Fair Play, Natural Justice And Due Process In Child Custody Proceedings

Application Of The Principles Of Fair Play, Natural Justice And Due Process, In Guardianship / Child Custody Proceedings

According to Article 4 of the Constitution of Pakistan, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he or she may be, and for every other person for the time being within Pakistan no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The Constitution of Pakistan which is the supreme law of the land says that nobody will be dealt with against the law, therefore, every statutory functionary is bound to deal with an individual in accordance with the law and in any case he or she is not authorized to act against the law, misapply the law or misuse power. Similarly, according to Article 10-A of the Constitution, for the determination of his or her civil rights and obligations or in any criminal charge against him or her, a person shall be entitled to a fair trial and due process.

Article 10-A of the Constitution mandates that civil rights and obligations of citizens can only be determined through fair trial and due process. Provisions of Article 10-A of the Constitution morph Article 4 of the Constitution into a more robust fundamental right, covering both substantive and procedural due process. Substantive due process provides a check of legislation and ensures protection of freedoms guaranteed to a person under the Constitution. Provisions of Article 10-A of the Constitution are not limited to a judicial trial in the strict sense but require fairness from any forums which determine the rights of a person (reliance is placed on 2012 CLC 1236).

Under the provisions of Section 24-A  of the General Clauses Act 1897, where, by or under any enactment, the power to make any order or give direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment. It is further made obligatory for every authority, office or person making any order or issuing any direction under the power conferred by or under any enactment to, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction.

In guardianship matters, courts have to exercise quasi-parental jurisdiction and the supreme consideration in such context is welfare of the minor. To achieve such purpose, courts have unfettered powers. Therefore an application under S.12 of Guardians and Wards Act 1890 has been required to be decided on such principles. It has been observed by the honourable Lahore High Court in a judgment titled Umar Farooq Vs Khushbakht Mirza, and cited as 2008 PLD 527 LHC, that contesting parents, especially fathers, have the inherent right to seek visitation to the minor. A father is not only required to participate in the upbringing of minors but should also develop love, bonding and affinity with them. However, for reasons not known to the author, the learned Guardian/ Family Judges while exercising authority under the Guardian and Wards Act 1890 and Family Courts Act 1964, have evolved a template order for disposing off the applications filed under the provisions of Section 12 of the Guardian and Wards Act 1890 by the noncustodial parents, especially fathers, seeking grant of interim custody of the minors till the final decision of the petition. It usually faces dismissal either for being a premature one or on the ground that the same cannot be decided without evaluating evidence from both sides, though as a general practice, almost all the Guardian Courts appreciate the fact that the absence of interaction between the minor and his or her real non-custodial parent will result in estrangement between both the minor and the parent. For this reason, they consider a periodical meeting a necessity, yet they fail to give valid reasoning for subjecting that very meeting between the minor and the non-custodial parent to be conducted within the court premises for two hours, twice a month.

Non-custodial fathers fighting custody litigation for their children file applications before the learned Guardian Judges, under the provision of S.12 of the Guardian and Wards Act 1890. These are for the grant of interim physical custody of their children till the final disposal of the custody litigation pending adjudication. However, for the reasons of that application being premature, most of the times their applications are dismissed.

Surprisingly, child custody litigation is based upon protecting the interests of the minor as well as his or her welfare being of paramount consideration. However, while protecting the welfare of the minor, the courts in Pakistan often place restrictions on the enjoyment of fundamental rights by the minors without even giving any reason thereto. It is a settled law as enshrined in the provision of S. 24A of the General Clauses Act 1897 which states that every authority has to pass a speaking order while adjudicating civil rights of the litigants. This is done to give valid reasons as to why a fundamental right of the minor to have access to both parents has been curtailed. It is restricted to a 2-hour visit once or twice a month and that too to be held within the court premises instead of the home of the non-custodial parent. All these put together contemplate regarding the visitation schedule that neither the mother should be altogether deprived of complete custody of the minor, nor the minor child should be deterred to meet his or her own father with whom the minor could have free interaction or access and receive fatherly love and affection if the relationship between the parents had been normal.

More than 300 minor children are brought every Saturday to the visitation area comprising of two rooms measuring about 16 feet by 14 feet located within the court premises in Lahore for the purposes of meeting their non-custodial parents for two hours, save however in accordance with the non-speaking orders passed by the learned Guardian Judges in Lahore.

It is further pertinent to note here that there exist no facilities of sitting or playing with the minors being brought to the court premises every week. The non-custodial parents have to sit on the floor and spend time with their children, in pursuance of the inhumane orders of visitation passed by the learned Guardian Judges in Lahore.

It has often been witnessed that though the right to fair trial for the determination of civil rights is a fundamental right of every citizen of Pakistan, the concept of fair trial and due process has always been the golden principle of administration of justice. However, after incorporation of Article 10-A into the Constitution, it has become more important that due process should be adopted for conducting a fair trial and an order passed in violation of due process should be considered void. On the touchstone of this observation made by the honourable Supreme Court of Pakistan, it becomes abundantly clear that the Guardian Judges are under a constitutional as well as statutory obligation to assign valid reasons while curtailing fundamental rights of movement of the non-custodial parents. It imposes a restriction for an indefinite period of time that the non-custodial parent has to meet his or child/children for merely two hours twice a month and that too within court premises. It is peculiar to note here that no reason of any nature has ever been assigned to any non-custodial parent while dismissing the application filed under the provisions of S.12 of the Guardian and Wards Act 1890.

A right to life not only includes one’s own life but also the life, liberty and happiness of one’s children. Denying a person the right to the company of his or her children is as severe a penalty and a curse, more than denying him or her the right to life altogether. It is further reiterated here that a minor cannot be denied the right of access to his or her non-custodial parent (mostly father) during the pendency of child custody litigation before a Guardian Court under the provisions of the Guardian and Wards Act 1890. Furthermore, any restriction for an indefinite period of time can be placed on his or her freedom to have access to his or her real father. Giving directions to custodial parents to bring the minor for the purposes of meeting his or her non-custodial parent, acts as a restriction on the fundamental human rights of the minor as well as of the non-custodial parent. Without assigning any reason thereof, the access of the non-custodial parent is often seen to be limited to a two-hour meeting with his or her child and that too within court premises. Hence, the same falls within the classification of an unqualified and unreasonable restriction on the fundamental rights of access and movement, as the same is protected under the provisions of Article 15 of the Constitution of Islamic Republic of Pakistan.

It is further significant to observe that the question of whether law imposes reasonable restriction(s) on the freedom of movement of persons is justifiable. In determining this question, the court has to look at the nature and extent of the restriction(s), the manner in which it is imposed, the nature of the right alleged to have been infringed and the underlying purpose of the restriction imposed. However, in the matter at hand, not even a single aspect has been looked into by either the learned Guardian Judges functioning in Lahore, while access to non-custodial parents has also been restricted (reliance is placed upon PLD 1958 SC 41).

Additionally, it is significant to note here that it is the fundamental and basic human right of a child to share love, affection and the care of his or her mother as well as father. Furthermore, it is again a fundamental right of the child as well as of the non-custodial parent (mostly fathers) that their dignity and, subject to law, their privacy of home shall be inviolable. Time and again this has been observed by the Honourable Supreme Court of Pakistan to the effect that the right conferred under Article 14 of the Constitution is not limited to any premises, home or office, but to the person, the man or woman, wherever he or she may be (reliance is placed on PLD 1998 S.C. 388 and 2010 PLD 119 Karachi).

Moving on, it is peculiar to note here that the provisions of S.12(2) clearly place a condition on the exercise of jurisdiction regarding the appearance of female minors in court premises for meeting their non-custodial parents. The provisions of S.12 of the Guardian and Wards Act 1890 are reproduced below for better understanding of the subject:

“12) Power to make interlocutory order for production of minor and interim protection of person and property.

(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.”

A bare perusal of S.12(2) clearly postulates that special care and caution is required regarding the appearance of female minors on court premises for the purpose of their meeting with non-custodial fathers. Provisions of Article 14 of the Constitution of Pakistan further cement the fact that meeting one’s father on court premises, overcrowded by more than 300 to 400 strangers, infringes the very right of privacy of the female minors who are brought to court every Saturday. Meeting one’s father in court may still be better as compared to meeting him at his home. It is further pertinent to note that though the dignity of a man and the privacy of his home is inviolable, it does not mean that his privacy is vulnerable and can be violated outside the premises of his home.

Home in the literal sense will mean a place of abode – a place where a person enjoys personal freedoms and feels secure. The emphasis is not on the boundaries of home, rather on the person who enjoys the right wherever he or she may be. The term “privacy of home” also symbolizes the security and privacy of nature which a person enjoys in his or her home. It is peculiar to note that though privacy is inviolable, there exist no seating arrangements at the meeting place which is also crowded by a large number of people. This gives rise to the mischief of the concept of privacy of the home enshrined within the provisions of Article 14 of the Constitution of Islamic Republic of Pakistan.

Every judge, including the Guardian Judge is under a legal obligation to state reasons as to why he or she deems it fit that the minor shall be visited by one of the parents within court premises and there must be a reason as to why the duration of the said meeting should be as minimum as two hours only, within a complete month.

It is stated here with humility that every public or judicial functionary is duty-bound to decide upon the application of a citizen in accordance with S. 24A of the General Clauses Act and as laid down by the Supreme Court of Pakistan in 1998 SCMR 2268.

The provisions of Article 4 of the Constitution of Pakistan categorically lay down that it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with the law. If the provision of Article 4 of the Constitution is to be read in juxtaposition with the provisions of S.12 of the Guardian and Wards Act 1890, it is clear with regards to the first instance that the law is silent as to the selection of venue for meeting between the non-custodial parent with his or her child within the court premises, once or twice a month on the second instance and for two or three hours on the third instance. The practice carried out by the Guardian Judges at Lahore in respect of allowing meetings scheduled to be conducted within the court premises for two hours twice a month, is against the mandate of fundamental rights of citizens as enshrined within the regime of the Constitution of Pakistan 1973. A court of law without assigning any valid reasons cannot take any action detrimental to the life and liberty of any person, except in accordance with the law, nor shall a person be prevented or hindered from doing what is not prohibited by law.

There is no specific duration or frequency defined in the Guardian and Wards Act 1890 for granting a visitation schedule for minors. The paramount 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 minors. The Guardian Judge has to act/think as a parent in order to pass a decision. This extremely limited visitation schedule was adopted by courts to avoid complications and hassles from arising during the administration of more frequent visitation meetings. However, this negates the entire fundamentals of the Guardian and Wards Act, because taking away a child from a parent, and thereafter restricting his or her access to the child for a mere two hours and that too to be spent within court premises, cannot be in the welfare of the minor and should not be the solution to avoid administrative problems.

Even after waiting for months for the first face-to-face meeting with his or her own children, the non-custodial parent gets an extremely limited visitation schedule. This visitation schedule is often as little as ‘ONCE IN A MONTH FOR TWO HOURS WITHIN COURT PREMISES’. Surprisingly, this visitation schedule has been followed widely in the Guardian Courts of Pakistan for over decades and has now become precedent.

Keeping the minors away from the non-custodial parents further aggravates the already adverse relationship between the custodial and non-custodial parent. Most separated/divorced couples, after many years of litigation, forget the actual reasons of separation and start fighting over the visitation rights of children. Had the court not supported the element of revenge through children, things would have started to cool down between parties with the passage of time.

It is a God-given fundamental right of every child to be with his or her mother and father, may it be separately or with both of them together. There is no replacement for a natural father or a natural mother. The courts must exercise their powers to strongly discourage any effort by a father or mother to prevent their children from meeting one side of their family in case of a divorce or separation. It should be one of the foremost duties/responsibilities of a guardian court to protect the right of children to have reasonable access/visitation to their non-custodial parent.

It is an established fact that the children raised by a single parent tend to develop numerous psychological problems as they grow up. The effects include but are not limited to:

  1. Increased drug addiction
  2. Increased rate of suicide
  3. Increased ratio of involvement in crimes of a serious nature.

It is also important to note that despite a specific provision of the Constitution, no coherent doctrine of human dignity has emerged in our child custody jurisprudence. Only a handful of cases involving alleged torture, invasion of privacy and right to life have invoked Article 14 in the discourse. However, an entire spectrum of issues faced by the courts – including periodical meetings within the visitation areas, non-availability of facilities during the said meeting, acid attacks, illegal arrests, trampling on religious freedoms, availability of electricity and gas, public housing and free education – all of which touch upon the cores of human dignity, have not involved any discussion of Article 14.

It is time we break these shackles and embrace the idea of human dignity as an overriding concept in our human rights discourse. Only in this way, through emphasizing the dignity and respect of each human being, can we aspire to rid many of the social and legal plagues that rot the fabric of our nation. It is time that our honourable courts become open to the idea of interpreting Article 14 in a new and broader light that puts human worth at the center of the fundamental rights debate, allowing the law to transcend its letter and fulfil its spirit.

It is the need of the hour that some serious steps be initiated by our superior judiciary in this regard and the abuse of process of law carried out in the name of welfare of the minor(s) be brought to a halt. Special education and workshops are required to be conducted to raise awareness for the learned Guardian Judges so that they are obliged to pass speaking orders while acting as a Judge and while curtailing civil rights of non-custodial parents (mostly fathers). They must assign valid reasons as to why a minor should be brought within court premises for the purposes of meeting the non-custodial parent, especially when every case is required to be decided on its own facts.

It is further most humbly suggested that the learned judges appointed as Guardian Judges shall be given special training to the effect that the principles of natural justice are fully applicable in guardianship proceedings as well. If an accused is the most favourite child of criminal law, then a non-custodial parent shares almost a similar status in child custody litigation. Hence he or she should be considered a human being at least if not the most favourite child of law and must be given basic amenities which he or she is entitled to, under the Constitution of the Islamic Republic of Pakistan.

The Honourable Chief Justice of Lahore High Court is requested through this article to please take notice of the affairs being carried out in Guardian Courts throughout the Province of Punjab. A direction should be issued to all learned judges functioning within the supervision of this honourable court, in the Province of Punjab, to ensure the protection of fundamental rights, such as the right to fair trial, right to privacy and dignity, and other rights of children from broken families and children of non-custodial parents, by announcing a reasonable, at home, “MINIMUM STANDARD” visitation schedule right from the start of the child custody litigation. This would be in a similar manner as that of the fixation of interim maintenance allowance under the provision of Family Courts Act 1964. This relief of “minimum, at home, visitation schedule” should be available to all non-custodial parents without discrimination, from the very beginning of the trial.

———-

References

Constitution of Islamic Republic of Pakistan
Family Court Act 1964
General Clauses Act 1897
Guardian & Wards Act 1890
Report of the Director, Applied Psychology, University of the Punjab, submitted in Writ Petition 28566/2011

 Citations

  1. PLD 1958 S.C 41
  2. PLD 1998 S.C 388
  3. PLD 2007 642 S.C.
  4. PLD 2010 605 (DB) LHR
  5. PLD 2010 119 KHI
  6. 1998 SCMR 2268
  7. 2012 SCMR 1235

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Fahad Ahmad Siddiqi

Author: Fahad Ahmad Siddiqi

The writer is a Lahore based lawyer advocating for adoption, the application and implementation of principles of shared parenting, and the rights of non-custodial parents involved in child custody litigation in Pakistan. He can be reached at [email protected]

43 comments

FIR against defaulting lawyers

sir
As per law an FIR is registered against anyone who issues a banking cheque Rs50000. and above but the same bounces. Similarly, it would be wortwhile to pass a law against lawyers who take professional fees from clients through cheques but fall under the mischief of non-prosecution of law cases. Both these acts are deliberate in promising without making arrangement and equally culpable at law for breach of trust and fraud .Moreover, it should be made a compulsory rule for advocates to issue proper receipt of the professional fees paid to them or draw an agreement with their clients to that effect failing which criminal action should be taken against them as well. Issuing of a bogus cheque and non-prosection of cases after receiving confirmed professional fees are both heinous crimes and ought to be dealt with similarly. Mere disciplinary action by the Bar has not been effective in correcting the conduct of the defaulting advocates hence the judicial system as a whole. Only by taking such step will definitely eliminate dirty tricks played by black sheep of the advocacy and bringing some comfort and relief to the litigating clients who. in fact. are the wretched victims. It is hoped that our Chief Justice will put his mind to this ugly rampant act among unscrupulous lawyers and pave a clear way to rule of law and justice.

mazhar butt

I think this is one of the best & elaborated article i ever read on this topic. The current procedure of guardian courts is, some how, violating the basic principles of Article 10-A. This article is covering the both social & legal aspects of custody issues so, worth reading.

Parents : Best in our interest
.

Home in the literal sense will mean a place of abode – a place where a person enjoys a personal freedom and feels secure….

Home …where life is …. court is a fish market snatch n sold….

Kids come there for the greed of gifts not to meet da parent
Excelkent induction????????

Truly appreciated.
U have floated good ideas and suggestions.

I want to know that why u dont think that instead of meeting schedules at home, the meeting areas in court premises should be facilitated while enlarging them and these areas be converted into cabins / boxes with proper sitting place and availability of food items, toys etc…. ((like a private cafeteria))

Sir, I think it depends where you want your kids to get familiar with

If they aspire to be criminals then getting them used to court is fine

If they aspire to be respected members of your family, then there is no place like home

Atif Bhai may be you said correct considering advocate perspective. If all NCPs will have home visitation schedule then law businesses may face serious fall. Butt If you consider NCP perspective then home visitation is better for both NCP and children.
More over even a lawyer can not think that court premises is suitable for his / her own child to meet.

with due respect if some one your loved one pressurized meet with you every month in GOLD cage will your thinking remains same Atif Khan.
what is your answer in that situation I am waiting

Dear Advocate Atif Khan sb with due respect would u like to tell me either these kids and fathers/Non Custodial parents are animals,Hen,Pigeon,Parrot,or some thing else u are puting them in cabin would u like to meet with Yours own kids in a cabin i may arrange a cabin for you and Yours children’s and You along with Yours family meet with them in a cabin along with food items non custodial fathers are sound enough to gift you and yours kids a Cabin for life time Would you like to tell me according to which law you and this Judicial system puting these kids under restriction meetings every country is going towards Join coustidy Home Visitation to normalise kids life which are more effecti of divorced parents instead to bring normality in their life you are trying to restrict them in cabin sorry to say dear this is very unfortunate for me That a Lawyer could suggest this to arrange meeting in a cabin or court premisses you should know wht kind of impact will it leave to the kids and wht abt those fathers im posting conclusion and joint coustidy article from Barcelona University written by professor to get some knoledge lawer sb for you
Joint Custody
The concept of custody (guarda y custodia) is inseparably linked to that of parental authority. Joint physical custody or refers to a parent-chosen and court-ordered schedule according to which the child stays with each parent at alternating intervals. Parents may agree on sole or joint exercise of their parental authority taking the best interest of the child into account (Art. 92.4 CC). Court decisions on custody take the preferences of parents and children into account as well as the family organisation prior to divorce. Generally there is a preference in most families to opt for maternal custody in the case of divorce. Likewise, judges attribute custody more frequently to mothers because they have more time available22
. In respect of the best interest of the child the family accommodation is assigned to the child or children and the parent with whom they live (Art. 96 CC). The non-resident parent has the right to visit the children, communicate with them and have them in company (Art. 94 CC).
One of the aims of Law 15/2005 was to facilitate joint custody as a preferred post-divorce parenting option23. The introduction of joint custody as a preferred parenting option has given fathers the possibility of contributing more actively in post-divorce parenting. Among the motives for this reform was the introduction of the principle of parental co-responsibility in order to facilitate the reconciliation of work and private life. Joint custody may also be granted in non-consensual divorces on a parent’s request and upon a favorable report of the Public Prosecutor if this is to guarantee the best interest of the child (Art.92.8 CC). In this context the Civil Code of Aragón is explicit as it states that despite a parent’s opposition against joint custody this may still be the best option to safeguard the best interest of the child (Art. 80.5)24. In the Autonomous Community of Valencia, Act 5/2011 foresees joint custody for both parents in non-consensual divorces as a general rule and states that a parent’s opposition against joint custody or the parents´ lack of consensus is no obstacle to this rule (Art. 5.2)25
.
These legal provisions are in accordance with results obtained from psychological research results. Several authors have emphasized the importance of the child’s maintaining a relationship to both parents after divorce. Especially long-term studies have underlined the importance of reliable relationships for a child’s development of both, a positive self-concept and social competence26
22 See KELLY (2005, p. 26f.). . The self-concept depends primarily on a successful identification with both parents provided that they themselves have self-esteem. This is a pre-requisite for a person’s
23 See Act 15/2005 of 8 July on the Modification of the Civil Code and the Law of Civil Procedure in the Field of Separation and Divorce.
24 See Artículo 80 Código Foral de Aragón. Guarda y custodia de los hijos.
and If you coluld tell me according to which article of Guardian Ward act You are Restricting Meeting of Kids and father in Court premises if this is law then please telll us if its only presdent then it have to change now

There is no substitute of a home environment.What will be a person feeling who is meeting his 12 year daughter surrounded by dozens of mens. This is only a father can feel not a lawyer.Sencondly if meeting is arranged in court premises or even a designated place then what remains the difference between a child and prisnor.

Its a great effort fahad Sidiqui sb.. ????
Minor must be allowed to stay at his/her non custodial parent for 3 days a week at that parent’s place..

“Quote”
There is no specific duration or frequency defined in the Guardian & Wards Act, 1890 for granting a visitation schedule for the minors. The basic paramount 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.
“Un-Quote”
I do agree with the consideration of the Law that a School going child has to attend to His / Her studies, because of which higher frequency of meeting should not be allowed with in a week, but the Guardian Court’s fail to make a better solution by shifting that meet to Sunday where the Non – Custodial parent can spend time more comfortably with their children with respect, since Welfare of The Minor does mean respect for and to the Child which is being ignored by the Guardian Court unless and until a child is given a respectable place to meet with a non-custodial parent how can the alienation and hatred towards the non-custodial parent can be controlled, since most of the children are scared of the visitation places provided by the Guardian Counts, further more a non-custodial parent is not a monster who would not consider the betterment of their child and would give advantage to the child by forgoing a visitation if its due to exams or God for Bid illness of the children.
“Quote”
It is further most humbly suggested that the learned judges appointed as Guardian Judges, shall be given special training to the effect that the principles of natural justice are fully applicable in guardianship proceedings as well
“un-Quote”
This is the most important factor of Guardian Courts that is being ignored by Judicial System
Judge that are responsible for these court are least aware of this proceeding. there is no check list nor are the Judges aware of what is written in the application and what is the process defined for such proceedings fact of the matter is there isn’t any process defined for these proceeding in law there is no check list for the judges where they would have a moral obligation for new Judges its just a criminal proceeding which the Munshi can manage most of the Munshi’s are the one that accept or reject the application and Judges are not even aware of that they have done.

I would lastly comment, the court should at day one have a procedure for parent child meeting in a respectable manner and place so that the child alienation can be eliminated, Judges should have a training of at least one month before they are entrusted with this Chair, both the parents should be imposed with personal guarantees by at least 2 close relative to ensure they would not create any hindrance in court orders and proceeding, where they should be well aware what sort of punishment their guarantor would have to face if they fail to comply

Dear Atif, first of all please accept my gratitude for ur soft words of appreciation, secondly it is to be understood that the divorce/ Separation / Dissolution of marriage on the basis of Khula occurs between the spouses and never between the Parents. A Child is always in need of both of his parents, and i understand that by compelling a child to meet his non custodial parent within the court premises is like penalizing the child, who should not be punished and penalized for a wrong which he has not committed, i believe that to have a free access to one’s parent is an inalienable right of every minor child irrespective of the fact that their marital knot is intact or otherwise,
Meeting within the court premises does not serve the very purposes of meeting at all, contesting parents have inherent right to seek visitation to the minor, especially father, who is a natural guardian- Father is not only required to participate in up-bringing of minors but should develop love, bondage and affinity with them, you cannot expect a child to develop a healthy relationship with his Non Custodial Parent while meeting with him for just two hours within the Court premises.
An average custody case lasts three to five years in the guardian courts. During these years, due to lack of interaction between the minors and the non-custodian parents, or the restricted interaction comprising of a merely two / three hours, the parent-child bond keeps on depleting and often completely brakes after a while. In majority of the observed cases, the custodian parent keeps on brain-washing the minors against the non-custodian parent. On top, the guardian courts strengthen the revengeful motives of the custodian parent by not granting reasonable visitation schedule between children and the non-custodian parent. It is seen that non-custodian parent initially struggles and contests the litigation in hope to get justice, but then finally gives up after being disappointed. He/she re-marries and starts a new life and bears new children. In result the minors normally end up losing one of the parents forever.
And in cases where the minors are in custody of the custodial parents and are being used as a tool of revenge by not them meet the Non custodial parents, the Non custodial parents often respond by stopping the maintenance money to the family. I have met many fathers in the Guardian Courts who say Meeting within the Court premises for two hours in a month is rather torturous.
Thus, keeping the minors away from the non-custodial parents further aggravate the already adverse relationship between custodial and non-custodial parents. Most separated / divorced couples after many years of litigation, forget the actual reasons of separation and start fighting on the visitation rights of children. Had the court not supported the element of revenge through children, things would have start cooling down between the parties with the passage of time. Meeting in court premises does not serve the very purpose of meeting and is not in the welfare of minors to hold meetings there—Meetings of minors with parents should preferably be held at the premises of contesting parents to familiarize minors with environment there , to strengthen a healthy relationship and dispel fears of future re-union.

I must appreciate your efforts to write an article in such a details manner. The Non Custodian parent (either father or mother) is always on the suffering end, and the Guardian/Family Judges who are dealing with these cases take this issue on very lighter note. You have given the example for Lahore, situation is same for Islamabad too, If the custodian parent do not bring the child for meeting, court very gracefully give 2,3 chances and even then they are reluctant to send bailiff for production of the minor. The meeting schedule is worst offered to Non Custodian parent, no proper place to sit with your kid. Moreover the senior judiciary always appoint the newly hired/selected judges as family/guardian judges, the experienced lawyers do exploit these situations, and the newly appointed judges are always reluctant and under pressure to pass any strict order, as their performance is under examination at that stage.

It is sad reality of the society that the divorce rate is increasing alarmingly, but the higher forums (Supreme Court/ High Courts) should give some clear directions for dealing with these issues, in particular with the Child- Non Custodian parent meeting just as we see in western countries.
I must appreciate efforts of Mr.Fahad Siddiqui who is dealing with these issues whole whole heartedly and trying to get some positive orders from higher courts to deal with meeting plan for Non-Custodian parent with the kid. May Allah bless him in his efforts and i urge all the Non-Custodian parent (either father/ mother) not only from Lahore but nationwide to support him in his cause ,and which will ultimately help us to get proper time with our kid. Regards.

I am really feeling Good to see All these efforts made by Mr Fahad Ahmad Siddiqi. Absolutely great Job done for NCPs who are really suffering from the decision regarding visitation rights made by guardian courts. We really have to raise voice for the alteration or amendments in GWA 1890 for proper visitations scheduled. We are with you Mr Fahad. I really Admire your efforts. Best of luck.

Dear Fahad, your sincerity to the cause of reducing the pain and suffering of humanity from this most distressing , yet commonly ignored pain , is reflected in your research and writing. Allah bless you and your work.

The article alone is sufficient to get fundamental loopholes ironed out the existing framework. We should push for a Child Protection Bill! Unfortunately we are so busy with our own survival to realise that constitutional provisions and protections themselves provide shields to people with malafide intentions or those who are simply vengeful. By the time these cases are decided custodial parents lose a vital opportunity to bond with children, if they of tender age, and cause irreversible harm to the future of these kids.

Very good article It is really need of the time. Our courts and judges must have to change their mind set.Childern should meet their non custodian parents in only home environment.They should not meet their non custodian parents (mostly Fathers) in court premises like prisners.

sincerely acknowledges for your valuable support and hard work. You have set a milestone and a benchmark.

Exactly. My experience is similar. Where the jawaabdaawa that I submitted wasn’t even read. I was simply told that they would only ask my wife whether she wanted to stay or not and that would be the end of it. A year later I found that she did all this so she could marry the boyfriend she had acquired during her stay in the UAE. Isn’t that true that the ten accusations leveled against me in my khula case were based on fabrication and falsehood. Alas, Family courts do not have investigation authority. They only rely on what they see. Today my child is exposed to a step father, an Indian and a Hindu all thanks to my beloved country’s legal system. They’ll refuse to acknowledge the rights of the child and the NCP under the garb of “WELFARE OF THE CHILD.”

Indeed a very detailed analysis Siddiqui sb. As a suffering NCP I can only hope that the Honorable Guardian Judges see the light of your argument. The sad fact is that a considerable percentage of people have taken undue advantage of these laws since they tilt in favor of the females. The dangerous trend of divorce is on the rise and there will be a rebound. It will take time though. For God’s sake let us stop mimicking the western countries.

Congratulations to Author who did a Nice job to write this Article and really raise a voice regarding this core issue and injustice.
There is a need to think about that what our judiciary doing and depriving basic fundamental rights of our children and non custodial fathers our children is a future of our country those are suffering like a LITTLE PRISONER in our courts without committing any crime and their non custodial fathers also suffering due to these unjustified and unlawful self made trends of our judges and courts who creating unnecessary hurdles in meeting between non custodial fathers and minor and raising complex unnecessary court litigation regarding section 12 of G&W Act 1890 of meeting with child and interim custody of Minor
I appreciate the struggle of writer of this article who really a Trend Settler in the history of our judicial system
Congratulations

Excellent analysis. Gives a very detailed insight into guardianship laws whilst at the same time also portraying the unfortunate lack of human touch in our judges and the rottenness of the system!

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