محض دوسری شادی کرلینے پر ماں کو بچوں کی حضانت سے محروم نہ کیا جاسکتا ہے ~ Family Judgment & Case Laws

It is settled law that the father is the natural guardian while the mother is entitled to the custody (hizanat) of a male child till the age of seven years while in case of a female till she attains puberty. This right continues notwithstanding a divorce or separation. As a natural guardian it is the obligation of the father to maintain the child even if the custody is with the mother. The inability of the mother to financially support the child is not a determinate ground to deprive her from custody because in such an eventuality the father's obligation regarding maintenance is not extinguished. The rule that the father is a natural guardian and, therefore, entitled to the custody of the child nor that the mother loses the right of hizanat after the minor has attained the prescribed age or puberty, as the case may be, is not absolute, rather subject to exceptions.The decision regarding custody of a child is governed on the fundamental principle, the paramount and overarching consideration is the welfare of the child i.e to ascertain the course which is in the latter's best interest. The crucial criterion is, therefore, the best interest and welfare of a child while determining the question of custody. The rights or aspirations of the parents or some other person are subservient to this principle and each case of custody must be decided on the basis of ascertaining a course which is in the 'best interest of the child'. The factors or variables that may be taken into consideration while determining the question of custody of a child are not exhaustive but they would depend on the facts and circumstances of each case. The guiding principle is to ensure that the determination of custody promotes the rights of the child as well as the latter's wellbeing. The overriding consideration must be to protect the child from any physical, mental or emotional injury, neglect or negligent treatment.

The mother’s disability, illiteracy or financial status are not the sole determinant factors. The second marriage contracted by the mother also cannot become a stand-alone reason to disqualify her from obtaining the custody of the child.

The question of custody involves taking into consideration the factors which are relevant to the upbringing, nursing and fostering of the child. It essentially extends to the emotional, personal and physical wellbeing of a child. The sole object is to ensure that the overall growth and development of the child is guaranteed.

The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child. Sections 17 and 25 of the Act of 1890 set out the broad guidelines which are to be taken into consideration while deciding custody disputes. It is the duty of the court to form an opinion and adopt a course on the basis of the paramount principle of the welfare of the child. Section 17 explicitly provides that a court shall be guided by what appears in the circumstances to secure the welfare of the minor, consistent with the law to which the minor is subject. Subsection (3) provides that if the minor is old enough to form an intelligent preference then the court may consider that preference. As already noted above, while determining the welfare of the child in the context of custody disputes the court may grant the custody to a person other than the parents e.g the grandparents or aunt, if doing so would promote the welfare and best interest of the child.

As a general rule the guardian and family court is the final arbiter for determining the question of custody, except when it has made a determination in an arbitrary, capricious or fanciful manner i.e when the fundamental principle of welfare of the child has not been considered or determined in the light of the variables which are relevant in the given circumstances. If the court has ignored the welfare of the child and the latter's best interest or has given preference to some other ground then the decision would not be sustainable. The court, in its endeavor to assess and determine the welfare of a child, is not bound to follow rigid formalities, strict adherence to procedure or rules or technicalities if doing so may hamper the determination or undermine the fundamental criterion of the best interest of the child. In a nutshell, the overarching and fundamental principle that must prevail and guide a court in determining custody disputes is the welfare of a child. The court has to adopt a course that would be in the best interest of the child because his/her welfare must always be the paramount consideration.