Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner seeks recovery of his seven-year-old daughter Arooj Fatima from the alleged improper custody of Respondents No. 3 to 5.
2. Talib Hussain/SI has produced Arooj Fatima in this Court today .
3. Heard.
4. On 24.10.2014 the Petitioner was married to Respondent No. 3 and they were blessed with a girl who was named Arooj Fatima. , Subsequently differences arose between them and Respondent No. 3 filed a suit for dissolution of marriage in the Family Court at Multan which was decreed exparte in her favour on 1.6.2019.
Respondent No. 3 then married Respondent No. 4. According to the Petitioner , Respondent No. 3 abandoned Arooj Fatima when she left his house but some time back abducted her. He has filed his affidavit in support of this petition.
5. Respondent No. 3 denies that she abandoned the girl. Hence, she states, the question of abducting her does not, arise. However , she has not filed any counter-af fidavit.
6. It is by now well-settled that welfare of the minor is the paramount consideration in deciding the question of his custody . The fact.that Respondent No. 3 has contracted second marriage is a factor though not the only one that the Court would take into consideration for determining the issue of Arooj Fatima's welfare. In Mst. Shahista Naz v. Muhammad Naeem Ahmed and another ( 2004 SCMR 990 ) the Hon'ble Supreme Court of Pakistan held: "The right of Hizanat having the force of an injunction of Islam is an accepted principle of Islamic Law and a female on 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 on contracting seco nd marriage she may lose only the preferential right of the custody ."
5. The Guardian Court is the proper forum for resolution of disputes relating to custody of minors. In a habeas corpus petition the High Court can only intervene and make an interim order if it finds that the minor is of tender age and has been recently snatched. In the instant case, it is admitted that Arooj Fatima is seven years old but Respondent No. 3 has not filed counter-af fidavit to controvert the Petitioner's claim that she has recently snatched her from him.
6. In view of the foregoing, Arooj Fatima's custody is handed over to the Petitioner for the time being. Respondent No. 3 may, however , approach the Guardian Court for her temporary as well as permanent custody . It is directed that if she undertakes any such proceedings, the Guardian Court shall decide the same in accordance with law without being influenced with this order .
7. Disposed of.