The dissolution of marriage through separation or divorce invariably impacts the family unit. One of the most sensitive and contentious issues arising thereafter is the custody of minor children. Both parents, owing to their natural affection, often resort to all available legal forums in an effort to secure custody. However, in this contest, the primary consideration – the welfare of the minor – is frequently overlooked. Custody disputes, whether within or outside the courtroom, inevitably subject children to psychological, emotional, and social distress.
Jurisdiction of Guardian Courts and Preference to the Mother
Under Pakistani law, the Guardian Court is the competent forum to adjudicate matters pertaining to the custody of minors. The guiding principle for the Court is the welfare of the minor, encompassing physical, emotional, moral, and intellectual well-being.
Traditionally, in accordance with Islamic law and judicial precedents, custody of a male child is ordinarily granted to the mother until the age of seven, and custody of a female child continues with the mother until she attains puberty. However, such entitlement is not absolute and remains subject to the welfare of the minor.
Habeas Corpus under Section 491 Cr.P.C.
Where a father forcibly or improperly retains custody of minor children, the mother may invoke the jurisdiction of the Sessions Court or High Court under Section 491 of the Code of Criminal Procedure, 1898 (Habeas Corpus). Although a father’s custody is not inherently “illegal,” superior courts have consistently held that where custody is “improper” – such as in cases of recent snatching of minors, or where the children are of tender age – interim relief may be granted.
In such circumstances, courts ordinarily make temporary arrangements within a week, often directing that custody be restored to the mother, while referring the matter to the Guardian Court for permanent adjudication.
Proceedings before Guardian Courts
The procedure before a Guardian Court, though simple in theory, may become prolonged due to hostility between the parties. Broadly, the steps are as follows:
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Filing of Petition – The custodial parent (usually the mother) files a petition under the Guardians and Wards Act, 1890.
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Summons and Reply – The Court issues summons to the respondent, who is required to file a written statement, typically within 15 days.
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Reconciliation Efforts – The Court attempts reconciliation between the parties within 15 days of receiving the written statement.
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Recording of Evidence – Upon failure of reconciliation, the petitioner leads evidence, subject to cross-examination. The respondent then produces his evidence.
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Final Arguments and Judgment – After conclusion of evidence and arguments, the Court delivers judgment, again considering the possibility of reconciliation.
Considerations for Custody Decisions
In determining custody, the welfare of the minor is the paramount consideration, evaluated with reference to the child’s age, sex, religion, education, character, and surrounding circumstances.
Case Law Reference:
Hafiz Shahid Khan v. Sadia Rehman (2020 MLD 55)
The Court reaffirmed that:
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The welfare of the minor is the overriding factor.
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Under Sharia law, the mother is entitled to custody of a male child until age seven and a female child until puberty.
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A divorced mother retains her right of custody unless she remarries, in which case the welfare test is applied strictly.
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If the father remarries, the court must assess the welfare of the minor with greater care and caution.
Visitation Rights of the Non-Custodial Parent
Visitation is a legal and fundamental right of the non-custodial parent. Courts, while adjudicating custody petitions, usually grant temporary visitation schedules at the interim stage, later incorporating them into the final judgment.
Typically, visitation includes:
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Monthly Meetings: One to two meetings per month at the Court premises, lasting two to three hours.
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Home Visitation: In certain cases, meetings at the non-custodial parent’s residence on weekends for up to 24 hours.
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Special Occasions: Additional visitation during Eid, Shab-e-Barat, birthdays, or family functions, often extending to 24–48 hours.
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School Vacations: For school-going minors, non-custodial parents may be entitled to custody for half of the summer and winter vacations.
Conclusion
In custody disputes, Pakistani courts have consistently upheld that the paramount consideration is the welfare of the minor, not the absolute rights of either parent. While mothers are generally preferred for custody of younger children, each case is determined on its own facts, ensuring that the child’s best interests remain protected.
For professional legal assistance in matters of child custody, guardianship, visitation rights, or divorce proceedings in Pakistan, you may consult Pak-Lawyer Associates at www.paklawyer.com.
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