A full-bench of the Supreme Court has recently issued a detailed plan for custody of minor children. While, the plan has been drawn with the agreement of both the parents in the peculiar circumstances of the case, family courts can consider its terms and conditions to derive guiding principles for deciding custody cases. The reconciliatory approach adopted in the order has been widely praised in legal circles.
The judgment provides that the children will stay with their mother (till they attain the age of puberty) and that the father shall be responsible for “education, uniform(s), books, and pick-and-drop from school”. The father shall also provide Rs 5,000 every month for the miscellaneous needs of the children. The children will be able to visit the father on every holiday. During summer vaction, the father will be able to keep the children at his home from the first Sunday to the fourth Sunday; thereafter, the children will be dropped back at the mother’s house. The children will also stay with the father during the first week of winter vacations and will then be returned to their mother. The children will stay with their father from the night before Eidul Fitr till 8pm on the following day. The father will pick the children at 11am on the day following the Eidul Adha and drop them back at 10pm the next day. On unscheduled holidays, the children will stay with the father from 10am till 8pm. If the father wants the children to participate in a function such as a marriage in the family, the mother will hand over custody of the children to their father. None of the parents will incite the children against the other parent.
Pakistan’s Family Law jurisprudence dictates that “welfare of the children” is the paramount consideration in deciding custody cases. Section 17 of the Guardian and Wards Act 1890, provides that the “welfare of the minor” principle is to be applied in deciding all custody cases. For deciding the welfare of the minor under this section, the age, sex, and religion of the minor and the preference of the minor – if (s)he can form an intelligent preference – and the character, capacity, and relationship of the guardian to the minor is to be be considered.
There seems to be some confusion in the legal fraternity regarding whether the so-called comprehensive plan is binding on family courts. It appears that the plan may not be construed as binding in cases where the facts and circumstnces are different
It was held in 2004 SCMR 1839 that the welfare of a child supersedes a private settlement between the parents. Further, in 1994 SCMR 339 the SC held that where a mother and a father are not suitable for the custody of a child, a third person (the grandmother in that case) can be given custody of the child. In 1983 SCMR 606, the SC attached a broad meaning to the term “welfare of the children”. The SC observed that material or financial well-being of the children may not be the only factors for weighing matters of “welfare”. The family courts should also give importance to the moral, spiritual, and intellectual upbringing of the children in custody cases.
So, comprehensive terms of the plan notwithstanding, the family courts should continue to decide custody cases on the touchstone of “welfare of the children”. The plan may not be suited in family cases where facts and circumstances are different. For example, the custody of a child may not be handed over to a father or a mother of immoral character. More specifically, the family courts cannot grant the custody of a child to a parent involved in a crime even when the other parent does not object to it.
Further, the plan issued by the SC appears to go against the Islamic tradition to the extent that “minor children will stay with their mother.” Under classical Islamic law, a mother loses her preferential right to the custody of a child on contracting marriage to a man who is not related to the child within the prohibited degree of marriage. If the plan is followed without appreciating the “welfare of the children” in the peculiar circumstances of a case, it could violate the principles of classical Islamic law.
There seems to be some confusion in the legal fraternity regarding whether the so-called comprehensive plan is binding on family courts. It appears that the plan may not be construed as binding in cases where the facts and circumstnces are different. The family courts can still decide custody cases keeping their chief concern, the “welfare of the children” in the particular circumstances of the relevant case. Article 189 of the Constitution provides that “[a]ny decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.” The terms of the plan neither appear to decide a specific “question of law” nor enunciate a “principle of law”. It is merely a settlement between the parents. Thus, it may not be taken as a binding judgment in other custody cases.
In view of conflicting jurisprudence on child custody, the SC should examine the principles of classical Islamic law in the present-day context to provide a clearer policy and consistent legal principles to be followed by courts in deciding child custody cases.
The writer is a freelancer