..::Child Custody in Pakistan..divorced mother’s right

..posted by Pakistani Law Firm..Free Legal Advice

I. INTRODUCTION: The Hanafi School of Muslim Law recognized by most Pakistanis, stipulates that a

divorced mother’s right to the care and custody of her children outweighs the father’s

claims until the girls reach puberty and the boys reach age seven. The father’s right to

custody arises thereafter, though the father retains legal, if not actual, custody throughout

the children’s minority. More often than not, custody decisions entered by the

Pakistani courts deviate from these rules. Jurists cite the custody provisions of the

Guardians & Wards Act of 1890 to mask their reliance on a “best interests of the child”

standard similar to the test found in British family law.  The legal technique by which

courts incorporate the “best interests” test into the Pakistani rule of decision is the ancient

concept of “ijtihad” or “the exercise of human reason to ascertain a rule of [Muslim] law.”

Pakistani judges relying on ijtihad have drawn the lines for a debate which is central

to the role of law within the Islamic state. Ijtihad is a technique of change. In a world

where Muslim family law is strained and pulled by current events, and “western” views of

accepted behavior are exported wholesale to Moslem consumers,6 a mechanism for

evolution is a safety valve. But change is difficult to recGlncile with a Qur’anic state. Ijtihad

may represent innovative legal reasoning which would strengthen Islam in Pakistan, but

to prove their case, jurists advocating ijtihad must argue that it is unremarkable – that it

has always been an organic part of Muslim law, ready to be exercised in just such a way. In

the context of Pakistani child custody and Anglo-Muhammadan law, this position is

entirely tenable.

The legislative enactments and court decisions which attempt to define, interpret, or

limit Muslim law in Pakistan and India are termed Anglo-Muhammadan law.  According

to Coulson, Anglo-Muhammadan law is an expression of Islamic law unique not only in form – for it is genuinely

applied as a case-law system through a hierarchy of courts which observes the

doctrine of binding precedent – but also in substance, inasmuch as it has

absorbed English influences, particularly those of equity’s

The major part of Anglo-Muhammadan law was assimilated into Pakistani law through

article 224 of the 1956 Pakistan Constitution, which provided for the incorporation of

pre-existing law “save as is otherwise expressly provided in the Constitution” and “so far

as is applicable and with necessary modifications.”

The Guardians & Wards Act of 1890 was enacted at a time of pervasive British

influence in what is now Pakistan. The early British practice of applying Islamic law to

Muslims in matters governed by the personal law of the Qur’an had been effectively

abandoned.  The Pakistan Penal Code of 1860 severely limited the operation of Muslim

religious and customary law, as did the Divorce Act of 1869. The Punjab Laws Act IV of

1872 reinforced the secondary role of Muslim law as a rule of decision by calling for

judicial reliance on, first, custom which was not contrary to justice or good conscience and

not void or overridden by other enactments, and second, Muhammadan law to the extent

that it had not been legislatively abolished or altered by Muslim personal law was generally

exercised only with reference to the hadiths (the narratives relating to the Prophet), qiyas or

deductive analogy, and the consensus of the legal community, ijma.

II. THE GUARDIANS & WARDS ACT OF 1890

Though the Guardians & Wards Act sets out the framework for court consideration

of custody disputes, only section 25(1) explicitly concerns custody. It states that “[i]f a

ward leaves or is removed from the custody of a guardian of his person, the Court, if it is

of the opinion that it will be for the welfare of the ward to return to the custody of his

guardian, may make an order for his return.” On its face, this merely allows for the

possibility of court intervention to re-establish the original arrangement. But since both

divorced parents may retain a form of custody – the mother exercises actual custody

while the father relies on legal custody – the provision has been applied to transfer

custody from one parent to the other when “it will be for the welfare of the ward.” In

other words, the courts may disregard Hanafi custodial hierarchy.

The scope of a court’s section 25( 1) power to adjust custody awards is bounded by the

somewhat confusing statutory definition of “guardian.” According to section 4(2) of the

Guardians & Wards Act, a guardian is “a person having the care of the person of a minor,

or of his property, or of both his person and property.”15 A guardian may have actual or

legal care of the person of a minor,16 and “in this sense even a mother who has only the

custody of the child is its guardian.”17 If, then, the children of a marriage live with their

mother after the divorce, the mother will have actual custody and care, and the father will

have constructive custody and care. A form of guardianship and custody will reside with

each parent. If, however, the father retains custody after divorce, he will hold all the

rights of guardianship since he is the “legal and natural guardian” of his minor children

under the Majority Act (IX of 1875).18 If the children are within the ages when Hanafi law

gives custody to the mother, it may be argued that she retains constructive custody and

can rely on section 25(1) if she wishes to be reunited with her children. Otherwise, she

must rely on other provisions of the Act.

Section 19(b) is one such possibility. It states that a court may not intervene to appoint

a guardian for a minor “whose father is living and is not, in the opinion of the court, unfit

to be guardian of the person of the minor.” If the father is found to be unfit, the mother

can apply for guardianship, but the court may make an appointment only “where the

court is satisfied that it is for the welfare of a minor that an order should be made.”

Lord Hobhouse in Waghela v. Masludin, admitted that “in

point of fact, the matter must be decided by equity and good conscience, generally interpreted to

mean the rules of English law if found applicable to Indian society and circumstances,”

Factors to be considered include “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.” Further, “[i]f the minor is old enough to form an

intelligent preference, the Court may consider that preference.”

In summary, section 25(1) of the Guardians & Wards Act of 1890 empowers the

courts to decide simple custody disputes between parents according to the minor’s

welfare. If one of the parents has been declared unfit or has lost custodial rights for some

other reason/~ section 19(b) enables a court order in the child’s welfare. The court shall

be guided by the law to which the minor is subject, and shall consider the statutory factors

listed above. When the minor’s father is living and has not been declared unfit, the court

may not appoint a guardian, but may apparently give mere custody to another person.

III. DECISIONS UNDER THE GUARDIANS & WARDS ACT OF 1890

Courts confronting this cobweb of rules have, since 1964, generally relied on a

“welfare” test for determining custody under all circumstances. Prior to 1964, the place of

Muslim personal law in the Act’s scheme was problematic. Only section 17(1) requires that

Muslim law be considered, and then only when it is clear that the minor’s welfare requires

a guardianship order arising under that particular section. In contrast, the Punjab

Muslim Personal Law (Shariat) Application Act (IX of 1948) provided that for custody

decisions and other family law issues “the rule of decision shall be the Muslim Personal

Law (Shariat) where the parties are Muslim.” The parallel law applicable in Pakistan, the

Muslim Personal Law (Shariat) Application Act (Act XXVI of 1937), was weak and

Ineffective and aggravated the problem of what law applied under the Guardians &

Wards Act. The judiciary resolved the questions in 1964 by reviving a dormant legal

technique. The events of nine years prior to that important development enabled the

courts to open a door to ijtihad which had long been closed.

The right of individual reasoning, i.e. ijtihad, was disfavored from A.D.900. It was

superseded by the duty oftaqlld, or adherence to established law. Though the doctrine of

taqlld was “not unchallenged in theory, in practice [it] had been consistently observed”

to the time when the Pakistani Commission on Marriage and Family Law was set up in

1955.

The Commission consisted of three laymen, three laywomen, and one representative

of the ‘ulama. The group was created to review existing legislation and formulate the

changes necessary “in order to give women their proper place in society according to the

fundamentals of Islam.” The results appeared in 1956 in a report recommending

reforms in marriage, divorce, and family maintenance law. In Coulson’s words, advocacy

by the Pakistani Commission of “a sudden and total break with past tradition by the

reopening of the door of ijtihad as the foundation for comprehensive reform naturally

shocked the conservative element into violent reaction.” The controversy continued

until and beyond approval of the Muslim Family Laws Ordinance of 1961.

The 1961 statute is a watered-down version of the original report – a compromise

between the dramatic reforms proposed by the Commission and the practices advocated

by conservative Muslims. The Act requires that marriages be registered and that arbitration

councils be set up to deal with family law disputes. It limits polygamy to those

instances where an arbitration council gives written permission and requires notice of a

talaq divorce after it has been pronounced. The most far-reaching reforms are those

touching polygamy and altering the structure of succession.

B. Effect on Custody Decisions

Though custody was not within the Commission’s purview, the Commission’s partial

success encouraged the judiciary to test the waters of reform. In 1964, the High Court of

Lahore ruled that “if there is no clear rule of decision in Qur’anic and Traditional Text

… a Court may resort to private reasoning and, in that, will undoubtedly be guided by

the rules of justice, equity, and good conscience.” The decision was followed in the

custody case of Zohra Begum v. Latif Ahmad Munawwar in 1965.

The Zohra dispute arose over custody of two children, a son age seven and a daughter

below the age of puberty. The mother took the children from the father in 1953. In 1961,

the parties obtained a divorce. The father then brought an action for custody under

section  of the Guardians & Wards Act. The lower court applied the principle that “the

rule of Personal Law proceeds on the welfare of the minors and the welfare of the minor

does not mean that appointment shall be inconsistent with the rule of Personal Law.”

Therefore, custody of the seven year-old boy belonged to the father, while the girl would

remain with the mother until she reached puberty. The father’s objection that the mother

was unfit to serve as guardian failed.

On appeal, the High Court reconsidered the question of what law should determine

the outcome of the dispute. Section  ties a custody award to the minor’s welfare. Section

17, on the other hand, required a decision inconsistent with “the law to which the minor is

subject.” A literal reading of these provisions might lead to disparate results in similar

cases. The High Court resolved the question by interpreting Hanafi law itself as an

application of the welfare principle:

[A]II rules of Muhammadan law relating to the guardianship and custody of

the minor are merely application of the principles of benefit of the minor to

diverse circumstances. Welfare of the minor remains the dominent [sic] consideration

and the rules only try to give effect to what is [the] minor’s welfare

from the Muslim point of view.

The court then considered whether the children’s welfare in Zohra coincided with the

traditional Hanafi provisions. Conflicting views in textbooks as to custodial provisions

were examined by the presiding judge. The court concluded that there were no clear

provisions of applicable Muslim law, circumventing the embarassment of a direct conflict

between a child’s welfare and “the law to which the minor is subject.” Instead the court

ruled that

Where there is no Qur’anic or Traditional Text or an Ijma on a point of law,

and if there be a difference of views between A’imma and Faqihs, a Court may

form its own opinion on a point of law …. Courts which have taken the place

of Qazis can, therefore, come to their own conclusions by process of Ijtihiid . …

[I]t would be permissible for the courts to depart from the rule stated therein

if, on the facts of a given case, its application is against the welfare of the

minors.

On the merits, the court decided that both minors should remain in their mother’s

custody.

The Zohra decision establishes a two-step analysis in custody cases. First, in principle,

welfare overrides other considerations when determining custody. Secondly, ijtihad may

be exercised to determine where the welfare of the minor lies.

Prior to Zohra, Muslim personal law took a different direction. In the custody case of

Muhammad Bashir v. Ghulam Fatima , for example, the court quoted Tyabji’s Muhammadan

Law:

[I]t is not for the Courts to say that it is against the minor’s welfare that

custody should be taken away from the person (if any such there be) who is by

law entitled to the custody, as of right; since, when the law lays down that the

custody shall be with a specified person, the law presumes (to adopt Coleridge,

J.’s words) that where the legal custody is, there … is the greatest

welfare of the minor to be placed. The Court is bound by the provision of the

law in forming its opinion as to whose custody is most for the welfare of the

minor.

In cases following Zohra, the child’s welfare gained the determinative role. Takera Begum

v. Saleem Ahmed Siddiqui  found that the mother should have custody of her daughter

until the latter attained puberty “subject, however, to [her daughter's] welfare.”

away, the 1974 case of Anwar Mirza v. Qamar Sultana  required that the father’s right to

custody be honored unless “weighty considerations” dictated another arrangement. In

Juma Khan v. Gul Ferosha, however, the High Court seemed to reject these presumptions,

stating that “[i]n deciding the question of the custody of a minor the welfare of the minor

alone is to be considered.”

In applying the first part of the test, courts have wavered between recognizing a

rebuttable presumption in favor of the parent who would have rightful custody under

Hanafi law and assessing welfare without recourse to a presumption. The split between

the courts which recognize a presumption in favor of the Hanafi guardian and those

which do not is illustrated by two 1978 cases. In Feroze Begum v. Muhammad Hussain, the

Supreme Court applied the principle that “the overriding and paramount consideration

always is the welfare of the minor. Indeed this is the consideration that must prevail in the

final analysis and the fact that the father is the lawful guardian of his minor children does

not compel the Court to pass an order in his favour unless it is in their welfare to do SO.”45

The High Court in Ghulam Sakina v. Ghulam Abbas,  on the other hand, reiterated the rule

of Zohra that the Muslim law was based on the minor’s welfare and concluded that “when

personal law gives the custody of the minor to the mother, it is presumed that the welfare

of the minor is with the mother unless the facts leading to the contrary inference are

proved.”47 Feroze caps the line of cases which hold welfare to be the sole consideration, to

be evaluated anew with each decision. Ghulam follows those cases which take Muslim law

to establish a presumption in favor of one party which may then be refuted by arguments

that the minor’s welfare lies elsewhere.

This distinction has no practical significance; in either line of cases welfare is a

subjective standard leading to the result which the court deems preferable. Both lines of

decisions acknowledge a wide variety of factors contributing to a minor’s welfare: that a

daughter is happy with her mother; that her father has not paid a penny toward the

minor’s maintenance; that the father’s remarriage makes his custody unacceptable;

that children should stay in their established school. Other factors have been ignored by

the courts. In Zohra itself, the mother admitted that she had suffered psychiatric problems

in the past as a result of her husband’s ill-treatment, but the court felt that her past

problems should not be considered in assessing the children’s welfare.  Similarly, in

Ghulam Sakina, that the mother was illiterate and unable to maintain the children was not

considered. Her illiteracy had apparently not affected their education, and the maintenance

was the father’s responsibility. In Tahera Begum, the parent’s private agreement

with regard to custody was given no weight by the court. None of ~hese decisions

mention the desirability of keeping siblings together in the same home.

The most notable oversight seems to be failure to consider the mother’s remarriage

to a stranger, a rule with an identifiable basis in the Qur’an. According to Muhammad

Bashir, “[t]he original saying of the Holy Prophet, on which this rule is based, is that a

woman loses her right when she marries a stranger.”

Courts have not, however, ignored the problem. In the Bashir case, for example, the

mother’s remarriage created a strong presumption in favor of the father which was not

overcome. The High Court again examined the remarriage issue in the 1963 case of

Nazeer Begum v. Abdul Sattar, holding that, though “there can be no two opinions about

this [Qur'anic] proposition of law,” the mother simply lost her place in the hierarchy of

preferred custodial arrangements. If it nevertheless appeared that she was “of all persons

entitled to the custody of her infant children,” she might retain custody despite her

remarriage.  The reasoning was extended in Rahela Khatun v. Ramela Khatun,  where the

mother was awarded custody despite her marriage to a stranger and despite the applications

of a paternal aunt and uncle.

These remarriage cases are another example of ijtihad, clearer perhaps than Zohra

since the reasoning is required to fill a gap between the Qur’anic text and the case at hand.

But like Zohra and its progeny, the controlling standard which emerges is the welfare of

the child.

IV. CONCLUSION

Thejuxtaposition of British law and Pakistani-Muslim law after years of cohabitation

is central to the ijtihad debate. In his work on Pakistani law reform, Coulson asserts that

it is virtually impossible to exercise ijtihad in the context of Anglo-Muhammadan law. He

suggests that, of the domestic law reforms proposed by the Pakistani Commission, only

the penalty assessed for failure to register marriages is genuine ijtihad. Unlike the other

reforms, it directly reflects a Qur’anic principle: the requirement that contracts be in

writing. Reform by amendment, he adds, is “more practical and probably far better suited

to the present mood and aspirations of Pakistan,” but it is not ijtihad.

Coulson’s intimations reflect a problem of definition rather than substance. First, the

product of ijtihad need not be a unique solution. Pakistan’s ‘welfare’ test is virtually

identical to the ‘best interests of the child’ standard of British law. The Guardians &

Wards Act of 1890 does not, however, set out an unambiguous statement of the test, nor

did British law clearly formulate the standard in 1890 when the Act was passed. Isolated

in its Pakistani context, the welfare principle is in the nature of ijtihad. It follows from the

landmark decision in Khurshid Jan v. Fazal Dad, which authorizes private reasoning

“guided by the rules of justice, equity and good conscience or, in terms of Fiqah, by the

doctrines of Istihsan and Istislah.” That the best interests test appears in British law as

well does not detract from its appropriateness ih Pakistan. It is not an attribute of ijtihad

that a just solution must be rejected because a similar solution has been implemented

elsewhere.

Secondly, the process through which the judiciary arrived at the welfare test conforms

to the requirements of ijtihad. In each of the cases discussed above, distinguished

jurists examined existing law and identified conflicting, irreconcilable principles which

could only be resolved through independent reasoning. In the remarriage cases, the

reasoning filled a gap between the Qur’anic principles and the facts of a particular case.

Other custody cases were decided in the face of disparate teachings from the various

schools of Islamic law. In none of these cases do jurists begin with independent reasoning,

nor do they advocate recourse to ijtihad by those other than legal specialists.

Zohra and its progeny have been called the “new ijtihad,” but their newness is less

apparent than is their organic relation with the old ijtihad. Anglo-Muhammadan law is

not static. Just as the British influence peaked in the 19th century, so has it waned in the

20th. When faced with a concerted Islamic resurgence and deliberate exercise of Muslim

jurisprudence by qualified jurists, the legal system has rebounded from AngloMuhammadism

and toward the Islamic ideal. These recent cases do not depart from the

long march of Islam, but enable courts to reinforce the Muslim point of view in situations

where Islamic law must be dynamic to preserve the fundamental principles of Islamic

society.

By: Martha F. Davis

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