The Best Interests of the Child: A Prevailing Consideration within Islamic Principles and a Governing Principle in Child Custody Cases in Pakistan

Abstract

Few legal scenarios are as emotionally charged as child custody disputes in divorce cases. Such disputes traumatize parents and adversely affect the concerned child who has to face loss of relationship, or at best, reduced relationship with one parent, a change of friends, home, school and even country of residence in some cases. This article focuses on existing laws concerning child custody in Pakistan in the context of their grounding within Islamic principles of custody and guardianship. It is not intended to argue for or against Islamic law but to analyse the approach taken by Pakistani Superior Courts when interpreting existing statutory provisions and the extent to which these decisions are taken in reference to underlying Islamic principles concerning custody of children. Case law of Pakistani Superior Courts from at least the past 5 years will be the source of this analysis particularly concerning the principle of the welfare of the child and how this particular objective has if at all played a role in court decisions favouring one parent over the other when awarding custody.

I. INTRODUCTION

Custody of children under Islamic law exists within two spheres referred to as hadanah and wilayah . ¹Hadanah concerns the right to physical custody of the child whereas wilayah is guardianship of the person and property of the child. ² Islamic jurisprudence takes the view that by entrusting the right of primary residential custody to a mother and the right of guardianship to a father Islamic law protects the best interests of the child. ³ In western jurisprudence the 20th century was heralded by reformists as ‘The Century of the Child’ ⁴ with children being treated less as property and more as individuals having distinct legal personality accompanied by overriding legal rights. ⁵ In contrast, Islamic jurisprudence has maintained that, in view of a child’s particularly weak and vulnerable position, hadanah is a duty or a collective obligation ( fardh kifayah ) ⁶ upon the whole Muslim community. ⁷ Once a particular person is entrusted with this duty he/she is bound to ensure that the child is well looked after. ⁸

Notwithstanding the aforementioned it is erroneous to think that Islamic law only concerns duties and not rights of custodians. ⁹ Rather, it is evident that Islamic law tries to maintain a balance between the rights of parents and their duties towards their child. Al-Sayyid Sabiq ¹⁰ argues that it is important to understand that protection of the child’s best interests supersedes any claims to ahl al-hadanah¹¹ or ahl al-Wilayah . ¹² The aim of this article is to appraise the claims made through Islamic jurisprudence against the contemporary reality in Muslim populated societies like Pakistan.

This article evaluates the extent to which application of Islamic principles, in conjunction with Pakistani laws, ¹³ cater to children’s best interests in actual custody cases. Pakistani Superior Courts ¹⁴ have stated in numerous judgments that ‘what has to be taken into consideration at each and every stage of litigation involving custody of minors ¹⁵ is the welfare of the minor’. ¹⁶ When enquiring into what constitutes welfare of the child ¹⁷ courts have considered wide ranging factors, from the age of the child to the financial standing of both parents. The Guardians and Wards Act 1890 primarily regulates child custody disputes and all Pakistani laws are constitutionally required to be in line with Islamic principles. Case law of Pakistani Superior Courts from at least past 5 years ¹⁸ is the source of this analysis.

First the Islamic principles will be analysed to assess whether the best interests of children is their primary focus. Thereafter follows an overview of the statute governing custody of children in Pakistan and the judgments of the Superior Courts of Pakistan. The problem of international parental child abduction to Pakistan along with the applicable Pakistani law in custody disputes involving both Pakistani and foreign/dual nationals will also be highlighted. Finally it will be considered whether religious constraints and edicts regarding child custody are necessarily literally interpreted by the Pakistani Courts. This issue is important in view of statements that condemn child custody laws in Pakistan in what is referred to as the oppressive environment of the ‘outdated’ principles of Sharia’h taking hold of Pakistan. ¹⁹

II. ISLAMIC PRINCIPLES DEFINING AND DETERMINING CUSTODY OF CHILDREN

Islamic law on child custody disputes is permeated with juristic opinions of scholars from different sects and schools of Islamic jurisprudence. The following details attempt to clarify Islamic principles ²⁰ concerning child custody, which are divided into hadanah and wilayah . These two spheres do not come into direct conflict until there is a marital breakdown leading to a custody dispute.

1. Hadanah and Wilayah

Hadanah comes from the root verb hadana which means to embrace, or to hug someone but it has also been used to mean raising, bringing up or nursing a child, ²¹ or the office of rearing a child. ²² Terminologically, hadanah is associated with protection and care given to someone like a child who cannot act for himself/herself. ²³ Because of its emotional and physical connotation, in Islamic jurisprudence it is thought to be the most suitable term encompassing the idea of custody of children. Wilayah means the guardianship of the person and property of the child. ²⁴ Guardianship of the person means the authority to take care of a child’s personal affairs such as marriage, education, and discipline whereas guardianship of property means the authority to perform legal transactions relating to a ward’s ²⁵ property.

Different sects and schools of Islamic jurisprudence agree that, unless disqualified, a mother has the first claim to hadanah and is considered the natural custodian of the child. This is based on Prophetic traditions, ²⁶ which emphasize the significant affinity between a mother and child necessitating that she be given priority in the case of hadanah . Islamic jurists argued that characteristics like natural love for the child, tenderness, and kindness are more prevalent within mothers than fathers, making them better qualified to look after children in their years of infancy. ²⁷ In the same context, jurists also agree that if the father is alive and competent under Islamic law, he is the natural guardian of both the person and property of his small children ²⁸ and needs no formal appointment by any authority. ²⁹

Although Islamic law tends to presume that hadanah is a female-oriented function whilst wilayah is a male function, ³⁰ it is nowhere stated that only a woman can provide emotional and only a man can provide rational support to children. Rather Islamic law encourages both men and women to enhance their rational inclinations to the best of their abilities through practical distribution of roles between them in order to ensure the best interests of the child. What Islamic rules however essentially recognize in this role distribution of custody/guardianship is that women have an enhanced ability to nurture small children by providing deeper emotional support. The distinction between male- and female-oriented custody roles however ceases to exist when the child reaches a certain age, due to conditions no longer being the same and the demands of the best interests and welfare of the child. ³¹ There are however significant juristic differences concerning the order of priority for hadanah after the mother. ³² If the mother is dead or otherwise disqualified, some jurists state that custody should go to the father, others say that it should go to the maternal grandmother.

Arguably by awarding mothers priority over physical custody of children under a certain age Islamic law incorporates something akin to the ‘tender years’ presumption ³³ or maternal preference rule applied in some jurisdictions. Hence contrary to popular assumptions, in an essentially patriarchal society Islamic law accorded primarily the right of physical custody to the mother, ³⁴ a stance which had not been envisaged in western legal systems till the later part of the 19th century. However, one may argue that this automatic claim of right to hadanah by women on the basis of motherhood does not necessarily serve the best interests of the child and may be open to the same objections that have been made against the maternal preference rule, namely, that it devalues the child’s relationship with the father. ³⁵ However, a mother’s automatic right to hadanah lasts up to a certain age of the child and is qualified through conditions of eligibility to ahl-al hadanah , which arguably serve as a check to protect the best interests of the child. ³⁶ Secondly, hadanah does not remove the role of the father from the life of the child who continues to be under the overall supervision (guardianship) of the father. This can make possible a child’s contact with both parents.

2. Hadanah and Wilayah : A Right or a Duty?

Imam Ibn-Qudamah states that in view of the particularly weak and vulnerable position of children, hadanah is a duty towards the child. ³⁷ In fact, according to Islamic jurisprudence, hadanah is a collective obligation ( fardh kifayah ) of the Muslim community. Once a particular person is entrusted with this duty, he/she is bound to ensure that the child is well looked after by him/her. Jamal Nasir even goes so far as to say that ‘custody is the established right of the baby from the time of its birth’. ³⁸ The duty-oriented nature of child custody in Islamic law is evident from the fact that mothers are personally obligated to breast feed the child if there are no financial means to obtain milk for the baby or hire a wet nurse. ³⁹

Based on Sunnah ⁴⁰ of the Prophet, the application of hadanah is taken to be a set of responsibilities and duties. During her custodian period a female custodian is responsible for upbringing, protecting, cleaning, taking care of, feeding, and clothing the child. ⁴¹ The person entrusted with guardianship of the person and property of the child has the duty to take decisions regarding a child’s education, marriage, discipline, religious upbringing, medical consent, and future career. ⁴² All the expenses relating to a child’s maintenance, education, and accommodation must be provided by the father. A father is also obligated to provide such services to the child as taking him/her to school whenever necessary and provide overall supervision when the child is staying with the mother or any other female custodian. ⁴³

This element of duty is significantly evident in regard to the guardianship of property of the child. Bharatiya, giving Quranic references, stresses that Islamic law protects the interests of the minor by placing several restrictions on the authority and power of the guardian. An example from Hodkinson ⁴⁴ and Nasir ⁴⁵ can illustrate this point. A spendthrift father can be disqualified from being the guardian of the property of the ward because of the potential detriment to the financial interests of the minor. Such rules indicate the fiduciary status of the guardianship of property. This arguably serves the purpose of protecting the interests of the child and confirms that in Islamic law guardianship is more a duty towards the ward rather than a mere right of the parent.

However, the aforementioned discussion must not be taken to suggest that hadanah and wilayah do not entail any rights for the person entrusted with these responsibilities. The claim to custody and guardianship continues to be vested in the qualified person. Custody can even be regarded as an expression of authority which enables the custodian to perform his/her duties. This however is subject to two very important qualifications. Firstly, hadanah and wilayah is a shared right between the entitled custodian/guardian and the ward, with the ward’s right prevailing if there arises any conflict of interest. ⁴⁶ Secondly, the welfare and interest of the child is always more important than any satisfaction of the claim of the ahl al-hadanah or ahl al-wilayah . In these respects they are very similar to the concept of parental responsibility introduced into English law in the Children Act 1989.

3. Duration of Hadanah

The overriding status of mothers being the primary custodians in Islamic law is inextricably linked to the needs of smaller children. This understandably means that once the child attains a certain age the mother loses this automatic right. But before one delves any further it must be noted that while mothers may lose their overriding status as primary custodians they can still be awarded custody on the basis of the best interests standard. ⁴⁷ Islamic schools of Sunni and Shi’a jurisprudence differ as to when the necessary period of hadanah comes to an end.

In Hanafi law, a mother retains the right of custody till the age of 7 years for boys and puberty ⁴⁸ for girls. ⁴⁹ In Maliki law she retains custody till her son reaches puberty and a daughter is married. ⁵⁰ So the child can be transferred to the father by agreement, but if there is disagreement the court can decide on the best interests principle. In Hanbali law the prevailing opinion is that once the boy reaches the age of discernment ⁵¹ he is given a choice between either parents but a mother will lose the right of custody of her daughter when she is seven years old. ⁵² In Shafi’i law both boys and girls are given a choice as to whom they would prefer to live with after reaching the age of discernment. ⁵³ In Ithna ‘Ashari law a mother retains custody of both boys and girls only for the first 2 years of their lives. ⁵⁴

Hanbalis and Malikis base the child’s right to choose on Prophetic traditions ⁵⁵ and the practice of his companions. ⁵⁶ It is pertinent to stress that all four schools of Sunni jurisprudence base their opinions primarily on the need to protect the best interests of the child rather than any divine constraints. Ibn Qudamah comments that once the child reaches the age of reason it is appropriate to give him/her the right to choose between parents in a custody dispute as that can protect his/her best interests. ⁵⁷ However, Imam Malik and Imam Abu-Hanifa held the view that the child might choose the parent who puts fewer restraints on him and that can prejudice his best interests. ⁵⁸ This apparent divide is however bridgeable because the child’s right to choose is not absolute and can be balanced against his/her best interests. ⁵⁹ Much juristic thought has gone into stressing that a child ought to have a say in custody disputes. ⁶⁰ The way Islamic law addresses this right of the child while also protecting his/her welfare is by subjecting it to the qualification of the best interests test. In so far as Hanafis and Malikis do not have regard to a child’s views, this can be and is circumvented in countries with dominant Hanafi ideology such as Pakistan through the use of Ijtihad . ⁶¹

4. Conditions for Eligibility to ahl al-hadanah (Custodianship)

Islamic law imposes certain conditions which the custodian(s) has to fulfil in order to be eligible for hadanah . These include:

• Legal capacity;

• Trustworthiness;

• Ability to bring up the child;

• Religion;

• Residence; and

• Marriage restrictions.

These are considered in turn.

A. Legal Capacity

This requirement has been interpreted by some jurists to mean that the custodian must have achieved the age of puberty while others insist on maturity as well. ⁶² The custodian must also be sane. However, if the insanity is only occasional and lasts for a very short time then such a person would not technically be disqualified. ⁶³

B. Trustworthiness

The standard is of a person possessing a reasonable standard of moral character and is usually tested by reference to the conduct of the custodian. ⁶⁴ This means that a person who commits what is considered as one or more major sins or persistently commits minor sins (eg adultery) cannot qualify as a custodian. ⁶⁵ This condition is not peculiar to the Islamic legal system as it is hard to envisage child custody being granted to someone with a serious criminal record in any legal system.

C. Ability to Bring Up the Child

In order to ensure the welfare of the child, Islamic law requires that the custodian must physically be able to perform his/her duties and responsibilities towards that child. An inability might stem from a serious physical defect, old age, serious disease and even neglect. Any person who is overloaded with work and prone to neglect the child or is suffering from some serious disease or old age resulting in himself/herself needing assistance is not likely to be entrusted with custodian duties. ⁶⁶

D. Religion

This is the single most controversial requirement in a world where inter-faith marriages are commonplace. Hanbalis and Shafi’is opine that a non-Muslim mother cannot be a custodian of the child since she may influence the child towards a non-Islamic faith and way of life. ⁶⁷ They base their beliefs on a Quranic verse ⁶⁸ and Prophetic traditions. ⁶⁹ However according to Hanafis ⁷⁰ and Malikis, ⁷¹ non-Muslim mothers who are kitabiyah⁷² or majousiyah⁷³ can be custodians of a child provided the child is not harmed physically or religiously. If there is any danger of the child being made to embrace non-Islamic way of life then Hanafis believe that the child may be removed from the care of such a mother. ⁷⁴ Malikis argue that in such a case the child may still be allowed to reside with the custodian provided it is under good care and the custodian is forced to reside in a Muslim community. ⁷⁵

E. Residence

A father’s supervisory role demands that the child stays at a place of easy access to him. This means that if the custodian mother wants to move or travel to a distant place ⁷⁶ it may affect her right to hadanah . However, if the father wants to move to a far off place the child may be required to stay with him ⁷⁷ subject to an important caveat. If the father is moving to an unsafe or dangerous place then the welfare of the child demands that he remain with the person having the right to hadanah . ⁷⁸ Similarly, a mother will not lose custody if she moves to a place which can enhance her child’s quality of life. ⁷⁹ Hanafis are of the view that a mother will not lose custody on moving to the place where the contract of marriage was originally concluded even if it is far from the residence of the guardian provided the mother is native of that place. ⁸⁰

F. Marriage Restrictions

The dominant view is that the female custodian loses hadanah if she remarries during the period of custody. ⁸¹ Islamic jurists have argued that this condition also serves the best interests of the child as the female custodian becomes preoccupied in her new married life and thus would be unable to fulfil adequately her responsibilities towards the child. ⁸² This is subject to some important exceptions. The female custodian may not lose rights to custody if she marries a relative of the child, ⁸³ particularly someone who is within the prohibited degrees of marriage ( mehram ) to the child. ⁸⁴ There is also further juristic opinion that rights of the female custodian do not lapse with her re-marrying. ⁸⁵

Religious and marriage restrictions are definitely peculiar to Islamic law and can cause problems particularly for female custodians in modern settings. Nevertheless Islamic law contains an adequate body of juristic opinion to moderate this. It may take some lateral thinking but the way to that is also provided within Islamic law through procedures such as Ijtihad . Arguably Islamic law, by laying down comprehensive yet rather objective rules, principles, and detailed criteria for identifying the right custodian, limits the discretion of the adjudicating body in applying its own version of the ‘best interests’ standard. Nevertheless the best interests of the child remain the paramount consideration and override any conflicting rights of the person entitled to custody or guardianship. For example, a mother who takes her child away from a father’s influence as guardian will not lose her right to custody if the father’s place or country of residence is unsafe. Such rules can have significant impact in countries such as Pakistan where the security situation remains unstable at best.

III. PARENTAL CHILD ABDUCTION TO PAKISTAN AND THE APPLICABLE PAKISTANI LAW ON CUSTODY OF CHILDREN

1. Parental Child Abduction to Pakistan

The 20th century has witnessed an increasing amount of interfaith and cross-cultural marriages ⁸⁶ and the increasing divorce rate resulted in a plethora of custody disputes. The practice of child abduction by Pakistani parents arising from custody disputes is not a new phenomenon ⁸⁷ but the extensive local and international media coverage of recent cases such as those of Misbah Rana, Peggy Collins, Ingrid Brandun Berger, ⁸⁸ and Roshni Desai has made this issue intensely prominent.

Parental child abduction across international frontiers of a child holding a foreign or dual nationality should bring into effect the Hague Convention on International Child Abduction (1980) ⁸⁹ and the Hague Convention on Parental Responsibility and Protection of Children (1996). ⁹⁰ Pakistan however has not ratified these international instruments ⁹¹ and is not legally bound by them. Nevertheless, Pakistan is legally bound indirectly to ensure that a child’s best interests are protected in any custody dispute by virtue of Article 3 ⁹² of the Convention on the Rights of the Child (1989), to which it is a party. The closest Pakistan has come to making an agreement with another country regarding the issue of parental child abduction is the UK. ⁹³ The judiciaries of both countries entered into a Judicial Protocol concerning parental abduction of children. ⁹⁴ However, the Protocol is not legally binding in Pakistan as it was not promulgated into law by the Pakistani Parliament. Therefore it has negligible influence in such cases. Nonetheless, it shows a growing sense of the appreciation for the intricacy and importance of the subject matter under consideration.

In the absence of legally binding international obligations the only recourse left to aggrieved parties in transnational custody disputes ⁹⁵ is the domestic law of Pakistan. Laws of Pakistan including those of child custody are constitutionally required to be in line with provisions of Islamic law. ⁹⁶

2. Pakistani Law on Custody of Children

It must be mentioned at the outset that child abduction by a parent specifically for custodial reasons is normally not considered an offence under Pakistani law ⁹⁷ unless done with mala fide intentions for statutorily listed purposes. ⁹⁸ The main statute regulating child custody disputes in Pakistan is the Guardians and Wards Act 1890. ⁹⁹ It is with reference to the provisions of this Act that matters of custody of children are primarily decided in Pakistan. This legislation was introduced by the British to the Indian sub-continent and Pakistan has continued with its application on child custody disputes. The Act deals with both facets of guardianship ie of the person and property. The terms guardianship and custody are used interchangeably depending upon the nature of the dispute, and the concept of residential custody ( hadanah ) is entailed within the guardianship of the person of the child. The Act does not ignore the religious law of personal status to which the minor is subject ¹⁰⁰ in a custody dispute, provided it does not impede the best interests of the child. ¹⁰¹ Litigation concerning child custody has to be initiated under the Act, which gives jurisdiction to the District Court to decide the matter in the District where the concerned child ordinarily resides. ¹⁰² Specific provisions of the Act that are referred to and frequently used when making custody applications to the Guardianship Court ¹⁰³ are sections 7, 9, 12, 17, and in particular 25. These provisions are used to invoke the authority of the court ¹⁰⁴ in making a guardianship order, ¹⁰⁵ to obtain interim orders before the final order as to guardianship is passed, ¹⁰⁶ to raise the considerations the court must undertake before making a final order and finally to base all the said provisions on the court’s authority to consider the welfare of the child when deciding his/her custody. ¹⁰⁷

The welfare of the child is the paramount consideration in all custody disputes under the Act. Though it does not precisely define the concept, it provides a checklist of factors that constitute the welfare and best interests of the child. It includes wide ranging factors such as age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kinship to the minor along with the wishes, if any, of a deceased parent. ¹⁰⁸ The court may also consider a minor’s preference regarding his/her guardianship or custody if the minor is old enough to make an intelligent preference. ¹⁰⁹ There are striking similarities between many of these factors and the ones under Islamic law considered earlier. ¹¹⁰

IV. HOW PAKISTANI COURTS HAVE INTERPRETED THE BEST INTERESTS OF THE CHILD AS A PRIMARY CONSIDERATION WHEN AWARDING CUSTODY

Internationally, there is concern about the dogmatic nature of certain Islamic family laws including ones on child custody which in turn raise concerns about the adequacy of the Pakistani legal system to safeguard the best interests of the child in custody disputes. One of the focal points of this debate revolves around the legal capacity of a non-Muslim mother to be the primary custodian of a child she had with a Muslim father. ¹¹¹ This issue arises mostly in the context of interfaith marriages concerning Pakistani/dual or foreign national children. ¹¹²

1. Transnational Child Custody Disputes

A. Louise Ann Fairley v Sajjad Ahmad Rana ¹¹³

Sajjad Ahmad Rana, a Paksitani citizen by birth, married Ms Fairley, a Scottish lady, acquired British nationality, and had four children with her, including Misbah Rana. ¹¹⁴ Misbah lived in Pakistan from 2003 to 2005, then returned to Scotland. In 2006 Mr Rana arranged for Misbah to be brought to Pakistan in defiance of an interim order of the Scottish Court of Session. Ms Fairley came to Pakistan and filed a habeas corpus writ in the Lahore High Court. Justice Saqib Nisar held that Misbah had lived most of her life in Scotland and was a habitual resident of Scotland and not an ordinary resident of Pakistan. The judge further stated that the orders of the Scottish court were binding on Mr Rana and his attempt to bring Misbah to Pakistan was ‘oblique, dishonest, tainted and motivated with fraud’. ¹¹⁵ Misbah herself stated that she did not want to reside with her mother because she forbade her to practice her faith, gave her haram ¹¹⁶ food, and was living with a man out of marriage. ¹¹⁷ The court noted that the child’s views were relevant and the welfare of the child was a paramount consideration in custody disputes but in this case the views of the child and the question of her best interests and welfare should be adjudicated by the Scottish court. Hence, the court ordered Mr Rana to hand over the custody to Ms Fairley.

The Supreme Court of Pakistan set aside Justice Nisar’s judgment on appeal and mediated a settlement between the parties. ¹¹⁸ According to the terms of the agreement which formed part of the court judgment, Mr Rana was given the custody of Misbah Rana and Ms Fairley the right to visit and talk to her daughter whenever she wanted. ¹¹⁹ There was no legal obligation on the Lahore High Court to order the return of Misbah without deciding substantive issues of the welfare of the child. ¹²⁰ Justice Nisarhad mentioned the Pakistan–UK Judicial Protocol on children matters but did not make it the basis for his decision and in any case the protocol was not legally binding. Although Misbah Rana was of considerable maturity and openly expressed her choice to stay with her father, the essence of his decision was that the proper forum to consider such views was the Scottish court. While this view takes into consideration the jurisdictional competency of the court, ¹²¹ it ignores the fact that prolonged litigation in custody disputes can have serious adverse effects on the welfare of the child. The Pakistani Supreme Court’s decision in giving weight to the views of Misbah Rana by arranging a compromise between the parties thereby ensuring the influence of both parents in her life had a core of good sense. Misbah Rana stayed in Pakistan till 2011 before returning to the UK to pursue wider opportunities and when last reported enjoyed good relations with both her parents. ¹²²

B. Peggy Collins v Muhammad Ishfaque Malik; ¹²³ Roshni Desai v Jehanzeb Niazi ¹²⁴

Mr Malik, a Pakistani citizen, married a French lady, Ms Collins, and had a son, Omer, with her. In 2007 he removed Omer from the lawful custody of his mother and brought him to Pakistan. Ms Collins filed a habeas corpus writ for the recovery of Omer in the Lahore High Court. Counsel for Mr Malik argued that the child’s Muslim faith and his identity as a Pakistani citizen would be compromised if custody was granted to the Christian mother. ¹²⁵ Justice Khosa held that Mr Malik wanted to hide behind the Muslim faith while his conduct was contrary to the teachings of Islam. The court noted that the mere profession of the Muslim faith by a father was not enough to decide that the welfare of the child lay in handing over custody to him. ¹²⁶ In actuality, the father, being on the run from the authorities for 2 years, had completely ignored his child’s welfare, education, schooling, state of mind, and need for a congenial atmosphere for his upbringing. ¹²⁷ In contrast to the father, who was a fugitive with a criminal record, the French mother of Christian origin had a blotless character and she showed her love and affection for the child by pursuing him to a foreign land against all odds. Hence the court held that it was in the best interests of the child that custody be awarded to the mother who could instil good moral, social, and human values in her child’s personality. ¹²⁸ In Roshni Desai v Jahanzeb Niazi custody was granted to a Canadian Hindu mother. ¹²⁹

Pakistani Superior Courts have generally purported to exclude religious considerations by granting equal rights to non-Muslim and Muslim mothers. It is in the nature of the inquiry underpinning a child’s best interests that factors such as a child’s wishes, educational, emotional and other needs, stable environment, trustworthiness, and character of the proposed custodian/guardian are considered by the courts. The extent to which Pakistani Superior Courts pay regard to the said considerations in transnational custody disputes place them in no different position from any other court adjudicating on such matters. Furthermore, the fact that no detriment was suffered by the petitioners when filing the aforementioned cases under relevant provisions of the Code of Criminal Procedure and Constitution of Pakistan rather than Guardians and Wards Act 1890 ¹³⁰ further shows a willingness on part of the Pakistani Courts to relax procedural requirements where safeguarding the welfare and best interests of the child is concerned.

2. Domestic Cases Concerning Child Custody Disputes

Critics nevertheless argue that decisions taken by Pakistani Superior Courts in the said transnational custody disputes were influenced by political considerations rather than following normative legal standards. This criticism makes it necessary to review Pakistani domestic cases concerning child custody to obtain a comprehensive sense of legal reasoning that underpins custody decisions.

A. Will a Father’s Right to Wilayah Always Prevail over a Mother’s Right to Hadanah?

It is generally believed that a child cannot be removed from a father’s sphere of influence as a guardian and any such attempt would result in a mother losing her right to custody. Attique Ahmed v Adla Noreen¹³¹ concerned a 3-year old boy whose father, after divorcing Ms Noreen, wanted to take his son overseas with him. The child had resided with the mother since birth and was well adjusted in that environment. The Family Court and the Federal Shariat Court of Azad Jammu & Kashmir ¹³² awarded custody to the mother. The Supreme Court of AJK upheld earlier judgments stating that in any custody dispute the welfare of the minor remained the paramount consideration. Islamic law as applied under the Guardian and Wards Act 1890 gave the right of custody of a child of tender years to the mother. The child of such an age was believed to be in need of full time attention, care, and love, which a mother was more able to provide. ¹³³

B. Can a Mother’s Weaker Financial Position Preclude her Right to Hadanah?

Fathers with financial resources often try to claim custody on the sole ground of being able to provide a better quality of life for the child. Pakistani Superior Courts have however not always looked at these contentions favourably. In Abdul Qadir v Bibi Sabira , ¹³⁴ the father of three minor sons aged 8, 7, and 4, who had contracted a second marriage, sought custody since the mother was unemployed and, having no income, could not provide proper education for the children. The Quetta High Court held that in any case it was the duty of the father to maintain the children. The father was away because of his work and no one can fulfil the emotional needs of the children better than their mother. The father was to pay for the educational and other expenses of the children and arrange for them to be sent to a reputable school without dislocating their custody with the mother. Similar decisions have been made by Pakistani Superior Courts in a number of other cases concerning financial needs of the child. ¹³⁵ These decisions illustrate that the mere weak financial position of mothers would not preclude their right to custody of the child provided such custody is in the child’s best interests. ¹³⁶ This is specially the case when the child is well adjusted with the mother and any removal from such an environment on grounds of mother’s poverty can psychologically harm the child. ¹³⁷

C. What other Factors do the Pakistani Superior Courts Consider in Making Custody Awards?

Disputes regarding custody are normally brought under sections 7, 12, 17, and 25 of the Guardian and Wards Act 1890 but sometimes desperate parents subsume their custody claims under habeas corpus writs invoking the jurisdiction of Provincial High Courts. In Mst. Shazia Bano¹³⁸ the Karachi High Court, reaffirming numerous old judgments, ¹³⁹ stated that jurisdictional defects and mere technicalities cannot be fatal to the court awarding custody where the welfare of the child demands so.

It is customary in countries like Pakistan that divorcing spouses strike private deals regarding custody matters and the party in a better bargaining position extracts unfair advantages to the detriment of the welfare of the child. Pakistani courts have repeatedly struck down such agreements as illegal and non-binding on the courts and have asserted their right to decide the custody issue keeping in view the welfare of the child. ¹⁴⁰ Section 12 of the Act empowers the Guardian Court to make interim orders regarding child custody but the Lahore High Court in Ayesha Bibi¹⁴¹ stressed that courts should make a permanent custody order without delay because unnecessary interim orders can make the child a rolling stone between the litigating parties, which is harmful to a child’s personality and well-being.

In Mst. Aliya¹⁴² and Muhammad Nadeem¹⁴³ the courts stated that the acrimony between ex-spouses should not stand in the way of the best interests of the child, which is better served by having the love, care, attention, and guidance of both mother and father. In a number of similar cases the courts have preferred a joint custody type arrangement provided it is in the best interests of child. ¹⁴⁴

The courts pay due consideration to the preferential right of a mother to hadanah of her child and normally award her residential custody in absence of exceptional circumstances. ¹⁴⁵ The reasoning, whilst partly based on Islamic law, is more influenced by the belief that children of tender age can be better looked after by the mother than any other prospective custodian. ¹⁴⁶ In a recent judgment given by the Supreme Court a mother lost the right to hadanah and custody of a minor child on the sole ground that she remarried after obtaining divorce from the father of the child. ¹⁴⁷ However, in this case the court stated that this rule can be offset by exceptional circumstances considering the welfare of the child ¹⁴⁸ but unfortunately did not provide details of what such exceptional circumstances could be. There have been previous cases where the mother retained custody in spite of remarriage, where the father had completely neglected the children most of their lives or failed to pay maintenance or where not awarding the custody to the mother would disrupt the educational, psychological, and emotional welfare of the children. ¹⁴⁹ Even more importantly, the Shariat Court ¹⁵⁰ of AJ&K ruled that where both father and mother contract a second marriage the mother stood on no worse position than the father and the decisive factor should only be the best interests of the child. ¹⁵¹

Pakistani Superior Courts have also tended to give weight to the opinion of the concerned child where it is consistent with that child’s welfare ¹⁵² but have readily awarded custody contrary to his/her wishes where there appeared strong suggestions of the child’s opinion being coerced. ¹⁵³ One recurrent problem is that lower courts deciding custody matters often pay more attention to matters such as a father’s social and economic standing even if such considerations are not warranted by the welfare principle. In Mst. Karisma Bibi¹⁵⁴ the Lahore High Court strongly denounced this attitude and ordered the lower judiciary to be influenced only by the need to secure best interests of the child and not apply a narrower interpretation of Islamic principles and legislative provisions.

Pakistani Superior Courts have in almost every judgment stressed that the ultimate criterion remains the best interests of the child. In Shahray Khan¹⁵⁵ the Lahore High Court granted custody to the father, with visitation to the mother against the presumption of a mother’s right to hadanah because the child seemed well-adjusted, confident, happy, healthy, and emotionally stable and handing custody to the mother would risk traumatizing the child. Where a case involves more than one child, courts have even tended to award custody to one parent rather than splitting the siblings because keeping them together benefits their sibling bond. ¹⁵⁶ Similarly, even adoptive parents ¹⁵⁷ have been given preference to actual mothers because the child was happier and settled with them. The Peshawar High Court in a recent seminal judgment held that religious law in custody matters should not be applied blindly but rather after an objective analysis of all the facts with the paramount and dominant factor being the welfare of the child. ¹⁵⁸

A legal pattern appears to be emerging. There was a time when Pakistani Superior Courts interpreted Islamic principles literally by almost always awarding custody to the father vis-à-vis a non-Muslim mother. ¹⁵⁹ However, it is almost customary now to think that, provided it serves the best interests of the child, Pakistani Superior Courts would readily grant custody to a non-Muslim mother even at the cost of removing the child from the all-important guardianship influence of the father. There is no denying that courts are still influenced by religious presumptions regarding child custody but they have tended to qualify this by subjecting any such presumption to the principle of the welfare of the child. It is however not the case that Pakistani Superior Courts no longer follow Islamic injunctions but rather that they are more inclined towards using the inherent flexibility provided within Islamic principles to cater to the best interests of the child.

V. CONCLUSIONS

This article has attempted to show how Islamic child custody laws can potentially fill the gaps and lacunas that exist within contemporary legal systems by providing a more balanced interplay between the rights of the child and the rights of the competing custodians/guardians. But to cast Islamic laws on child custody as unproblematic would be distorting reality. The two most important and peculiar issues which raise controversy are those relating to the entitlements of non-Muslim custodian mother and the mother who remarries to a stranger. ¹⁶⁰ However, Islamic child custody law does have an inherent flexibility to offer effective solutions to these issues. Recent Pakistani cases such as Misbah Rana, Peggy Collins , and Roshni Desai provide ample proof that non-Muslim mothers are increasingly treated in the same manner as Muslim mothers. A child’s best interests also remain the paramount consideration even in cases of mothers remarrying a stranger and this constructive interpretation is being applied increasingly to custody disputes. ¹⁶¹

It is also imperative to understand that Islamic law is not static and that Pakistani Superior Courts have contributed towards its progressive development by practising both procedural ¹⁶² and substantive ¹⁶³Ijtihad on the basis of the welfare of the child principle. Pakistani law on child custody is a unique blend of secular legislation and religious law. The welfare test in Guardian and Wards Act 1890 ¹⁶⁴ is not much different from the best interests standard followed in the UK and elsewhere. The holistic umbrella of Islamic custody laws also incorporates wide-ranging factors that strive to look after the perspective of the child. ¹⁶⁵ It may be that Islamic child custody law does not follow the terminology or methodology of the western legal systems, but that is not the sole litmus test for judging whether the welfare of the vulnerable child is adequately safeguarded. While Islamic law deals with issues of child custody in its own peculiar way, its fundamental purpose and effect is to protect the rights of that child which is and should be the ultimate yard-stick for evaluating the efficacy of any system of law addressing child custody disputes.

REFERENCES

NOTES