Mother can’t be denied child’s custody over second marriage, rules PHC

PESHAWAR: Peshawar High Court has ruled that contracting a second marriage cannot be a conclusive ground to deprive a mother of the custody of her child.

A single-member bench consisting of Justice Mohammad Naeem Anwar declared that in custody matters the court was required to undertake an objective assessment of the minor’s existing circumstances, emotional attachment, settled environment, educational needs and comparative suitability of the proposed custodial arrangements.

“It is a settled principle of law that, in determining the question of custody, the court must be guided primarily by the welfare, wellbeing and overall betterment of the minor, which take precedence over all competing claims and considerations, including the preferential rights asserted by either parent,” the bench observed.

While disposing of a revision petition of a resident of Kohat, the bench declined to grant him custody of his minor son, but allowed him visitation rights. The petitioner’s counsel contended that, following her second marriage, the respondent (minor’s mother) was no longer entitled to retain his custody.

Bench declines custody to minor’s father, allows him visitation rights

“This contention, however, cannot be accepted as an absolute proposition. The mere fact that a mother has contracted a second marriage does not, by itself, furnish a conclusive ground for depriving her of custody,” the bench ruled in its eight-page detailed order.

“The ultimate object is not to vindicate the legal entitlement of one parent at the expense of the other, but to ensure an arrangement most conducive to the minor’s physical, emotional, psychological, moral and educational development,” the bench ruled.

The petitioner and his former wife were blessed with a son, but owing to matrimonial discord, their marriage was dissolved in 2018 and they separated.

The minor remained in the custody of his mother, who contracted a second marriage in 2024. Subsequently, the minor started residing with his maternal grandfather in Shakardara area of Kohat.

The petitioner had instituted a custody petition before a family court, claiming that the minor’s welfare, particularly his education, health and overall upbringing, necessitated his custody being entrusted to him.

The trial court on Oct 16, 2025, partially allowed the petition and granted custody of the minor to the petitioner, while preserving the visitation rights of the minor’s mother.

Aggrieved thereby, the respondents including the minor’s mother preferred an appeal before the additional district judge, Kohat, who, through the impugned judgment on March 18, 2026, allowed the appeal and set aside the judgment and decree of the trial court, thereby dismissing the petitioner’s application for custody.

The additional district judge had held the petitioner entitled to visitation rights, subject to prior intimation to the mother and visitation at a mutually agreed and convenient place.

The bench ordered that the minor should continue in his existing custodial arrangement, subject to any subsequent order passed by the competent court in accordance with law and the minor’s welfare.

“The petitioner’s entitlement to visitation is recognised and shall be implemented through a definite and workable schedule. Since the minor has never previously remained in the petitioner’s custody, visitation shall initially take place on the premises of family court in Lachi, Kohat district, under arrangements determined by the learned judge of family court,” the bench directed.

“The initial meetings shall be structured to enable the father and son to establish familiarity and develop a relationship without disturbing the minor’s emotional security,” the bench maintained.

It directed that the parties may, by mutual consent, propose an appropriate schedule for visitation, which may include meetings at regular intervals and during school vacations. The bench also explained the mechanism to be adopted by the family court and the parties in that regard.

The bench observed that in the instant case, it was an admitted position that, since his birth, the minor had never remained in the petitioner’s custody, not even for a single day.

“The petitioner, therefore, has not had the opportunity to develop a direct and sustained relationship with the minor through day-to-day care and upbringing,” it ruled.

“The minor is now approximately nine to 10 years of age and has been residing within the maternal family environment. In these circumstances, an abrupt transfer of custody to the petitioner, without first establishing a meaningful relationship between father and son, would risk disturbing the minor’s emotional security and settled routine,” the bench observed.

It pointed out that both the petitioner and minor’s mother had contracted second marriages and were living with their respective spouses.

“The minor has already been admitted to school and is passing through an important stage of his formative years. Displacing him from his existing environment in favour of a parent with whom he has never lived would constitute a significant change in his circumstances, without sufficient justification demonstrated on the available record,” the court maintained.

Published in Dawn, October 26th, 2026