6 January 2014
I’m getting a divorce, what about my child?
I can fully support my child, how do I get custody?
I don’t want him seeing my baby anymore, is that possible?
She isn’t a good mother! How do I keep her away from my son?
(Answers provided hereinbelow)
The increasing statistics of divorce in Pakistan are often blamed on various socio-economic factors that have changed over the past few decades. Education, independence, exposure (specially access to the internet) and upbringing are all factors that appear to have had an effect on the choices that married couples make.
The discussion surrounding divorce, and the reasons/factors thereof, is unending. The important question is what happens after the end of a marriage, specially when children are involved.
The following post is to provide basic guidelines in respect of custody of children, a decision that often haunts most parents even beyond the decision they have to take for themselves.
1. The most important aspect for the courts in Pakistan, by and large, remains what would be the best interest and welfare of the child (see, Karisma Bibi vs. Additional District Judge Attock, 2009 YLR 1522).
2. Father: Under Islamic law, a father is the natural guardian (al waley) of his children’s persons and property. Section 359 of the Muhammadan Law provides:
359. Legal guardians of property- The following persons are entitled in the order mentioned below to be the guardians of the property of the minor:-
(1) the father;
(2) the executor appointed by the father’s will;
(3) the father’s father; and
(4) the executor appointed by the will of the father’s father.
As per the aforementioned, the legal guardianship of property of a minor is primarily vested in the father of the minor. The father may also appoint an executor to act as the guardian of the property of his infant child by will. According to Shari’a, a child’s paternal grandfather is his or her natural guardian after the father.
3. Mother: A mother, generally, has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father’s family. Section 352 of the Muhammadan Law provides:
352. Right of mother to custody of infant children.- The mother is entitled to the custody of (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
4. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child.
5. The father or mother seeking custody must have reached majority and must be sane. He or she must also be capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the welfare of a child (see, for information, Jamal J. Nasir, The Islamic Law of Personal Status (1990)).
Hope this information provides some guidance in trying times. It is, however, prudent to still consult (even if on a preliminary basis) a lawyer, experienced in family matters, in such cases.
Aggrieved parties (the persons seeking a divorce/custody or their families) often apprehend the reaction(s) of society, family, friend and other (uninvolved) third parties and refuse to seek professional help and assistance that a lawyer can provide. Such apprehensions cause irreparable damage and a consistent tug-of-war between the parties (and usually their families). For the best interests of the child (or children) and the parties, it is advisable to instead attempt to resolve all outstanding issues at the initial stages and prevent any recurring disputes to ensue.
Please note that lawyers and professional consultants are bound by a duty of confidentiality with their clients and are obligated to protect any disclosure / information received by them in the course of duty. You may re-iterate that in the meeting with your consultant (see, Muhammad Ahsan vs. Altaf Hussain, 2000 YLR 1102 (Karachi)).
The response to the frequently asked questions is as follows:
Q. I’m getting a divorce, what about my child?
A. You can file an application for the custody of your child. Courts are most inclined to decide in the best interest of the child depending on the facts of your case.
Q. I can fully support my child, how do I get custody?
A. The well-being of your child is by and large the most important aspect for the courts. Responding to the emotional, physical and social needs of the child give great anchor support to your application/case.
Q. I don’t want him seeing my baby anymore, is that possible?
A. A mother, generally, has a right to physical, not legal, custody of her child until the child reaches puberty after which the child is returned to the physical custody of the father or the father’s family. The above is standard practice unless the applicant can provide evidence to that court that the welfare of the child lay in his/her custody remaining with the mother (see, Karisma Bibi vs. Additional District Judge Attock, 2009 YLR 1522 Lahore).
She isn’t a good mother! How do I keep her away from my son?
A. The father is the natural guardian (al waley) of his children’s persons and property. Courts usually prefer the child remaining with the mother until puberty unless the same can be refuted by evidence to the contrary provided by the father.
Create your future from your future, not your past. – Werner Erhard
Disclaimer: The above information is not legal advice as legal advice must be tailored to the specific circumstances of each case. Nothing provided herein should be used as a substitute for advice of competent counsel.
Myra Khan Qureshi is a Barrister-at-Law from the Honourable Society of Lincoln’s Inn and Vice Chairperson Women Rights Committee of the Lahore High Court Bar Association. She is currently practicing law in Lahore, Pakistan.
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