The Court held that the “voice of the child” is at the heart of custody decisions and cannot be treated as a mere formality.
In an important ruling emphasizing the primacy of the child’s welfare and right to be heard, the Lahore High Court has dismissed a constitutional petition challenging the custody of a 12-year-old girl, saying her intelligent preference to live with her maternal grandmother must be respected.
The court ruled that the “voice of the child” is at the heart of custody decisions and cannot be treated as a mere formality. Justice Rasaal Hasan Syed of the LHC pointed out that under Section 17(3) of the Guardians and Wards Act, 1890, a child of sufficient maturity has the right to express a preference, which must be given meaningful consideration.
Relying on the judgments of the superior courts, the LHC ruled that welfare is a standard of living encompassing emotional, psychological and developmental needs, beyond material considerations or parental demands.
During the court interaction, the child – well-dressed, confident and clearly articulate – made clear her wish to live with her maternal grandmother, with whom she has lived since birth and feels emotionally secure. The court noted that the child had expressed discomfort toward his father due to perceived neglect and affirmed his comfort and attachment to the grandmother.
It is worth mentioning that the father had applied for custody under Section 25 of the Guardians and Wards Act, 1890, which was initially granted by the Guardian Judge, Sialkot on April 11, 2023. However, the District Judge, Sialkot set aside this order on June 2, 2023, vesting custody with the maternal grandmother. Both parents have since remarried and have children from their second marriage. The father has five children while the mother has two.
The LHC reviewed the record and affirmed the appellate order, finding that the deciding factor was the child’s informed preference. Citing the judgment of the Supreme Court in the case of Dr. Muhammad Asif v. Dr. Sana Sattar (CRP No. 458 of 2024), the Court reiterated that listening to a child is a constitutional and international obligation, and not an ideal ideal. The participation of the child, the court observed, is fundamental to a justice system respectful of dignity.
While retaining custody of the child with the maternal grandmother, who was present in court and found to be alert, healthy and devoted, the court ordered the father to pay regular child support. She also ordered the relevant court to immediately implement and finalize a viable visitation schedule, ensuring that the welfare of the child remains paramount.
The court noted that entrusting custody of minor girls to maternal grandmothers during sensitive developmental years is well recognized by law, citing numerous precedents where such arrangements have been respected in the best interests of the child.
Concluding that the district judge’s order protects the welfare of the minor and faithfully honors the child’s voice, the LHC denied the motion.
