Second marriage no bar to deny mother’s right to custody: SC

Judgement says children’s preferences can be a guiding factor in custody cases

ISLAMABAD:

The Supreme Court has ruled that the second marriage of the mother cannot become a stand-alone reason to disqualify her right to custody.

A nine-page judgment authored by Justice Ayesha Malik while deciding the case of three children’s custody said the top court has time and again held that the paramount consideration where custody is concerned is the welfare of the minor – to consider what is in the best interest of the child.

“The court’s jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents’ ability to provide for the child including physical and emotional needs, and medical care but also relevant is the parents’ ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child,” the ruling observed.

The court said that there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, and the care, comfort and attention that a child gets.

"Accordingly, the concept of welfare of the child is an all-encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional well-being of the child."

The court also said that the United Nations Convention on the Rights of the Child, 1989 (UNCRC) is an international treaty which sets out the rights of children, be it economic, social, health or family.

The UNCRC was ratified by Pakistan in 1990 with reservations that it will adopt the Convention, subject to the requirements of Islamic Law. However, in 1997, the ratification became absolute as the reservation was withdrawn.

"The UNCRC recognizes that the child should grow up in an environment of love, happiness and understanding. Article 3 provides that in all actions concerning children whether by courts of law or public, or private welfare institutions amongst others, the best interest of the child shall be a primary consideration.”

The judgement highlighted that Article 7 provides that every child has the right to be cared for by their parents and Article 9 requires that in the event of separation between the parents, the child should be in contact with both parents unless either one can cause any harm.

 Similarly, Article 12 provides that a child capable of forming his or her own view should be able to express it and it should be given due weightage.

"This Article suggests that children’s preferences can be a guiding factor in custody cases, hence, encouraging their participation and opinion in custody matters. This is essential because custody is about the care and comfort of the child and the right of the child to a family.”

It emphasised that custody matters are always sensitive and require a great deal of care as the court has to weigh in all factors in order to determine where the welfare of the minor lies. In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment have to be reassessed in the context of the welfare of the child.

Fundamental to this decision is the best interest of the child and not that of the parents. Hence, the second marriage of the mother cannot become a stand-alone reason to disqualify her right to custody, it noted.

The judgment said that as per the principles of Mohammadan Law by DF Mullah where she remarries, she can be disqualified for custody.

Section 17 of the Act requires the Court to consider the welfare of the minor when appointing a guardian and welfare will be decided based on the age, sex and religion of the minor, as well as the character and capacity of the guardian and the preference of the minor where they are old enough to state their preference intelligently.

"These provisions and the principles of Mohammedan Law have been examined by this Court in several judgments where it has held that the conditions contained in Paras 352 and 354 of Mullah’s Mohammadan Law are not absolute and are subject to the welfare of the child."

The case

The order says that in this case, the senior civil judge (family division) considered the welfare of the children based on their ages and gender. The mother is an educated woman running a private school. She lives in her own house and is able to care for the children.

One of the factors that prevailed with the senior civil judge was the wishes of the four children as they made their statement in court that they were desirous of living with their mother. In order to ascertain the desire of the children as of today, we asked each of the children, who are present in court, about their preference.

"We were informed by each of the children that they desired to live with their mother. We find that the children were confident and were able to easily express their wishes.

"The desire as expressed by the children is relevant particularly when the child is able to express his or her mind on preference. Although this cannot be the sole factor, it is a relevant factor and we find that the appellate court totally ignored this aspect of the matter particularly with reference to Ummama Awais and Ayesha Awais, who of their own free will, left their father’s home to reside with their mother on November 15, 2017 and have since been living with their mother,” the judgement said.