Child custody and visitation rights are highly sensitive and emotionally charged issues, especially in Pakistan. In a recent landmark Supreme Court judgment, identified as 2018 SCMR 1991, the court addressed the topic of visitation schedules for non-custodial parents. While custody was granted to the mother in this case, the court approved a visitation schedule proposed by the father. Since then, trial courts have been adopting this schedule as if it carries binding legal weight. However, it is crucial to delve deeper into the potential implications of these visitation schedules on the custodial rights of the mother and their alignment with Islamic principles.
Understanding the Proposed Visitation Schedule
The visitation schedule outlined in the 2018 SCMR 1991 judgment emphasizes equal visitation rights for the non-custodial parent. It covers weekends, holidays, summer and winter vacations, as well as Eid celebrations. At first glance, this schedule appears to favor the non-custodial parent by providing substantial time with the children. However, concerns arise regarding the custodial rights of the mother, particularly since she was initially awarded custody.
Examining Custodial Time Allocation
Analyzing the number of overnights spent with the father, as per the proposed schedule, reveals that a significant amount of custodial time is granted. Approximately 26% of the year is allocated to the father, allowing for substantial custody. This arrangement resembles the concept of “partial” or “joint” custody commonly observed in Western jurisdictions where statutory laws explicitly recognize and regulate such arrangements.
The Legal Framework and Partial or Joint Custody
The legal framework in Pakistan does not explicitly address the concept of partial or joint custody. The Family Courts Act of 1964, which governs custody matters, treats custody and visitation rights as separate entities. The addition of the words “custody of children and the visitation rights of parents to meet them” through an amendment highlights the distinct nature of these rights. In Pakistani law, custody is considered an “all or nothing” right, and granting partial or joint custody could potentially undermine the concept of visitation rights for the non-custodial parent.
Recognition of Shared Parenting
In recent years, trial courts in Pakistan have shown a growing recognition of the concept of “shared parenting.” While this recognition is evident at the trial court level, there is no definitive acknowledgment of shared parenting in the existing legal framework. The Guardians and Wards Act of 1890, the primary legislation governing child custody in Pakistan, focuses on the paramount consideration of the child’s welfare. However, it does not explicitly address joint or partial custody. The absence of such a concept aligns with Islamic principles, which prioritize the protection of a child’s rights and their overall well-being.
Islamic Fiqh and Custody
Islamic fiqh, particularly Hanafi and Shafi’i jurisprudence, does not specifically address the concept of joint or partial custody. These schools of thought distinguish between Hizanat (custody) and Willayah (guardianship), assigning custody to the mother and guardianship to the father. This distinction recognizes the formative years when a child is dependent on the care and supervision of the mother. It also discourages the easy estrangement of a father from his children by making custody an “all or nothing” eventuality.
Navigating the Complexities
Interpreting Pakistani law alongside Islamic fiqh highlights that joint or partial custody is not explicitly recognized. Custody and visitation rights are treated as separate, distinct rights. While visitation provides non-custodial parents with the opportunity to spend time with their children, it should not infringe upon the custodial parent’s rights. Implementing joint or partial custody could potentially undermine the very concept of custody and create conflicts between custody and visitation.
It is crucial to maintain a delicate balance that upholds the best interests of the child and ensures the well-being of all parties involved. While visitation schedules may provide non-custodial parents with ample time with their children, it is essential to consider the impact on the custodial parent’s rights and the child’s overall welfare. Each case should be evaluated on its unique circumstances, prioritizing the child’s needs and maintaining the delicate equilibrium between custodial and non-custodial parental rights.
Conclusion
The issue of shared parenting and partial custody in Pakistan is complex, with various legal and cultural factors at play. While the visitation schedules outlined in the 2018 SCMR 1991 judgment may seem favorable to non-custodial parents, their potential impact on the custodial rights of the mother and alignment with Islamic principles require careful consideration. The existing legal framework in Pakistan, combined with Islamic fiqh, does not explicitly recognize joint or partial custody. As such, it is crucial to navigate the complexities of child custody and visitation with sensitivity, ensuring the best interests of the child are upheld while respecting the rights and responsibilities of all parties involved.
About this Author:
Hina Chaudhry is a law graduate with a deep understanding, knowledge and expertise of complex legal issues. She is providing exceptional legal services to clients, navigating intricate legal matters precision and clarity with deep interest in evolving laws and regulations. She is inspiring other women to pursue careers in law and break down barriers that hinder gender equality in the legal arena. She has keen attention to detail and strong analytical skills adapting at thoroughly researching and presenting persuasive arguments. She has experienced in providing sound legal advice and representing clients in various legal proceedings. She has a unique perspective and approach to the table. She is dedicated to advocating for justice, fairness, and equality. She is determined to use her legal knowledge to make a positive impact in the lives of her clients and within the legal community as a whole.
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