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Report No. 133

A Case from Peshawar

(9) Reference may be made here to a Peshawar case because the facts are unique.1 The mother had applied for the custody and guardianship of a girl aged about 16 years. The girl, it seems, had been abducted by a Muslim and had embraced Islam. The girl's father was dead. She was placed in the custody of a Muslim gentleman by the order of the court, after she was traced. The trial court dismissed the mother's application, but the High Court allowed her appeal. The sole question for determination was whether her alleged conversion to Islam was a valid reason for refusing to appoint the mother as her guardian.

In the view of the High Court, welfare of the minor is the first consideration. The term "welfare" includes both material and spiritual welfare. In the present case, the alleged conversion of the child did not appear to have been based on any religious conviction arising out of serious study by the girl but was based on her wish to throw her lot with the man who was, at that time, undergoing a sentence for having abducted her. The appellate court therefore saw no justification for refusing the mother's request for custody and guardianship of the child.

1. Mansa Devi v. Makhnr, AIR 1936 Pesh 207 (Middleton, J.C.).

Removal of Discrimination against Women in matters relating to Guardianship and Custody of Minor Children and elaboration of the Welfare Principle Back

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