It is normally seen that after separation or divorce, husband and wife are seen fighting for custody of minor children. In Pakistan, subject of custody of minor is regulated by the Guardian and Wards Act, 1890 and jurisdiction to try such disputes is with Guardian Court. The Guardian and Wards Act 1890, does not offer any preference to mother over father when it comes to parental rights. Only paramount consideration under law for determining the question of custody is by determining the best welfare of the minor children. It can be easily said that it is in the best interest of the minor children to live with both parents. However, due to dispute between husband and wife, it is hardly possible for the minor to live with both parents. Guardian Court in such sequel, has power to handover custody of minor to any one parent. In some instances, Guardian Court is also seen to have awarded joint custody rights to both parents. In this article we will discuss the rights of father towards his/her minor children upon separation or divorce with wife.
In most recent cases, Apex Courts of Pakistan have observed that mother has a right of hizanat in Islamic Law. Even otherwise, Lap of mother is a heavenly place and mother has inherent right to keep her children close to her bosom as there is no substitute of her love and affection. However, this rule is not followed stricto sensu and may vary depending on facts and circumstances of each case. Notwithstanding, it is in the best interest of the minor to have love of both parents. It is for this reason, Section 7 of the Guardian and Ward Act 1890 comes to rescue the right of father to meet his minor children where custody of minor is awarded in favor of mother. Non-Custodial Father has all the right to meet his children and this right can be exercised by filing a suit for Visitation Rights under Section 7 of the Guardian and Ward Act 1890. Court in such situation summons the custodian mother to produce the minor in court for meeting with father. In this regard, a visitation schedule is chalked out. Only where minor is of tender age, father will be allowed to meet the minor in court premises, otherwise father can take the minor home and return to mother as per schedule. In Shahida Adnan Case, mother assailed the visiting schedule chalked out by Guardian Court in favor of father on ground that minor has no attachment with father and father is not regular in paying maintenance. Court observed that father could not be denied the right of access to his minor children nor would he be considered an alien/enemy to his children. Minor not only need love, affection, care and attention of a mother but also the company and guiding hand of father. Negating the father of his right to meet his minor children would lead to emotional deprivation.
Yes, Court can at any time cancel the Visitation Schedule drawn in favor of father, if father violates any terms and conditions of visiting schedule fixed by the court. It is therefore, important for father to comply with terms and conditions of visitation as may be issued by the Guardian Court. Some of the terms and conditions include as follow:
If the father, strictly adheres to the terms and conditions of visiting schedule and is regularly paying maintenance, Court in the best interest of the minor, can grant temporary custody of minor to father for a particular period. In Imran Butt case, temporary custody of 8 year old daughter was handed over to father for period of summer vacations. While granting the temporary custody, court observed that father was regularly paying maintenance to minor and gave undertaking that he will not remove the minor from jurisdiction of the court.
It is seen that visiting schedule significantly bridge a relationship between minor children and non-custodial father. It is not uncommon for minor children to prefer custodial mother over father. It is mostly due to less or no interaction between minor and non-custodial father. Using visitation rights, father can not only recolour the emotions of minor children for him but can also reinvigorate the bond of love and affection with minor. In several cases it has been experienced that as a result of visitation, minor becomes more inclined towards living with non-custodial father. In most recent, Ayesha Abdul Maleek Case, mother took plea that she is entitled to right of hizanat of minor daughter and therefore, her custody be granted to her. However, court in order to determine the question of custody summoned the minor in court for the purpose of intelligible preference. Minor daughter upon inquiring by the court, showed her willingness to live with father and accordingly, custody was granted in favor of father.
Are you a non-custodial father who has been deprived of his right to meet his minor children? Our expert team of lawyers at Khadija Law Associates have great deal of experience in enforcing visitation rights in favor of father through action of law. Our team of expert lawyers understand the intricacy of family disputes and handle each case with outmost professionalism. Feel free to consult you matter without expert custody lawyers at Khadija Law Associates.
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It is a general misconception in our society that child custody of minor son can be retained by mother till age of 7 years only, in case of separate or divorce with husband and after that minor son is handed over in custody of father.
If you are applying a spouse visa, immigration visa or any other category of visa for your wife and the concerned embassy has required you to bring Court Orders to verifying marriage.