Children are not property of parents, their welfare is supreme: Lahore High Court

The Lahore High Court (LHC) has ruled that children cannot be treated as the property of either parent and that their welfare

LAHORE: The Lahore High Court (LHC) has ruled that children cannot be treated as the property of either parent and that their welfare and best interests must remain the primary consideration in matters concerning custody.

Justice Ghulam Sarwar Nihung passed the judgment while hearing a constitutional petition filed by Mst. Naseem Bibi against the Additional Sessions Judge, Sheikhupura and other respondents. The case was registered as Naseem Bibi Vs Additional Sessions Judge Sheikhupura etc., W.P. No. 47080 of 2026, and the judgment has been reported as 2026 LHC 5605.

According to the case record, the petitioner had approached the Additional Sessions Judge, Sheikhupura under Section 491 of the Code of Criminal Procedure (Cr.P.C.), seeking the recovery of her three minor children.

The mother claimed that on July 20, 2026, at around 5:00 p.m., respondent Muhammad Afzal had allegedly taken the children away from her custody by force. She sought their recovery through the habeas corpus proceedings.

During proceedings before the lower court, the respondent appeared and produced the minors before the court. He maintained that the children were residing with him and informed the court that proceedings concerning their custody had already been initiated before the competent Guardian Court.

The Additional Sessions Judge dismissed the mother’s petition on July 27, 2026. The court observed that the minors were neither of tender age nor suckling babies and were presently in the custody of their father.

The mother subsequently challenged the order before the Lahore High Court through a constitutional petition.

The matter was heard by Justice Ghulam Sarwar Nihung after arguments from the counsels representing the parties, including Mr. Shaban Ali Solgi for the petitioner, Mr. Hassan Raza Dogar for respondents No. 3 to 5 and Malik Umer Tahir, Assistant Advocate General.

In its order dated August 28, 2026, the High Court clarified that the question of permanent custody cannot be determined simply on the basis of the relationship between a child and either parent.

The court emphasised that the welfare and best interests of the child constitute the fundamental criterion in custody disputes.

“The basic criterion for custody is not the relationship of parents but the welfare and best interest of the child. Children are not property of parents,” the court observed.

The High Court also explained the distinction between its jurisdiction and that of the Guardian Court. It held that in extraordinary circumstances, where immediate protection or the welfare of a child requires urgent intervention, the High Court may pass an appropriate order regarding immediate custody.

However, the court clarified that the final determination of permanent custody falls within the jurisdiction of the competent Guardian Court.

The Guardian Court is required to examine the circumstances of each case and determine custody while considering the children’s physical, mental, educational and emotional needs, as well as their overall welfare and best interests.

The LHC further noted that the father also has the legal right to seek permanent custody before the Guardian Court. Both parents would have the opportunity to present their respective claims, evidence and arguments before that forum.

After examining the matter, the High Court dismissed the constitutional petition, observing that the question of permanent custody would be determined by the Guardian Court in accordance with the law and relevant considerations concerning the welfare of the children.