ISLAMABAD: The Supreme Court was irked over the Hangu district judge’s conduct of handing over the custody of a minor, Saima to her father on the decision of a Jirga.
The top court’s Justice Qazi Faez Isa heard the case and observed that “a jirga does not have the authority to decide the guardianship of a child; thus, it was a breach of law”.
In the detailed judgement issued, Justice Isa said, “The learned judge had also relied upon a so-called decision of a jirga. A jirga has no legal authority to decide the custody of children and in doing so it violated the law and Islamic injunctions.”
“The law and precedents of this court have stressed the welfare of the minor as the paramount consideration in determining the custody and to abide by the principles of hizanat [take care of] unless there are valid reasons not to do so. A mother cannot be compelled to part with her child by a jirga. She cannot be called upon to barter the right to her child’s custody, to secure a divorce nor can a child be used to settle personal scores,” it added.
The order further stated that the well-being of the minor was ignored and the precedents of the court which had extensively elaborated on the matter.
“Instead, the learned district judge relied on a so-called decision by a jirga. The high court was; therefore, correct to set aside the judgement of the district court which was based, as mentioned above, on untenable considerations,” said the order.
Thus, the decision to hand Saima’s custody to her father was wholly unjustified.
Furthermore, the court stated that the petitioner (father) continued to illegally keep the custody of the child which was in violation of Peshawar High Court’s (PHC) orders of November 12, 2018, wherein the court had directed “peaceful handing over of the minor to the mother”.
However, the orders had not been implemented despite the passage of three months.
Following this, the court summoned Khyber Pakhtunkhwa Additional Advocate General (AAG) to ensure that “the PHC’s judgement was implemented with immediate effect”.