SC on Custody Battles – Editorial

EDITORIAL: After the parents’ divorce, the mother usually obtains custody of a son up to the age of seven and a daughter when she reaches puberty, but loses this privilege if she marries a second time with a stranger.

In a recent ruling in the custody case for three children, Supreme Court Justice Ayesha Malik ruled that a mother’s second marriage cannot be a stand-alone reason to bar her from exercising that right.

Previously, in a similar case, the Lahore High Court also ruled that while a mother loses her preferential right to take on a second husband, this is not an absolute rule.

But more often than not, the father is granted custody without due regard to the specific circumstances of a case, which is unfair not only to a mother but also to children in a broken marriage. There may be exceptions, but few can argue with the fact that no one can give a child unconditional love like a mother. This is not to say that fathers cannot meet the emotional needs of their offspring, just that a child’s well-being rests with the mother as she is better able to care for minors on a day-to-day basis.

However, as the court aptly observed, there is no mathematical formula for calculating the welfare of a minor. In such cases, the primary concern must be the best interests of a child and not that of a parent.

Therefore, as the Honorable Judge Malik explained, the determining factors range from financial considerations to the home environment, care, comfort and attention a child receives. And the courts must weigh all of these factors to determine where the best interests of minors lie, including a parent’s financial situation and changing environmental and living circumstances.

However, none of this remains if the father also remarries, which he almost always does. In the present case, the woman was granted custody of her three children because she runs a school, lives in her own house and can take care of them. No less important was the preference of their children. When asked by the court, they all said they wanted to live with their mother.

Noting that they were self-aware and able to express their desires easily, the judgment notes that “the desire as expressed by the children is relevant, particularly when the child is able to express opinions about preferences .”

He also extensively cites the UN Convention on the Rights of the Child, which has been ratified by Pakistan subject to the requirements of Islamic law, noting that legal provisions and principles of Islamic law have been examined in several judgments by the Supreme Court and confirmed that the conditions for such cases Islamic law “are not absolute and are in the best interests of the child”. It is hoped that this will serve as guidance in resolving future custody disputes.

Copyright Business Recorder, 2022

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