Child Adoption Procedure in Pakistan

What is Child Adoption?

Child Adoption is a process where a person assumes the guardianship of a child, from the biological or legal parents.

Once the child adoption procedures complete it permanently transfer the rights and responsibilities to the guardian, along with affiliation, from the biological parents

There is no specific law regarding the adoption of a child in Pakistan. It does not mean that adoption is literally prohibited in Pakistan. Children in especial circumstances are placed under the guardianship of their near relatives or suitable person appointed by Court. In that case the children do not automatically adopt the parentage of their guardians. They will legally enjoy all social and economic rights except for inheritance of property from their guardian.

There are two methods to adopt a Pakistani child.

  1. Either adopt a child through the child protection bureau (including registered orphanage)
  2. Or through the guardian court of Pakistan

To adopt an orphan baby in Pakistan you should only visit authorized orphanage centers or child protection centers.

Once you have decided to adopt the proceedings will initiate in the court of District judge. You have to proceed with your case and convince the judge that you are a suitable couple to adopt a baby in Pakistan. Before you start court proceedings you have to submit;

  • Your complete profile showing your priority in child adoption
  • Gender of adopting parents
  • Age of baby you wish to adopt
  • Along with other requirements to adopt a baby in Pakistan.
  • A professional lawyer prepares the case in which you will claim the adoption.
  • The adopting parents will provide their personal information i.e. profession, age, religion, sect, income, etc
  • A child cannot be adopted from unauthorized adoption centers in Pakistan. It can only be done via Chippa, Edhi, etc..

What is the Child Adoption Procedure in Pakistan?

The procedure of child adoption in Pakistan involves these necessary steps;

Eligibility requirements to adopt Pakistani child are as below:

  • Name of child.
  • Date of Birth of Child and Place of Birth.
  • Name and Address of Terminating Parent.
  • The adoptive parents have to be a Muslim. (Unless the agencies know they are placing a Christian Child, they cannot place a Muslim child with Christian family)
  • Couples must be married for at least three years. (Provide valid proof of marriage certificate)
  • Prospective adopting parents must be at least 25 years of age.
  • Parents must be able to afford to raise the child
  • At least one of the parents must be of Pakistani origin or eligible for a NICOP or CNIC (A requirement for the foreigners only)
  • Apply to the Family Court adoption.

Court Procedure to Adoption Child

Once you fulfill all the above-mentioned requirements then you need to start a case.

  • Filing of Suit for Declaration and Termination of Parental Rights.
  • Notice sent to the parties.
  • Submission of adoption deed or get holds of recorded consent of parents.
  • Record the Evidence of both parties.
  • Final arguments & decree by the Court.
  • Filing for Guardianship (it is not necessary but favorable)
  • After getting a guardianship decree from the court, adopting parents can obtain NADRA B-form which is also called CRC (Child Registration Certificate). So that when the child reaches the age of 18 he got the National Identity Card number.

                                                                                                    Anam Younis   Advocate, Islamabad

Temporary Injunction, Its Grounds and Procedure:

A temporary injunction is a court order prohibiting an action by a party to a lawsuit until there has been a trial or other court action. The purpose of a temporary injunction is to maintain the status quo and prevent irreparable damage or preserve the subject matter of the litigation until the trial is over. After the trial the court may issue a permanent injunction or dissolve the temporary injunction

Order 39, Rule 1 & 2 of Civil Procedure Code 1908 and Volume 1, Part-L, Rule 3 of High Court Rules deal with temporary injunctions.

Temporary injunction can be granted against plaintiff as well as defendant. Temporary injunction cannot be granted against strangers.

Grounds for Temporary Injunctions:

  1. When property is supposed to be wasted or damaged.
  2. When opponent party is threatening to dispose of or remove property.
  3. When defendant dispossessed the plaintiff or caused injury to plaintiff with respect to property.
  4. When court considers it necessary to grant injunction for ends of justice.
  5. When defendant breaches the contract/peace.

Conditions for Grant of Temporary Injunctions:

  1. Prima facie case lies in favor of plaintiff and against defendant.
  2. Balance of convenience
  3. High probability of case decision in favor of plaintiff
  4. Irreparable loss to plaintiff in case of non-grant of injunctions

Circumstances Where Temporary Injunction may be granted:

  1. To maintain status quo
  2. To stop transfer of property
  3. To restrain construction over disputed property
  4. Recovery of dues
  5. Attachment of property
  6. Appointment of commission or receiver of property

Procedure for issuance of injunctions:

An application for temporary injunction should be filed with plaint supported by an affidavit.

The Court shall in all cases, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents oil which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following, that day, an affidavit stating that the copies aforesaid have been so delivered or sent.

In the case of disobedience of any injunction granted or other order made by court or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

How to file a complaint against cyber-crime in Pakistan?

If your Facebook page is hacked, or if someone has posted your pictures without your consent, or even if you think someone is spreading hatred online, you can simply go ahead and report such cyber -crimes to NR3C to get relief that’s mandated by law now.

Reporting cyber-crimes in Pakistan is very simple and easy, here are cyber-crimes that you can report to cyber-crime wing of FIA.

Types of Cyber Crime You Can Report

  • If someone has made a fake FB ID or Twitter ID with your name
  • If someone has posted your images without your consent
  • If someone is spreading racial or ethnic hatred
  • If someone has hacked your Facebook/Email ID
  • If someone has gained un-authorized access to your laptop, phone (Physical Information system, digital data, personal Identity)
  • If someone is defaming you on social media and you think he/she’s wrong in claims he/she is making
  • Online Fund Transfer Fraud through bank, ATM, Easypaisa, U-paisa, Time pay or any other online fund transfer facility
  • If your website is hacked by someone

How to Report Cyber Crimes

  • If you a victim or any above-mentioned offenses, then you can go ahead and follow below instructions to register a cyber-crime in Pakistan
  • Register Complaint Against Cyber Crimes by filling form online: Go to this URL and submit your application online: http://www.nr3c.gov.pk/creport.php
  • Register Complaint Against Cyber Crimes with Email: Write an application with all possible details and your complete credentials (Name, Address, CNIC, and Contact No.) and email it to this email-address: helpdesk@nr3c.gov.pk
  • Register Complaint against Cyber Crimes by writing hard-copy application: Write an application with all possible details and your complete credentials (Name, Address, CNIC, and Contact No.) and send the application to this address: Director NR3C-FIA, National Police Foundation Building, 2nd Floor, Mauve Area, G-10/4, Islamabad.
  • Registering Complaint by Walking to NR3C Regional office: Simply visit any of the regional offices of NR3C and register your complaint in person.

How to Write a Complaint against a Cyber Crime?

You can write your complain in plain English/Urdu with maximum possible details about the offense. You can attach any evidence, such as email printouts (screen-grabs) and any possible detail to help the officials understand your case better. You can also mention (nominate) anyone with their phone/address details.

How effective is it to Complain with NR3C?

NR3C is more resourceful. They have official contacts with ISPs, mobile phone companies, Facebook, Twitter and so on to get your complaint resolved.

It is to be noted that the process time of your application may be up to a few weeks, depending on type of your complaint. If you submit it in proper fashion alongside proof and needed documentation,  your complaint can get resolved with ease.

How to Get Update on Complaints:

You can email (helpdesk@nr3c.gov.pk) or contact them on 051-9106384 or mobile no: 03366006060 for any queries against your complaint and update.

Cyber-crimes and their Punishments in Pakistan

Cyber-crimes are the offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS).

Cyber criminals use computer technology to access personal information, business trade secrets, or use the Internet for exploitive or malicious purposes. They use computers for communication and document or data storage.

In Pakistan the government is not allocating fair resources to tackle cyber-crimes. Resultantly, the crime has been doubled and there is alarming number of pending cases. The number of the complaints has been increasing day by day. A total of 50,505 complaints had been registered during the last year out of which 11,389 complaints were converted into enquiries and total 1,071 cases were registered till September 30, 2019. It is due to immense pressure on the cybercrime cell of FIA and the state is not making effective investment in the field of enhancing manpower as well as rendering training to the NR3C staff.

According to prevention of electronic crimes Act, 2016 following punishments should be given to the person committing cyber-crime:

Cyber stalking:                                                                         

Whoever commits this office is liable for imprisonment up-to three years or fine up-to one million rupees or both and in case of minor, imprisonment will be up to-five years and fine up-to ten million rupees or both.

Data diddling:

This is called “electronic forgery” in Pakistani legal system and the criminal is awarded punishment up to three years and fine up to two hundred and fifty thousand rupees or both and if the criminal commits this crime is respect to critical infrastructure, he will be imprisoned up to seven years and fine up to five million rupees or both.

Criminal defamation:   

Whoever intentionally and publicly exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both.

Spamming:

Anyone (an individual or an organization) can be fined with up to Rs. 50,000 for the first and three months of jail if they:

  • Send spam emails/SMS without permission of receiver
  • Send emails without unsubscribe options
  • Send emails with
  • harmful fraudulent emails
  • misleading email
  • Illegal email.

Spoofing:

 Up to 3 Years in Jail or fine up to Rs. 500,00 or both .

Whoever with dishonest intention establishes a website or sends any information with a counterfeit source intended to be believed by the recipient or visitor of the website to be an authentic source commits spoofing.

Unauthorized Access to Information or Data:

Law says that if you access any information system or data with dishonest intents then you can go to jail for up to three months or be liable to pay a fine up to Rs. 50,000 or both.

Unauthorized Copying or Transmission of Data:

Whoever with dishonest intention and without authorization copies or otherwise transmits or causes to be transmitted any data shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one hundred thousand rupees or with both.

Unauthorized Access to Critical Infrastructure Information System or Data:

Whoever with dishonest intention gains unauthorized access to any critical infrastructure information system or data shall be punished with imprisonment which may extend to three years or with fine which may extend to one million rupees or both.

National Response Centre for Cyber-crimes

The Government of Pakistan has established the “National Response Centre for Cybercrime,”  (NR3C) under the administrative control of Federal Investigation Agency (FIA), to investigate the cybercrimes, trace the criminals and use their efforts to stop misuse of the internet.

NR3C has expertise to deal in the following subjects’ i.e. digital forensics, information system security audits, technical investigation, penetration testing and training in these fields. Since its establishment, it is working for the capacity building of law enforcement agencies, Bench and bar, and other Government organizations. This institution needs to be more vigilant towards the identification of these crimes. There are many challenges to overcome cyber-crimes successfully, to prevent such crimes education and public awareness is necessary. Due to lack of awareness of existing cyber-crimes, the general public is facing many problems. Even the law enforcement agencies are unaware of these crimes due to complex nature of these crimes. Therefore, the proper understanding of such crimes is necessary to

Significance of DNA Evidence in Criminal Litigation

DNA evidence has revolutionized the world of forensic sciences in technologically advanced countries. Many of them maintain DNA databases for the investigation of crimes. Many crimes that were once difficult to investigate due to lack of evidence are now being revisited, and offenders are being put behind bars.

Now a days DNA fingerprint technique is used world widely to solve the criminal cases that may be very difficult to solve without it. DNA test is only a part of biological evidences that are very important in the solution of a criminal case. No doubt a judge can make decision only if he has surety about the occurrence of the crime and the persons involved in it. For the identification of culprit, judge may order for forensic test of samples collected by an investigating officer. These material evidences are speechless and non-intelligent evidences, consequently cannot tell a lie, hence have great importance. Such evidences are not new and are being used throughout the history, although modified with the development of awareness and technology and hence their status of accuracy is also increasing day by day.

 It is common in judiciary not to bind the judge with specific legal evidences hence independence in legal evidences is gradually coming common so that the judge may come to an accurate and certain evidence. The purpose of this freedom of evidence is not to restrict the performance of judge by making him sticky with certain evidences, but it aims at maximizing the surety of his decision.

In Pakistan, there is no particular legal framework that specifically deals with DNA evidence, and hence the courts have to maneuver while remaining within the legal framework hitherto available. DNA evidence is evaluated in the context of Articles 59 and 164 of the Qanun-e-Shahadat Order 1984 (‘QSO’). The former provision states that expert opinion on matters such as science and art falls within the ambit of ‘relevant evidence’, whereas the latter provision provides grounds for admissibility of various modes of proof made available due to advancements in science and technology.

Punjab Forensic Science Agency (PFSA), being the largest forensic DNA laboratory in Pakistan, has been helping in solving rape, murder, dead body identification, sibship, and parentage cases. Having started its operations since 2012, PFSA has received approximately 44,417 cases for DNA analysis out of which 36,954 cases have been solved successfully while approximately 7463 cases are pending for several reasons. One of the landmark cases solved in Pakistan is the famous Zainab’s murder case. The suspect had committed 12 cases of sexual assault and murders within a radius of 2.5 km. Extensive crime scene investigation led to the apprehension of the suspect, whose involvement in all the cases was confirmed with the help of DNA testing. A total of 1187 samples were collected for DNA analysis, whereas the 814th sample proved to be of the criminal.

Despite eye-witness importance, Pakistani courts are now relying heavily on DNA-based evidences which are probabilistically measurable and also help in getting rid of false witness statements often encountered in the courts. Zainab’s murder case, solved through DNA analysis, has also led to public awareness regarding the importance of forensic DNA analysis in solving cases. In addition to PFSA, other laboratories working in the country are going towards capacity building. As far as statistical weightage of DNA evidence is concerned, development of local population DNA database, for allele frequency calculation, is still desired in the country.

Registration of FIR: Issues and Solutions

Registration of FIR is the most complicated problem of administration of criminal justice system of Pakistan. As per the interpretation of Section 154, CrPC the SHO is duty bound to register every information disclosing commission of any cognizable offence but unfortunately ground reality is totally different. It depends upon multiple factors whether a FIR should be registered or not. It is the daily routine of almost all SHOs to violate the mandatory directions of Sections 154 and 155 CrPC, 1898. Sometimes, police officers have been guilty of floating the court orders for registration of FIRs as well.

For registration of a FIR following factors have to been seen by police officers; firstly, who is the complainant? Secondly who is the expected accused? Thirdly what are the allegations? And lastly the face behind the case. But in many cases like theft, robbery and dacoity police officers are hesitant to register FIRs in order to conceal their bad performance and sometimes political influence also does matter.

FIR is the button; which initiate the criminal justice system; no FIR, no investigation, no conviction. FIRs are registered to evaluate the criminal statistics. Hence whenever a complaint is denied to be converted into FIR; it resulted in miscarriage of Justice in every such case. It is the legal right of every person who has knowledge of any offence to cause the criminal machinery into motion through FIR. The SHO is the operator of this criminal justice system machine.

FIR is the first step toward administration of justice. Upon registration of FIR investigation is started. After complication of investigation a trial starts which results in convictions or acquittals. Simply, rapist, murderer, thief etc cannot be tried and convicted without registration of FIR. The legislature is very clear upon this point. Whenever a complaint is received it shall be converted into FIR. In spite of this clear command, there are still 47,029 cases pending for registration of FIRs in Lahore High Court.

The jurisprudence of Criminal Procedure Code, 1898, and Police Rules, speak loudly that a police officer is not allowed to inquire into or investigate of any offence unless an FIR is not registered. It is common practice in every police station that after receiving complain, FIR is not registered, instead of incorporating it, the police officers have made an illegal register No. 5B.  The police officers decide whether FIR should be registered or not. It is not only illegal but also unconstitutional and against the spirit of CrPC because every investigation prior to registration of FIR is illegal.

Unsuccessful applicant starts first round of litigation in shape of application under sections 22 A/B CrPC and knocks the door of justice of peace. The second round of litigation starts before High Court under Article 199 of the Constitution of Pakistan. The judges of higher courts spend their valuable time in deciding such applications. The judiciary has to suffer an unnecessary burden of work just because of inefficiency of police officers.

A huge disadvantage of non-registration of FIR is missing of criminal statistics of accused and relevant statements. Late registration of FIR is another big problem as it is well settled principle that justice delayed justice denied.

All the above issues need some solutions.  First of all non-registration of FIR must be declared as a penal offence having severe punishments for police officers. A new chapter must be legislated and inserted in PPC.

Secondly the applications received by the existing computer cells may be given status of FIR through delegated legislation or notification.

Lastly FIR registration booths should be constructed in police station with inbuilt camera installations. Any person can go there and record his audio/video which should be converted into FIRs.

Custody of Minor Child

In 1988 in Sultana Begum vs Mir Afzal, the Karachi High Court defined custody as the ‘upbringing of a minor child by the mother or by someone legally entitled to it’.  The custody of a child generally rests with the mother in tender age; afterwards it goes to the father. It is considered in the welfare of the child that the child should be with the mother in his/her tender years so the mother will get preference over other relatives including the father.

The law pertaining to guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890.

Circumstances which are to be seen by Court while granting custody of a child:

I.             Qualification of a Custodian:

According to the case law there are certain qualifications for the custodian of the child. In Imtiaz Begum v Tariq Mehmood, the Lahore High Court while discussing qualifications of the custodian declared that the custodian should not be sinner and dishonest.  A person would be disqualified if the court has reason to believe that they were a sinner or dishonest. There is no need for conviction of the court. The character of the custodian is important to determine custody issues.

Another condition for a custodian is that s/he should be mahram to the child. If the custodian is the mother she should not be married to a person who is a stranger to the child especially where she has custody of a female child. The reason behind the principle of disqualification of the mother on remarriage is that after remarriage her attention will be diverted to her new household and children from the second marriage. Although this is a general rule, the welfare of the child is still paramount. Sometimes remarriage of the father and his having children from such marriage is considered as an impediment to custody and courts consider it against the welfare of the child to award custody to the mother. In Rafiqan v Jalal Din, the Supreme Court of Pakistan decided that after termination of a second marriage the bar to

custody is removed and the parent may become qualified for custody again.  In the case of remarriage of both parents the courts consider the circumstances of both parents and decide accordingly.

II.            Welfare of the Minor

Welfare of the minor is given paramount importance within our domestic jurisprudence. Welfare is determined by taking into account the minor’s age, sex and religion. Weight is also given to the character and capacity of the guardian and his/her nearness of kin to the minor. A person who has custody of a minor is responsible to look after the minor with regards to its health, education and support him/her in all respects.

In every matter related to a minor, the court will give preference to child’s welfare and interest over that of parents’ rights. Section 17 of the Guardians and Wards Act 1890 declares the ‘welfare of a minor’ a paramount consideration. According to the courts the welfare of a child means a child’s health, education, physical, mental, and psychological development. The minor’s comfort and spiritual and moral wellbeing along with his/her religion is also considered.  Considerable attention is given to the minor’s happiness and emotional attachment with a custodian. It is considered in the interests of the child to live with his/her siblings.

If the court thinks that to live with the mother in the child’s tender years is not in the child’s welfare the court may deprive her from custody.  If there is a clash between the rights of the parents and the welfare of the minor the latter prevails. 

III.           Financial Status of Custodian

Education and financial status of the parties are considered and custody is given to the parent who is more educated and is financially stable. In Amar Ilahi v Rashida Akhtar, the Lahore High Court decided that if the father failed to maintain the child he will lose his right to custody and guardianship. In this case the father did not take any interest in the daughter until the time of her mother’s remarriage. He failed to maintain the child but at the marriage of the mother claimed guardianship of the child. The court gave the right of custody and guardianship to the mother despite her remarriage.

IV.          Emotional Attachment of Minor:

The courts also give due importance to the factor that the minor is emotionally attached to one parent as compared to the other. In 2004 in Sardar Hussain and others v Mst. Parveen Umar, the Supreme Court gave custody of the minor of seven years to the mother despite her remarriage due to the fact that the minor was emotionally attached to her and regarded his father as a stranger despite living with him for fifteen days.

V.            Religion of Custodian

According to Pakistani courts the custodian should be of the same religion as of the minor. A child follows the religion and social status of her father.  Apostasy and slavery are disqualifications for the mother to have custody of the minor but a Christian or Jewish mother can have custody of her child. Being sane and free from mental or bodily diseases and being of good moral character and reputation are essential requisites for a custodian.  A person not fulfilling any of the above-mentioned conditions could not be a custodian.

In Imran Ali v Mst. Iffat Siddiqui, however, the Karachi High Court while giving custody of the minors to the father considered the fact that he was an Isma’ili Shi’a and would be in a better position to raise his children in accordance with his sect. The court opined that the child follows his/her father’s religion. In the case of sunnī-shī‘a marriages the child is supposed to follow the sect of the father.

VI.          Custody of Illegitimate Child: If the child is illegitimate, custody goes to the mother irrespective of the mother’s religion. According to Islamic as well as Pakistani law, an illegitimate child only belongs to her mother and the father has no right to claim custody. In Roshni Desai v Jahanzeb Niazi (2011 PLD 423), the court awarded the custody of an illegitimate child to the mother. The father of the child was a Muslim whereas the mother was a Hindu. They were living in Canada and had a son without marriage. The mother claimed custody of the minor when the father took her son to Pakistan. The Lahore High Court decided that Islamic law did not recognize such a relationship. And the child was declared illegitimate. The court noticed that in Islamic law and

in Pakistani law, the father has no relation with his illegitimate child and an illegitimate child belongs to her mother. The court gave custody of the minor to the mother and held that in case of absence or disqualification of the mother only maternal relatives are entitled to claim custody of an illegitimate child. The father could not claim custody on the ground of the mother being non-Muslim.

VII.         Minor’s Preference:

As far as the minor’s choice is concerned, the approach of the courts is not consistent. In some cases, the courts have asked for the minor’s preference if it is old enough to make a choice.  In some other cases, the courts have not asked for the minor’s choice by not considering it important.  In Abdul Razzaque v Dr. Rehana Shaheen, the Karachi High Court decided that choice of the minor is a factor to be taken into consideration but it cannot be a decisive factor in matters related to custody. The court also noticed that children can be influenced by older people to make a particular choice.

Conclusion:

A full-bench of the Supreme Court has recently issued a detailed plan for custody of minor children. The judgment provides that the children will stay with their mother (till they attain the age of puberty) and that the father shall be responsible for “education, uniform(s), books, and pick-and-drop from school”. The father shall also provide Rs 5,000 every month for the miscellaneous needs of the children. The visitation schedule is also provided in the judgment. None of the parents will incite the children against the other parent. All these guidelines should be used as precedent by lower courts while deciding the matter of custody of minor and visitation right of parents.

Can a woman claim maintenance for herself and her children from her husband without going to the court?

Maintenance under Muslim law is known as “nafkah”. It includes all amounts which a man spends on his family. Nafkah basically includes food, clothing and lodging. A Muslim husband is bound to maintain his wife and children under Muslim as well as Pakistani Laws. The quantum of the maintenance depends on the social and economic status of husband. It is his duty to maintain his family but if he denies or shows negligence in paying the maintenance to his wife and children then wife has two remedies against his husband. She has the right to file a family suit for the recovery of maintenance from his husband or she can file an application to the chairman of Union Council of her area to fix maintenance for herself and her children.

In Pakistan women suffer a lot. They are being oppressed and tortured by her husband and his family. They have not courage to go the court and take legal action against their husbands for their maintenance because they are being threatened of divorce if they will take any legal action.

The family law of Pakistan has given a relief to such women. Under Section 9 of the Muslim Family Laws Ordinance, 1961 a woman can apply to the Chairman of Union Council for the maintenance against that husband who fails to maintain his wife and children. The Chairman shall constitute an Arbitration Council to determine the matter. The Arbitration Council will issue a certificate specifying the amount which shall be paid as maintenance by the husband. Any amount which is payable by the husband, if not paid in due time, shall be recoverable as arrears of land revenue.

It shows that a husband cannot escape himself from the maintenance of his wife and children. A woman even without going through any legal action against her husband can claim her maintenance.

Advocate Anum Younis

#maintenance, #womenrights, marriage law in pakistan

KHULA-DIVORCE FOR OVERSEAS

Divorce/ Khula Procedure For Overseas Pakistanis

If you are an overseas Pakistani and you wish to divorce your wife or obtain a decree of khula from a Pakistan family court, you can do it without your presence in Pakistan.

PROCEDURE:

1. DIVORCE

(i) An overseas Pakistani husband wishing to divorce his wife (who is residing in Pakistan or whose ‘last known address’ in Pakistan is known), will execute a divorce deed and a special power of attorney, nominating any person present in Pakistan as his representative, and get these documents attested from Pakistan High Commission in the country of his stay and send these documents to Pakistan.

(ii) The divorce deed and special power of attorney will be counter-attested by Pakistan Foreign Office.

(iii) After attestation of these documents from Foreign Office, the representative, nominated through the special power of attorney, can file for Divorce Certificate in Arbitration Council of the area where wife is currently residing or where her ‘last known address’ is and initiate divorce proceedings.

(iv) After initiation of proceedings, the Arbitration Council takes 90 days to issue the Divorce Certificate.

2. KHULA

A Pakistani woman residing outside Pakistan can also file a case for obtaining a khula decree from a Pakistan court without coming to Pakistan, through the following procedure:

(i) She will execute a special power of attorney nominating any person as her personal representative. This power of attorney will be attested from Pakistan High Commission in the country of her stay and counter attested by the Foreign Office in Pakistan.

(ii) The personal representative nominated by the wife should have power to represent her, appoint a lawyer and sign documents on her behalf for proceedings in the family court.

(iii) The personal representative then can file a case, through a lawyer, in a family court for obtaining khula decree.

(iv) After obtaining khula decree, proceedings in Arbitration Council can be initiated for obtaining Divorce Certificate.

Can a Dependant Mother retain custody of her minor child?

adoption laws

In a recent court case 2019 SCMR 520, the question whether mother can retain custody became the bone of contention and it was argued before the Supreme Court that the mother was financially dependant on her parents. 

The Supreme Court decision by Honorable judge Mr. Faiz Isa ruled in favour of the mother. The court whilst decling appeal of the Petitioner father held that Petitioner was directed immediately and peacefully hand over the minor girl to her mother. In case of failure, the Social Welfare Department was directed to ensure that the child was handed over to her mother through a lady officer of the Department and in case of no lady officer, police women constable was directed to do the same. 

Apart from other legal points that came into consideration, an important point decided by the August court was that the plea of father that the mother lived with her parents and was financially dependent on them, therefore, presumably she was not able to support the minor, was dismissed and held that such presumption was contrary to law since the father was legally obliged to maintain his child and poverty on the part of mother was no ground to disentitle her from the custody of the minor child.