Child Justice

In the case Muhammad Asif , the Supreme Court dealt with a custody dispute between divorced parents over two minor children aged 8 and 7. The father had challenged the custody of the children with the mother.

Held: The Court stressed that maintenance of custody determinations must prioritize the child’s welfare, dignity, and agency, guided by Articles 3 and 12 of the UN Convention on the Rights of the Child (CRC) and constitutional guarantees under Articles 9, 14, 25, and 34. Importantly, the Court emphasized that children are rights-bearing individuals who must be heard in custody and guardianship cases. It directed all Family/Guardianship Courts to ensure the child’s voice is heard and respected in every case while emphasizing the paramount importance of children’s rights in custody disputes, highlighting the necessity of considering the best interests of the child as a primary consideration in all judicial actions rather than a dated, colonially construed doctrine of “welfare” under the Guardian and Wards Act, 1860. The Court further held that a mother’s employment cannot be used against her in custody determinations.

Selected Passages:
“The participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects the dignity and agency of the child. Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process

Through a dynamic interpretation of ‘welfare’ using the doctrine of updating construction, courts can incorporate the core elements of the best interest’s standard, most notably, the child’s right to participation… The phrase ‘welfare of the minor’ can no longer be confined to its colonial-era meaning. Instead, it must be enriched by the modern, internationally recognized concept of the best interests of the child

“The journey from the Act to the CRC represents a profound transformation… from a paternalistic, adult-driven notion of ‘welfare’ to a rights-based, participatory understanding of the ‘best interests of the child.’… The CRC reframes the child not as a passive recipient of adult decisions, but as an active rights-holder whose voice must be heard and respected.