LAHORE: The Lahore High Court has ruled that a mother, despite being accused of killing her husband, is entitled to have the custody of a minor if the conduct of the child’s paternal family smacks of mala fide.

Hina Imtiaz was married to one Imtiaz Bhatti and two children (a boy and a girl) were born from this wedlock.

The minors’ father was murdered and their mother was arrested among other suspects of the crime.

Hina along with her daughter, who was five at that time, lived in jail until she was released on bail whereas the minor boy was kept by the paternal grandmother.

After her release on bail, the woman approached the LHC by filing a petition for the recovery of the minor boy, which was dismissed on the basis that the respondent/grandmother had obtained an injunctive order from a guardian court of Okara.

The woman then approached the guardian court for the custody of the minor boy and also contested the declaration of guardianship issued in favour of the respondent grandmother.

The trial court allowed a custody petition by the mother and dismissed the guardian petition of the grandmother. However, an appellate court overturned the decision of the trial court on the ground that the petitioner is an accused of murder of her husband -- father of the minors -- and it is not in the welfare of the boy to appoint the petitioner as his guardian.

Hina challenged the decision before the LHC.

Justice Anwaar Hussain heard the petition, however, the grandmother and the paternal family failed to produce the minor before the court despite repeated notices and directions issued to the local police.

Even a lawyer for the respondent also withdrew his power of attorney, saying he had no contact with his client.

After seven months, the police recovered the minor and produced him in the court on May 2.

A lawyer for the grandmother conceded that she had been avoiding appearance on account of ill-advice by her previous counsel.

However, Justice Hussain observed that even an ill-advice on part of a counsel does not warrant disobedience of the court orders and to flee the courts of law with the minor boy.

During the hearing, it was revealed to the court that the minor boy inherited a piece of land from his murdered father, and the grandmother, without being a guardian of the property, leased out the same to a near relative for a hefty amount.

The judge observed that the case in hand reflects that the principle of welfare of a minor cannot be considered in absolute terms rather the same is a relative consideration and, at times, the same may have to be seen and considered through the prism of what is least detrimental for a child.

He noted that the minor girl was a daughter of the deceased son of the respondent/grandmother, but she never sought her custody/guardianship from any court.Similarly, while seeking the guardianship of the boy, the grandmother never made any effort to bring up siblings in the company of each other, whereas it is right of both siblings to be brought up together and spend childhood in each other’s company.

Justice Hussain said had the conduct of the grandmother been aboveboard in this case, she could have been preferred by the court over the petitioner/mother until the latter is acquitted of the charge against her.

He emphasised that it does not augur well for a child’s welfare to be placed in the custody of a parent, whose fitness to cater to his welfare is in doubt on account of accusation of committing murder of the spouse.

The judge observed if the charge is proven to be true, the mother would not be an ideal person to groom the minors, whose welfare not only requires fulfillment of their physical needs, but many other things, which includes their moral character.

However, he maintained that the petitioner, at present, is merely an accused and it is a settled principle of law that an accused is the “favourite child of law”.

The judge set aside the impugned judgment passed by the appellate court and restored the decision of the trial court. He ordered that the petitioner is entitled to receive the custody of the minor boy within a period of 30 days from the issuance of the judgment on May 25.

Justice Hussain clarified that the grandmother would be entitled to file a fresh petition for custody and guardianship, as the case may be, if the mother is proved to be guilty and is convicted for the offence charged.

Published in Dawn, May 29th, 2024