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.
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.