What Law Says About Custody of Child by Her Mother?

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child custody law

Home is ideally a place where a person receives protection and psychological satisfaction. Marriage is a legal bond which brings responsibilities to both partners, and divorce is the legal termination of that bond.

Internationally it is a big dilemma to have such increasing divorce rates.The divorce rate in the U.S. is at 53%. But Spain, Portugal, Luxembourg, the Czech Republic, and Hungary are worse off with divorce rates higher than 60%. Belgium has the highest rate of divorce in this data set at a staggering 70%.

The divorce rate in Pakistan has also increased, due in general terms to people not fully realizing their marital responsibility. 150 divorce cases are reported daily in courts in Lahore and 40,000(Anually) in Karachi.

child custody law

Effects on Children:

One of the hardest things about separating is worrying about the effect it will have on your children. It was shown in many researches that 50 percent of children still fantasies about their parents reuniting 10 years after separation.

A child may feel:

  • A sense of loss
  • Anger and anxiety
  • Worry
  • Rejection
  • Frequent change of home or school
  • Financial strain

Custody of the Child According to Law:

custody of the child according to law

The law pertaining to guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890.

While Considering Groth and Associates, there are THREE STAKE HOLDERS IN A CUSTODY LITIGATION: mother, father and minor.

The important aspects from the law are:

  1. The most important aspect for the courts in Pakistan, by and large, remains what would be the best interest and welfare of the child.
  2. Father: Under Islamic law, a father is the natural guardian (al waley) of his children’s persons and property.(Section 359 of the Muhammadan Law)
  3. Mother: A mother, generally, has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father’s family. Section 352 of the Muhammadan Law.
  4. Right of mother to custody of infant children – The mother is entitled to the custody of (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
  5. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child.
  6. The father or mother seeking custody must have reached maturity and must be sane, capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the welfare of a child (Jamal J. Nasir, The Islamic Law of Personal Status (1990)).
  7. The non-custodial parent gets a visitation ONCE IN A MONTH FOR TWO HOURS WITHIN COURT PREMISES.

Conclusion:

Entire Guardian and Wards Act 1890 is ultimately based on the welfare of the minors.

Mother easily have custody till seven years (son) and till puberty and marriage (daughter). After that time, the custody has to be decide by the court on providance of the best of following: accomodation, lifestyle, education, enviroment, safety, financial status, remarriage of the custodial parent. If court encounters the mother to be better than father then she could have custody.

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