Court refuses to hand over underage girl’s custody to parents

Yousuf Katpar
Tuesday, Nov 01, 2022

A court on Monday declined to hand over the custody of a girl who was allegedly abducted from Karachi and later surfaced in Lahore to her parents. However, it allowed them to meet her twice a month at a shelter home where she has been residing since being shifted to the port city from Punjab.

The girl was allegedly kidnapped from her Karachi house in April and trafficked to Punjab where her illegal child marriage was solemnised. Her parents, Syed Mehdi Kazmi and Saima Kazmi, filed separate applications under Section 12 of the Guardians and Wards Act, 1890 seeking her interim custody or meeting her on a daily basis.

On Monday, Civil Judge and Magistrate (East) Shafia Memon pronounced the judgement she had reserved after hearing arguments from both sides. Unlike normal custody cases in which the parents of a minor are contesting parties, the judge said that in the present case, both parents of the victim were the applicants while her purported husband, Zaheer Ahmed, the main respondent, the custody of the minor lies with the Shelter Home for Destitute and Orphan Children. “Thus, the challenge to substance of relief asked for is more from minor herself than the respondents,” she added.

She pointed out that a family court entertains matters of guardians and wards under the relevant laws and is not to decide the right of parties but to regulate the custody of a minor. “This power of regulation of custody is subject to welfare of minor. The paramount consideration of welfare of minor is the soul of proceedings and same will have preference over any other moral or legal right and status,” she went on.

“There is no doubt that parents of minor/ward have right to meet their child, look after her needs and provide social, financial and moral support whenever and wherever needed. However, this is not an absolute right, given facts of the instant case where parents have disputed her Nikahnama and criminal proceedings have been initiated against respondents.”

Noting that the minor’s readiness for meeting her parents was an important factor, the judge said that though the ward was not of the age of majority as per her Nadra record and ossification test, she was old enough to form an intelligent preference as provided under Sub-Section 3 of Section 17 of the Guardians and Wards Act.

“I, therefore, in view of the above facts and circumstances do not see it plausible to change/shift the custody of minor, when the minor has been sent to the shelter home on the direction of the court,” she ruled, allowing the parents to meet her twice a month under the supervision of the shelter home’s incharge.

“It may be noted that in meeting with minor, no unnecessary pressure or compulsion/duress would be applied in case after affectionate advice of the incharge of the shelter home, she refuses to meet with the applicants,” the court warned, adding that the meeting would take place on 1st and 16th dates of every month for three hours. The shelter home’s incharge was told to submit a report on every meeting to the court.

Advocate Amna Usman, the counsel for the applicants, had argued that the ward was kidnapped from Karachi in April and later her fake Nikahnama surfaced even though, as per her Nadra record and ossification test, she was minor. Being a minor, she said, the girl needed constant care, love, attention, and affection of her parents who had been unable to meet since April except a meeting allowed by the Sindh High Court a few days back.

The counsel said the girl has been residing at a shelter home following the relevant magistrate’s July 27 order, adding that her parents are quite concerned about her physical and mental health as well as about her education and day-to-day affairs since she is a victim of abuse and child marriage.

She pleaded with the court to hand over her custody to her parents. The court was further requested to allow the applicants to meet the ward on a daily basis for a few hours and have lunch with her so they can take care of her since she was “mentally unstable”.

On the other hand, the counsel for Zaheer Ahmed contended that his client, being the girl’s husband, was her guardian and responsible for everything concerning her. “The ossification test report has been managed by the applicant side and otherwise she is seventeen years old,” he alleged, adding that applicant Kazmi was the complainant of a criminal case and the girl was a “star witness”; hence, her meeting with the parents might have negative repercussions for the case and affect the proceedings and their outcome.

The lawyer said the court might call the ward to ask about her willingness to meet her parents and demanded that the court dismiss both the applications for being non-maintainable.