Female convert to Islam told to move guardians court for kids’ custody

The Sindh High Court (SHC) has directed a female convert to Islam to approach a guardians & wards court to seek the custody of her children from her former husband, who is Hindu.

The direction came on a petition of Laxmee, who changed her name to Maria after her conversion to Islam and seeks the custody of her children from her former husband Krishan.

The petitioner said she converted to Islam, then contracted her second marriage with Waqar Younus. She said she has two minor children from her previous marriage who are residing with their father, adding that her application for custody was dismissed by a district court.

Her counsel said her children need proper care and attention that can only be offered by her, being their mother, and sought the custody of the children for the petitioner.

After the perusal of the record, a single SHC bench headed by Justice Nisar Ahmed Bhanbhro said the petitioner did not claim in the petition that the custody of the minors was illegally removed from her.

However, said the court, it is asserted that the petitioner is denied the meeting rights with her children, and she needs permanent custody of her children for the conversion of their faith.

The bench said that there is no allegation against the former husband of the petitioner that he is incapable of giving proper care to the minors and intends to remove their custody to an unknown place so that they may not remain in contact with their mother.

The court said that there is no law in the field depriving a mother the custody of her minor children when she changes faith, adding that the petitioner has converted her faith and remarried a Muslim man, and she seeks the custody of the minors who follow Hinduism and are residing with their father.

The bench said that the other important aspect of the case is that the second husband of the petitioner has not come forward before the court to show his willingness to retain the custody of the minor children and look after them properly.

The court said that the custody of the minors with their father cannot be held as illegal under any law but the prime question for consideration involves the welfare of the minors.

“This court, under its constitutional jurisdiction, cannot determine this aspect of the case, for which the proper course available under the law is to approach the guardian court.”

The bench dismissed the petition, but said the petitioner may, however, file a proper application under the provisions of the Guardians & Wards Act, 1890, to seek the custody of the minors, if so advised.

The court clarified that the guardians court, if approached, would without any loss of time pass the orders regarding interim arrangements of meeting of the children with the mother at least once a week and decide the application of the petitioner for custody on merits in accordance with the law without being influenced by the observation made by the SHC.