Since the 90s, there has been a great deal of change in the mindset of men, women and families towards marriage. Attitudes toward divorce, second marriages and single parenthood have drastically changed, however, courts have not been able to address this phenomena through adequate reforms.
There has been an increase in these cases, with around one million or more pending cases in family and the guardian courts of Pakistan. Such magnitude of pending litigation is due to weak legal reforms, inefficient case management systems and lack of understanding of judges with respect to single parent family units.
Going to a family and/or Guardian court is nothing less than traumatizing for any litigant/parent. Reason being that they are not aware of the court procedures, and are not ready for the delays and inadequacy of the so called ‘relief’ meted out to them. Strangely these delays seem to be out of the courts control and have been so for the last three decades. The key areas of contention are custody and maintenance issues, and these cases take at least two years or more to be decided. In the meanwhile, as an interim arrangement, the fathers have to pay for a very low maintenance cost, which places the mothers at a complete disadvantage.
There are some disturbing statistics of the backlog and over burdened judges in these courts. The statistics of the Guardian court, Lahore shows that seven Guardian Judges are dealing with 9484 new cases and 16 judges of the Family court are dealing with 16,215 new cases annually. There are already 25,699 pending cases in these courts. In addition to this, judges from guardian courts and the family courts are required to hear other cases as well. On average each judge is dealing with at least a 1000 cases in a year. How can there be justice if judges are overburdened? This results in the same court order being applied, in most cases without distinguishing different factors of each case, which is very important for the dispensation of justice.
Custodial disputes are the most volatile cases in Guardian courts with an average of 18000 cases filed annually in Lahore, only. There are 156 districts and 404 tehsils with Guardian courts and by a rough estimate almost one million Guardian cases is filed annually and almost the same number of cases are pending in Guardian courts around the country.
The statistics of the Guardian court, Lahore shows that seven Guardian Judges are dealing with 9,484 new cases and 16 judges of the Family court are dealing with 16,215 new cases annually. There are already 25,699 pending cases in these courts, with each judge dealing with at least a 1000 cases every year
There is an urgent need to manage the quick disposal and reduce this backlog for the welfare of families. There is a dire need to set up separate complexes for Family and Guardian courts, where all facilities for children are provided for visitation. Most of the parents are willing to forego their right of visitation, as they refuse to meet their children in dismal conditions.
Another issue is of compliance of the court’s visitation schedule which is a nightmare for the custodian parent. Visitation is generally used as a blackmailing tactic by the father, who continuously violates the visitation schedule by unlawfully keeping children for weeks, and courts in practice cannot provide relief to the mother unless a habeas corpus petition is filed for the physical recovery of the children. Guardian courts seems to be completely helpless in getting visitation orders implemented and recovering children from unlawful stays. In such cases of violation, it becomes extremely important to provide guidelines to the judges to order visitation only on court premises, and enforce orders and award heavy financial penalties or arrest the violators. In practice, there are only warnings given and no penalty, costs, arrests or punishment meted out to the violating party.
In custody cases, mostly women have to ensure that the father adheres to the law. In section 12 A of the Family Courts Act, 1964, it is clearly stated that maintenance cases are to be decided within 6 months after filing, however, in reality it takes at least two years. In the meanwhile, the interim maintenance awarded by the court is ridiculously low, which does not correspond to the financial status of the father and is used to add misery to the women as a custodian.
There are many cases where the father who has a declared earning of Rs one crore a month, was ordered to pay Rs 25000 for each child, in another instance a rich landlord was ordered to pay Rs 6000 for each of his children. To add to this injustice, the law does not allow an appeal to be made in interim maintenance and for the next two years, the mother and the children have to suffer due to almost no financial support. This leaves the women completely at the mercy of the father, who uses delaying tactics to avoid the final decision of the court. Moreover, even if at all there is a final ruling, minimal amounts are awarded which are not proportionate with the financial status of the father.
In order to ease the plight of single mothers and children, immediate measures on an emergency footing should be taken. Some reforms that can help them are, firstly to double the number of judges in existing family and guardian courts for exclusively hearing these cases. Secondly, special training should be provided on family laws and custodial matters to judges while updating them with the present economic- social realities and making realistic visitation schedules. Thirdly, cases should be supervised and should be decided within 6 months and if a judge delays, then such cases must be transferred to another judge to be decided within 60 days. Lastly, non performing judges should be taken to task and if maintenance is not paid regularly, then visitation rights should be suspended.
It is a grave state of affairs for mothers as the custodians. Moreover, parents especially mothers, are made to suffer through this outdated legal process which lacks emotional and financial empathy. Justice is hence denied.
The writer is a lawyer. She writes on social, governance and policy issues, and tweets @humzee1
Published in Daily Times, September 28th 2018.