’s remarriage may signify a step toward emotional healing and stability, qualities that will enrich, not erode, her ability to nurture the minor. To uphold a rule that punishes the mother for seeking companionship, while excusing the same act in the father, as apparent in the present case,…
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