W.P. No. 5340-P/2024 | Decided on 11 April 2025
Before the Peshawar High Court

In this important family law matter concerning custody and visitation rights, Mr. Saifullah Muhib Kakakhel, Advocate Supreme Court, represented the respondent before the Peshawar High Court. The case arose when the petitioner (father) sought custody and visitation rights of his minor son, Muhammad Hiber, whose temporary custody remained with the mother.

The learned Family Court-IV, Peshawar, through order dated 27 July 2024, declined to enforce visitation rights on the grounds that the minor was reluctant to accompany his father and was experiencing panic attacks. The Court observed that it could not use force in light of the child’s mental health condition. Aggrieved, the father preferred an appeal before the learned Additional District Judge-XV, Peshawar, who set aside the Family Court’s order and granted structured weekend visitation rights. The matter was subsequently brought before the High Court through a constitutional petition.

The principal legal questions before the High Court were whether a father can be denied visitation rights solely due to the minor’s reluctance, whether mental health concerns automatically bar visitation, how courts should balance the welfare of the minor with inherent parental rights, and whether visitation may be structured progressively to rebuild a strained parent-child relationship.

The Honourable High Court reaffirmed that the welfare of the minor is the paramount consideration in custody and visitation disputes. At the same time, it emphasized that a non-custodial parent possesses an inherent right to maintain a relationship with the child, and that outright denial of visitation may result in emotional deprivation and parental alienation. The Court observed that a child requires the love, care, and supervision of both parents, and that a father, being a natural guardian, cannot be permanently deprived of meaningful interaction absent compelling circumstances. Instead of absolute denial, the Court favored a structured and supervised visitation arrangement as a balanced solution.

In support of its reasoning, the Court relied upon established precedents including Mst. Madiha Younus v. Imran Ahmed, Haq Nawaz v. Mst. Zeba Rasheed and others, Mst. Muneeba Raheel v. Raheel Taufiq, and Mst. Maryam Masood v. Mughisuddin Mirza, which consistently recognize visitation as an inherent parental right subject to the overriding principle of welfare. The Court also drew guidance from Indian Supreme Court jurisprudence emphasizing preservation of the father-child relationship.

While upholding the appellate court’s findings, the High Court introduced modifications to safeguard the minor’s well-being. It directed that visitation initially be supervised during court hours and in the presence of the mother. The Family Court was empowered to progressively extend the duration of visitation once the child developed familiarity and comfort with the father. The writ petition was disposed of accordingly.

This judgment carries substantial significance for family law jurisprudence in Khyber Pakhtunkhwa. It clarifies that reluctance of a minor alone does not extinguish a father’s visitation rights, recognizes the psychological dimensions of parental alienation, and introduces a progressive and supervised visitation model tailored to the child’s welfare. The decision reinforces that the welfare principle encompasses not only physical custody but also emotional development through interaction with both parents, and it provides important guidance to Family Courts in balancing mental health considerations with inherent parental rights.