EDITORIAL: After parents’ divorce, usually the mother gets custody of a son till he is seven years old and of a daughter on reaching puberty, but loses this preferential right if she contracts a second marriage with a stranger.
However, in a recent verdict regarding custody case of three children, Supreme Court Justice Ayesha Malik ruled that second marriage of a mother cannot become a stand-alone reason to disqualify her from claiming that right.
Earlier in a similar case, the Lahore High Court had also held that although a mother loses her preferential right on taking a second husband, this is not an absolute rule.
Yet more often than not, the father gets the custody without due consideration to particular circumstances of a case, which is unfair not only to a mother but also children of a broken marriage. There may be exceptions, but few can quarrel with the fact that no one can give unconditional love to a child like a mother. This is not to say fathers cannot meet emotional needs of their offspring, only that welfare of a child lies with the mother since she can take better care of minors on a day-to-day basis.
Nevertheless, as the court so aptly observed, there is no mathematical formula to calculate the welfare of a minor. Primary concern in such cases has to be about the best interest of a child rather than that of the either parent.
Hence as honourable Justice Malik explained the determining factors range from financial considerations to household environment, care, comfort, and attention that a child gets. And the courts have to weigh in all such factors in order to decide where the welfare of minors lies, including financial status of a parent as well as change in environment and living arrangements.
None of this, though, remains the same if the father also remarries, which he almost always does. In the present instance, the woman has been granted custody of her three children because she is running a school, lives in her own house, and is able to take care of them. No less important consideration was her children’s preference. Asked by the court, all of them said they wanted to live with their mother.
Noting that they were confident and able to easily express their wishes, the judgement observes that “the desire as expressed by the children is relevant, particularly when the child is able to express his or her mind on preference.”
It also cites in detail the UN Convention on the Rights of the Child, ratified by Pakistan subject to the requirements of Islamic law, and points out that legal provisions and the principles of Islamic law have been examined by the apex court in several judgments and held that the conditions pertaining to such cases under the Islamic law “are not absolute and are subject to the welfare of the child.” It can only be hoped that this will serve as a guiding light in the settlement of future custody battles.
Copyright Business Recorder, 2022
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