LAHORE: The Lahore High Court (LHC) has set aside a sessions court order in a child custody case and directed that three children be handed over to their mother immediately, holding that children are not items of property to be seized by force.
Justice Ghulam Sarwar Nahang issued an 11-page written judgment on the petition of the children’s mother, Naseem Bibi.
The judgment ordered that 16-year-old Amna, 11-year-old Eman and nine-year-old Ali Hussain be handed over to the mother.
The court held that a mother’s petition cannot be dismissed on the ground that the children are not infants, and that the children being in the father’s possession does not mean that forcible custody becomes lawful.
The court held that age alone cannot be made the basis for appointing a guardian of children, observing that children are not items of property that can be taken over by force. The welfare and best interest of the children, the court said, is paramount for the court.
According to the High Court, the sessions court did not keep legal points in view in its decision. Under Section 491, the mother has a full right to obtain immediate custody of the children, and the pendency of a case in the guardian court does not extinguish the right to immediate relief.
The court held that the record established that the children had been forcibly separated from the mother’s custody. The order handing custody to the mother is temporary and immediate in nature, while the final decision on permanent custody will be made by the guardian court, which will keep the wishes and welfare of the children in view while deciding.
The High Court issued a complete and formal written order in the case. According to the mother, the father forcibly took away the three children on July 20, 2026. The High Court also set aside the July 27 order of the Additional Sessions Judge, Sheikhupura.
The judgment turns on a distinction that frequently confuses litigants in family disputes. A petition under Section 491 of the Code of Criminal Procedure — historically described as a habeas corpus remedy — is an emergency jurisdiction. Its purpose is to determine whether a person is being held in improper or illegal custody and, if so, to restore the position immediately.
Proceedings before a guardian court under the Guardians and Wards Act are a separate and slower track. That court decides permanent custody and guardianship after examining welfare in the round: the children’s education, emotional stability, the character and circumstances of each parent and, in the case of older children, their own stated preference.
The High Court’s order therefore does not decide who will ultimately raise the three children. It restores the status quo that existed before what the court found to be a forcible removal, and leaves the substantive question where the law places it — with the guardian court.
The judgment is one of several recent Lahore High Court matters shaping family and public-interest litigation in the province; the court is separately hearing a petition against power and gas load-shedding.
Superior courts in Pakistan have repeatedly held that the welfare of the minor is the paramount consideration in custody matters, overriding rigid application of custody rules based on the child’s age or the parents’ respective legal entitlements.
The observation that “children are not items of property” reflects a consistent line of judicial reasoning in family law, in which custody is treated as a duty owed to the child rather than a right vested in a parent. The court’s direction that the guardian court consider the children’s own wishes is significant given that the eldest child is 16.
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