Child Custody is always a major issue to be dealt with after a fresh Talaq or Khula between Pakistani parents, especially where one of the parents is residing abroad, Under the Family Courts (Amendment) Act, 2002, the period for the disposal by a court in a suit for dissolution of marriage has been fixed at four months and an appeal against such an order shall also be decided within four months. This is something you should know in case your or your client’s case has dragged on for more than six months, which used to be typical of our courts, not very long ago!
Also under a very useful and recent amendment of this Act, a plaint for dissolution for marriage may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children and visitation rights. This is something, which has perhaps made a lawyer’s job very easy in terms of drafting, although I have often in practice found that combining too many issues together does cause the proceedings to become unnecessarily long and tumultuous. The most important thing for a lawyer to know is that under Section 25 of the Family Court Act, 1964 the Family Court is deemed to be a District Court for purposes of Guardians and Wards Act, 1890.Please bear in mind that while dealing with a custody matter you might have to summarily deal with the following matters and legal amendments:
- 337A(i), 337F(i), 341, 342, 344, 345, 346, 352, and 509 of the Pakistan Penal Code (Act XLV of 1860).}
- Family Courts (Amendment) Ordi. (LV Of 2002), DT. 1st of October, 2002
- West Pakistan Act I of 1969, S. 8
- Family courts Act Vii of 1997 dated, 26. 4. 1997.
Last but not the least, where the mother marries again, the rights of ‘Hizanat ‘of minor tend to arise and cause major complications, as under classical Muslim interpretation of Shariah, by marrying again, a mother losses Hizanat/right of custody of her child. In practice however, after loosing such Hizanat, the custody of the minor does not revert automatically to the father and the guardian Judge still retains discretion to determine welfare of minor. Especially in a case where the Court feels that the Minor would not be given a good treatment by his stepmother. You might want to look up P.L.J.1998 Lah. 1635 and PLD 1998 Lah. 67. In any case, this fact might be eye-opening for those who claim women are treated badly by local Pakistani Family laws, especially the way the judges are much more happy to give custody of minors to their mothers nowadays, no matter how much the paternal relatives might insist on their right of custody. It is a positive trend to see the courts become more pro-women as time goes by, so the best interests of young children can be looked after.
Advocate High Court Chaudhry Zulfikar Ali Goheer (Independent Practicing Attorney and Specialist in Divorce Laws & Online Nikah/Court Marriage)