D.F. Mullah in Mohammedan Law in Para 352 provides that the mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and her female child until she has attained puberty.
Para 352 provides that this right continues while she is divorced from the father of the child; however, in the event she marries a second time, custody then belongs to the father.
Para 354 of Mohammadan Law provides that the mother, who is otherwise entitled to the custody of a child, loses the right of custody if she marries a person not related to the child within the prohibited degrees specified in paras 260-261 of Mohammadan Law. So as per the principles of Mohammadan Law by D.F. Mullah, when she remarries, she can be disqualified from custody.
Child Custody after Divorce under the Law of Pakistan:
Under the laws of Pakistan, the custody of a minor is given to the mother, which is called the right of hizanat. But after the age of seven years, the mother’s custodial right over the son ends. However, it is not an absolute right; it is made in the boy's interest. The custody of girls is given to mothers until they attain puberty.
However, if the mother is found unfit due to objectionable behavior or is neglectful, she may not be given custody rights. The father has the right to custody after the mother’s term ends by the court of law. In case of the absence of both parents, the grandparents are offered possession of the child. If the Parties cannot settle, they can apply to the court for custodial and guardianship rights.
Difference between Custodial and Guardianship Rights
In Fahimudin v. Zaibunnisa, 1968 PLD 774 (Karachi), the court has observed that although under Section 4(2), Section 9(i), and Section 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian,” as defined in S. 4(2), means a person providing de facto or de jure care of the person and/or property of a minor. Such a person may or may not have custody of a minor,
Whereas “custody” is defined as an actual or constructive possession to protect the minor. Furthermore, “protection” and “care” are distinguished accordingly. “Protection” denotes preservation, whereas “care” denotes responsibility for welfare and care.
Guardians and Wards Act, 1890
In Pakistan, the right of custody and guardianship is governed by the Guardians And Wards Act of 1890. The Party, intending to obtain the custody of the minor child, has to apply for such custodial right under the Guardians and Wards Act of 1890.
Section 24 of the Guardians and Wards Act of 1890 defines the guardian's duties. A guardian of the minor child is entrusted with the custody of the ward and must look to the minor's support, health and education, and interests.
According to Section 17 of the Guardians and Wards Act, 1890, the Court shall consider the minor's welfare as supreme while appointing a guardian. Section 17(2) states that In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian, and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
Welfare of the Minor
The Courts have also elaborated on the definition and meaning of welfare. In Scheherazade Jamali v. Hisham Gillani, P L D 2018 Sindh 377, the Court has observed that the “Welfare of the minor includes his material, intellectual, moral and spiritual well-being. In accomplishing such an object, it becomes the duty of the Court to take care of the ward's welfare. It shall ensure that the litigating parents are not disputing to settle their score, satisfy vanity, or even soothe their craving for love and affection for the minor, as it could only be done if the welfare of the ward demands. Guardian Courts sometimes lose sight of the welfare of the ward when love and affection are demonstrated by parents, who are considered an overriding effect. True love of mother and father no doubt is important, but what is more important is the welfare of the ward, and it should not be limited to anyone's right of custody, but a larger view is to be taken from the ward's point of view.”
In a recent judgment by Justice Ayesha Malik, titled Raja Muhammad Owais v. Nazia Jabeen, 2022 SC 289, the Supreme Court has laid out, contrary to the popular position, that even if the mother has remarried, the mother can be granted custody of the minor(s) if it is in the welfare of the minors.
Conclusion
It is well settled that the custody of a minor child will remain with the mother until the prescribed age limit. However, if the mother is absent or the father wants to obtain custody of the child, the court is empowered to grant such custody and guardianship rights. The Court will, however, always keep regard for the minor's welfare in making such orders.
