Child Custody Law in Pakistan
The recent trend in our society is seeing a paradigm change in matrimonial relationships, with an increasing number of divorce cases, particularly since the last two decades, while more and more middle and lower-middle class couples have been approaching family courts for divorce, resulting in the rise of bitter child custody battles. The innocent child/ children are often being used as a tool to seek vengeance by vindictive litigants who feel no hesitation in inflicting severe emotional and psychological abuse on the child, thereby seriously affecting the child in his/ her development in the later part of life. Among many implications that a divorce has on the individual, family and society at large, the children of divorced couples are the ones who bear the brunt of the entire process. It is a common practice among couples to use kids as pawns in this game of emotional chess and it amounts to absolutely irresponsible parenting to scar children emotionally post separation. In due course the parents move on with their lives and onto other partners but the children carry the trauma of being manipulated and torn apart emotionally, throughout their lives. In my legal experience I have seen a large number of these kids suffering from personality disorders, substance abuse, criminal conduct and anti social traits etc.
GUARDIAN & WARDS ACT 1890
The law pertaining to guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890. The primary consideration in guardian courts, whilst granting custody of minors to either parent or sometimes to grandparents or other relatives, is the welfare of the minor. The said law is the main mode of attaining custody of children. In guardian/ custody proceedings pending adjudication in a family/ guardian court there are three parties to the said proceedings, the Custodial Parent, the Non Custodial Parent and the Minor.
QURAN ON THE RIGHTS OF NON CUSTODIAL PARENT:
As per the provisions of Verse No. 2, Ayat No. 233 of the Holy Quran, no parent will be subjected to torture for being the parent of a child. The said provision is reproduced here to below for the perusal:
“ وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ لِمَنْ أَرَادَ أَن يُتِمَّ الرَّضَاعَةَ ۚوَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ ۚ لَا تُكَلَّفُ نَفْسٌ إِلَّا وُسْعَهَا ۚلَا تُضَارَّ وَالِدَةٌ بِوَلَدِهَا وَلَا مَوْلُودٌ لَّهُ بِوَلَدِهِ ۚ وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ ۗ فَإِنْ أَرَادَا فِصَالًا عَن تَرَاضٍ مِّنْهُمَا وَتَشَاوُرٍ فَلَا جُنَاحَ عَلَيْهِمَا ۗ وَإِنْ أَرَدتُّمْ أَن تَسْتَرْضِعُوا أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُم مَّا آتَيْتُم بِالْمَعْرُوفِ ۗوَاتَّقُوا اللَّهَ وَاعْلَمُوا أَنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ
Translation as per Mushin Ali
The mothers shall breastfeed their children for two whole years, (that is) for those (parents) who desire to complete the term of suckling, but the father of the child shall bear the cost of the mother’s food and clothing on a reasonable basis. No person shall have a burden laid on him greater than he can bear. No mother shall be treated unfairly on account of her child, or father on account of his child. And on the (father’s) heir is incumbent the like of that (which was incumbent on the father). If they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. And if you decide on a foster-feeding-mother for your children, there is no sin on you, provided you pay (the mother) what you agreed (to give her) on reasonable basis. And fear Allah and know that Allah is the All-Seer of what you do. (سورة البقرة, Al-Baqara, Chapter #2, Verse #233)
PARENTAL CHILD ABUSE
The most common kind of child abuse is parental child abuse which often occurs when the parents separate or initiate divorce proceedings. A parent may, remove or retain the child from the other parent’s custody, seeking to gain an advantage in the expected or pending child custody proceedings, or because that parent fears losing the child in the lengthy, pending child custody proceedings. A parent may refuse to return a child at the end of an access visit or may even flee with the child to prevent an access visit. This very retention by the parent can itself create tangible effects on a child psychology which often goes unaddressed.
The worst possible thing that can happen in a child’s life, apart from losing a parent, is to become a rolling ball in a parents’ divorce and the ensuing custody battles. Whilst the spouses and their families hurl accusations and try to get the better of each other, the trauma being suffered by the child may sometimes be overshadowed by the volley of hurt and anger of the parties.
Cases pertaining to custody/ visitation issues of the minors are not ordinary cases like the breach and enforcement of other civil rights/ obligations , such as property disputes etc. These cases have their own dimensions, repercussions and consequences, founded upon human emotions and the sentiments. The resolution and adjudication of this special kind of matters, therefore should be conceived, considered and settled in a different perspective and context, which obviously revolves around the welfare of the minor, but at the same time the natural feelings of the parents cannot be overlooked and ignored. If a parent means a lot to a child, the child may also mean the whole world to the parents.
THREE STAKE HOLDERS IN A CUSTODY LITIGATION
When there is a lis or dispute between the parents, there are three main characters in the scenario, a mother, a father and a child and in certain cases the brothers and sisters of the minor – they are all stakeholders and the emotions and feelings of every one of them should be kept in view while deciding the noted issue, in addition to the personal law applicable to the minor and the rules about his welfare as mentioned earlier which should be of pivotal consideration.
All of this put together contemplates that in the visitation schedule neither the mother should be deprived altogether of the complete custody of the minor nor should the father be deterred and prevented to meet and see his own child with whom under normal circumstances otherwise/ if the relation between the parents was normal, he shall have free access and interaction and be able to shower his love and affection. The same applies vice versa for the mother.
The third important character is the child himself, who, under the law of nature, should have the privilege of getting love and affection from both the parents, which is one of the greatest blessings of Allah Almighty, but if for certain reasons, the parents on account of their discord and disparity have fallen apart, the child shall not be deprived of having the maximum of what he/ she could achieve from either of the parents. And it does not behoove the adversary parties, who may even have hatred towards each other, to claim exclusive possessory rights over the child to the exclusion of others, like one could demand in the matter of property disputes etc.
DURATION OF A CUSTODY CASE
On an average, a family/ custody case under the Guardian & Wards Act lasts approximately three to five years in the guardian courts. During these years, owing to a lack of interaction between the minors and the non-custodial parents, the parent-child bond keeps on depleting and often completely breaks after a while. In a majority of cases it has been observed that the custodial parent keeps on brain-washing the minors against the non-custodial parent. On top of that, the guardian courts strengthen the revengeful motives of the custodial parent by not granting a reasonable visitation schedule between children and the non-custodial parent. It has been seen that the non-custodial parent initially struggles and contests the litigation in the hopes of getting justice, but then finally gives up after being disappointed. He/she re-marries, starts a new life and bears new children. As a result the minors normally end up losing one of the parents forever.
2 HOURS VISITATION ONCE IN A MONTH TO A NON-CUSTODIAL PARENT
Family matters were not to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of technicalities. Paramount consideration before the court must be the welfare of the minor and betterment of the minor. Courts in such a matter are required to act in a loco parentis position and many matters are required to be kept into consideration by the guardian court, which is not always the practice observed by the courts adjudicating guardian and custody matters pending adjudication in Pakistan. What has actually been done in a vast majority of cases pending in multiple guardian courts in Pakistan is that the non-custodial parents are subjected to abuse and victimization in the name of procedural technicalities especially during the pendency of divorce and custody-of-minor proceedings. Even after waiting for months for the first face-to-face meeting with his/her own children, the non-custodial parent gets an extremely limited visitation schedule to meet the children. This visitation schedule is often as little as ONCE IN A MONTH FOR TWO HOURS WITHIN COURT PREMISES. Surprisingly, this visitation schedule is being followed widely in the guardian courts of Pakistan for over decades and has now established precedence. In other words “once a month for 2 hours in court” has become a “template” of visitation orders being granted to non-custodial parents in guardian courts. In addition even the aforementioned visitation schedule of TWO HOURS can be conveniently avoided by a custodial parent simply by presenting a fake medical certificate showing they are unable to make it. In such cases the non-custodial parent is left with no choice but to wait for the next scheduled meeting. The guardian courts are generally very casual towards such excuses furnished by custodial parents.
PARENTAL ALIENATION SYNDROME
Being a lawyer I have witnessed that in most cases the flawed court systems were being manipulated to take revenge from the non-custodial parent (which is usually the father) by not letting him meet his children. It is extremely easy to delay proceedings simply by filing frivolous applications/appeals and assailing the orders to higher courts. Using similar delaying tactics, thousands of children are kept from meeting their non-custodial parent for months and in some cases, years. The guardian courts are unwilling to acknowledge the simple fact that the nature of a child custody case is entirely different from routine civil cases. Child custody litigation is a true representative of judicial litigation where “justice delayed is justice denied”. The mind of a child is like a perishable commodity. With the passage of time it is easy to change the innocent mind. Within months, due to a lack of interaction with the non-custodial parent and constant brain-washing by the custodial parent and his/her family, the children start losing memory of, and in many cases, start disliking, the non-custodial parent who was once extremely dear and loved. This phenomenon has been named by psychiatrists as the Parental Alienation Syndrome or “PAS”.
WELFARE OF THE MINOR
It is amazing how there exists no specific duration or frequency defined in the Guardian & Wards Act 1890 for granting a visitation schedule for minors. The prime consideration to decide a reasonable schedule is the “WELFARE OF THE MINOR”. In fact the entire Guardian and Wards Act 1890 is ultimately based on the welfare of the minors. The Guardian Judge is required to act/think as a parent in order to pass a decision. The extremely limited visitation schedule was adopted by guardian courts to avoid complications and hassles that arise during administering more frequent visitation meetings. However this negates the entire fundamentals of the Guardian and Wards Act, because taking a child away from a parent cannot be in the interests and welfare of the minor and should not be the solution to avoid administrative problems.
The non-custodial parents can be divided into two categories – those who have harmed their children and do not deserve custody or visitation, and those who are good, loving, parents who are not able to live with their child/children due to a divorce or separation with their spouse. Statistics prove that in 99% cases, non-custodial parents fall into the second category and deserve reasonable and regular visitation rights with their children.
In a vast majority of the cases a non-custodial parent has to wait for months before his/her first official meeting (within the court) with his/her own children. This delay is caused by the flawed/ inefficient system of the service of the notices. Delaying appearances in court by claiming to not having received the notice/summons is common practice.
In Pakistan, for reasons not conformed under the law, the guardian courts often hesitate in handing over the minors to the non-custodial parent for out-of-court meetings. This is often justified by the threat of illegal snatching of minors by the non-custodial parent and taking them out of the court jurisdiction. However it has been observed that the entire idea of running away with minors has evolved overtime and is a result of the frustration of not being able to meet with the minors. It is a fact that running away with the minors from the jurisdiction of court is often not easy. The non-custodial parent has to leave his/her social setup, home, business and a lot more in order to disappear with the minor children. He/she has to live like a criminal with the constant fear of being caught. The act of running away is normally considered as a last resort after being disappointed by the delayed and flawed judicial system. Had the guardian court granted a reasonable visitation schedule to both parents, the non-custodial parent would never be tempted to take the law into his or her own hands. It has further been witnessed that keeping the minors away from the non-custodial parents further aggravates the already adverse relationship between custodial and non-custodial parents. Most separated/ divorced couples after many years of litigation forget the actual reasons for separation and just fight over the visitation rights of children. Had the court not supported the element of revenge through children, matters could have cooled down between the parties with the passage of time.
QUASI PARENTAL JURISDICTION
In guardianship matters, courts should exercise quasi parental jurisdiction. The supreme consideration in such context would be the welfare of the minor, and to achieve such purpose courts have unfettered powers. Application under section 12 of the Guardian & Wards Act, 1890 was required to be decided on such principles. Admittedly, contesting parents have an inherent right to seek visitation of the minor, especially the non-custodial parent, who is mostly the father, who is inherently a natural guardian of the minor. Father is not only required to participate in the upbringing of minors but should develop love, bondage and affinity with the minors. In order to achieve this purpose, the guardian court should facilitate a congenial, homely and friendly environment and a reasonable visitation schedule to the non-custodial parent. Courtroom of a Guardian Judge or a separate room within the court premises for visitation or meeting purposes is neither conducive nor effective. It lacks basic and proper facilities and arrangements and is not comparable to a homely environment. Meeting for two hours once in a month cannot serve the purpose of meeting and it is not in the welfare of the minor to hold meetings there with the non-custodial parent.
It is therefore highly recommended that the guardian courts of Pakistan adjudicating guardian/custody cases should acknowledge the simple fact that the meeting of minors with the non-custodial parent should preferably be held at the premises of the contesting parent to familiarize minors with the environment there, to strengthen a healthy relationship between the minor and the non-custodial parent and dispel fears of a future reunion. Only in extreme and exceptional cases, the courtroom of a Guardian Judge could be chosen as a venue for which detailed reasons should be cited.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.