Law On Custody And Guardianship Of Children In Pakistan: Adal Aur Sehat Project

Adal Aur Sehat Project is a legal and health awareness podcast.

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In Episode 47, Ms. Maryam Malik, Advocate of the High Courts of Pakistan; Barrister-at-Law, spoke to Adal Aur Sehat Project on the laws on custody and guardianship of children in Pakistan. Ms. Malik has been a part of the legal profession for more than 5 years and has worked at top law firms in Pakistan. Her experience includes working on family law matters, as well as corporate and commercial litigation.

This Article is a transcription of Episode 47. Hear the full audio podcast with Advocate Maryam Malik on Adal Aur Sehat Project’s YouTube channel. Link: https://youtu.be/yuSI69cSy5M

Q: Briefly tell us about the difference between custody and guardianship? What does the law on both entail?

Ms. Maryam Malik: The difference in simple words is that custody is when children are living with parent/parents since their birth. On the other hand, guardianship is a rather legal concept, the definition is provided under Guardian and Wards Act 1890 which stipulates guardian “as a person having the care of a minor or his property or of both his person and property”. It is a legal responsibility, which usually vests with the parents, and in case if there are no parents then the responsibility lies with the child’s immediate relative(s). A guardian takes care of a minor’s daily needs like health and education, however, as per the law their main responsibility comes in when they have to sign a legal document for a child, for instance any educational documents at school.

Since both are different terms, the question arises whether in filing for a custody does the parent also need to file for guardianship? If the issue arises with regards to which parent should keep the custody of the child in case of a breakdown of a marriage, then they only need to file for custody and not guardianship.

Q. Can a parent get custody/guardianship of a child if they are not divorced but only separated?

Ms. Maryam Malik: The parent statute with regards to this is Guardian and Wards Act 1890, the sections with regards to the appointment of guardian is Section 7, 8, 17 and 19 and none of them mentions that the parents need to be divorced in order to attain guardianship. Similarly, for custody there is no prerequisite that the parents necessarily have to be divorced in order to obtain custody of a child.

Q. Is it necessary for a mother to file for custody during the minors Hizanat period? Because it is usually seen that till the age of 7 the mother has a natural right to custody in case of a boy, and until puberty, in case of a girl.

Ms. Maryam Malik: Hizanat is a preferential right and not an absolute right; which would mean that the courts while deciding a custody dispute mainly looks at the welfare of the minor and is not fixated on considering the Hizanat period alone. For instance, if the boy has crossed the age of 7 but if it appears that the father cannot take care of the boy but the mother can, then the court shall prefer to give the custody to the mother. This, however does not mean that the court completely ignores the Hizanat period, the courts do take Hizanat period into account but this right is not absolute.

Q. What happens when a parent wants the custody? Please guide us through the court procedure and legal consequences

Ms. Maryam Malik: The application to claim custody of a child is filed under Section 25 of Guardian and Wards Act in a Family Court of a district where the applicant is residing [District such as South, East etc. Applies to Karachi, Sindh]. The court shall then issue a notice on the application to the other party and then giving them a date to appear before the court. For instance, if the case is filed against the father, he can himself appear before the court or through his lawyer who will then file his Vaqalat Nama [Legal Representation]. After this he shall have one month to present a written statement in response to the filed application against him. Furthermore, if the child is within the custody of the father, for instance, then the mother can file an application under Section 12 Guardian and Wards Act along with Section 25 application which shall allow her to get visitation rights. Moreover, if the mother suspects that the father shall take the child abroad then she can file an application to restrict them. These two applications are known as interim applications. These applications shall also be heard in the court of law and the other party to the case shall be given the chance to present their arguments and the court order shall then be passed. With regards to visitation application, it is usually seen that it is allowed by the court. As far as the main application for custody i.e. one that is filed under Section 25 is concerned, the evidence needs to be presented before the court and witnesses shall be called as well who will give their statements and they shall be cross-examined by the opposing party. The questions and answers shall also focus on the welfare of the minor i.e. which parent can take better care of the child. Then the court hears the final argument and the decision is then passed. However, we must keep in mind that this process can be quiet lengthy and it can take around 2–3 years before a case is resolved.

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Q. Can only a parent file for custody/guardianship? Is there a provision which allows for the family members of each parent such as grandparents to file for the child’s custody?

Ms. Maryam Malik: There is a hierarchy in law with regards to this. If the mother of the child is alive and the father is not then the first right of custody vests with the mother, and if the father is alive but mother is not then the right of custody vests with the father. If the father is not alive then the right vests with maternal grandmother/grandfather or maternal aunt. However, at the end of the day the courts consider the welfare of the child, like there are instances where both the parents of the child are alive but they are not taking care of him/her properly, in such a scenario the courts can even grant the custody to his maternal grandmother/grandfather keeping in mind the welfare of the child. It really depends on the circumstances of each case.

Q. Can a child be a witness? Does the testimony or statement of the child in question have any significant impact on the decision?

Ms. Maryam Malik: Definitely, under Section 17(3) of Guardian and Wards Act which states that if the child is of sound age and mind to make a decision for himself then the court shall consider his statement as well.

Q. We have usually seen that if a mother marries again after divorce then that decreases the chances of the mother getting the custody. In this regard, does the law define a good parent or a bad parent? Is there any such concept?

Ms. Maryam Malik: It’s not exactly a concept, it’s something that the other party can exploit, and it’s definitely a factor to be taken into consideration. If the mother remarries, as far as the boy [whose custody is sought] is concerned there is not an issue, however if the mother seeks the custody of a girl then the chances of the mother getting the custody reduces as the step-father is considered a non-mahram to the girl as per Sharia Law. However, it all depends on the facts of each case, for instance, if it is proven in the court of law that the step-father is fulfilling all the fatherly duties such as paying for the girl’s maintenance and caring for her as his own, then there is a chance that the mother may get the custody of a girl. Similarly, if the father remarries, then his chances are also reduced, because the court does keep in view that there is no replacement of a motherly love for her own child. Again it depends on the facts of each case, the judges do take into account circumstances where the birth mother of the child cannot take care of him/her in a proper manner then the court may grant the custody to the father.

Q. What are the chances of a mother/ father attaining the custody and guardianship of the minor?

Ms. Maryam Malik: There is no doubt that the chances of the mother attaining the custody of the child are more compared to fathers. However, it really depends on how the case is pursued and whether the party is getting the proper legal advice or not. Another problem lies in the fact that over time the parents may even lose their interest in pursuing the case considering the length of the case.

Q. Does the law treat the custody of a male minor and a female minor differently?

Ms. Maryam Malik: Yes the court does differentiate between the male minor and a female minor. As discussed above, factors such as the age of Hizanat comes into play, for boys it is 7 and for girls it is until puberty. Also, if mother re-marries then the boy’s custody is not affected but the girl’s does, and if the father re-marries then both custodies are affected.

Q. It is usually seen that the courts while deciding the matter look at the welfare of the child. What amounts to welfare under the law?

Ms. Maryam Malik: The concept of welfare is a broad one, which is difficult to define perfectly, however in simple terms it can be understood as courts deciding which parent could take care of the child in terms of providing for his/her basic needs, education and even affection. To give a hypothetical example, if the custody of the child is currently with the mother and the father has filed to take custody away from her; so if the father is a working man who works a 9 to 5 job, and cannot tend to his child’s basic needs, then the court will give the custody to the mother. However, it must be kept in mind that the child must not be deprived from meeting the other parent, visitation rights must always be granted to the other parent as this also comes under the garb of welfare. Even factors such as physical or mental health of the parent should be taken into consideration when deciding the welfare of the child.

Q. Does the mother have to be financially well off to increase her chances of getting the custody/guardianship of the child?

Ms. Maryam Malik: Although the primary responsibility to provide for maintenance lies with the father, but if mother is financially capable then the court will consider this factor in granting her the custody.

Q. What happens if the children are majors i.e. above 18years of age? Can the parent still file for custody/guardianship?

Ms. Maryam Malik: Even if the application is filed, it shall be dismissed as the child can decide for his own self when he is 18 years of age. However, for the girl, her financial responsibility till her marriage vests with her father even if she is 18 years old.

Q. Please elaborate on what happens after the custody/guardianship is awarded? Does the losing parent lose all the rights over the child or he/she gets visitation rights? Explain the remedies and options available for the losing parent.

Ms. Maryam Malik: There is always an option of appeal if the case is lost in trial court. The court also grants visitation rights to the losing parent. It can specify a place for meeting or can make a meeting schedule depending on the circumstances.

Q. Please guide us through the mental ordeal a parent and a child has to go through during the proceedings. Do the courts take into account the sensitivity of the matter and children’s mental health? Are there any separate rooms for children/ or any measures to keep the child away from witnessing the court room proceedings?

Ms. Maryam Malik: These proceedings are indeed mentally taxing for the children as well as for parents. For children, it always more impactful as the child is already traumatized due to the parent’s separation. It also depends on the circumstances which lead to the divorce, such as, domestic violence, sexual abuse, whether the father has remarried and moved abroad or living in the same city but in a different house, and if he has kids from his second marriage. These factors heavily affect the mental health of children. Recently, the courts in Karachi have established a separate visitation room where the parents can meet their children and spend 2–3 hours with them.

Ms. Maryam Malik concluded the podcast with a heartfelt message for the listeners. She asserted that the family cases especially those related to custody are indeed very traumatizing, not only for the parents and children but also for anyone involved with the case. Therefore, they must only come to the court in extreme situations and only as a last resort, otherwise, the parents must always care for their child’s welfare keeping aside their personal grudges and egos, and they must never use their own child as a tool to emotionally blackmail or take vengeance from each other, as this can have drastic and lifelong effects on the child’s mental health. Last but not the least, Ms. Malik also suggested the need for reform such as alternate means of resolving family disputes such as mediation or arbitration or even the introduction of a social security system to solve such disputes as these alternate means are definitely less emotionally taxing and less time consuming for the parties involved.

Disclaimer: Adal Aur Sehat Project is a legal and health awareness podcast. For our legal awareness episodes, our aim is to spread awareness & to call for legislative reform. We do not give any legal advice and neither should the contents of our podcast or this article on Medium shall be construed as the same. Further, we do not accept liability of any individual, group and/or organization that may suffer from any consequences, which is directly or indirectly related to the Adal Aur Sehat Project.

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Adal Aur Sehat Project is Pakistan's first exclusive legal and health awareness podcast founded and hosted by Khushbakht Shah.