A family is a fundamental unit of any society or nation. It is especially important for the well-being and overall development of children. A family includes not only the mother and father (along with their respective parents and siblings in some cases), but also their value systems, beliefs, aspirations, and struggles. A happy family serves as a link to a child’s past and a bridge to their future.
However, just as joint families have given way to nuclear families, marriages in Pakistan today are no longer a lifetime bond, but rather a meeting of two souls (and sometimes families) to “explore” the possibility of being a partner in each other’s journey. The recent trend in Pakistan’s society is witnessing a paradigm shift in matrimonial relationships, with an increase in divorce cases. Especially in the last two decades, more and more middle and lower-middle class couples are approaching family courts for divorce, resulting in the rise of bitter child custody battles.
In this whole procedure regarding child custody, innocent children are usually used as a tool to seek revenge by vindictive litigants who seem to have no hesitation in giving severe emotional and psychological damage to the child, thereby seriously affecting the child’s development in later life. But the real question is who is (father or mother) more eligible to take custody of the child?
As per the Judicial Statistics Report of 2014, a standard family custody case under the Guardian & Wards ACT 1980 lasts approximately three to five years in the Guardian Courts. The most serious post-divorce dispute is the custody of minors whether interim, permanent, or any visitation plans as ordered by the honorable courts.
According to Pakistani law, the custody of a minor’s children is granted to mothers. This right is referred to as the Hizanat. However, the mother’s authority over the son expires at the age of seven. However, it is not an absolute right, it is made in the interest of the boy. While girls can remain with their mothers until they attain puberty.
After the age of Hizanat, the father has the right to file the petition for the child’s custody in the guardian court. This right of the father is called Wilayat. Moreover, in case none of the parents wants to keep the child, custody is offered to the grandparents.
At an interim stage, Guardian Courts permit access to two-hour visitation/reunion rights once a month to a Non-Custodial Parent involved. Being a non-custodial parent (in majority cases, the father), undergoes a highly painful journey of at least getting a visitation right within the court premises. Once the court allows the meeting between father and children it takes another month or two or even more for the execution of the orders. Because mostly the custodial parents, if not all, come up with random excuses about a child’s inability to appear in the courtroom for a meeting with the father, either due to exams or medical reasons or excuses without any credible proof. This helps the custodial parent to alienate the child from her/his father.
If the father is fortunate enough to secure a meeting with his children, even if it is within the courtrooms, they have to wait for hours before their child arrives. Because the specific timings for child meeting with father ordered by an honorable court are straight away ignored in most of the situations by the opposite party.
Moreover, in many cases, children are decided to bring in for a meeting when they are exhausted enough. In this condition they fail to actively engage with their fathers, resulting in what appears to be a deliberate delaying and detachment strategy that not only frustrates the minors but is also equivalent to taking the court’s order for granted.
Another painful thing is if a father wants to know about the physical and mental health or the academic progress of his children, which is his basic right, he has to take the assistance of his lawyer. The procedure needs to move an application to guardian courts to inform him about the health and academic progress of his child. The application is then answered by the custodial mother, who may take a long time to answer and is often nothing more than an added piece of paper to the file.
Under Islamic as well as Pakistani law, a father is obliged to pay maintenance for his child. This obligation continues until the child reaches the age of adolescence in the case of a son, and until marriage in the case of a daughter. But it has been seen in some cases that the money taken in the name of a child’s academic and health maintenance is not used properly. A non – custodial father states this situation like this, “In my case, I have been paying maintenance regularly as ordered by the honorable court. Shockingly, however, I received a text from the educational institution of my kid instructing me to submit the fee due for four months and threatening to remove the name of the child if not received”
Also in the majority of the cases, it has been seen that family members of custodial parents brainwash the child against his/her father. During all these years, there develops a lack of communication between minors and the non – custodial father which keeps on diminishing and in majority cases, it completely shatters.
What is the criteria for the custody of a child in Pakistan?
According to Pakistani law, the custody of a minor’s children is granted to mothers. However, the mother’s authority over the son expires at the age of seven. While girls can remain with their mothers until they attain puberty. After the age of Hizanat, the father has the right to file the petition for the child’s custody in the guardian court.
How can a non – custodial father know about the health and academic process of his children?
The father has to take the assistance of his lawyer. The procedure needs to move an application to guardian courts to inform him about the health and academic progress of his child. The application is then answered by the custodial mother, who may take a long time to answer and is often nothing more than an added piece of paper to the file.
Why is there a need for an equal parenting system?
The presence of both father and mother is equally important for the healthy brains of the children. Also, we should consider an equal parenting system so that the minor souls don’t go through a series of harsh experiences and they may have healthier minds rather than damaged souls who were once denied to have an equal parenting right.
My intention is not to portray all custodial mothers in a negative way. The aim of this writing is just to highlight the legal rights of fathers regarding his children. Because the father is the natural guardian and has the right to supervise the child even when the child is in the custody of the mothers. Moreover, the presence of both father and mother is equally important for the healthy brains of the children. Therefore, the mothers shouldn’t try to keep his children away from their father.
Also, the judicial system of Pakistan should make amendments regarding the father’s role in child upbringing after divorce. They should consider an equal parenting system so that the minor souls don’t go through a series of harsh experiences and they may have healthier minds rather than damaged souls who were once denied to have an equal parenting right.
Advocate and Social Activist, Currently practicing Law in Lahore
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