In Pakistan, the law on child custody is primarily governed by the Guardian and Wards Act 1890 (‘Act’). The issue of child custody often arises after the dissolution of marriage or separation of spouses from each other.
Usually, the mother is entitled to the custody of a child of during the period of hasanat, and afterwards the custody could be awarded to the father. Generally, it is considered that the mother will keep the son till the age of seven (7) and the daughter till puberty. Although this is not a strict rule and there are exceptions. In addition, when a child is in the actual custody of a mother, the father is considered as a natural guardian.
It is important to understand that in determining the question who is entitled to hold a custody of a child under the law, the “welfare of the child” is to be given paramount importance. Welfare of the child is determined by considering the financial, moral, spiritual, and intellectual well-being of the parents. It is pertinent to note that even if the parents enter into an agreement regarding the custody of the minor(s), the court may set-aside the agreement if the same is against the welfare of the child. Ultimately, the welfare of the child takes prevalence over the welfare of the parents.
The courts may also consider the child’s preference and his attachment with either parents or his/her siblings while determining the custody of a child. For example in the case of Sajida Rehmant Ullah v Guardian Judge II (PLD 2022 Lahore 183), welfare of the child is also determined by looking at material welfare which includes the adequate resources for a pleasant home and comfortable life and also maintaining good health and personal pride of minor. This indicates the stability and security, love and care, guidance, warm and compassionate relationships that help in the growth of child’s character personally and talents. However, the Supreme Court of Pakistan in the cases of 2004 SCMR 821 and 2020 PLD 508, held that neither the mother’s physical condition nor her income is determinative factors when determining the mother right to custody as legally the financial burden to maintain the child lies on the father. On the other hand, if the father fails to maintain the child, the right of custody may be lost as seen in the case Amar Ilahi v Rashida Akhtar (1995 PLD 412).
In view of the above circumstances, the welfare of a minor is a question of fact, is decided on case to case basis after appraising of evidence on record. On the other hand, the custodian (i.e. the person seeking custody of the child) must possess certain qualities and while deciding whether a person is entitled to the custody of the child, the court may takes into account the various factors including but not limited to the following:-
- Financial stability of parents, reported wrongful act, character and capability of Parent-S. 17 of the Act;
- The custodian must not be fāsiq (sinner) and Khā’in (dishonest) (Mst. Imtiaz Begum v Tariq Mehmood, 1995 CLC 800);
- Criminal record of the parents;
- Religion. In terms of religion, it is settled that the child shall follows the father’s religion until they the child decides to change it after majority. Therefore, in cases of foreigner or non-Muslim mothers the custody is not usually given to them. The environment and customs of foreign country are not considered suitable for the upbringing of the child in Islamic way. In the case of Mrs. Mosselle Gubbay v Khwaja Ahmed Said (1957 PLD 50), the mother was Indian Jewish. The Sindh High Court did not give the custody to the mother on the basis that it would not be proper and not in the interest of the child. However, in some cases the custody is given to the foreign non-Muslim mothers for instance in the case of Peggy Collin v Muhammad Ishfaque Malik (2010 PLD 48) the custody was given to French Christian mother because the father was facing convictions.
- Remarriage by the parent. However, this is not an absolute rule. In the case of Uzma Wahid v Guardian Judge (1989 MLD 3064), the Court granted the custody of minor daughter to the father, who had remarried, due to the daughters’ attachment with the father. On the other hand, In the event of second marriage of both parents, the courts decided on the basis of circumstance.
Besides mother and father, the maternal grandmother can also get the custody if the mother is dead. However, if the father is dead then the paternal grandparents may not get the custody if the mother is present as could be viewed from the case of Hifsa Naseer v ADJ Gujar Khan (2017 PLD 153).
In addition, the adoptive child’s custody is usually given to the mother for the child’s best interest and as per the case Irfana Shaheen v Abid Waheed (2002 PLD 283) the adoptive mother’s right to custody cannot be taken away by anyone except child’s biological parents. In Shaukat Khalid v Additional District Judge (1991 SCMR 19) the child was adopted by paternal uncle and his wife and when he died the biological parents claimed for the custody. The Supreme Court awarded the custody to the biological parents.
In order to obtain a custody of a minor, the custodian/applicant shall make an application to the Family Judge in whose territorial jurisdiction, the minor is residing. It is pertinent to note that there must not be any delay in claiming custody of a minor otherwise it would amount to denial and the same is evident from the case of Mst. Nazeer Begum and others v Abdul Sattar (1963 PLD 465) where the father was not granted the right of custody of a minor as the father files a suit for custody after five (05) years of separation and the wife’s second marriage. This was considered as an unreasonable time and showed that the father was not interested in the custody of the children.
In conclusion, the law governing the child custody is primarily dependent upon the principle known as ‘Welfare of the Child’ which is determined through various factors including, but not limited, to financial standing, education, environment, age of the minor, preference of the minor, religion of the parents, parents’ criminal records etc., and in order to obtain a permanent custody including the visitation rights, the applicant needs to file a Case before the relevant Family Court.