Welfare Of The Minor With A Therapeutic Perspective In Family Law Jurisprudence In Pakistan
The parable of the houses built upon rock and sand is one of the oldest and most well-known stories, and illustrates the importance of the foundation in building secure and lasting institutions. It serves as a useful metaphor for the importance of jurisprudence in family law. A principal meaning of the term jurisprudence, especially as it is used in legal scholarship, is, the “philosophy of law”. The pertinent meaning of the term philosophy is the knowledge, “the principles of human behavior; the study of morality; ethics, also …. virtuous living”. Thus jurisprudence concerns conceptual foundations, the cornerstone principles that undergird the system of laws that regulate a particular realm of human behavior. The jurisprudence of the family is concerned with the foundational principles that underlie the family law and the regulation of families and family relationships. The purpose of jurisprudence of the family is to acquire and apply a correct understanding of the foundational principles of moral and virtuous family relationships- to channel and protect by law the human behavior that produces happy and healthy families. Since the jurisprudence of families concerns conceptual foundations, the parable of the houses built upon rock and sand, illustrates that the importance of foundations for structural soundness has long been known and has long served as a metaphor. Likewise, an institution such as the family is based on foundations that may be strong or weak, contributing to their integrity or collapse.
The task of jurisprudence for legal realists is a practical aim to ensure that judicial decision making promotes social welfare and increases the predictability of legal outcomes. This focus on the functional effects of judicial decision making requires sufficient knowledge of the social sciences to enable judges to understand social policy implications when fashioning legal remedies.
Legal realism has dominated judicial decision making in most areas of the family law jurisprudence, however, it reflects the law’s inconsistency with families’ real life experiences and with relevant social science research in child development and family relations. Historically, judges have attempted to fashion morality in the determination of family legal issues rather than to devise legal remedies that accommodate how families live. This approach to decision making must change if family law jurisprudence is to effectuate the well-being of families and children. A new approach to family law jurisprudence can assist decision makers to account for the realities of families’ lives when determining family legal issues.
The lack of legal realism in family law is troublesome given the extent of court involvement in the lives of families and children. A recent study has revealed that family law cases constitute about thirty-five percent of the total number of civil cases handled by the majority of our nation’s courts – a percentage which constitutes “the largest and fastest growing part of the state civil caseload”. The focus of judicial decision making in family law needs to be regarding how the state intervenes in family life, rather than whether the state ought to intervene, as court involvement itself constitutes state intervention.
Changes over the last few decades in the structure and function of the Pakistani family, as well as the relative complexity of contemporary family legal issues, challenge judges to adopt an appropriate jurisprudential philosophy that addresses these transformations. The tremendous volume and breadth of family law cases now before the courts, coupled with the critical role of the family in today’s society to provide stable and nurturing environments for family members, requires that judges understand relevant social science research about child development and family life. This informed perspective can assist decision makers to dispense justice aimed at strengthening and supporting families.
What constitutes welfare of the child?
There are several important factors that are taken into consideration in determining the welfare or interests of the child in custody disputes. In the classical English case of J. & Anor. V C. & Ors. the phrase ‘paramount consideration shall be the welfare of the child’ has been defined as:
“… a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare”.
In Islamic law, this principle has long been established by jurists. Almost 900 years ago, Ibn Qudamah in al-Mughni said: “The ultimate purpose of hadanah is to ensure that the welfare of the child is protected”.
Sayyid Sabiq in his book Fiqh al-Sunnah states: “Both the persons who have the right to hadanah and the person over whom hadanah is exercised have their rights but the rights of the person over whom hadanah is exercised are stronger than the rights of the person who has hadanah”.
Welfare of the minor child is ‘the first and paramount consideration’. This phrase was explained by Lord Mac Dermott in a well-known passage in J v C  AC 668, 710, which is as follows:
“Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term is now to be understood. That is the first consideration because it is of first importance and paramount consideration because it rules upon or determines the course to be followed”.
Lord Mac Dermott could have put this more simply. He could have said that ‘first and paramount’ is an example of the drafter’s duplicity (now obsolete). It uses what Langton J once called ‘resounding adjectives’, and simply means ‘paramount’. ‘Paramount’, Lord Mac Dermott could have said, simply means ‘overriding’. He could have spared us the nonsense about the top item in a list of items. He could have stated, as is the case, that ‘first consideration’ taken by itself is practically meaningless. It is a chosen example of the phrase which, to the unthinking, appears significant but in fact, when examined, is found to have no clear meaning.
As the welfare of the minor is the paramount consideration, such welfare would prevail over parental rights. Parental Rights would enter into consideration as one of the factors in considering the welfare of the child, but not as a dominating factor, where it would conflict with the welfare of the minor child.
As Scrutton L.J. said in his picturesque language, “Proceedings for obtaining the custody are being used, not for the body but for the soul of the infant”.
Justice Dhingra of the Honourable Supreme Court of India observed while determining a child custody case:
“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of child contained in either the Guardians and Wards Act, 1980 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child are predominant consideration. In fact, no statute on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration”.
Justice Saqib Nisar of the Honourable Lahore High Court as he then was, observed while determining a child custody dispute in the following terms:
“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 the property disputes etc. These cases have their own dimensions, repercussions and consequences, founded upon the 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 the parents mean something great for a child, the child may also mean the whole world for the parents. In such cases therefore, (when the lis is between the parents), there are three main characters of the scenario, a mother, a father and a child and in certain cases the brothers and sisters of the minor, they are all the stakeholders and the emotions and feelings of every one of them should be kept into view while deciding the noted issue, besides the personal law of the minor and the rule about his welfare as mentioned earlier which should be of pivotal consideration. All these put together contemplate that regarding the visitation schedule neither the mother should be altogether deprived of the complete custody if she has the lawful custody of the minor (until her right of custody terminates on account of some court’s order or otherwise), nor the father should be deterred and prevented to meet and see his own child with whom in a normal situation, he shall have free access and interaction, and could shower his love and affection, if the relation between the parents was normal; this also is a true position vice versa. The third important character is the child itself, who under the law of nature should have the privilege of the love and affection of both the parents, which is one of the greatest blessings of God Almighty, but if for certain reasons, the parents on account of their discord and disparity have fallen apart, the child should not be deprived of having the maximum of what he/she could achieve from either of the parents. And it does not behave like the adversary parties, who may even have hatred towards each other to claim, exclusive possessory right over the child to the exclusion of the other, as one could demand in the matter of a property dispute etc. Besides, it may be clearly understood that the father is the natural and legal guardian and under the Islamic Personal Law, the right of the mother to “Hizanat”, in case of a male child, terminates around the age of seven years, (this observation, in no manner, shall be construed as causing any prejudice to either party on the issue of a minor’s custody), which has a nexus and must be kept into view while considering the question of visitation. The father, once the child has passed the age of seven years, must have maximum interaction with the minor even if the custody is with the mother, but this again should be subject to the rule of welfare of the minor; if for any reason it shall be against the noted principle, the court should either restrict the visitation or can even decline or otherwise prevent the minor from meeting with his/her father if it may cause an estrangement, prejudices, psychological intricacies and cobwebs in the mind of the child, which may ultimately prove to be a pivotal vice and a shortcoming in the growth of his/her personality on the count that he/she, at the relevant time, could not get sufficient love, affection and company of his//her father, which a normal child would enjoy. It is a matter of concern that it is quite unnatural rather harsh and coercive to hold that though the father is the legal and natural guardian of the minor and has the right of supervision under the Islamic law as well, yet has to wait for a week, a fortnight or a month or even more than that in certain cases, to meet his child for the reason that the custody under the court’s order or otherwise is with the mother or the matter is sub judice. All this as mentioned is true for the mothers as well, who are the de fecto guardians of their children, keeping the child in their womb for 9 months and undergoing the labour pains, the rigour of feeding, nurturing and raising them; a child is a part of their flesh and it is for this reason why, in Islam, Paradise is said to be underneath the mother’s feet. One is really shocked, dismayed, disappointed and disgusted to see that in the Family/Guardian Courts, the parents waiting to meet their own children, get an opportunity which they might be having after weeks or months but which may only last for not more than an hour or so. The food, clothes, sweets and toys brought by them are sometimes not accepted or are thrown away by the child, because he may have the instruction not to take them by the one from whose custody he/she is brought in, coupled with the staring of the adversary party may also spoil the pleasure of such a short meeting. The court should be liberal ‘in chalking out the visitation schedule of the minor with the parents, obviously keeping in view his/her welfare. And in the instant case, only two factors have been indicated against the above principle. Firstly that there is a stepmother in the house and secondly there is not enough accommodation enabling the child to study and/or on account of his/her night custody with the father or full 10 days visitation, his/her tuition/study shall suffer.
It shall be against the welfare of the minor, if he/she is kept away from the father, because besides the love and affection from which he/she shall be deprived, he/she may develop an estrangement, which would not in any way be in his/her best interest”.
Reliance is placed upon 2009 CLC 1443.
As per my humble understanding, it is the need of the hour to expand the meaning and scope of the principles of welfare of the minor and afford more rights of access to the minor children towards their non-custodial parents. We need to implement the concept of shared parenting as the only solution to address and serve the interests as well as the welfare of divorce-affected minors. We as a nation and society, have to appreciate the simple fact that custody and co-parenting also have direct effects on physical and psychological well-being (for example on hormonal assessment, on biomoral parameters, on behavioural risks like alcohol, tobacco and drug use, even on chromosomal structures), so it would be necessary to consider this issue not only from a juridical point of view but also by using a comparable scientific language. Shared parenting has been recognized by the research community as well as by legal and mental health practitioners as a viable post-separation parenting arrangement that is optimal to child development and well-being. There is consensus that both legal and psycho-social implementation of shared parenting as a presumption should proceed without delay, with the full sanction and support of professional bodies and associations.
  AC 668, pp.710-711.
 Ibn Qudamah, Ahmad bin Muhammad, n.d., Al-Mughni, Riyadh: Maktabah al-Riyadh al-Hadithah, vol. 9, p. 153.
 Al-Sayyid Sabiq, 1987, Fiqh al-Sunnah, Beirut: Dar al-Kitab al-‘Arabi, vol. 2, p.302.
This article was previously published in Lawyers Club India and is being republished here with permission.
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