Soon after getting a favourable court verdict in most divorce cases, a process for attaining the custody of minors is started. The matter may be decided in a few months, but it often becomes a never-ending argument between the parties. It has been seen that such cases prove to be one of the most crucial experiences of a divocred couple’s life.
A guardian court decides the fate of minors while considering every aspect of the life of both the parties. The basic criterion or the first priority for the appointment of a guardian is the welfare of minors. Every question is answered and each answer is dealt with some keen observations. Welfare of minors is the paramount issue and a supreme consideration for a guardian court. A guardian court deals with the application filed under Section 12 for the appointment of a guardian, and for the restoration of custody of minors. It bases its findings on the conditions laid down in Section 17 and 25 of the Guardian and Wards Act, 1890.
Efforts are made to utangle every knot: source of income; condition of the residence; who among the two is more worthy of taking care of the minor; character and background of the proposed guardian; mental and physical capacity; with whom would the minor feel more confident; with whom is the minor more closely associated; where might the minor get unparalleled love and care; who will be a more devoted and sincere guardian; who is more religious, civilised and disciplined in life; who is more inclined towards education and progress of the minor.
Between a mother and a father married to another woman, court often overlooks many factors such as background, mode of living and capacity, in favour of the mother. A mother’s right is always upheld unless circumstances turn out to be more crucial on her side. For example, a minor’s mother employed as a teacher in spite of her second marriage can look after her children in a better way as compared to the paternal parent. In one case, a divorced woman, the mother of a minor, showed the court that her child had not only finsihed the reading of the Holy Quran but was also appearing in Class V examination. The father of the minor was meanwhile living at the house of his brother who had six children, whereas the mother was the sole daughter of her father, who was running a shop, also had an agricultural income, and was spending all his income on her and the minor. In such a scenario, the mother would be the definite winner.
Selection of the most appropriate guardian is the duty of a guardian court. It is a right of the children that must not be denied under any circumstances
An application by a petitioner/father for the custody of a minor son under Section 25 of the Guardian and Wards Act, 1890, was accepted by the trial court, but on appeal it was dismissed by the appellate court. The petitioner had contracted a second marriage, and so had the mother. The minor, aged 12, was happily living with his maternal grandfather for many years. The appellate court interviewed the minor who was found willing to live in the house of his petitioner father with his stepmother. At the time the minor was a student of Class V. The maternal grandfather of the minor was looking after him and attending to his educational requirements. The petitioner father had children from his second wife,. It was not considered wise to remove the minor from his present family set-up, and therefore, he was permitted to continue living with his maternal grandfather. The appellate court accepted the appeal, and dismissed the judgment of the trial court.
In the above-mentioned and all other cases, all scenarios are considered to reach a fruitful conclusion for the welfare of the children.
Selection of the most appropriate guardian is a duty of the guardian court. It it is a right of the children that must not be denied under any circumstances. A child has a fundamental right to the warmth of his mother’s lap and the caring hand of his father. Snatching children away from their loved ones can be instrumental in disturbing their personality and leave painful memories. Even if they have material and other security, anxiety and fear may haunt them forever. Couples should try to stay united for the sake of their children; a family is the basic unit of a healthy society, and separation and custody claims may ruin children’s future. It also increases the burden on family courts.
Parents, your children will cry in silence for the days lost even when they are older and are parents themselves. You are the most important entity for your children in every respect; maternal and paternal grandparents or any other relatives are no substitute for parents’ love.
The writer is a practising lawyer at the Islamabad High Court