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CUSTODY AND GUARDIANSHIP OF CHILDREN ACCORDING TO MUSLIM JURISPRUDENCE IN PAKISTAN

Shahzadi Pakeeza * Allama Iqbal Open University, Islamabad, PAKISTAN. Ali Asghar Chishti Allama Iqbal Open University, Islamabad, PAKISTAN.

ABSTRACT
Custody means taking care of the one who has not reached the age of discernment and cannot live independently, and raising him in accordance with his best interests and protecting him from anything that may harm him. Main types of child custody are Joint custody, Sole or full custody, Split custody, Non-parental or third party custody. Maintenance of children is obligatory upon the father according to scholarly consensus. The GWA (Guardians and Wards Act 1890) (No VIII) is applied in Pakistan for the cases that are filed for guardianship. The determining factors for winning custody include parents needs; the childs needs; the childs interaction with parents, siblings and ones closely related who may affect his emotional stability and peace of mind, and the childs adaptation in given environment. Certain legal standards are applied for granting child custody to ensure the best interest of the child. Keywords: Custody, Guardianship, Children, Muslim Jurisprudance

INTRODUCTION Hizanat or custody is described as care of the infant children. Child custody involves many issues other than physical custody and control of child like parental rights, privileges, duties and powers connected to child rearing. Mostly child custody is associated with divorce but paternity, guardianship, termination of parental rights, and juvenile delinquency are also significant issues in this regard. Child custody issues are universally dealt with according to principle of "best interests of the child". Child Custody in Pakistani Constitution Child custody is governed by the Guardians and Wards Act 1890. According to GWA the court decides the cases in accordance to personal law which terms the minor as subject. The unanimous rule is that after divorce a male child is given the right to custody till 7 years (Hanafi law) and till the age of puberty for female child. The courts shall decide about character and competence of the proposed guardian, keeping in view the age, sex and religion of the minor and their opinion, if their discretion is worthy to be noticed. In case of a very young minor or a female child, mother is preferred for custody by the court. The attachment and association of the child are absolute in deciding the case in any manner. The objectives of Guardians and Wards Act 1890 are promoting the interests of children to make sure that child may not suffer and discrimination or disadvantage because of the marital status of his or her parents. 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."

Corresponding Author Email: princesspakeeza@yahoo.com C. Hamilton, The Hedaya, p.138 http://www.law.emory.edu/ifl/legal/pakistan.htm

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Child means a person who is under the legal age of majority; parent means a woman or a man in respect of whom parentage has been acknowledged or otherwise established; Sole custody consists of an arrangement whereby only one parent has physical and legal custody. Concept of parental authority The common law concept of parental authority has two components, namely custody, and guardianship.** Van Heerden states that custody is that portion of parental authority which pertains to the personal day-to-day life of the child. Custody is also seen as the control and supervision of the daily life and person of the child. In common law custody includes the following duties: a. b. c. d. The duty to provide the child with accommodation, food, clothing and medical care The duty to maintain and support the child The duty to educate and train the child, and The duty to care for the childs physical and emotional well-being.

Guardianship is used in two senses: one broad, the other narrow. In its broad sense, guardianship is equated with parental authority and includes custody. It is seen as the lawful authority which one person has over the person and/or property of another who suffers from the incapacity to manage his or her own affairs and/or person, in the interest of the latter. In its narrow sense, guardianship refers, firstly, to the control and administration of the childs estate, and secondly, to the capacity to assist and represent the child in legal proceedings or in performance of juristic acts. In this latter sense, guardianship is seen as relating exclusively to the guardianship of minors. In this context, the term natural guardian is used as a synonym for parental authority. Both Van Heerden and Schfer agree that the latter narrow definition is the more common and sensible approach when it comes to the guardianship of minors. Types of Child Custody Child custody gives child access to his noncustodial parent after their divorce thus helpful in development of a post-divorce parenting relationship. Main types of child custody are Joint custody, Sole or full custody, Split custody, Non-parental or third party custody. In Joint Custody, both parents attempt share their responsibilities regarding care and needs of the child, even after divorce. In sole or full custody one parent is designated the responsibilities of the child with all legal, physical and emotional requirements to be looked after, though the noncustodial parent have the right to visit. Sometimes a third party is awarded custodial rights on account of any of the reasons like death of parent, parents unfit for the job, or a childs association because of living with the person for an extended period of time. Split custody is the one in which children are divided between parents; this is an exceptional case as courts are not likely to separate siblings who are already going through the situation that arouse because of divorce between parents. Law of Guardianship in Pakistan The GWA (Guardians and Wards Act 1890) (No VIII) is applied for the cases that are filed for guardianship and court decides the matter with respect to the provisions given in the Act. Who May be a Guardian? According to GWA (Guardians and Wards Act 1890) there could be a de facto or a de jure guardian. The court usually appoints de jure guardians that is why they are appointed by court and they are

http://wcd.nic.in/gawaact.htm

Van Heerden, B, A Cockrell & R Keightley, with J Heaton, C Brigitte, J Sinclair & T Mosikatsana. 1999. Bobergs Law of Persons and the family. Cape Town: Juta & Co. Ltd. Schfer, LI. 2007. Family law service. Durban: LexisNexis. http://ilj.law.indiana.edu/articles/84/84_Press.pdf Maidment, Susan, Child Custody and Divorce,p.12
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characterize to be legal custodians. De facto guardians are persons from relation other than father or grand-father; for example mother, brother or uncle. Under GWA, father is the natural guardian of a child, taking care of all needs and responsibilities of the child till they reach 18 years age. After father, mother is the next possible guardian except she appoint someone else as the guardian of the child. A mother can appoint the guardian in will if her husband died or he is incapable to act so. Certain requirements are due to be considered while appointing a de facto guardian like the character, capacity and fitness of individual. Effects of Being Appointed a Guardian The responsibility of a guardian is to look after the needs and requirements that are best possible for him till he attains majority. The court entitle guardian some allowance for undertaking the duties that could be paid out of the property of the ward. Cessation of Guardianship A court can remove an appointed guardian because of any of the reasons like, abuse of trust; incapability to perform the duties well, neglecting or showing indecent behavior to the ward, not withholding the courts orders as per GWA provisions, being convicted in an offence of defect in character, bankruptcy, or residing beyond the limits of the courts jurisdiction. Besides the above reasons, a guardian can himself relinquish from the responsibilities by submitting to court a request thereof; death of guardian, upon the ward attaining majority; after the marriage of female ward whose husband is fit to take care of her responsibilities or the court itself taking the responsibility of superintendence of the minor.*** Child Custody in case of Divorce Children are focus of attention for any couple being their joint responsibility to take care of their needs, responsibilities, medical and emotional desires and care. In case of divorce the responsibility is split as per best abilities of each parent. In the Holy Quran (2:233) childrens future after divorce is specifically emphasized with the principle of mutual consent and counsel focusing on co-parenting relationship. As father being the legal guardian, has got the responsibility to look after the material needs, while mother preferably got the role of physical care in order to be their emotional guardian of children thus balancing multitude levels of childrens need. All schools of thought have a unanimous agreement that mother should be awarded physical custody of young children after divorce as she comply with the prerequisites to be a female custodian. She may take custody wages for upbringing the child from its father. 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). There is some difference of opinion for custody in case of a boy or a girl in different schools of thought. Shafai maintains that a ward may use his/her discretion on reaching the age of puberty to choose any parent as custodian. Hanbalis uphold that on reaching age of 7, a child may decide with whom he wants to live with. The Malikis sustains puberty, while for girls, till she get married. While Hanafi School assert that for boys the age varies from 7-9 yrs, while for female, they opine that when she reaches age of puberty mothers custody ends i.e. between 9-11 yrs. Conditions of custody: In order to guarantee child's welfare, there are certain conditions to get custody of child related to residence and Islamic upbringing. The court will decide if these conditions are fulfilled properly or they make appoint another suitable guardian, if necessary. The father will take care of all financial needs of the child, who may be residing with their mother but he has the right to have access to his children.
***

www.jillani.org/LAW%20OF%20GUARDIANSHIP%20IN%20PAKI http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce.html Martha F. Davis, Child Custody in Pakistan: The Role of Ijtihad, 5 B.C. Third World L.J. 119 (1985), http://lawdigitalcommons.bc.edu/twlj/vol5/iss2/2
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Duration of custody and Transfers: Different schools of thoughts have different criterions to set the duration of custody as well as terminating ones guardianship and transferring it to someone else. This has been elaborated in the table below School of Law Hanafi Transfer Trigger Boy: 7 / 9 year age Girl: marriage / 9-11 age 7 years age/ discretion age Boy: Maturity Girl: Marriage 7 years age Next Eligible custodian Boy: Choice of either parents Girl: Father Choice of either parents Grandmother Choice of either parents Next Eligible custodian Maternal grandmother / paternal grandmother Maternal grandmother / paternal grandmother Maternal grandmother / Khala Maternal grandmother / paternal grandmother Next Eligible custodian Mothers sister (khala) Mothers sister (khala) Paternal grandmother Mothers sister (khala)

Shafie Maliki Hanbali

After divorce, mother is responsible for custody of child, till the boy attains puberty or the girls get married. In case mother died, the responsibility is shifted to grandmother, then to maternal aunt and then to other mother's maternal relations. If none of them is there, the right passes to agnates, i.e. ones related on or descended from the father's or male side.**** Child Custody and Religion After separation between parents, having different faiths, an important matter of concern arouse regarding the which religion their children ensue. This question has been emphasized and variant solutions using different standards according to cases have established different rules. The Legal Standards Applied in Religious Custody Cases In religious custody cases the determining factors for winning custody include: (1) Parents needs; (2) the childs needs; (3) the childs interaction with parents, siblings and ones closely related who may affect his emotional stability and peace of mind; (4) the childs adaptation in given environment; and, (5) the mental and physical health of all individuals involved. Mostly while deciding the cases of child custody, courts follow any of these three legal standards:
I. II. III.

Actual or substantial harm. A parent right to have custody will be suspended only if his/her may be a cause of actual or substantial harm to the child. Risk of harm. If the court thinks that religious practices of the parent may harm the child in future, it may confine parent rights. No harm required. The custodial parent's right to influence the children's religious upbringing of her is considered exclusive. If the custodial parent objects to the noncustodial parent's religious activities, the court will defer to the custodial parent's wishes.

Custody in Cases of Differences of Religion or Apostasy (rejection of faith) According to Muslim jurisprudence outlined in Fatawa-i-Alamgiri,***** apostasy by the mother is a ground for disqualifying her from Hizanat of her children because a woman who abandons the

Kuwaiti Encyclopedia of Jurisprudence http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce.html http://ilj.law.indiana.edu/articles/84/84_Press.pdf Joshua, S. P., The Uses and Abuses of Religion in Child Custody Cases: Parents Outside the Wall of Separation, Indiana Law Journal Supplement, Vol. 84:47. http://www.nolo.com/legal-encyclopedia/child-custody-religion-29887.html ***** Fatawa-i'Alamgiri, Vol. I
**** ****

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Muslim religion has to be kept in prison till she returns to Islam and is therefore incapable of looking after the minor. There are however divergent views on the issue of custody in cases of a difference of religion. The Hedaya states that a zimmeea or female infidel subject, married to a Muslim may have custody of her infant child but with certain provisions. REFERENCES Al ibn Ab Bakr Marghnn, Commentary on the Mussulman Laws, Translated by Charles Hamilton (1870). Ali, A. S., Fatawa-i-Alamgiri, Farid Book Stall, Karachi. Baillie, N. B. E., A Digest of Moohammudan Law, Lahore : Premier Book House (1965). Balchin, C., A Handbook on Family Law in Pakistan (Lahore: Shirkat Gah Women Living Under Muslim, (1994)1st edition. Hamilton, C., Al-hedayah, (Hanafi Manual) Vol. I (Hanafi Manual) Translated by, London (1760). Maidment, Susan, Child Custody and Divorce (England: Great Britain by Biddles ltd, (1984). Joshua, S. P., The Uses and Abuses of Religion in Child Custody Cases: Parents Outside the Wall of Separation, Indiana Law Journal Supplement, Vol. 84:47. Martha F. Davis, Child Custody in Pakistan: The Role of Ijtihad, 5 B.C. Third World L.J. 119 (1985), http://lawdigitalcommons.bc.edu/twlj/vol5/iss2/2 Websites http://www.law.emory.edu/ifl/legal/pakistan.htm http://wcd.nic.in/gawaact.htm www.jillani.org/LAW%20OF%20GUARDIANSHIP%20IN%20PAKI http://www.islamic-sharia.org/children/islamic-perspective-on-child-custody-after-divorce.html http://ilj.law.indiana.edu/articles/84/84_Press.pdf http://www.nolo.com/legal-encyclopedia/child-custody-religion-29887.html

only so long as the child is incapable of forging any judgment with respect to religion and whilst there is no apprehension of his imbibing an attachment to infidelity. C. Hamilton, The Hedaya, p.139.
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