The most tragic to our society at present is ‘collapsing down’ the family structure. It happens at full tilt that cannot be seen but felt its effects on our souls. There are so many reasons behind it, some are biological and some are of psychological. We cruelly neglect essential moral values under greed and lust of the materialistic world. Now, individual irrespective to gender has various types of issues due to economic and social pressures. Generally under such speedy life; the man has no reasonable time to think for coming out from the ditches made up of problematic issues that are inevitably going to become graves of peaceful social life.
The home is the basic unit of any social society as a part of human civilization. This basic structure is crashing down rapidly throughout the globe. Effects are being visibly reflected in our society for a decade. Family courts in Pakistan are reliable indicators while thousands of cases kept beyond them.
The Issue of minors’ custody rises basically from the outcome of conflicts and disputes between husband and wife. Almost the cases ultimately reached up to permanent break down of marital tie through a divorce or judicial khula. In some cases parties amicably resolve the issues with the help of well-wishers, elders, or through reconciliation institutions but most of them compelled to knock the doors of Family courts for custody of minors.
As we live in an Islamic state, being majority we have to know the Shariah provisions as to the major sects of Islam. The four major Schools of Thoughts set the criteria for getting guardianship of the minors based on age groups.
In Hanafi school of thought, the boy shall remain in the custody of the mother for seven years while the girl remains with her mother till she attains the age of puberty i.e. age of 9 years. While in Maliki school of thought the boy shall remain in the custody of the mother until he attains sufficient conversation ability and the girl till her marriage. In Shafae school of thought, the period of custody for both male and female child is 7 years, after seven years, consent of the minor would be a determinant factor. On the other hand in Shia jurisprudence, the boy shall be in the custody of the mother for two years and the girl for seven years.
The guardian court is actually a parent court and judges have a full burden to discharge the responsibility of deciding the fate of minor while counsels of both the parties have divine duty to assist the courts with utmost sincerity. The guardian court has ample powers conferred by the Guardian and Wards Act, 1890. Under section 12 a party can apply for appointing as a Guardian and sections 17 & 25 of the said Act may be invoked for permanent custody.
As per Islamic Injunctions, the father is a natural guardian but the mother’s right of custody cannot be easily forfeited in the wake of mother’s love, affection and her commitment to the child as it could not be matched with any other relation. All over the world cases decided in view that Lap of real mother would be God’s own cradle for a child.
The guardian courts give weightage to the respective personal laws; however, the prime consideration for the appointment of a guardian is always with the welfare of minors. The financial condition, character, physical and mental soundness, and the educational prospect are the general basis for calculating the welfare of minors but all these checks with the touchstone of the personality of the proposed guardian in view of religious affiliation as well culturally civilized and disciplined one, with whom the minor would feel more comfortable and confident. Love and affection is a necessary subject for the grant of custody along with overall welfare of minor for his/her better upbringing as a good citizen of the society.
The apex court of Pakistan held in the case of Mst. Ayesha Vs Additional District Judge, Sahiwal & 2 others (2020 YLR 401) that the paramount consideration while deciding application for custody of minor was welfare and nothing else. In general the father is considered to be the natural guardian but the Lahore High court decides in the matter between Rasheedan Bibi Vs Additional District Judge & 2 others (2012 CLC 784) that mere entitlement of father as a natural guardian of minors would not be sufficient to decide question – prime consideration while deciding custody of minors would be their welfare keeping in view character and capacity of their proposed guardian.
Proceedings in guardian courts for custody of minors have been full of pain scenarios. The Guardian Courts if really work are acted as a safeguard of the rights of children which is a very difficult task. The mothers’ laps and caring hands of the fathers are the fundamental rights of minors given by divine nature. The minors always remain in need of love and affection of both mother and father. Children cannot afford to be well of mind in broken families. There is no substitute for the joint love of parents; separation of spouses ruins the soul and mind of their children. After getting great blessings like children, the parents must overcome their egos for the sake of their children and stay together for the better future of the children.