Home / Opinion / FAIR PLAY IN CHILD CUSTODY LITIGATION IN PAKISTAN

FAIR PLAY IN CHILD CUSTODY LITIGATION IN PAKISTAN

By: Fahad Ahmad Siddiqi Advocate Lahore HC

According to Article 4 of the Constitution of Pakistan, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he or she may be, and for every other person for the time being within Pakistan no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The Constitution of Pakistan which is the supreme law of the land says that nobody will be dealt with against the law, therefore, every statutory functionary is bound to deal with an individual in accordance with the law and in any case he or she is not authorized to act against the law, misapply the law or misuse power. Similarly, according to Article 10-A of the Constitution, for the determination of his or her civil rights and obligations or in any criminal charge against him or her, a person shall be entitled to a fair trial and due process.
Article 10-A of the Constitution mandates that civil rights and obligations of citizens can only be determined through fair trial and due process. Provisions of Article 10-A of the Constitution morph Article 4 of the Constitution into a more robust fundamental right, covering both substantive and procedural due process. Substantive due process provides a check of legislation and ensures protection of freedoms guaranteed to a person under the Constitution. Provisions of Article 10-A of the Constitution are not limited to a judicial trial in the strict sense but require fairness from any forums which determine the rights of a person (reliance is placed on 2012 CLC 1236).
Under the provisions of Section 24-A of the General Clauses Act 1897, where, by or under any enactment, the power to make any order or give direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment. It is further made obligatory for every authority, office or person making any order or issuing any direction under the power conferred by or under any enactment to, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction.

In guardianship matters, courts have to exercise quasi-parental jurisdiction and the supreme consideration in such context is welfare of the minor. To achieve such purpose, courts have unfettered powers. Therefore an application under S.12 of Guardians and Wards Act 1890 has been required to be decided on such principles. It has been observed by the honourable Lahore High Court in a judgment titled Umar Farooq Vs Khushbakht Mirza, and cited as 2008 PLD 527 LHC, that contesting parents, especially fathers, have the inherent right to seek visitation to the minor. A father is not only required to participate in the upbringing of minors but should also develop love, bonding and affinity with them. However, for reasons not known to the author, the learned Guardian/ Family Judges while exercising authority under the Guardian and Wards Act 1890 and Family Courts Act 1964, have evolved a template order for disposing off the applications filed under the provisions of Section 12 of the Guardian and Wards Act 1890 by the noncustodial parents, especially fathers, seeking grant of interim custody of the minors till the final decision of the petition. It usually faces dismissal either for being a premature one or on the ground that the same cannot be decided without evaluating evidence from both sides, though as a general practice, almost all the Guardian Courts appreciate the fact that the absence of interaction between the minor and his or her real non-custodial parent will result in estrangement between both the minor and the parent. For this reason, they consider a periodical meeting a necessity, yet they fail to give valid reasoning for subjecting that very meeting between the minor and the non-custodial parent to be conducted within the court premises for two hours, twice a month.
Non-custodial fathers fighting custody litigation for their children file applications before the learned Guardian Judges, under the provision of S.12 of the Guardian and Wards Act 1890. These are for the grant of interim physical custody of their children till the final disposal of the custody litigation pending adjudication. However, for the reasons of that application being premature, most of the times their applications are dismissed.
Surprisingly, child custody litigation is based upon protecting the interests of the minor as well as his or her welfare being of paramount consideration. However, while protecting the welfare of the minor, the courts in Pakistan often place restrictions on the enjoyment of fundamental rights by the minors without even giving any reason thereto. It is a settled law as enshrined in the provision of S. 24A of the General Clauses Act 1897 which states that every authority has to pass a speaking order while adjudicating civil rights of the litigants. This is done to give valid reasons as to why a fundamental right of the minor to have access to both parents has been curtailed. It is restricted to a 2-hour visit once or twice a month and that too to be held within the court premises instead of the home of the non-custodial parent. All these put together contemplate regarding the visitation schedule that neither the mother should be altogether deprived of complete custody of the minor, nor the minor child should be deterred to meet his or her own father with whom the minor could have free interaction or access and receive fatherly love and affection if the relationship between the parents had been normal.
More than 300 minor children are brought every Saturday to the visitation area comprising of two rooms measuring about 16 feet by 14 feet located within the court premises in Lahore for the purposes of meeting their non-custodial parents for two hours, save however in accordance with the non-speaking orders passed by the learned Guardian Judges in Lahore.
It is further pertinent to note here that there exist no facilities of sitting or playing with the minors being brought to the court premises every week. The non-custodial parents have to sit on the floor and spend time with their children, in pursuance of the inhumane orders of visitation passed by the learned Guardian Judges in Lahore.
It has often been witnessed that though the right to fair trial for the determination of civil rights is a fundamental right of every citizen of Pakistan, the concept of fair trial and due process has always been the golden principle of administration of justice. However, after incorporation of Article 10-A into the Constitution, it has become more important that due process should be adopted for conducting a fair trial and an order passed in violation of due process should be considered void. On the touchstone of this observation made by the honourable Supreme Court of Pakistan, it becomes abundantly clear that the Guardian Judges are under a constitutional as well as statutory obligation to assign valid reasons while curtailing fundamental rights of movement of the non-custodial parents. It imposes a restriction for an indefinite period of time that the non-custodial parent has to meet his or child/children for merely two hours twice a month and that too within court premises. It is peculiar to note here that no reason of any nature has ever been assigned to any non-custodial parent while dismissing the application filed under the provisions of S.12 of the Guardian and Wards Act 1890.

A right to life not only includes one’s own life but also the life, liberty and happiness of one’s children. Denying a person the right to the company of his or her children is as severe a penalty and a curse, more than denying him or her the right to life altogether. It is further reiterated here that a minor cannot be denied the right of access to his or her non-custodial parent (mostly father) during the pendency of child custody litigation before a Guardian Court under the provisions of the Guardian and Wards Act 1890. Furthermore, any restriction for an indefinite period of time can be placed on his or her freedom to have access to his or her real father. Giving directions to custodial parents to bring the minor for the purposes of meeting his or her non-custodial parent, acts as a restriction on the fundamental human rights of the minor as well as of the non-custodial parent. Without assigning any reason thereof, the access of the non-custodial parent is often seen to be limited to a two-hour meeting with his or her child and that too within court premises. Hence, the same falls within the classification of an unqualified and unreasonable restriction on the fundamental rights of access and movement, as the same is protected under the provisions of Article 15 of the Constitution of Islamic Republic of Pakistan.
It is further significant to observe that the question of whether law imposes reasonable restriction(s) on the freedom of movement of persons is justifiable. In determining this question, the court has to look at the nature and extent of the restriction(s), the manner in which it is imposed, the nature of the right alleged to have been infringed and the underlying purpose of the restriction imposed. However, in the matter at hand, not even a single aspect has been looked into by either the learned Guardian Judges functioning in Lahore, while access to non-custodial parents has also been restricted (reliance is placed upon PLD 1958 SC 41).
Additionally, it is significant to note here that it is the fundamental and basic human right of a child to share love, affection and the care of his or her mother as well as father. Furthermore, it is again a fundamental right of the child as well as of the non-custodial parent (mostly fathers) that their dignity and, subject to law, their privacy of home shall be inviolable. Time and again this has been observed by the Honourable Supreme Court of Pakistan to the effect that the right conferred under Article 14 of the Constitution is not limited to any premises, home or office, but to the person, the man or woman, wherever he or she may be (reliance is placed on PLD 1998 S.C. 388 and 2010 PLD 119 Karachi).
Moving on, it is peculiar to note here that the provisions of S.12(2) clearly place a condition on the exercise of jurisdiction regarding the appearance of female minors in court premises for meeting their non-custodial parents. The provisions of S.12 of the Guardian and Wards Act 1890 are reproduced below for better understanding of the subject:
“12) Power to make interlocutory order for production of minor and interim protection of person and property.
(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.”
A bare perusal of S.12(2) clearly postulates that special care and caution is required regarding the appearance of female minors on court premises for the purpose of their meeting with non-custodial fathers. Provisions of Article 14 of the Constitution of Pakistan further cement the fact that meeting one’s father on court premises, overcrowded by more than 300 to 400 strangers, infringes the very right of privacy of the female minors who are brought to court every Saturday. Meeting one’s father in court may still be better as compared to meeting him at his home. It is further pertinent to note that though the dignity of a man and the privacy of his home is inviolable, it does not mean that his privacy is vulnerable and can be violated outside the premises of his home.

Home in the literal sense will mean a place of abode – a place where a person enjoys personal freedoms and feels secure. The emphasis is not on the boundaries of home, rather on the person who enjoys the right wherever he or she may be. The term “privacy of home” also symbolizes the security and privacy of nature which a person enjoys in his or her home. It is peculiar to note that though privacy is inviolable, there exist no seating arrangements at the meeting place which is also crowded by a large number of people. This gives rise to the mischief of the concept of privacy of the home enshrined within the provisions of Article 14 of the Constitution of Islamic Republic of Pakistan.
Every judge, including the Guardian Judge is under a legal obligation to state reasons as to why he or she deems it fit that the minor shall be visited by one of the parents within court premises and there must be a reason as to why the duration of the said meeting should be as minimum as two hours only, within a complete month.
It is stated here with humility that every public or judicial functionary is duty-bound to decide upon the application of a citizen in accordance with S. 24A of the General Clauses Act and as laid down by the Supreme Court of Pakistan in 1998 SCMR 2268.
The provisions of Article 4 of the Constitution of Pakistan categorically lay down that it is the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with the law. If the provision of Article 4 of the Constitution is to be read in juxtaposition with the provisions of S.12 of the Guardian and Wards Act 1890, it is clear with regards to the first instance that the law is silent as to the selection of venue for meeting between the non-custodial parent with his or her child within the court premises, once or twice a month on the second instance and for two or three hours on the third instance. The practice carried out by the Guardian Judges at Lahore in respect of allowing meetings scheduled to be conducted within the court premises for two hours twice a month, is against the mandate of fundamental rights of citizens as enshrined within the regime of the Constitution of Pakistan 1973. A court of law without assigning any valid reasons cannot take any action detrimental to the life and liberty of any person, except in accordance with the law, nor shall a person be prevented or hindered from doing what is not prohibited by law.
There is no specific duration or frequency defined in the Guardian and Wards Act 1890 for granting a visitation schedule for minors. The paramount consideration to decide a reasonable schedule is the WELFARE OF THE MINOR. In fact the entire Guardian and Wards Act 1890 is ultimately based on the welfare of minors. The Guardian Judge has to act/think as a parent in order to pass a decision. This extremely limited visitation schedule was adopted by courts to avoid complications and hassles from arising during the administration of more frequent visitation meetings. However, this negates the entire fundamentals of the Guardian and Wards Act, because taking away a child from a parent, and thereafter restricting his or her access to the child for a mere two hours and that too to be spent within court premises, cannot be in the welfare of the minor and should not be the solution to avoid administrative problems.
Even after waiting for months for the first face-to-face meeting with his or her own children, the non-custodial parent gets an extremely limited visitation schedule. This visitation schedule is often as little as ‘ONCE IN A MONTH FOR TWO HOURS WITHIN COURT PREMISES’. Surprisingly, this visitation schedule has been followed widely in the Guardian Courts of Pakistan for over decades and has now become precedent.
Keeping the minors away from the non-custodial parents further aggravates the already adverse relationship between the custodial and non-custodial parent. Most separated/divorced couples, after many years of litigation, forget the actual reasons of separation and start fighting over the visitation rights of children. Had the court not supported the element of revenge through children, things would have started to cool down between parties with the passage of time.
It is a God-given fundamental right of every child to be with his or her mother and father, may it be separately or with both of them together. There is no replacement for a natural father or a natural mother. The courts must exercise their powers to strongly discourage any effort by a father or mother to prevent their children from meeting one side of their family in case of a divorce or separation. It should be one of the foremost duties/responsibilities of a guardian court to protect the right of children to have reasonable access/visitation to their non-custodial parent.
It is an established fact that the children raised by a single parent tend to develop numerous psychological problems as they grow up. The effects include but are not limited to:
Increased drug addiction
Increased rate of suicide
Increased ratio of involvement in crimes of a serious nature.
It is also important to note that despite a specific provision of the Constitution, no coherent doctrine of human dignity has emerged in our child custody jurisprudence. Only a handful of cases involving alleged torture, invasion of privacy and right to life have invoked Article 14 in the discourse. However, an entire spectrum of issues faced by the courts – including periodical meetings within the visitation areas, non-availability of facilities during the said meeting, acid attacks, illegal arrests, trampling on religious freedoms, availability of electricity and gas, public housing and free education – all of which touch upon the cores of human dignity, have not involved any discussion of Article 14.
It is time we break these shackles and embrace the idea of human dignity as an overriding concept in our human rights discourse. Only in this way, through emphasizing the dignity and respect of each human being, can we aspire to rid many of the social and legal plagues that rot the fabric of our nation. It is time that our honourable courts become open to the idea of interpreting Article 14 in a new and broader light that puts human worth at the center of the fundamental rights debate, allowing the law to transcend its letter and fulfil its spirit.
It is the need of the hour that some serious steps be initiated by our superior judiciary in this regard and the abuse of process of law carried out in the name of welfare of the minor(s) be brought to a halt. Special education and workshops are required to be conducted to raise awareness for the learned Guardian Judges so that they are obliged to pass speaking orders while acting as a Judge and while curtailing civil rights of non-custodial parents (mostly fathers). They must assign valid reasons as to why a minor should be brought within court premises for the purposes of meeting the non-custodial parent, especially when every case is required to be decided on its own facts.
It is further most humbly suggested that the learned judges appointed as Guardian Judges shall be given special training to the effect that the principles of natural justice are fully applicable in guardianship proceedings as well. If an accused is the most favourite child of criminal law, then a non-custodial parent shares almost a similar status in child custody litigation. Hence he or she should be considered a human being at least if not the most favourite child of law and must be given basic amenities which he or she is entitled to, under the Constitution of the Islamic Republic of Pakistan.
The Honourable Chief Justice of Lahore High Court is requested through this article to please take notice of the affairs being carried out in Guardian Courts throughout the Province of Punjab. A direction should be issued to all learned judges functioning within the supervision of this honourable court, in the Province of Punjab, to ensure the protection of fundamental rights, such as the right to fair trial, right to privacy and dignity, and other rights of children from broken families and children of non-custodial parents, by announcing a reasonable, at home, “MINIMUM STANDARD” visitation schedule right from the start of the child custody litigation. This would be in a similar manner as that of the fixation of interim maintenance allowance under the provision of Family Courts Act 1964. This relief of “minimum, at home, visitation schedule” should be available to all non-custodial parents without discrimination, from the very beginning of the trial.

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