Pakistan

Shahid, Ayesha; Khan, Isfandyar Ali

doi:10.1007/978-94-6265-174-6_7

Pakistan

Ayesha Shahid⁴ &
Isfandyar Ali Khan⁵

Chapter
First Online: 21 March 2017

398 Accesses
1 Citations

Abstract

A general view prevalent in Pakistan based on classical Hanafi principles is that in cases of marital breakup the father is to be given custody of a male child at the age of seven and custody of a female child on her attaining puberty. However, the emphasis on the principle of the ‘best interests of the child’, as introduced in the Guardians and Wards Act 1890, remains a priority of the judges in Pakistan. This chapter traces the evolution and development of the best interests of the child principle in Pakistani child law. By including a review of judicial cases from 1997 to 2014, the chapter evaluates the application of this principle by the superior judiciary in Pakistan.

Keywords

Pakistan
Child custody
Best interests of the child
Islamic law
Guardians and Wards Act 1890
Superior judiciary

Ayesha Shahid is a lecturer in law in Brunel Law School, Brunel University London.

Isfandyar Ali Khan is a practicing lawyer and a development practitioner in Pakistan with spe-cialization in Alternative and Community Based Dispute Resolution, Access to Justice, Human Rights, Democracy and Governance.

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Notes

1.
Under the Constitution, Pakistan is a federal republic comprising five provinces: Baluchistan, Punjab, Sindh, Khyber Pukhtun Khawa and the Gilgit Biltistan province, which are ethnically, linguistically and culturally diverse regions. In addition to the provinces, Pakistan also consists of Federally Administered Tribal Areas, Provincially Administered Tribal Areas, the Federally Administered Northern Area, and the Islamabad Capital Territory. Also, the western part of the former princely state of Kashmir (Azad Jammu) is de facto controlled and administered by Pakistan. There are an estimated 177.1 million people in Pakistan. Of the total, around 91.59 million are male and 85.51 million are female. The population of children and adolescents, ages 0 to 19, is estimated to be around 82.05 million, which is projected to increase to 84 million in 2015 and 86 million in 2020. From 1998 to 2010, an additional 28 million children and adolescents were added to the total existing population (Bureau of Statistics).
2.
Nearly all Pakistanis are Muslims (97%), with Sunnis the clear majority within this group (77%) and Shiites the minority (20%). Religious minority groups (3%) include Christians, Hindus, and Parsees.
3.
For a comprehensive and thorough analysis of case law from 1947 to 1997 see Ali and Azam 1998.
4.
Bilimoria n.d.
5.
Hussain 2011, p. 5.
6.
Hussain 2011, p. 6.
7.
Bilimoria n.d.
8.
Bilimoria n.d.
9.
Bilimoria n.d.
10.
The 12th century Central Asian lawyer Burhanuddin al-Marghinani was the author of Hedaya. Hedaya was the standard legal text book in Muslim India and it remained the basis of Muslim law for centuries. Commissioned by Warren Hastings, Hedaya was translated by Charles Hamilton in 1791. Fatawa-i-Alamgiri is a collection of authoritative fatwas compiled under the orders of Moghul Emperor Aurangzeb in the seventeenth century by a panel of ulama headed by Shaikh Nizam Buhanpuri. This was again translated under the orders of Warren Hastings, by Baillie under the title of A Digest of Moohummudan Law, Part I in 1957.
11.
Hamilton 1982 and Baillie 1957.
12.
Rahim 1911, p. 343.
13.
Mahdi and Malek 1998, p. 156.
14.
Nasir 2009, p. 186.
15.
Nasir 2009, p. 186.
16.
Rahim 1911, p. 344.
17.
Hamilton 1982, vol. 4, p. 553.
18.
Mahdi and Malek 1998, p. 157.
19.
Nasir 2009, p. 186.
20.
Baillie 1957, p. 728.
21.
If the grandmother has died or is married to a stranger, then the full sister is entitled. If the sister has died or is married to a stranger, then the half-sister of the mother (uterine and consanguine sister) is entitled to custody of the child. In the absence of a sister, the daughter of the full sister and then the daughter of the half-sister (consanguine and uterine) can have the custody of the girl child. In the same way the maternal aunt and then the paternal aunts how high soever can have the custody. In the absence of the mother and other female relations, custody belongs to the father and other male relations in the same order as that of maternal relations. If the mother remarries, she forfeits her right to custody. A mother is disqualified if she marries a man not related to the child within the prohibited degrees. This rule is strictly applied in cases that involve custody of a female child, but if the subsequent marriage is dissolved by death or divorce then the right to custody will revive.
22.
According to the rules laid down in Hedaya, before the completion of iddah the proper location to exercise hadana is the domicile of the parents. None of the parents can take the child out of the custody of the latter. After completion of her iddah, a mother may take her child to her own birthplace provided that the marriage had been contracted there, and that it is so close to the husband’s residence that the husband can visit the child and return to his residence before nightfall. There is also no objection to her moving with the child from a village to the city or chief town of the district if this is advantageous to the child and in no way injurious to the father. If the child’s mother is dead and hadana has passed to the maternal grandmother, the child cannot be taken to the grandmother’s own city, even though the marriage had taken place there.
23.
Davis 1985, p. 119.
24.
Critelli 2012, p. 676.
25.
Ali 2012, p. 45.
26.
Yefet 2009, p. 349.
27.
Ahmad 1993, p. 40.
28.
Articles 37(b) and 37(e) of the Constitution of Islamic Republic of Pakistan.
29.
Ali and Jamil 1994, p. 24.
30.
UNCRC Convention on the Rights of the Child, Distr. General, CRC/C/PAK/CO/3-42 October 2009, Advance unedited version, Original: English, Committee on the Rights of the Child, Fifty-second session, Consideration of reports submitted by States parties under Article 44 of the Convention, Concluding observations: Pakistan.
31.
www.thenews.com.pk/Todays-News-5-258379-Enforce-child-rights-laws (accessed 1 October 2015).
32.
The Protocol can also be used when parents are seeking permission to take a child temporarily to Pakistan for a holiday.
33.
For instance, if a child is taken to Pakistan, or does not return from a holiday there, and the parent has an existing residence order or a prohibitive order against the person who has taken the child, the Protocol can be used to help return the child to the UK.
34.
Muhammad Ashraf v. SHO and others, 2001 P Cr. L J 31.
35.
The Extradition Treaty of 1931 was signed under the British mandate and could be used as a basis of cooperation in child custody cases.
36.
Government of Pakistan, Women Development Division, National Commission for Child Welfare and Development. www.pakistan.gov.pk/divisions/ContentListing.jsp?DivID=20&cPath=185_191_399_404 (accessed 1 October 2015).
37.
Pakistan’s Fifth Periodic Report to the UN Committee on the Rights of the Child on implementation of the Convention on the Rights of the Child, National Commission for Child Welfare and Development, Ministry of Law, Justice and Human Rights Government of Pakistan.
38.
The Commission, through its Child Protection Units (CPUs) located in relevant districts, is raising awareness on child protection issues. By 2012, a total of 459 (235 male and 224 female) awareness sessions were conducted with 335 Child Protection Centres (CPCs).
39.
The framers of the Act, bearing in mind the societal norms, did not invalidate the child marriage. However, under the Act the father or the guardian may be punished for contracting their children into such marriages. In 2009 a private member bill to amend the CMRA was tabled in the National Assembly, the Child Marriage Restraint (Amendment) Bill, 2009. Among other provisions, it seeks to ‘remove the gender disparity in age’ of marriage for males and females and to set 18 years as the minimum age of marriage for both. It also proposes to raise the punishment for violations from 1 month to 2 years and the fine from one thousand to one hundred thousand rupees. Once the age of marriage for females is raised to 18 years under the CMR (Amendment) Bill, amendments will be required in the option of puberty provision in the Dissolution of Muslim Marriage Act 1939 to provide effective relief to victims of under-age marriages.
40.
The second piece of legislation that Pakistan inherited from Pre-Partition India was the Shariat Application Act 1937. This act laid down that in family matters regarding Muslims, Muslim personal law had to be applied. A substantial portion of personal law, therefore, remained un-codified and subject to interpretation by the courts. After the creation of Pakistan, the first legislative attempt made by the Punjab Legislative Assembly was the New West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) that enlarged the scope of personal law to questions relating to succession, including succession to agricultural land (whereas the previous Act applied only to intestate succession). However these changes were not welcomed in all parts of the country as men were still not willing to give women their share in property. As a result, to deprive women of their inheritance rights, amendments were made to the same Act in the Province of Sindh and the passage ‘save questions relating to agricultural land and other than charitable institutions and charitable and religious endowments’ was deleted from Section 2 of the Shariat Application Act.
41.
The Dissolution of Muslim Marriages Act 1939 came as a relief for Muslim women who were given some protection against the wrongly interpreted and misapplied Islamic divorce laws. Before this Act, Muslim women hardly had a basis to get a divorce, and due to the pressure of customary practices they were also denied access to the right to divorce by khula. Only men’s right to unilateral divorce was accepted. The Act laid down eight grounds for divorce: where the husband’s whereabouts were unknown for 4 years; the failure to provide maintenance for 2 years; the failure to perform marital obligations for 3 years; the husband’s impotence, cruelty, and incompatibility of temperament; hatred and adultery; insanity or suffering from leprosy or venereal disease; the husband’s interference in the wife’s management of her property; and the husband’s interference with the performance of the wife’s religious beliefs or practice. On these bases a woman could obtain a judicial decree for the dissolution of her marriage (Tanseekh-i-Nikah), this dissolution being called Faskh. One important aspect of the Act is that dissolution of marriage does not affect a woman’s right to dower or the option of puberty. Moreover, the husband’s consent to the dissolution is not needed. These grounds were included by adopting the juristic technique of Talfiq.
42.
To be discussed in detail in the next section.
43.
The Commission was composed of six Modernists (three men and three women) and one Traditionalist religious scholar, Maulana Ihteshamul Haq.
44.
Report of the Commission on Marriages and Family Laws, The Gazette of Pakistan, Extraordinary, Karachi, 20 June 1956, 1210.
45.
Ahmad 1959, p. 218.
46.
Ahmad 1959, p. 220.
47.
Rehman 1991, pp. 886–887.
48.
Pakistani Muslim scholar famous for his Quranic commentary ‘Tadabbur ul Qur’an’. He also served as a member of the Marriage and Family Law Commission set up by the Government of Pakistan in 1956. He was one of the founding members of Jamaat-e-Islami but abandoned the party in 1958.
49.
The Traditionalists and the Modernists stand between the two extreme groups, the Ulema and the Secularists. The Ulema, or the orthodox religious leaders, hold the extreme right-wing point of view while Secularists advocate a complete separation between religion and state.
50.
Pearl 1969, p. 168.
51.
Haider 2000, p. 292.
52.
Haider 2000, p. 292.
53.
Haider 2000, p. 293.
54.
Report of the Commission on Marriage and Family Laws, Gazette of Pakistan, Extraordinary, 20 June 1956.
55.
Coulson 1957, p. 137.
56.
Some of the Commission’s recommendations were incorporated in the Muslim Family Law Ordinance (MFLO) promulgated by Pakistan’s first military ruler, General Ayub Khan (1958–1969), in 1961.
57.
The Federal Sharia Court established in the Constitution by Article 203B(c) has jurisdiction to examine certain laws to ensure they are not repugnant to Islamic principles. The Court has original and appellate jurisdiction, but it does not have jurisdiction over the Constitution, Muslim personal law, or any laws relating to the procedure of any court or tribunal.
58.
The Law and Justice Commission of Pakistan is a Federal Government institution, established under an Ordinance (XIV) of 1979. The Commission is headed by the Chief Justice of Pakistan and comprises twelve other members, including the Chief Justice of the Federal Shariat Court, Chief Justices of the High Courts, the Attorney General for Pakistan, the Secretary of the Ministry of Law & Justice, the Chairperson of the National Commission on the Status of Women, and four other members, one from each Province.
59.
The relevant provision in this respect is Section 3 of the Majority Act 1875, which reads as follows: ‘Subject as aforesaid, every minor, of whose person or property or both a guardian, other than for a suit within the meaning of Order XXXII of the First Schedule to the Code of Civil Procedure 1908 (No V), has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Succession Act 1925 (No XXXIX) or in any other enactment, be deemed to have attained his majority when he shall have completed his age of 21 years and not before. Subject as aforesaid, every other person domiciled in Pakistan shall be deemed to have attained his majority when he shall complete his age of 18 years and not before.’
60.
Mulla 1938, p. 45.
61.
Section 25(1) Guardians and Wards Act, 1870.
62.
Ali and Azam 1998, p. 151.
63.
Ali and Azam 1998, p. 151.
64.
A charitable society is not a person within the meaning of Section 4(2) of the GWA and thus cannot be appointed as the guardian of the person, or property, of the minor. It is due to the fact that anyone having an interest adverse to that of a minor cannot be appointed as a guardian. However, it has been held by courts that a manager of a registered society can be appointed as the guardian of a child. In the latter context, it has also been stated that the meaning of person in the context of being appointed a guardian should not be confined to an individual, despite Section 3(39) of the General Clauses Act as it would then conflict with GWA Sections 43(4) and 45.
65.
Approximately 10–12 Euros.
66.
Ali Hayat v. Khalid Shafi and 2 others, YLR 2013 954.
67.
Iftikhar Ahmad Chisti v. District Judge Chakwal and others, PLD 2012 Lah 670.
68.
Karim Bakhsh v. Muhammad Bakhsh, CLC 1997 316.
69.
Mst. Iram Shahzad and 2 others v. Additional District Judge Lahore, PLD 2011 Lah 362.
70.
Mst. Aziza v. SSP, District Tando Muhammad Khan and 3 others, YLR 2012 2881.
71.
Mst. Gulnaz v. Mst. Amina and others, CLC 2012 761.
72.
Mst. Aneeta Tanveer v. Muhammad Younas, YLR 2010 513.
73.
Josip Stimac and others v. Melitta Syed Shah and others, PLD 2009 Lah 393.
74.
Mst. Nighat Firdous v. Khadim Hussain, SCMR 1998 1593, and Karim Bakhsh v. Muhammad Bakhsh, CLC 1997 316.
75.
Mst. Zohra Hilal v. Noor Sakht Shah, PLD 2009 258.
76.
Mst. Tasneem Fatima v. Arshad Mehmood and another, YLR 2005 883.
77.
Mst. Moomal v. Jumo Salaro Mir Khan and another, PCr.LJ 1998 1535.
78.
Mst. Jamila Begum v. Mirza Muhammad and 2 others, YLR 2003 1337
79.
Ingrid Brandun Berger is an unreported case, but some information on this case is available in Childabductionrecoveryinternational 2014.
80.
Peggy Collins v. Muhammad Ishfaque Malik (2009) PLD 48 Lahore High Court, para 4.
81.
Roshan Desai v. Jahanzeb Niaz (2011) PLD 423 Lahore High Court.
82.
Louise Ann Fairley v. Sajjad Ahmad Rana (2007) PLD 300 Lahore High Court.
83.
Munawar Jan v. M Afsar Khan, PLD 1962 Lah 142.
84.
Balchin 1994, p. 164.

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Brunel Law School, Brunel University London, London, UK
Ayesha Shahid
National Centre for Dispute Resolution, London, UK
Isfandyar Ali Khan

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Shahid, A., Khan, I.A. (2017). Pakistan. In: Yassari, N., Möller, LM., Gallala-Arndt, I. (eds) Parental Care and the Best Interests of the Child in Muslim Countries. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-174-6_7

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DOI: https://doi.org/10.1007/978-94-6265-174-6_7
Published: 21 March 2017
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