IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN  
MR. JUSTICE SYED HASAN AZHAR RIZVI 
MR. JUSTICE IRFAN SAADAT KHAN 
 
CIVIL PETITION NO.3718 OF 2023 
(Against the order/judgment of the Lahore 
High Court, Lahore dated 21.09.2023 passed 
in Writ Petition No.59365/2023)  
 
Mst. Qurat-ul-Ain 
 
…Petitioner 
 
VERSUS 
 
Station House Officer, Police Station 
Saddar Jalalpur Jattan, District Gujrat & 
others 
 
 
…Respondent(s) 
 
For the Petitioner 
: 
Mr. Iftikhar Ahmad Bashir, ASC 
a/w 
 
 
 
 
 
Petitioner-in-person 
 
For Respondent No.3 : 
Mr. Zafar Iqbal Klasoon, ASC 
 
 
 
 
 
(via V.L. Lahore) 
 
For Respondent (Gov.) : 
Mr. Baleeghuz Zaman, Add’l AG Pb. 
 
Other Respondents 
: 
Nemo 
 
 
 
 
 
Date of Hearing  
: 
13.12.2023 
 
 
JUDGMENT 
 
 
 
IJAZ UL AHSAN, J-. On conclusion of the hearing, 
this Petition was converted into an Appeal and allowed in the 
following terms: 
 
“For detailed reasons to be recorded later, this petition is converted 
into an appeal and allowed in the following terms: 
 
1. The impugned judgement/order of the Lahore High Court, 
Lahore dated 29.09.2023 passed in WP No.59365/2023 is set 
aside. 
 
2. The concerned Guardian Court/Family Court, Gujrat seized 
of Guardian Petition titled “Qurat ul Ain v. Biban Bibi etc.” shall 
ensure that the custody of the child is restored to the mother 
within one week of receipt of a certified copy of this order. 
CIVIL PETITION NO.3718 OF 2023 
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3. The Office shall ensure that a certified copy of this Order is 
sent to and received by the concerned Guardian Court/Family 
Court, Gujrat seized of Guardian Petition titled “Qurah-tul-Ain 
v. Biban Bibi etc.” within one week. 
 
4. The Guardian Court shall proceed with the pending 
Guardianship petition with all due diligence and conclude the 
matter as expeditiously as possible strictly in accordance in 
law.” 
 
Our detailed reasons are set out herein below. 
 
2. 
 
Bibi (“Respondent No.3”) filed a writ petition before 
the Lahore High Court, Lahore seeking the recovery of her 
granddaughter Haseeba Noor, a four-year-old minor (the 
“Minor”) from the “improper custody” of her mother Mst. 
Qurat-ul-Ain (the “Petitioner”) and the Petitioner’s husband 
Nasir Bashir. It was averred in Respondent No.3’s writ petition 
that her son i.e., Waheedullah had married the Petitioner and 
from this union, the minor was born. The marriage did not last 
and ended in divorce. Waheedullah was settled abroad and the 
Petitioner had contracted a second marriage while retaining 
custody of the minor. This second marriage had disentitled the 
Petitioner from retaining custody of the minor since her 
continued presence in a Ghair Mehram’s house was 
impermissible under the law and detrimental to her welfare. In 
the absence of a speedy and efficacious remedy and since her 
father Waheedullah was not in the country, Respondent No.3 
filed the writ petition seeking production of the minor before 
the High Court and prayed that the minor’s custody be handed 
over to her paternal grandmother i.e., Respondent No.3. The 
High Court on 18.09.2023 directed that the minor be produced 
before the Court on the next date of hearing i.e., 21.09.2023. 
CIVIL PETITION NO.3718 OF 2023 
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In compliance of the said order, the concerned Station House 
Officer produced the minor before the High Court on 
21.09.2023. After hearing the parties, the High Court through 
the impugned order/judgement ordered that the custody of the 
minor be handed over to Respondent No.3 as an interim 
arrangement and that the concerned Guardian Court shall 
decide the permanent custody of the minor strictly in 
accordance with law. Aggrieved by the High Court’s decision, 
the Petitioner assailed the impugned judgement/order before 
this Court. 
 
3. 
 
The learned counsel for the Petitioner contended 
that the High Court, in its constitutional jurisdiction, had 
effectively decided the matter of custody of the minor even 
though an alternative and efficacious remedy was available to 
Respondent No.3 in the form of a guardian petition under the 
Guardian and Wards Act, 1890 (the “GW Act”). He also 
contended that the father of the minor was living in Spain, had 
consistently failed to pay any maintenance for the minor’s 
upkeep and had even contracted a second marriage himself. 
He therefore maintained that the sole ground on which the 
High Court had handed over custody of the minor to 
Respondent No.3 was that she had contracted a second 
marriage. He submitted that a second marriage is not an 
automatic disqualifier under the law insofar as the custody of 
a child is concerned. Reliance on this aspect was placed on a 
judgement of this Court reported as Muhammad Owais v. Nazia 
Jabeen (2022 SCMR 2123). He prayed that the impugned 
CIVIL PETITION NO.3718 OF 2023 
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order/judgement of the Lahore High Court be set aside and 
custody of the minor be handed over to the Petitioner till a 
decision is made by a Court of competent jurisdiction. 
 
4. 
 
The learned counsel for Respondent No.3, on the 
other hand, defended the impugned order/judgement and 
submitted that in the exercise of its constitutional jurisdiction, 
the High Court had ample powers to hand over custody of a 
minor to anyone if it was in the interest of the said minor. He 
also pointed out that the High Court’s arrangement was purely 
temporary and that the High Court had expressly held that its 
decision would be subject to the decision of a Court of 
competent jurisdiction. 
 
5. 
 
We heard the learned counsel for the parties and 
went through the record. 
 
6. 
 
Although the Constitution of the Islamic Republic 
of Pakistan, 1973 (the “Constitution”) does away with the 
Latin terminology, Article 199 of the Constitution confers on 
the High Courts the power to pass certain orders classically 
and colloquially referred to as writs of Habeas Corpus, 
Mandamus, Quo Warranto, Certiorari, and Prohibition. 
 
7. 
 
In her writ petition before the High Court, 
Respondent No.3 made the following prayer: 
 
“In view of the above submissions, it is most humbly prayed 
that 
this 
petition 
may 
kindly 
be 
accepted 
and 
the 
detenue/minor granddaughter of petitioner namely Haseeba 
Noor, daughter of Waheedullah aged 4 years my (sic) please be 
ordered to be recovered from the improper custody of 
respondents No.2 and 3 through Respondent No.1 and after 
production of minor before this Honourable Court her custody 
CIVIL PETITION NO.3718 OF 2023 
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be handed over to the petitioner in the welfare of minor and also 
in the best interest of justice, equity and fair play. 
 
Any other relief which this Honourable Court deems fit and 
proper in the circumstances of the case may also kindly be 
granted.” 
 
8. 
 
A perusal of Respondent No.3’s writ petition and 
her prayer reveals that she had sought, in essence, a writ of 
Habeas Corpus for the production of the minor. The relevant 
portion of Article 199 which deals with the said writ is 
reproduced below for ease of reference: 
 
“199. Jurisdiction of High Court 
 
(1) Subject to the Constitution, a High Court may, if it is satisfied that 
no other adequate remedy is provided by law, — 
 
(a) … 
 
(i) … 
 
(ii) … 
 
(b) on the application of any person, make an order — 
 
(i) directing that a person in custody within the territorial 
jurisdiction of the Court be brought before it so that the Court 
may satisfy itself that he is not being held in custody without 
lawful authority or in an unlawful manner; or 
 
(ii) …  
 
(c) …” 
(Underlining is ours) 
 
9. 
 
It is important to note that Article 199 starts with 
the phrase: “Subject to the Constitution, a High Court may, if 
it is satisfied that no other adequate remedy is provided by law, 
…” Therefore, the High Court’s constitutional jurisdiction is 
subject to the satisfaction that no other adequate remedy is 
provided by law. 
 
10. 
 
Habeas Corpus has been defined in various ways 
over the centuries but its most celebrated is that of 
Blackstone’s in which he explained it to be a “great and 
CIVIL PETITION NO.3718 OF 2023 
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efficacious writ in all manners of illegal confinement”. We need 
not go into the intricacy of the various definitions of the writ 
for we are of the view that since it was set in stone in the Magna 
Carta, it has retained its nature of ensuring that: 
 
“No Freeman shall be taken or imprisoned, or be disseized of 
his Freehold, or Liberties, or free Customs, or be outlawed, or 
exiled, or any other wise destroyed; nor will We not pass upon 
him, nor condemn him, but by lawful judgment of his Peers, or 
by the Law of the land.” 
 
11. 
 
The invocation and passing of the writ of Habeas 
Corpus, as previously noted, is enshrined in Article 199(1)(b)(i) 
of our Constitution whereby any person may file an application 
seeking the High Court to direct that “a person in custody 
within the territorial jurisdiction of the Court be brought before 
it so that the Court may satisfy itself that he is not being held 
in custody without lawful authority or in an unlawful manner”. 
However, the invocation and passing of the writ is subject to 
the satisfaction of the High Court that no adequate remedy is 
provided by the law. 
 
12. 
 
The GW Act allows a person to be appointed the 
guardian of a minor “if it is satisfied that it is for the welfare of 
the minor …”1 It is only once a person is appointed the 
guardian that they may seek recourse to Section 25 of the GW 
Act for recovery of custody of a ward. 
 
13. 
 
This begs the question: Could Respondent No.3 
invoke the constitutional jurisdiction of the High Court for the 
issuance of a writ of Habeas Corpus? 
 
1 Section 7 of the GW Act. 
CIVIL PETITION NO.3718 OF 2023 
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COULD 
RESPONDENT 
NO.3 
INVOKE 
THE 
CONSTITUTIONAL JURISDICTION OF THE HIGH COURT? 
 
14. 
 
Whatever the inter se relations between the parents 
may be, the purpose of a writ of Habeas Corpus when it comes 
to the production of a child is to ensure that the child is, at any 
given moment, capable of being produced before a Court of law. 
However, “… there can be no question that a Writ of Habeas 
Corpus is not to be issued as a matter of course, particularly 
when the writ is sought against a parent for the custody of a 
child. Clear grounds must be made out …”2 The writ must only 
be issued in favour of a person who is entitled to custody of the 
child. A grandmother, no matter the love she may have for her 
grandchildren, is not the parent of a child for the purposes of 
the law and must clearly specify why a writ of Habeas Corpus 
must be issued for the production of her grandchild(ren), 
especially so when it is admitted that the grandchild is in the 
custody of one or both parents. 
 
15. 
 
While the Constitution states that the High Court 
is empowered to make an order “on the application of any 
person …”, when a writ of Habeas Corpus is sought for the 
production of a child, it is not for the liberation of a detenue or 
a prisoner. Instead, it is, as was held by the Court of Appeal of 
England and Wales in R v. Barnardo (1891) 1 QB 194:3 
 
“… to determine whether the person who has the actual 
custody of them (infants) as childrens shall continue to have the 
custody of them as children. In such cases it is not a question 
of liberty, but of nurture, control and education.” 
 
2 The Supreme Court of India in Dushyant Somal v. Sushma Somal (AIR 1981 SC 1026) 
3 Which was subsequently affirmed by the Appellate Committee of The House of Lords in Barnardo 
v. McHugh [1891] AC 388. 
CIVIL PETITION NO.3718 OF 2023 
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16. 
 
We also note that the issuing of such a writ is 
subject to the satisfaction of the High Court that a minor “is 
not being held in custody without lawful authority or in an 
unlawful manner.”4 
 
17. 
 
The general presumption that children must always 
be in the custody of their parent(s) is based on “The principle 
… that parental right or power of control of the person and 
property of his child exists primarily to enable the parent to 
discharge his duty of maintenance, protection, and education 
until he [the child] reaches such an age as to be able to look 
after himself and make his own decisions.”5 This right to 
custody, however, “is a dwindling right which the courts will 
hesitate to enforce against the wishes of the child, and the more 
so the older he is. It starts with a right of control and ends with 
little more than advice.”6 However, where a person entitled to 
custody is shown to be incapable of approaching the Court or 
where no such person exists, the question of the right of a 
friend to make such an application arises.7 In such a situation, 
the friend of the minor must show that: 
 
a) No one who is legally entitled to the custody of the 
minor or to represent him/her exists, or that such a 
person, if any, is unable to file a Habeas Corpus 
petition; and 
 
b) The friend is interested in the welfare of the child. 
 
 
4 Article 199(1)(b)(i) of the Constitution. 
5 The Appellate Committee of The House of Lords in Gillick v West Norfolk and Wisbech Area 
Health Authority [1986] AC 112. 
6 The Court of Appeal of England and Wales in Hewer v. Bryant [1970] 1 QB 357 
7 The Calcutta High Court in Raj Bahadur v. Legal Remembrancer AIR 1953 Cal. 522. 
CIVIL PETITION NO.3718 OF 2023 
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18. 
 
In the instant case, and at the very outset, we note 
that Respondent No.3 failed to aver that she was filing the writ 
petition in her capacity as a friend of the minor. Even, if for the 
sake of argument, we assume that she had filed the writ 
petition as a friend of the minor, she had failed to aver how no 
one who is legally entitled to the minor’s custody exists or that 
such a person (in this case, her father) was unable to file a 
petition. At no point has Respondent No.3 averred that she was 
authorised by her son to file the writ petition. No 
correspondence whatsoever was produced before either the 
High Court or this Court which could show that Respondent 
No.3 was authorised to file the writ petition as a representative 
of the minor’s father. There is also nothing on the record which 
shows that Respondent No.3 was ever appointed the guardian 
of the minor under the GW Act especially so when a perusal of 
Section 8 of the GW Act shows that she was not precluded by 
the Act from seeking appointment as guardian since she would 
be covered under sub-section (b) of the said Section. We 
disagree with the assertion that the father of the minor being 
abroad rendered him unable or incapable of filing a petition 
seeking a writ of Habeas Corpus. We also note that a mere 
assertion in her petition that Respondent No.3 wants to 
“properly look after the detenue” is insufficient to show that 
she was interested in the welfare of the child. 
 
19. 
 
This factual context goes to the root of the question. 
In the absence of a competently filed writ petition and the 
presence of an alternative remedy, the High Court ought to, in 
CIVIL PETITION NO.3718 OF 2023 
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the first place, have satisfied itself that despite these 
shortcomings, it was still in the best interests of the minor that 
she be produced before the High Court moreso: a) when it was 
admitted by Respondent No.3 in her petition that the minor 
was in the custody of her real mother; and b) an absence as to 
how the minor being in the custody of her own mother was “… 
without lawful authority or in an unlawful manner”. These 
aspects of the case appear to have escaped the notice of the 
High Court. 
 
20. 
 
Despite this, the High Court passed the following 
order on 18.09.2023: 
 
“Learned counsel for the petitioner submits that Haseeba Noor 
(minor granddaughter of the petitioner statedly aged about 4-
years) is in illegal custody of respondents No.3 and 4. 
 
2. Station House Officer, Police Station: Saddar Jalalpur Jattan, 
District Gujrat/respondent No.1 is directed to recover and then 
produce aforementioned detenue on 21.09.2023 before this 
Court. 
 
3. Office is directed to communicate this Court’s order to 
respondent No.1, telephonically.”  
 
21. 
 
A perusal of the said order reveals that at no stage 
had the High Court: a) satisfied itself that no alternative or 
efficacious remedy was available to Respondent No.3; b) shown 
why it had deemed the production of the child appropriate 
when she was admittedly with her mother; or c) on what basis 
the continued custody of the minor with her real mother was 
even prima facie “without lawful authority or in an unlawful 
manner” which necessitated the production of the minor before 
the Court.  
 
CIVIL PETITION NO.3718 OF 2023 
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22. 
 
The tendency of the High Courts to readily and 
unhesitatingly resorting to extreme measures by involving law 
enforcement agencies in family matters cannot be appreciated, 
especially so where no element of criminality is there and the 
child is in the lawful and rightful custody of the parent. Such 
actions cause unnecessary trauma and harassment for the 
concerned parent, specially where the concerned parent is the 
real mother of the child. The High Court must exercise extreme 
care, caution, and circumspection in such matters. Only in 
exceptional and extraordinary circumstances, where all other 
methods and measures fail and an element of criminality, 
forced removal, kidnapping and/or abduction of the child is 
involved, the High Court may exercise its constitutional 
jurisdiction. 
 
23. 
 
Issuance of a writ of habeas corpus in a custody 
matter should be an exception, and not the rule, as the GW Act 
provide the Guardian Court with all requisite powers to pass 
and enforce its orders in matters of custody of the child(ren). It 
is, in our opinion, inappropriate for a constitutional court to 
encroach upon and arrogate itself the powers of a Guardian 
Court, which is the court of competent jurisdiction under the 
law, to decide all matters relating to custody of child(ren). 
 
 
24. 
 
The contention of the learned counsel for the 
Petitioner would therefore appear to be correct. In the presence 
of an alternative remedy and the absence of any other factor 
that may necessitate the production of the minor before the 
High Court, it would appear that the sole ground on which the 
CIVIL PETITION NO.3718 OF 2023 
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High Court passed its order of 18.09.2023 was the mere 
contention that the Petitioner had remarried. 
 
25. 
 
Therefore, we are of the view that the very order 
seeking production of the minor before the High Court was, in 
the peculiar circumstances of the case, without jurisdiction, or, 
in any event, in excess of jurisdiction. 
 
26. 
 
However, we deem it appropriate to address the 
point as to why the prayer for Habeas Corpus ought not to have 
succeeded on the merits as well. 
 
THE PRAYER FOR HABEAS CORPUS ON ITS MERITS 
 
27. 
 
Ordinarily, reference is made to Paragraphs 352 
and 354 of D.F. Mulla’s Principles of Mahomedan Law for 
asserting that a mother is disentitled from custody of her minor 
child after a second marriage. The said paragraphs were 
discussed by this Court in Shabana Naz v. Muhammad Saleem 
(2014 SCMR 343) where this Court was of the view that: 
 
“11. Para 352 of the Muhammadan Law provides 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 and the 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. 
12. Para 354 provides for disqualification of female from 
custody of the minor, which includes the mother and one of the 
instance laid down is that if she marries a person not related to 
the child within the prohibited degree e.g. a stranger but the 
right revives on the dissolution of marriage by death or divorce.  
 
13. Thus, it is apparent from reading of the two paras of the 
Muhammadan Law that though the mother is entitled to the 
custody (Hizanat) of her minor child but such right discontinues 
when she takes second husband, who is not related to the child 
within the prohibited degree and is a stranger in which case the 
custody of minor child belongs to the father. It has been 
construed by the Courts in Pakistan that this may not be an 
absolute rule but it may be departed from, if there are 
exceptional circumstances to justify such departure and in 
making of such departure the only fact, which the Court has to 
CIVIL PETITION NO.3718 OF 2023 
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see where the welfare of minor lies and there may be a situation 
where despite second marriage of the mother, the welfare of 
minor may still lie in her custody.” 
(Underlining is ours) 
 
In a more recent pronouncement, this Court in Muhammad 
Owais v. Nazia Jabeen (2022 SCMR 2123) was of the view 
that: 
 
“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 ... 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. 
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), 
CIVIL PETITION NO.3718 OF 2023 
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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. 
 
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 ...” 
 
Similarly, the Federal Shariat Court has also held that Mulla’s 
Principles of Mahomedan Law do not have any statutory 
authority or sanction behind them. In Najaat Welfare 
Foundation v. Federation of Pakistan (PLD 2021 FSC 1), the 
Shariat Court observed that: 
 
“… There is a plethora of judgments of the superior Courts of 
Pakistan, where they have differed from the so-called text books 
of Muhammadan Law including Mulla's book. This trend was 
initiated soon after independence of Pakistan. Although, in a 
very limited way and sporadically, this trend was there even in 
pre-partition era of British India. After the independence of 
Pakistan, this trend became a norm by the superior Courts of 
Pakistan to evolve their own jurisprudence inter alia in the 
matters of Muslim Personal law also. For example; It was stated 
in a judgment very clearly while deciding a matter of Hisanat, 
which is an issue of Muslim Personal Law as: 
 
“It would be permissible for the Courts to differ from the rules 
of Hisanat as quoted or stated in the text books like book of 
Mulla". [Reference PLD 1965 W.P. Lahore 695]. This trend 
kept on evolving, and is still evolving. This process is 
primarily based on following factors: 
 
(i) the superior courts are clearly of the view that the 
opinion contained in text book of so-called Muhammadan 
Law, are neither final nor binding upon the superior 
Courts of Pakistan. While discussing paragraphs 352 and 
354 of Mulla's book the Supreme Court held: 
“It has been construed by the Courts in Pakistan that 
this may not be an absolute rule but it may be departed 
from, if there are exceptional circumstances to justify 
such departure and in making of such departure the 
only fact, which the Court has to see where the welfare 
of minor lies and there may be a situation where despite 
second marriage of the mother, the welfare of minor 
may still lie in her custody.” (2014 SCMR 343 para 13) 
 
(ii) It is clearly mentioned in number of judgments that the 
book of D.F. Mulla is just a reference and not a statutory 
law applicable in Pakistan, so it is optional upon the 
Courts to consult this book while examining any matter in 
issue related to Muslim Personal Law. While dilating upon 
paragraph 113 of the Mulla's book it was held: 
 
CIVIL PETITION NO.3718 OF 2023 
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“The Quranic Command, as reflected here-in-above, in 
Verse No.12 of Surah Nisa has completely been ignored 
in the case, in hand, rather a totally contrary view is 
being preferred. The main sources of Shariat are; Holy 
Qur'an, Sunnah, Ijma and Qias and the Hon'ble Federal 
Shariat Court in case titled "Muhammad Nasrullah 
Khan v. The Federation of Pakistan and another" 
(Shariat Petition No.06/I of 2013) has held that, if 
something in any Book is proved to be different from 
Quran 
and 
Sunnah, 
that 
would 
be 
invalid. 
Muhammadan Law by D.F.Mulla, not only in the 
present case, but other cases also is oftenly quoted for 
a reference. The Hon'ble Federal Shariat Court, in the 
referred judgment, has held that, said law is in fact only 
a reference book and not a statutory law applicable in 
Pakistan, in the sense that the legislature has not 
enacted the same. It is just an option of the Court to 
consult the same on the basis of equity and refer to the 
principles mentioned in paragraphs of the said book, at 
times, and that too casually in some matters only. 
Moreover, the rules quoted in Muhammadan Law are 
not at all applicable, if in the opinion of the Court, they 
are found opposed to justice, equity and good 
conscience. These rules are not even referred to in 
situations directly covered by the Holy Quran or 
Sunnah or by binding Ijma and Qias. According to Para-
113 of Muhammadan Law by D.F. Mulla, a childless 
widow takes no share in her husband's lands, but she 
is entitled to her one-fourth share in the value of trees 
and buildings standing thereon, as well as in his 
movable property including debts due to him though 
they may be secured by a usufructuary mortgage or 
otherwise.” (PLD 2016 Lahore 865 para 6) 
 
(iii) The superior Courts also very clearly pointed out one 
of the core reasons why in many cases the text books (like 
book of Mulla) do not give a comprehensive and clear 
answer to any proposition of Muslim Personal Law 
because it suffers from over simplification. 
 
“The rule enunciated in para.354 of Principles of 
Muhammadan Law by Mulla suffers from over 
simplification. Similarly the statement of law from 
textbooks on Muslim Law ‘made by the learned Single 
Judge is not comprehensive. Similarly he has ignored 
many relevant portions of the textbooks on the subject 
of Hizanat.” (Ref: 2000 SCMR 838). 
 
For these reasons, as discussed earlier, a whole set of 
jurisprudence of Muslim Personal Law has been evolved in 
Pakistan by the superior Courts. A few examples are as follows:  
 
i) A rule of custody of minor as mentioned in a paragraph-
352 in Mulla's book that a son has to remain with his mother 
till the age of 07 is not absolute (Ref: 1989 CLC 604). There 
is no bar on mother or father to have custody of a minor 
according to Quran and Sunnah nor it is any body's 
preferential right. It is a question of fact and in all cases the 
prime consideration is the welfare of child (2000 MLD 1967, 
2002 YLR 2548, PLD 2002 Lahore 283, 2004 SCMR 1839 
etc.) 
 
ii) … 
 
iii) … 
CIVIL PETITION NO.3718 OF 2023 
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iv) … 
 
Mulla's “Principles of Muhammadan Law” is a reference or a text 
book as some times referred in our judgments like other books 
of this category and not a statutory book. Usually, when the 
Courts consult it, this exercise is just like consulting a book 
where the opinions of the great Muslim jurists are easy to get 
because opinions are mentioned in English language in an over 
simplified language and paragraphs of the book are numerically 
marked. The very style of composition of this book often create 
a confusion amongst the reader that it is a statute book which 
it is not. Perhaps this is the reason why the petitioner states in 
his petition that the book of D.F. Mulla comes within the 
purview of custom and usage which is absolutely wrong and 
incorrect ...” 
 
28. 
 
We are, therefore, of the view that the law has been 
settled on the point that a mother remarrying does not 
automatically bar her under the law from the custody of her 
children; that the forum empowered under the law to 
determine a child’s custody is the Guardian Court set up under 
the GW Act; and that the High Court cannot arrogate unto itself 
the power to determine the matter of the custody of a child in 
the exercise of its constitutional jurisdiction unless the 
parameters spelt out earlier by us (infra) are met and such 
power can only be exercised by the High Court in exceptional 
and limited circumstances, and that too for the limited purpose 
by letting the Guardian Court to decide the matter in 
accordance with the law. For the sake of clarity, these 
parameters are: 
 
I. 
A writ petition seeking issuance of a writ of Habeas Corpus 
for production and custody of a child may be filed by: 
 
a. One or both parents of the child/minor; or 
b. The guardian(s) of the child/minor; or 
 
c. A friend of the child/minor provided the friend proves: 
 
CIVIL PETITION NO.3718 OF 2023 
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i. 
That no person legally entitled to the custody of the 
child is present or available; or 
 
ii. 
The person legally entitled to the custody of the 
child is present and available but incapable of filing 
a writ petition; and 
 
iii. 
The friend is doing so in the best interests of the 
child. 
 
II. 
The High Court is satisfied that seeking remedy under the 
GW Act, or any other law for the time being in force, would 
not be an adequate remedy. 
 
III. 
The production of the child before the High Court is in the 
best interests of the child/minor, subject to the caveats 
spelt out in Paragraphs No. 22 & 23 above. 
 
IV. 
Handing over custody of the minor/child to the person 
petitioning the High Court is in the best interests of the 
child/minor. 
 
29. 
 
Even otherwise, no ground has been pointed out by 
the learned counsel for Respondent No.3 to show how the 
minor being in the custody of the Petitioner was without lawful 
authority, in an unlawful manner or against the welfare of the 
minor. 
 
THE 
OBJECTIVES 
RESOLUTION, 
CONSTITUTIONAL 
COMMANDS AND INTERNATIONAL OBLIGATIONS 
 
30. 
 
The Objectives Resolution8 of 1949 states that the 
purpose of a Pakistani Constitution would be to ensure that “… 
the people of Pakistan may prosper and attain their rightful 
and honoured place amongst the nations of the World and 
 
8 Which is now a substantive part of our Constitution by virtue of Article 2A. 
CIVIL PETITION NO.3718 OF 2023 
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make their full contribution towards international peace and 
progress and happiness of humanity.”9 This is why the 
Constitution recognises and protects as fundamental rights the 
security and equality of all citizens in Articles 9 and 25 which 
are reproduced for ease of reference: 
 
“Article 9 Security of person. 
 
No person shall be deprived of life or liberty save in accordance 
with law. 
 
25. Equality of citizens. 
 
(1) All citizens are equal before law and are entitled to equal 
protection of law. 
 
(2) There shall be no discrimination on the basis of sex. 
 
(3) …” 
(Underlining is ours) 
 
The people of Pakistan are not limited to a single gender but 
also include its women who are just as entitled to be a part of 
the nation’s collective struggle towards international peace, 
progress and happiness striving for in their lives. In 
endeavouring to achieve these noble aspirations, the mothers 
of the nation must always be accorded the highest degree of 
respect for they mould the generations which will continue 
Pakistan’s collective struggle. To justify divesting custody of a 
child from their mother on the basis of antiquated, parochial 
and patriarchal constructs and customs is in stark conflict 
with the blessed titles given to Mothers in the Holy Quran. In 
fact, this Court in Beena v. Raja Muhammad (PLD 2020 SC 
508) has held: 
 
“13. The high status of motherhood is reflected in the naming 
of a chapter of the Holy Qu'ran after Maryam (Mary), peace be 
 
9 Point 11 of the Objectives Resolution, 1949. 
CIVIL PETITION NO.3718 OF 2023 
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upon her, the only chapter named after a woman. Almighty 
Allah recalls her qualities and bestows on her a number of titles: 
a purified (tahharaki) and chosen (istafagi) one, a sign (ayatan) 
of God, truthful (siddiqatun) and devoutly obedient (qanitina). 
The lady Maryam (peace be upon her) is mentioned 34 times in 
the Holy Qur'an. The mother of the Prophet Isa (peace be upon 
him) faced the pangs of childbirth alone. She, like the lady 
Haajar, overcame formidable odds to care for her child. These 
great ladies are acknowledged and incorporated into the Faith, 
enriching Islam's glorious tradition. It is for believers to ponder 
and reflect upon their lives, and to derive lessons from it. To be 
financially underprivileged, to be weighed down with a child, to 
give birth or to have a disability is not something to be derided. 
For a mother to bear the pain of childbirth, the greatest human 
natural pain, but then to have her child wrested away from her 
on the pretext that she is incapable of taking care of the child 
is insensitive in the extreme, and may also be characterized as 
hypocritical.” 
(citations omitted) 
 
31. 
 
Even on the international legal plane, women’s 
rights have attained the status of obligations erga omnes which 
have since been codified in the Convention on the Elimination 
of All Forms of Discrimination against Women (“CEDAW”) with 
Article 16 of CEDAW explicitly stating that: 
 
“1. States Parties shall take all appropriate measures to 
eliminate discrimination against women in all matters relating 
to marriage and family relations and in particular shall ensure, 
on a basis of equality of men and women: 
 
(a) The same right to enter into marriage; 
 
(b) The same right freely to choose a spouse and to enter into 
marriage only with their free and full consent; 
 
(c) The same rights and responsibilities during marriage and 
at its dissolution; 
 
(d) The same rights and responsibilities as parents, 
irrespective of their marital status, in matters relating to their 
children; in all cases the interests of the children shall be 
paramount; 
 
(e) The same rights to decide freely and responsibly on the 
number and spacing of their children and to have access to 
the information, education and means to enable them to 
exercise these rights; 
 
(f) The same rights and responsibilities with regard to 
guardianship, wardship, trusteeship and adoption of 
children, or similar institutions where these concepts exist in 
national legislation; in all cases the interests of the children 
shall be paramount; 
 
(g) The same personal rights as husband and wife, including 
the right to choose a family name, a profession and an 
occupation;  
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(h) The same rights for both spouses in respect of the 
ownership, 
acquisition, 
management, 
administration, 
enjoyment and disposition of property, whether free of charge 
or for a valuable consideration. 
 
2. The betrothal and the marriage of a child shall have no legal 
effect, and all necessary action, including legislation, shall be 
taken to specify a minimum age for marriage and to make the 
registration of marriages in an official registry compulsory.” 
(Underling is ours) 
 
It is important to also note that discrimination in CEDAW is 
defined in Article 1 as: 
 
“For the purposes of the present Convention, the term 
"discrimination against women" shall mean any distinction, 
exclusion or restriction made on the basis of sex which has the 
effect or purpose of impairing or nullifying the recognition, 
enjoyment or exercise by women, irrespective of their marital 
status, on a basis of equality of men and women, of human 
rights and fundamental freedoms in the political, economic, 
social, cultural, civil or any other field.” 
(Underlining is ours) 
 
32. 
 
The nations of the world have also recognised that 
children have rights by virtue of being children. These 
obligations are also obligations erga omnes and have since 
been codified in the United Nations Convention on the Rights 
of the Child (the “CRC”). Article 9 of the CRC, which is relevant 
to this Petition, is reproduced for ease of reference: 
 
“1. States Parties shall ensure that a child shall not be 
separated from his or her parents against their will, except 
when competent authorities subject to judicial review 
determine, in accordance with applicable law and procedures, 
that such separation is necessary for the best interests of the 
child. Such determination may be necessary in a particular case 
such as one involving abuse or neglect of the child by the 
parents, or one where the parents are living separately and a 
decision must be made as to the child's place of residence. 
 
2. In any proceedings pursuant to paragraph 1 of the present 
article, all interested parties shall be given an opportunity to 
participate in the proceedings and make their views known. 
 
3. States Parties shall respect the right of the child who is 
separated from one or both parents to maintain personal 
relations and direct contact with both parents on a regular 
basis, except if it is contrary to the child's best interests. 
4. Where such separation results from any action initiated by a 
State Party, such as the detention, imprisonment, exile, 
deportation or death (including death arising from any cause 
CIVIL PETITION NO.3718 OF 2023 
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while the person is in the custody of the State) of one or both 
parents or of the child, that State Party shall, upon request, 
provide the parents, the child or, if appropriate, another 
member of the family with the essential information concerning 
the whereabouts of the absent member(s) of the family unless 
the provision of the information would be detrimental to the 
well-being of the child. States Parties shall further ensure that 
the submission of such a request shall of itself entail no adverse 
consequences for the person(s) concerned.” 
(Underlining is ours) 
 
Article 9 must be read with Article 37 of the CRC which clearly 
states that: 
 
“States Parties shall ensure that: 
 
(a) No child shall be subjected to torture or other cruel, 
inhuman or degrading treatment or punishment. Neither 
capital punishment nor life imprisonment without possibility 
of release shall be imposed for offences committed by persons 
below eighteen years of age; 
 
(b) No child shall be deprived of his or her liberty unlawfully 
or arbitrarily. The arrest, detention or imprisonment of a 
child shall be in conformity with the law and shall be used 
only as a measure of last resort and for the shortest 
appropriate period of time; 
 
(c) Every child deprived of liberty shall be treated with 
humanity and respect for the inherent dignity of the human 
person, and in a manner which takes into account the needs 
of persons of his or her age. In particular, every child 
deprived of liberty shall be separated from adults unless it is 
considered in the child's best interest not to do so and shall 
have the right to maintain contact with his or her family 
through correspondence and visits, save in exceptional 
circumstances; 
 
(d) Every child deprived of his or her liberty shall have the 
right to prompt access to legal and other appropriate 
assistance, as well as the right to challenge the legality of the 
deprivation of his or her liberty before a court or other 
competent, independent and impartial authority, and to a 
prompt decision on any such action.” 
(Underlining is ours) 
 
33. 
 
The State of Pakistan acceded to CEDAW on 
12.03.1996 without any reservations and ratified the CRC on 
12.11.1990 with its only reservation being that the CRC’s 
Articles will be interpreted in light of Islamic principles and 
values. However, a holistic reading of the relevant Islamic 
principles, the CRC and CEDAW lead us to the conclusion that 
there is no legal justification for separating a mother from her 
CIVIL PETITION NO.3718 OF 2023 
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child if the mother remarries. We frequently hear cases (the 
instant matter being one such case) where litigants seek to 
divest mothers from their children on no other ground than the 
fact that they have remarried. This practice must end. Our 
children, their mothers and both the welfare of the mother and 
the child are paramount. To cite and rely on antiquated, 
parochial and patriarchal constructs of dignity and honour in 
order to distance and deprive children of their own mothers has 
no basis in law. 
 
34. 
 
We are clear in our minds that the ordering of the 
divestment of custody by the impugned judgement/order is 
without lawful authority. No ground, basis or justification in 
support of the impugned judgement/order has been shown or 
posited by the learned counsel for Respondent No.3. 
 
CONCLUSION 
 
35. 
 
An upshot of our discussion is that in the presence 
of an adequate remedy, the High Court was constitutionally 
barred from exercising jurisdiction under Article 199 of the 
Constitution. As a result, all proceedings in Respondent No.3’s 
writ petition are declared to be without lawful authority. 
 
36. 
 
We have also arrived at the conclusion that the very 
writ petition filed by Respondent No.3 was bereft of merit and 
was liable to be dismissed. 
 
37. 
 
We were also sanguine that the concerned 
Guardian Court, seized of the guardian petition filed by the 
Petitioner, would proceed with the matter expeditiously, with 
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all due diligence, and conclude the matter as soon as possible 
without granting any unnecessary adjournments. We were also 
assured by the Petitioner, who was present in person, that she 
would retain custody of the child and she would not transfer 
the child to any other relative, subject to the decision of the 
Guardian Court. 
 
38. 
 
We, however, observe that since the matter of 
custody requires the recording of evidence and findings of fact 
to be recorded by a Court of competent jurisdiction, our 
observations shall be treated as tentative and confined only to 
the impugned order/judgement of the Lahore High Court, 
Lahore before us and will not, in any manner whatsoever, 
influence the Guardian Court/Family Court, Gujrat seized of 
the guardian petition filed by the Petitioner, which shall decide 
the matter by independent application of mind to the facts, 
circumstance, and evidence produced before the same.  
 
39. 
 
These are the detailed reasons for our short order 
reproduced above, whereby the petition was converted into an 
appeal and allowed, and the impugned judgement/order dated 
21.09.2023 was set aside. 
 
Judge 
 
 
Judge 
 
 
Judge  
ISLAMABAD, THE 
13th of December, 2023 
Khalil, LC*/- 
 
APPROVED FOR REPORTING*/- 
