Introduction AGHS Legal Aid Cell believes that all citizens must be involved in law making. Laws are made for providing a just society for everyone regardless of age, sex, religion, belief, social, or economic status. Laws designed to uphold the values of the rule of law are respected and followed. Others are dreaded and flaunted. Policy makers often do not apply human rights standards to laws governing people’s “private sphere” like marriage, divorce custody, and inheritance. Personal laws are shaped by traditional communities, and then they are implemented by the state. As such, personal laws relating to the “private sphere” are mostly the handiwork of male dominated authors and thus, they retain traditional bias. Over the last two decades, there has been a sharp increase in gender rights awareness. Women, in particular, have strong aspirations to be recognized as equal citizens and persons. An unequal marital partnership has been a strong obstacle in women’s advancement. Therefore, it is essential that personal laws be reformed with the “rights” based approach as a central principle to these legislations.

Background This pamphlet explains the laws of custody and guardianship of minors. The Guardian and Wards Act, 1890 lays down the substantive laws. The Family Courts Act, 1964 and the Guardian and Wards Act, 1890 contain the procedures of laws to be followed in any litigation. Family Courts have exclusive jurisdiction in dealing with all custody and guardianship cases. However, there are some exceptions: the High Court could directly entertain a petition of restoring custody of a child to the parent who lost it through illegal means. For example, if the father, forcibly, through fraud, use of force, or by deception, removes the child away from the existing custody of the mother. The reverse is possible too. Guiding principles Pakistani laws recognize the welfare of the child as a guiding principle in deciding custody or guardianship cases. The best interest of the child or “welfare” guidelines are found in various decisions of the Superior Court as well as in the laws. Although, religious laws do not override all the guiding principles defined by the laws and the Courts in determining the best interest of the child, yet they are assumed to be a major factor in it. Child or minor Custody or guardianship of children is confined to minors. As a general rule, a child under the age of 18 years-old is considered a minor but for the purposes of custody and guardianship, the age factor depends on the gender and circumstances of the case. Some important considerations are as follow: • A person above the age of 18 years-old is not considered a minor. • In a case where the Court has assumed guardianship of a minor, it will terminate after the child has reached the age of 21 years-old. • Under Islamic jurisprudence, the Courts assume that a Sunni girl remains in custody of her mother until she reaches puberty. Other decisions have ruled that a female child remains with the mother until she gets married. For a Sunni male child, it is presumed that he remains in the mother’s custody until he reaches the age of seven. A boy of Fiqah-e-Jaffaria (Shi’a School of Thought) is presumed to be under the custody of his mother until he is 2 years old and a girl until she is 7 years old. The above criteria are subject to the welfare of the minor. What is guardianship? The guardianship of a minor always belongs to the father, unless it is contested. But this does not mean that the actual custody of a minor remains with the father. The laws have dissociated guardianship with custody. For example, a mother may have physical custody of a child, but the father remains a notional guardian. He is obliged to pay for the expenses of the minor, and he has the right to take decisions for the education and other aspects of the minor’s upbringings.

The guardianship of the property of a minor is different from the guardianship of the custody of a minor. Who is the guardian of the property of the minor? A father is automatically considered the legal guardian of the property of a minor. If the father is absent or his guardianship is challenged, the Court will appoint a substitute guardian, but only if the father is disqualified. Some grounds of disqualification are: • The father’s mental incapacity. • If the father has misused the property of the minor. • The father is likely to misuse the property of the minor. Strong evidences of conflict of interest will have to be produced. • The father is absent of the life of the minor. The guardianship of property is also determined according to the rules of personal laws. For example, a male member of the family will be preferred under Muslim laws. In the absence of the father, paternal grandfather will take precedent over paternal uncle. Maternal male members of the family will only be considered if there are no paternal male relative qualifies to be a guardian. Also, the Court may assume the guardianship of the child as it is considered to play a parental role while dealing with minors. The guardianship rules for non-Muslims will be guided by their own personal laws. For example, a guardian appointed through the will of a dying parent will be preferred, and will be appointed guardian of the property of a Christian minor. Who may get the physical custody of a minor? • The perception that a mother can only retain custody of a male child until he reaches the age of seven (for Sunnis) and two (for Fiqah-e-Jaffaria, Shi’a School of Thought) is incorrect. This principle applies only if the Court considers that the welfare of the minor will be severed equally well with either parent. • Under the law, the father always remains the guardian of the minor regardless of the fact he does or does not have the actual custody of the minor. Islamic jurisprudence recognizes the father alone as the natural guardian of his minor children. Hence, it is his duty as the natural guardian to maintain the children, even if they live elsewhere or are in the custody of another person. • The recognition of the father as the natural guardian has deprived women of the right of bringing up their children as equal parent. For example, if the mother lives in a foreign country, the Courts will be reluctant to let the mother take the minor with her to a place where the father, as natural guardian, cannot exercise control and supervision of his child. The same principle does not apply to the father, as the mother is not her children’s natural guardian.

•

Custody of children is given to the parent who can best look after the welfare of the minor. However, while determining the welfare of the minor, the Courts take into consideration the personal laws of the minor. If the Court feels that both parents are equally competent to look after the welfare of the minor, then the personal laws of the minor will be applied.

Personal laws The personal laws of Fiqah-e-Jafferia (Shi’a School of Thought) and the Sunni school of thought are different. According to the Sunni jurisprudence, a mother gets the custody of her son until the age of seven and of her daughter until she reaches puberty (which is presumed at the age of 15). According to the Shi’a jurisprudence, the mother has the custody of a minor boy until the age of two and a minor daughter until the age of seven. Hence, the mother has only the hizanat (custody) of very young children. If the mother is absent or does not ask for custody, the maternal grandmother has the right to hizanat of the young minors. However, it may be noted that under the personal laws, custody does not automatically shift to the father once the children reach an age where the mother is no longer entitled to hizanat. Thus, the father or anyone else seeking custody will have to file a case in the Guardian Court. What other criteria of welfare do Courts consider while awarding custody? 1. Age of minor 2. Sex of minor 3. Marital status of the parents e.g: if the mother has remarried a stranger, the Courts may not grant her custody of a child, especially if it is a female child. At the same time if the father has remarried and the mother has not, the Courts may grant custody to the mother event though she may not be entitled to their hizanat under personal laws. 4. Character of the parents: Courts are reluctant to accept frivolous allegations of immorality without adequate proofs. The attitude of the Courts has been particularly helpful for women, because frivolous immorality allegations against the mother were so common. 5. Religion of the parents: It is always preferred that the minors be brought up in an Islamic atmosphere. 6. Attitude of the parents: If either parent restricts the minor’s access to the other parent, or if a parent poisons the mind of the minor against the other parent, the Court will take a negative view against the parent who obstructs meetings or poisons the mind of the minor. 7. If the father has not maintained the child, the Court may not grant him custody. However, if the mother having custody of her children was offered maintenance by the father but she had refused it, the Courts will not hold it against the father. 8. Other factual considerations brought to the notice of the Court.

9.

The financial condition of the mother is no criteria. The father alone is bound to maintain his minor children

Laws applicable to Christians in matter of custody and guardianship 1. Matters related to custody and guardianship of Christian minors are determined in accordance with the Guardian and Wards Act, taking in consideration the personal laws of the minor. 2. In the absence of both parents, a guardian can be appointed by the will of either parent. 3. In the case of guardianship of property, the father is automatically granted guardianship, and he does not need to apply for appointment or declaration. In the absence of the father, the mother has to apply for a guardianship certificate to act as guardian of the property of her minor children. 4. In matters of custody or guardianship of the minor, welfare of the minor will determine the right of each parent. 5. Welfare is determined by taking in consideration several factors, including the capacity of each parent to care and give affection, health-care, education, and a settled and stable home to the minor. 6. The father is responsible for financial support of the minor, even if the minor is not in his physical custody. What remedies are available to a parent seeking custody of a minor? 1. A parent seeking custody of a minor should apply for it in the Guardian Court. The Court will take a decision based on the welfare of the minor, but it may also consider the rules of personal laws applicable to the child. 2. If a child is taken out of the custody of a parent through fraud, coercion, or deception, the victimized parent can go directly to the High Court and ask for the restoration of custody. 3. In case a minor is under physical or mental threat or there is urgency for change of custody, an application can be made to the Guardian Court. What is the difference between the three different legal actions? 1. You can go directly to the High Court if: a) The minor has been removed from your custody by anyone including a parent, using force, coercion, or deception. b) The legal action has to be prompt and not delayed. c) The resolution is prompt, no evidence is required, and the Court rules after hearing both parties in a summary manner. d) A person can approach the High Court even if a custody case is pending before the Guardian Court. e) The High Court only gives a judgment restoring the actual custody permanent custody can only be decided by the Guardian Court. In other words, the High Court may restore the custody of minor “A” to the mother if the father snatched the child and took him by force, but the father can

still continue/or file in the Guardian Court for the custody of minor “A” after actual custody is restored to the mother. 2. You can go to the Guardian Court for grant of custody of a minor in the following cases: a) If the child is in your custody although, this is only advisable in exceptional circumstances. b) If you want to get physical custody of a minor (including of your own child) from the other parent or anyone else. c) If you want temporary custody of a minor on the grounds of urgency, an application along with permanent custody has to be filed in the Guardian Court. d) Temporary custody is granted or rejected after hearing both parties. However, the Court grants permanent custody after evidence is led by both parties and arguments are concluded. Power of the Guardian Courts The Guardian Courts hear applications of: a) Temporary custody: Urgency has to be clearly demonstrated for the Court to grant custody to the applicant. This application is made under section 12 of the Guardian and Wards Act, 1890. The procedure is short, and the Court hears the arguments of both parties before making an order on temporary custody. No evidence is led in this matter. All applications of temporary custody have to be made with an application of final custody. b) Application for custody: An application under section 25 of the Guardian and Wards Act can be filed to get custody of a child. Anyone can file it but for physical custody, normally Courts will seriously consider applications filed by parents and grandparents of minors. Such cases are concluded within one to three years, depending on the length of evidence produced by both parties, the adjournments granted and the miscellaneous applications made during the course of the proceedings. c) Application for visiting a minor: Every parent has a right of visitation to his or her children. The Guardian Courts order a meeting schedule. Normally such meetings take place in Court premises but if both parties agree, the Court may order meetings at any other place as well. d) Guardianship of the property of a minor: In case of a dispute over the supervision of a minor’s property, anyone can make an application for administrating the property of a minor. The father or paternal grandfather is given preference, but it does not debar anyone else, especially the mother, from applying for guardianship of the property of the minor

Some case studies 1.Mehrunnisa and Asif were married on 12.01.1992. They had two children. Kashif, 8 years-old and Maya, 5 years-old. The couple has a dispute, and Asif

throws Mehrunnisa out of the house and keeps the children. What can Mehrunnisa do? 2. Fareeda and Anwar were married in November 1976. They have three children: 1. Kamran 19 years-old 2. Kokab 17 years-old 3. Walid 10 years-old The couple decides to get divorce. a) If Fareeda wants to keep the children, what can she do? b) Fareeda takes the children with her, and she remarries. Anwar applies for custody of the children. What is the likely outcome of his application? c) If Walid were a girl, would it make a difference to the judgment? 3. Maliha and Gafoor have one child, Naveed, 2 years old. Maliha is thrown out of the house and lives with her parents. The couple is separated but not divorced. After 3 years, Maliha wants to get custody of Naveed. What can she do? a) If Naveed were a girl, what difference would it make to the case? b) After 3 years, Maliha discovers that Gafoor has taken another wife. Will that have an impact on the decision of the case? c) After 3 years, Maliha discovers that Naveed is ill, has been mistreated and neglected by Gafoor. What can Maliha do immediately? 4. Anisa and Rashid have two children. Anisa is separated and is living with her parents along with the children. One day, Rashid goes to the children’s school and takes them home. He refuses to give back the children. What can Anisa do? What evidence does she need to strengthen her case? 5. Nobel and Violet have two children. Nobel leaves for London and has no contact with Violet or the children for 5 years. Violet had applied for maintenance of the children and won the case. She obtained a decree of maintenance against Nobel. a) Can Nobel apply for custody of the children? b) What would be the outcome of the case if the boy is over 7 years-old and the girl over 13 years-old? c) Can Nobel apply for visitation rights? d) If Nobel had paid maintenance throughout, then what could be the outcome of the case? e) If Nobel and Violet were Muslims, what difference would that make to the proceedings or the outcome of the case?