International Journal of Law, Policy and The Family, 2015, 29, 78–96
doi: 10.1093/lawfam/ebu015
Advance Access Publication Date: 11 February 2015
Article
Shabnam Ishaque* and Muhammad Mustafa Khan
Pakistan College of Law, Pakistan
*Corresponding author. E-mail: [email protected]
ABSTRACT
Few legal scenarios are as emotionally charged as child custody disputes in divorce
cases. Such disputes traumatize parents and adversely affect the concerned child who
has to face loss of relationship, or at best, reduced relationship with one parent, a
change of friends, home, school and even country of residence in some cases. This article focuses on existing laws concerning child custody in Pakistan in the context of
their grounding within Islamic principles of custody and guardianship. It is not intended to argue for or against Islamic law but to analyse the approach taken by
Pakistani Superior Courts when interpreting existing statutory provisions and the extent to which these decisions are taken in reference to underlying Islamic principles
concerning custody of children. Case law of Pakistani Superior Courts from at least the
past 5 years will be the source of this analysis particularly concerning the principle of
the welfare of the child and how this particular objective has if at all played a role in
court decisions favouring one parent over the other when awarding custody.
I. I NT RO D UCTI ON
Custody of children under Islamic law exists within two spheres referred to as
hadanah and wilayah.1 Hadanah concerns the right to physical custody of the child
whereas wilayah is guardianship of the person and property of the child.2 Islamic
jurisprudence takes the view that by entrusting the right of primary residential custody to a mother and the right of guardianship to a father Islamic law protects the
best interests of the child.3 In western jurisprudence the 20th century was heralded
by reformists as ‘The Century of the Child’4 with children being treated less as property and more as individuals having distinct legal personality accompanied by overriding legal rights.5 In contrast, Islamic jurisprudence has maintained that, in view of
a child’s particularly weak and vulnerable position, hadanah is a duty or a collective
C The Author 2015. Published by Oxford University Press. All rights reserved.
V
For permissions, please email: [email protected]
78
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
The Best Interests of the Child: A
Prevailing Consideration within Islamic
Principles and a Governing Principle in
Child Custody Cases in Pakistan
The Best Interests of the Child and Islamic Law
79
II . I S LA M I C P R I N CI P L ES D E F IN I NG A ND D E T E R M I NI N G
CUSTODY OF CHILDREN
Islamic law on child custody disputes is permeated with juristic opinions of scholars
from different sects and schools of Islamic jurisprudence. The following details
attempt to clarify Islamic principles20 concerning child custody, which are divided
into hadanah and wilayah. These two spheres do not come into direct conflict until
there is a marital breakdown leading to a custody dispute.
1. Hadanah and Wilayah
Hadanah comes from the root verb hadana which means to embrace, or to
hug someone but it has also been used to mean raising, bringing up or nursing a
child,21 or the office of rearing a child.22 Terminologically, hadanah is associated
with protection and care given to someone like a child who cannot act for
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
obligation (fardh kifayah)6 upon the whole Muslim community.7 Once a particular
person is entrusted with this duty he/she is bound to ensure that the child is well
looked after.8
Notwithstanding the aforementioned it is erroneous to think that Islamic law only
concerns duties and not rights of custodians.9 Rather, it is evident that Islamic law tries
to maintain a balance between the rights of parents and their duties towards their child.
Al-Sayyid Sabiq10 argues that it is important to understand that protection of the
child’s best interests supersedes any claims to ahl al-hadanah11 or ahl al-Wilayah.12
The aim of this article is to appraise the claims made through Islamic jurisprudence
against the contemporary reality in Muslim populated societies like Pakistan.
This article evaluates the extent to which application of Islamic principles, in
conjunction with Pakistani laws,13 cater to children’s best interests in actual custody
cases. Pakistani Superior Courts14 have stated in numerous judgments that ‘what has
to be taken into consideration at each and every stage of litigation involving
custody of minors15 is the welfare of the minor’.16 When enquiring into what constitutes welfare of the child17 courts have considered wide ranging factors, from the age
of the child to the financial standing of both parents. The Guardians and Wards Act
1890 primarily regulates child custody disputes and all Pakistani laws are constitutionally required to be in line with Islamic principles. Case law of Pakistani Superior
Courts from at least past 5 years18 is the source of this analysis.
First the Islamic principles will be analysed to assess whether the best interests of
children is their primary focus. Thereafter follows an overview of the statute
governing custody of children in Pakistan and the judgments of the Superior Courts
of Pakistan. The problem of international parental child abduction to Pakistan along
with the applicable Pakistani law in custody disputes involving both Pakistani
and foreign/dual nationals will also be highlighted. Finally it will be considered
whether religious constraints and edicts regarding child custody are necessarily
literally interpreted by the Pakistani Courts. This issue is important in view of
statements that condemn child custody laws in Pakistan in what is referred to as the
oppressive environment of the ‘outdated’ principles of Sharia’h taking hold of
Pakistan.19
80
Shabnam Ishaque and Muhammad Mustafa Khan
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
himself/herself.23 Because of its emotional and physical connotation, in Islamic jurisprudence it is thought to be the most suitable term encompassing the idea of custody
of children. Wilayah means the guardianship of the person and property of the
child.24 Guardianship of the person means the authority to take care of a child’s personal affairs such as marriage, education, and discipline whereas guardianship of
property means the authority to perform legal transactions relating to a ward’s25
property.
Different sects and schools of Islamic jurisprudence agree that, unless disqualified,
a mother has the first claim to hadanah and is considered the natural custodian of
the child. This is based on Prophetic traditions,26 which emphasize the significant affinity between a mother and child necessitating that she be given priority in the case
of hadanah. Islamic jurists argued that characteristics like natural love for the child,
tenderness, and kindness are more prevalent within mothers than fathers, making
them better qualified to look after children in their years of infancy.27 In the same
context, jurists also agree that if the father is alive and competent under Islamic law,
he is the natural guardian of both the person and property of his small children28
and needs no formal appointment by any authority.29
Although Islamic law tends to presume that hadanah is a female-oriented function
whilst wilayah is a male function,30 it is nowhere stated that only a woman can
provide emotional and only a man can provide rational support to children. Rather
Islamic law encourages both men and women to enhance their rational inclinations
to the best of their abilities through practical distribution of roles between them in
order to ensure the best interests of the child. What Islamic rules however essentially
recognize in this role distribution of custody/guardianship is that women have an
enhanced ability to nurture small children by providing deeper emotional support.
The distinction between male- and female-oriented custody roles however ceases to
exist when the child reaches a certain age, due to conditions no longer being the
same and the demands of the best interests and welfare of the child.31 There are
however significant juristic differences concerning the order of priority for hadanah
after the mother.32 If the mother is dead or otherwise disqualified, some jurists state
that custody should go to the father, others say that it should go to the maternal
grandmother.
Arguably by awarding mothers priority over physical custody of children under a
certain age Islamic law incorporates something akin to the ‘tender years’ presumption33 or maternal preference rule applied in some jurisdictions. Hence contrary to
popular assumptions, in an essentially patriarchal society Islamic law accorded
primarily the right of physical custody to the mother,34 a stance which had not been
envisaged in western legal systems till the later part of the 19th century. However,
one may argue that this automatic claim of right to hadanah by women on the basis
of motherhood does not necessarily serve the best interests of the child and may be
open to the same objections that have been made against the maternal preference
rule, namely, that it devalues the child’s relationship with the father.35 However, a
mother’s automatic right to hadanah lasts up to a certain age of the child and is qualified through conditions of eligibility to ahl-al hadanah, which arguably serve as a
check to protect the best interests of the child.36 Secondly, hadanah does not remove
the role of the father from the life of the child who continues to be under the overall
The Best Interests of the Child and Islamic Law
81
supervision (guardianship) of the father. This can make possible a child’s contact
with both parents.
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
2. Hadanah and Wilayah: A Right or a Duty?
Imam Ibn-Qudamah states that in view of the particularly weak and vulnerable position of children, hadanah is a duty towards the child.37 In fact, according to Islamic
jurisprudence, hadanahis a collective obligation (fardh kifayah) of the Muslim
community. Once a particular person is entrusted with this duty, he/she is bound to
ensure that the child is well looked after by him/her. Jamal Nasir even goes so far as
to say that ‘custody is the established right of the baby from the time of its birth’.38
The duty-oriented nature of child custody in Islamic law is evident from the fact that
mothers are personally obligated to breast feed the child if there are no financial
means to obtain milk for the baby or hire a wet nurse.39
Based on Sunnah40 of the Prophet, the application of hadanah is taken to be a set
of responsibilities and duties. During her custodian period a female custodian is
responsible for upbringing, protecting, cleaning, taking care of, feeding, and clothing
the child.41 The person entrusted with guardianship of the person and property
of the child has the duty to take decisions regarding a child’s education, marriage, discipline, religious upbringing, medical consent, and future career.42 All the
expenses relating to a child’s maintenance, education, and accommodation must
be provided by the father. A father is also obligated to provide such services to
the child as taking him/her to school whenever necessary and provide overall
supervision when the child is staying with the mother or any other female
custodian.43
This element of duty is significantly evident in regard to the guardianship of
property of the child. Bharatiya, giving Quranic references, stresses that Islamic law
protects the interests of the minor by placing several restrictions on the authority
and power of the guardian. An example from Hodkinson44 and Nasir45 can illustrate
this point. A spendthrift father can be disqualified from being the guardian of the
property of the ward because of the potential detriment to the financial interests of
the minor. Such rules indicate the fiduciary status of the guardianship of property.
This arguably serves the purpose of protecting the interests of the child and confirms
that in Islamic law guardianship is more a duty towards the ward rather than a mere
right of the parent.
However, the aforementioned discussion must not be taken to suggest that
hadanah and wilayah do not entail any rights for the person entrusted with these
responsibilities. The claim to custody and guardianship continues to be vested in the
qualified person. Custody can even be regarded as an expression of authority which
enables the custodian to perform his/her duties. This however is subject to two
very important qualifications. Firstly, hadanah and wilayah is a shared right between
the entitled custodian/guardian and the ward, with the ward’s right prevailing
if there arises any conflict of interest.46 Secondly, the welfare and interest
of the child is always more important than any satisfaction of the claim of
the ahl al-hadanah or ahl al-wilayah. In these respects they are very similar to
82
Shabnam Ishaque and Muhammad Mustafa Khan
the concept of parental responsibility introduced into English law in the Children
Act 1989.
4. Conditions for Eligibility to ahl al-hadanah (Custodianship)
Islamic law imposes certain conditions which the custodian(s) has to fulfil in order
to be eligible for hadanah. These include:
•
•
•
Legal capacity;
Trustworthiness;
Ability to bring up the child;
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
3. Duration of Hadanah
The overriding status of mothers being the primary custodians in Islamic law is inextricably linked to the needs of smaller children. This understandably means that
once the child attains a certain age the mother loses this automatic right. But before
one delves any further it must be noted that while mothers may lose their overriding
status as primary custodians they can still be awarded custody on the basis of the
best interests standard.47 Islamic schools of Sunni and Shi’a jurisprudence differ as to
when the necessary period of hadanah comes to an end.
In Hanafi law, a mother retains the right of custody till the age of 7 years for
boys and puberty48 for girls.49 In Maliki law she retains custody till her son reaches
puberty and a daughter is married.50 So the child can be transferred to the father
by agreement, but if there is disagreement the court can decide on the best interests
principle. In Hanbali law the prevailing opinion is that once the boy reaches the age
of discernment51 he is given a choice between either parents but a mother will lose
the right of custody of her daughter when she is seven years old.52 In Shafi’i law both
boys and girls are given a choice as to whom they would prefer to live with
after reaching the age of discernment.53 In Ithna ‘Ashari law a mother retains custody
of both boys and girls only for the first 2 years of their lives.54
Hanbalis and Malikis base the child’s right to choose on Prophetic traditions55
and the practice of his companions.56 It is pertinent to stress that all four schools of
Sunni jurisprudence base their opinions primarily on the need to protect the best
interests of the child rather than any divine constraints. Ibn Qudamah comments
that once the child reaches the age of reason it is appropriate to give him/her
the right to choose between parents in a custody dispute as that can protect his/her
best interests.57 However, Imam Malik and Imam Abu-Hanifa held the view that
the child might choose the parent who puts fewer restraints on him and that can
prejudice his best interests.58 This apparent divide is however bridgeable because
the child’s right to choose is not absolute and can be balanced against his/her best
interests.59 Much juristic thought has gone into stressing that a child ought to have a
say in custody disputes.60 The way Islamic law addresses this right of the child while
also protecting his/her welfare is by subjecting it to the qualification of the best interests test. In so far as Hanafis and Malikis do not have regard to a child’s views, this
can be and is circumvented in countries with dominant Hanafi ideology such as
Pakistan through the use of Ijtihad.61
The Best Interests of the Child and Islamic Law
•
•
•
83
Religion;
Residence; and
Marriage restrictions.
These are considered in turn.
B. Trustworthiness
The standard is of a person possessing a reasonable standard of moral character and
is usually tested by reference to the conduct of the custodian.64 This means that a
person who commits what is considered as one or more major sins or persistently
commits minor sins (eg adultery) cannot qualify as a custodian.65 This condition is
not peculiar to the Islamic legal system as it is hard to envisage child custody being
granted to someone with a serious criminal record in any legal system.
C. Ability to Bring Up the Child
In order to ensure the welfare of the child, Islamic law requires that the custodian
must physically be able to perform his/her duties and responsibilities towards that
child. An inability might stem from a serious physical defect, old age, serious disease
and even neglect. Any person who is overloaded with work and prone to neglect the
child or is suffering from some serious disease or old age resulting in himself/herself
needing assistance is not likely to be entrusted with custodian duties.66
D. Religion
This is the single most controversial requirement in a world where inter-faith
marriages are commonplace. Hanbalis and Shafi’is opine that a non-Muslim mother
cannot be a custodian of the child since she may influence the child towards a
non-Islamic faith and way of life.67 They base their beliefs on a Quranic verse68 and
Prophetic traditions.69 However according to Hanafis70 and Malikis,71 non-Muslim
mothers who are kitabiyah72 or majousiyah73 can be custodians of a child provided
the child is not harmed physically or religiously. If there is any danger of the child
being made to embrace non-Islamic way of life then Hanafis believe that the child
may be removed from the care of such a mother.74 Malikis argue that in such a case
the child may still be allowed to reside with the custodian provided it is under good
care and the custodian is forced to reside in a Muslim community.75
E. Residence
A father’s supervisory role demands that the child stays at a place of easy access to
him. This means that if the custodian mother wants to move or travel to a distant
place76 it may affect her right to hadanah. However, if the father wants to move to a
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
A. Legal Capacity
This requirement has been interpreted by some jurists to mean that the custodian
must have achieved the age of puberty while others insist on maturity as well.62 The
custodian must also be sane. However, if the insanity is only occasional and lasts for
a very short time then such a person would not technically be disqualified.63
84
Shabnam Ishaque and Muhammad Mustafa Khan
far off place the child may be required to stay with him77 subject to an important caveat. If the father is moving to an unsafe or dangerous place then the welfare of the
child demands that he remain with the person having the right to hadanah.78
Similarly, a mother will not lose custody if she moves to a place which can enhance
her child’s quality of life.79 Hanafis are of the view that a mother will not lose custody
on moving to the place where the contract of marriage was originally concluded even
if it is far from the residence of the guardian provided the mother is native of that
place.80
I II . P A R E NT A L C H I LD A B D UC T I O N T O P A K I ST AN A N D TH E
A P P L I C A B L E P A K I S T A N I L A W O N C U S T O D Y OF C H I L D R E N
1. Parental Child Abduction to Pakistan
The 20th century has witnessed an increasing amount of interfaith and cross-cultural
marriages86 and the increasing divorce rate resulted in a plethora of custody disputes.
The practice of child abduction by Pakistani parents arising from custody disputes is
not a new phenomenon87 but the extensive local and international media coverage
of recent cases such as those of Misbah Rana, Peggy Collins, Ingrid Brandun
Berger,88 and Roshni Desai has made this issue intensely prominent.
Parental child abduction across international frontiers of a child holding a foreign
or dual nationality should bring into effect the Hague Convention on International
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
F. Marriage Restrictions
The dominant view is that the female custodian loses hadanah if she remarries during the period of custody.81 Islamic jurists have argued that this condition also serves
the best interests of the child as the female custodian becomes preoccupied in her
new married life and thus would be unable to fulfil adequately her responsibilities towards the child.82 This is subject to some important exceptions. The female custodian may not lose rights to custody if she marries a relative of the child,83 particularly
someone who is within the prohibited degrees of marriage (mehram) to the child.84
There is also further juristic opinion that rights of the female custodian do not lapse
with her re-marrying.85
Religious and marriage restrictions are definitely peculiar to Islamic law and can
cause problems particularly for female custodians in modern settings. Nevertheless
Islamic law contains an adequate body of juristic opinion to moderate this. It may
take some lateral thinking but the way to that is also provided within Islamic law
through procedures such as Ijtihad. Arguably Islamic law, by laying down comprehensive yet rather objective rules, principles, and detailed criteria for identifying the
right custodian, limits the discretion of the adjudicating body in applying its own
version of the ‘best interests’ standard. Nevertheless the best interests of the child
remain the paramount consideration and override any conflicting rights of the person entitled to custody or guardianship. For example, a mother who takes her child
away from a father’s influence as guardian will not lose her right to custody if the
father’s place or country of residence is unsafe. Such rules can have significant
impact in countries such as Pakistan where the security situation remains unstable
at best.
The Best Interests of the Child and Islamic Law
85
2. Pakistani Law on Custody of Children
It must be mentioned at the outset that child abduction by a parent specifically for
custodial reasons is normally not considered an offence under Pakistani law97 unless
done with mala fide intentions for statutorily listed purposes.98 The main statute regulating child custody disputes in Pakistan is the Guardians and Wards Act 1890.99 It
is with reference to the provisions of this Act that matters of custody of children are
primarily decided in Pakistan. This legislation was introduced by the British to the
Indian sub-continent and Pakistan has continued with its application on child custody disputes. The Act deals with both facets of guardianship ie of the person and
property. The terms guardianship and custody are used interchangeably depending
upon the nature of the dispute, and the concept of residential custody (hadanah) is
entailed within the guardianship of the person of the child. The Act does not ignore
the religious law of personal status to which the minor is subject100 in a custody dispute, provided it does not impede the best interests of the child.101 Litigation concerning child custody has to be initiated under the Act, which gives jurisdiction to
the District Court to decide the matter in the District where the concerned child ordinarily resides.102 Specific provisions of the Act that are referred to and frequently
used when making custody applications to the Guardianship Court103 are sections 7,
9, 12, 17, and in particular 25. These provisions are used to invoke the authority of
the court104 in making a guardianship order,105 to obtain interim orders before the
final order as to guardianship is passed,106 to raise the considerations the court must
undertake before making a final order and finally to base all the said provisions on
the court’s authority to consider the welfare of the child when deciding his/her
custody.107
The welfare of the child is the paramount consideration in all custody disputes
under the Act. Though it does not precisely define the concept, it provides a checklist of factors that constitute the welfare and best interests of the child. It includes
wide ranging factors such as age, sex, and religion of the minor, the character
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
Child Abduction (1980)89 and the Hague Convention on Parental Responsibility and
Protection of Children (1996).90 Pakistan however has not ratified these international
instruments91 and is not legally bound by them. Nevertheless, Pakistan is legally bound
indirectly to ensure that a child’s best interests are protected in any custody dispute by
virtue of Article 392 of the Convention on the Rights of the Child (1989), to which it
is a party. The closest Pakistan has come to making an agreement with another country regarding the issue of parental child abduction is the UK.93 The judiciaries of both
countries entered into a Judicial Protocol concerning parental abduction of children.94
However, the Protocol is not legally binding in Pakistan as it was not promulgated
into law by the Pakistani Parliament. Therefore it has negligible influence in such cases.
Nonetheless, it shows a growing sense of the appreciation for the intricacy and importance of the subject matter under consideration.
In the absence of legally binding international obligations the only recourse left to
aggrieved parties in transnational custody disputes95 is the domestic law of Pakistan.
Laws of Pakistan including those of child custody are constitutionally required to be
in line with provisions of Islamic law.96
86
Shabnam Ishaque and Muhammad Mustafa Khan
and capacity of the proposed guardian and his nearness of kinship to the minor along
with the wishes, if any, of a deceased parent.108 The court may also consider
a minor’s preference regarding his/her guardianship or custody if the minor is old
enough to make an intelligent preference.109 There are striking similarities between
many of these factors and the ones under Islamic law considered earlier.110
1. Transnational Child Custody Disputes
A. Louise Ann Fairley v Sajjad Ahmad Rana113
Sajjad Ahmad Rana, a Paksitani citizen by birth, married Ms Fairley, a Scottish lady,
acquired British nationality, and had four children with her, including Misbah Rana.114
Misbah lived in Pakistan from 2003 to 2005, then returned to Scotland. In 2006 Mr
Rana arranged for Misbah to be brought to Pakistan in defiance of an interim order of
the Scottish Court of Session. Ms Fairley came to Pakistan and filed a habeas corpus
writ in the Lahore High Court. Justice Saqib Nisar held that Misbah had lived most of
her life in Scotland and was a habitual resident of Scotland and not an ordinary resident of Pakistan. The judge further stated that the orders of the Scottish court were
binding on Mr Rana and his attempt to bring Misbah to Pakistan was ‘oblique, dishonest, tainted and motivated with fraud’.115 Misbah herself stated that she did not want
to reside with her mother because she forbade her to practice her faith, gave her
haram116 food, and was living with a man out of marriage.117 The court noted that the
child’s views were relevant and the welfare of the child was a paramount consideration
in custody disputes but in this case the views of the child and the question of her best
interests and welfare should be adjudicated by the Scottish court. Hence, the court
ordered Mr Rana to hand over the custody to Ms Fairley.
The Supreme Court of Pakistan set aside Justice Nisar’s judgment on appeal and
mediated a settlement between the parties.118 According to the terms of the agreement
which formed part of the court judgment, Mr Rana was given the custody of Misbah
Rana and Ms Fairley the right to visit and talk to her daughter whenever she
wanted.119 There was no legal obligation on the Lahore High Court to order the return of Misbah without deciding substantive issues of the welfare of the child.120
Justice Nisarhad mentioned the Pakistan–UK Judicial Protocol on children matters but
did not make it the basis for his decision and in any case the protocol was not legally
binding. Although Misbah Rana was of considerable maturity and openly expressed
her choice to stay with her father, the essence of his decision was that the proper
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
I V . H OW PAKI STANI C OU RT S H AV E I N TE RPR ET ED T HE B EST
I NT ER ES TS OF T HE C H IL D A S A PRI M A RY CO NS I D ER A TI ON W HE N
AWARDING CUSTODY
Internationally, there is concern about the dogmatic nature of certain Islamic family
laws including ones on child custody which in turn raise concerns about the adequacy of the Pakistani legal system to safeguard the best interests of the child in custody disputes. One of the focal points of this debate revolves around the legal
capacity of a non-Muslim mother to be the primary custodian of a child she had with
a Muslim father.111 This issue arises mostly in the context of interfaith marriages
concerning Pakistani/dual or foreign national children.112
The Best Interests of the Child and Islamic Law
87
forum to consider such views was the Scottish court. While this view takes into consideration the jurisdictional competency of the court,121 it ignores the fact that prolonged
litigation in custody disputes can have serious adverse effects on the welfare of the
child. The Pakistani Supreme Court’s decision in giving weight to the views of Misbah
Rana by arranging a compromise between the parties thereby ensuring the influence of
both parents in her life had a core of good sense. Misbah Rana stayed in Pakistan till
2011 before returning to the UK to pursue wider opportunities and when last reported
enjoyed good relations with both her parents.122
2. Domestic Cases Concerning Child Custody Disputes
Critics nevertheless argue that decisions taken by Pakistani Superior Courts in the
said transnational custody disputes were influenced by political considerations rather
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
B. Peggy Collins v Muhammad Ishfaque Malik;123 Roshni Desai v Jehanzeb Niazi124
Mr Malik, a Pakistani citizen, married a French lady, Ms Collins, and had a son,
Omer, with her. In 2007 he removed Omer from the lawful custody of his mother
and brought him to Pakistan. Ms Collins filed a habeas corpus writ for the recovery
of Omer in the Lahore High Court. Counsel for Mr Malik argued that the child’s
Muslim faith and his identity as a Pakistani citizen would be compromised if custody
was granted to the Christian mother.125 Justice Khosa held that Mr Malik wanted to
hide behind the Muslim faith while his conduct was contrary to the teachings of
Islam. The court noted that the mere profession of the Muslim faith by a father was
not enough to decide that the welfare of the child lay in handing over custody to
him.126 In actuality, the father, being on the run from the authorities for 2 years, had
completely ignored his child’s welfare, education, schooling, state of mind, and need
for a congenial atmosphere for his upbringing.127 In contrast to the father, who was a
fugitive with a criminal record, the French mother of Christian origin had a blotless
character and she showed her love and affection for the child by pursuing him to a
foreign land against all odds. Hence the court held that it was in the best interests of
the child that custody be awarded to the mother who could instil good moral, social,
and human values in her child’s personality.128 In Roshni Desai v Jahanzeb Niazi
custody was granted to a Canadian Hindu mother.129
Pakistani Superior Courts have generally purported to exclude religious considerations by granting equal rights to non-Muslim and Muslim mothers. It is in the nature of the inquiry underpinning a child’s best interests that factors such as a child’s
wishes, educational, emotional and other needs, stable environment, trustworthiness,
and character of the proposed custodian/guardian are considered by the courts.
The extent to which Pakistani Superior Courts pay regard to the said considerations
in transnational custody disputes place them in no different position from any other
court adjudicating on such matters. Furthermore, the fact that no detriment was
suffered by the petitioners when filing the aforementioned cases under relevant
provisions of the Code of Criminal Procedure and Constitution of Pakistan rather
than Guardians and Wards Act 1890130 further shows a willingness on part of the
Pakistani Courts to relax procedural requirements where safeguarding the welfare
and best interests of the child is concerned.
88
Shabnam Ishaque and Muhammad Mustafa Khan
than following normative legal standards. This criticism makes it necessary to review
Pakistani domestic cases concerning child custody to obtain a comprehensive sense
of legal reasoning that underpins custody decisions.
B. Can a Mother’s Weaker Financial Position Preclude her Right to Hadanah?
Fathers with financial resources often try to claim custody on the sole ground of
being able to provide a better quality of life for the child. Pakistani Superior Courts
have however not always looked at these contentions favourably. In Abdul Qadir v
Bibi Sabira,134 the father of three minor sons aged 8, 7, and 4, who had contracted a
second marriage, sought custody since the mother was unemployed and, having no
income, could not provide proper education for the children. The Quetta High
Court held that in any case it was the duty of the father to maintain the children.
The father was away because of his work and no one can fulfil the emotional needs
of the children better than their mother. The father was to pay for the educational
and other expenses of the children and arrange for them to be sent to a reputable
school without dislocating their custody with the mother. Similar decisions have
been made by Pakistani Superior Courts in a number of other cases concerning
financial needs of the child.135 These decisions illustrate that the mere weak financial
position of mothers would not preclude their right to custody of the child provided
such custody is in the child’s best interests.136 This is specially the case when the
child is well adjusted with the mother and any removal from such an environment
on grounds of mother’s poverty can psychologically harm the child.137
C. What other Factors do the Pakistani Superior Courts Consider in
Making Custody Awards?
Disputes regarding custody are normally brought under sections 7, 12, 17, and 25 of
the Guardian and Wards Act 1890 but sometimes desperate parents subsume their
custody claims under habeas corpus writs invoking the jurisdiction of Provincial
High Courts. In Mst. Shazia Bano138 the Karachi High Court, reaffirming numerous
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
A. Will a Father’s Right to Wilayah Always Prevail over a Mother’s Right to
Hadanah?
It is generally believed that a child cannot be removed from a father’s sphere of influence as a guardian and any such attempt would result in a mother losing her right to
custody. Attique Ahmed v Adla Noreen131 concerned a 3-year old boy whose father,
after divorcing Ms Noreen, wanted to take his son overseas with him. The child had
resided with the mother since birth and was well adjusted in that environment.
The Family Court and the Federal Shariat Court of Azad Jammu & Kashmir132
awarded custody to the mother. The Supreme Court of AJK upheld earlier
judgments stating that in any custody dispute the welfare of the minor remained the
paramount consideration. Islamic law as applied under the Guardian and Wards Act
1890 gave the right of custody of a child of tender years to the mother. The child of
such an age was believed to be in need of full time attention, care, and love, which a
mother was more able to provide.133
The Best Interests of the Child and Islamic Law
89
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
old judgments,139 stated that jurisdictional defects and mere technicalities cannot be
fatal to the court awarding custody where the welfare of the child demands so.
It is customary in countries like Pakistan that divorcing spouses strike private
deals regarding custody matters and the party in a better bargaining position extracts
unfair advantages to the detriment of the welfare of the child. Pakistani courts have
repeatedly struck down such agreements as illegal and non-binding on the courts
and have asserted their right to decide the custody issue keeping in view the welfare
of the child.140 Section 12 of the Act empowers the Guardian Court to make interim
orders regarding child custody but the Lahore High Court in Ayesha Bibi141 stressed
that courts should make a permanent custody order without delay because unnecessary interim orders can make the child a rolling stone between the litigating parties,
which is harmful to a child’s personality and well-being.
In Mst. Aliya142 and Muhammad Nadeem143 the courts stated that the acrimony
between ex-spouses should not stand in the way of the best interests of the child,
which is better served by having the love, care, attention, and guidance of both
mother and father. In a number of similar cases the courts have preferred a joint custody type arrangement provided it is in the best interests of child.144
The courts pay due consideration to the preferential right of a mother to hadanah
of her child and normally award her residential custody in absence of exceptional circumstances.145 The reasoning, whilst partly based on Islamic law, is more influenced
by the belief that children of tender age can be better looked after by the mother
than any other prospective custodian.146 In a recent judgment given by the Supreme
Court a mother lost the right to hadanah and custody of a minor child on the sole
ground that she remarried after obtaining divorce from the father of the child.147
However, in this case the court stated that this rule can be offset by exceptional
circumstances considering the welfare of the child148 but unfortunately did not
provide details of what such exceptional circumstances could be. There have been
previous cases where the mother retained custody in spite of remarriage, where the
father had completely neglected the children most of their lives or failed to pay
maintenance or where not awarding the custody to the mother would disrupt the
educational, psychological, and emotional welfare of the children.149 Even more importantly, the Shariat Court150 of AJ&K ruled that where both father and mother
contract a second marriage the mother stood on no worse position than the father
and the decisive factor should only be the best interests of the child.151
Pakistani Superior Courts have also tended to give weight to the opinion of the
concerned child where it is consistent with that child’s welfare152 but have readily
awarded custody contrary to his/her wishes where there appeared strong suggestions
of the child’s opinion being coerced.153 One recurrent problem is that lower courts
deciding custody matters often pay more attention to matters such as a father’s social
and economic standing even if such considerations are not warranted by the welfare
principle. In Mst. Karisma Bibi154 the Lahore High Court strongly denounced this attitude and ordered the lower judiciary to be influenced only by the need to secure
best interests of the child and not apply a narrower interpretation of Islamic principles and legislative provisions.
Pakistani Superior Courts have in almost every judgment stressed that the ultimate criterion remains the best interests of the child. In Shahray Khan155 the Lahore
90
Shabnam Ishaque and Muhammad Mustafa Khan
V. CON C LU SI O NS
This article has attempted to show how Islamic child custody laws can potentially fill
the gaps and lacunas that exist within contemporary legal systems by providing
a more balanced interplay between the rights of the child and the rights of the
competing custodians/guardians. But to cast Islamic laws on child custody as unproblematic would be distorting reality. The two most important and peculiar issues
which raise controversy are those relating to the entitlements of non-Muslim custodian mother and the mother who remarries to a stranger.160 However, Islamic child
custody law does have an inherent flexibility to offer effective solutions to these
issues. Recent Pakistani cases such as Misbah Rana, Peggy Collins, and Roshni Desai
provide ample proof that non-Muslim mothers are increasingly treated in the same
manner as Muslim mothers. A child’s best interests also remain the paramount consideration even in cases of mothers remarrying a stranger and this constructive interpretation is being applied increasingly to custody disputes.161
It is also imperative to understand that Islamic law is not static and that Pakistani
Superior Courts have contributed towards its progressive development by practising
both procedural162 and substantive163 Ijtihad on the basis of the welfare of the child
principle. Pakistani law on child custody is a unique blend of secular legislation and
religious law. The welfare test in Guardian and Wards Act 1890164 is not much different from the best interests standard followed in the UK and elsewhere. The holistic
umbrella of Islamic custody laws also incorporates wide-ranging factors that strive to
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
High Court granted custody to the father, with visitation to the mother against the
presumption of a mother’s right to hadanah because the child seemed well-adjusted,
confident, happy, healthy, and emotionally stable and handing custody to the mother
would risk traumatizing the child. Where a case involves more than one child, courts
have even tended to award custody to one parent rather than splitting the siblings
because keeping them together benefits their sibling bond.156 Similarly, even adoptive parents157 have been given preference to actual mothers because the child was
happier and settled with them. The Peshawar High Court in a recent seminal judgment held that religious law in custody matters should not be applied blindly but
rather after an objective analysis of all the facts with the paramount and dominant
factor being the welfare of the child.158
A legal pattern appears to be emerging. There was a time when Pakistani Superior
Courts interpreted Islamic principles literally by almost always awarding custody to
the father vis-à-vis a non-Muslim mother.159 However, it is almost customary now to
think that, provided it serves the best interests of the child, Pakistani Superior Courts
would readily grant custody to a non-Muslim mother even at the cost of removing
the child from the all-important guardianship influence of the father. There is no
denying that courts are still influenced by religious presumptions regarding child
custody but they have tended to qualify this by subjecting any such presumption to
the principle of the welfare of the child. It is however not the case that Pakistani
Superior Courts no longer follow Islamic injunctions but rather that they are more
inclined towards using the inherent flexibility provided within Islamic principles to
cater to the best interests of the child.
The Best Interests of the Child and Islamic Law
91
look after the perspective of the child.165 It may be that Islamic child custody law
does not follow the terminology or methodology of the western legal systems, but
that is not the sole litmus test for judging whether the welfare of the vulnerable child
is adequately safeguarded. While Islamic law deals with issues of child custody in its
own peculiar way, its fundamental purpose and effect is to protect the rights of that
child which is and should be the ultimate yard-stick for evaluating the efficacy of any
system of law addressing child custody disputes.
N O T ES
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
These concepts are discussed in detail in later parts of this article.
See Zahraa and Malek (1998: 156–57).
Al-Zuhayli (1989: 40-41; 717-19).
Ellen (1909).
Monroe and Perretta (1971).
This literally means the obligation to bring up the child or the obligation to take care.
See Kamali (1991: 325).
Al-Zuhayli (1989: vol. 7, 719); Nasir (1990: 173) encapsulates this by stating that in Muslim law
‘Custody is an established right for the baby from the time of its birth’.
This includes both the person having the right to Hadanah and the right to Wilyah.
Al-Sayyid (1987: 302).
Meaning the right to hadanah (custody).
Meaning the right to wilyah (guardianship).
The Constitution of Pakistan (1973) makes it obligatory for all Pakistani laws to be in line with the
Quran and Sunnah (practice) of the Prophet Muhammad, which includes laws regulating custody of
children.
The term here means the Provincial High Courts and the Supreme Court of Pakistan.
The word minor is used in this context to represent a child under the age of majority who is subject of
the custody dispute.
See Muhammad Jan v District Judge Attock (2010) MLD 43, Lahore High Court; ZahidaParveen v
Muhammad Nawaz (2010) MLD 340 Lahore High Court; Dr. FauziaHaneef v Dr. RaashidJavaid (2010)
PLD 206 Lahore High Court.
Welfare of the child is often used interchangeably with the term ‘best interests’ of the child.
However, isolated cases of significant importance beyond this time line may also be considered.
See Young (2003: 831, note 36); Henderson (1997).
This article is concerned with the classical position of Islamic law and does not delve into changes made
by different countries through legislation in so far as Islamic principles are concerned.
Wehr (1980: 185); see also Al-Jarjani (1995: 88).
Lane (1984: 591).
Al-Nawawi (nd: 391).
Al-Zuhayli (1989: 139).
In Islamic Jurisprudence the word ward is often used for the minor child.
See Abu Dawood (1984: 616).
See Zahraa and Malek (1998: 160).
If the father is dead or disqualified then the guardianship may pass to the executor appointed by the father in case of his death or to the father’s father. See Bharatiya (1996). See also Balchin
(1994).
Pearl and Menski (1998: 426) citing Bharatiya (1996).
Al-Zuhayli (1989: 140–41).
This way Islamic principles keep the mother’s right to automatic qualification for custody of her child
within limits and purports to avoid criticisms that are levied against the maternal preference rule practised
in some western legal systems ie that it overlooks the position of fathers.
See Zahraa and Malek (1998: 159–64).
There are clear similarities between this secular western concept and the Islamic law entitlement of a
mother to hadanah (custody) of a child.
Bharatiya (1996: 141).
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
1
2
3
4
5
6
7
8
92
35
36
37
38
39
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
Shabnam Ishaque and Muhammad Mustafa Khan
Academic and judicial jurisprudence of early and mid-20th century started doubting the validity of any
rule premised on parental preference and the preference is for an unqualified application of the ‘best
interests’ standard: see Fehlberg et al (2014: ch. 3.3).
This means that if the mother doesn’t fulfil the conditions for custody then this may be granted to the
father or the person next in line of priority for the custody of the child keeping in view the welfare of the
child.
See Zahraa and Malek (1998: 158).
Nasir (1990: 173).
Ibn Rushd (1906: 259). Regarding this, the Qur’an says: ‘The mothers shall give suck to their offspring
for two Whole years (that is) for those (parents) who desire to complete the term of suckling’, Surat A lBaqarah, Verse 233.
This term refers to the conduct or sayings of the Prophet Muhammad.
Al-Zuhayli (1989: 717–18).
Al-Khatib (1977: 452).
See Zahraa and Malek (1998: 158) citing the work of Al-Ashabi.
Hodkinson (1984: 313).
Nasir (1990: 214).
Al-Zuhayli (1989: 718–19).
Abid (1993).
In Islamic law a child’s age of puberty can be achieved as early as 9 years and latest by 15 years. For details see Fyzee (1974).
Fyzee (1974: 198).
Al-Asbahi (nd: 244–45).
Normally taken to be at or after 7 years of age.
Zahraa and Malek (1998: 165) citing the work of Ibn Qudamah. Another Hanbali view is that both boys
and girls are given a right to choose after reaching age of discernment. See Pearl and Menski (1998: 411).
Al-Shafi’ie (1973: 92).
Pearl and Menski (1998: 411).
Al-Shafi’ie (1973: 92); See also Abu Dawood (1984: 617).
Companions here mean Caliph Abu-Bakar, Umar, Usman, and Ali.
Zahraa and Malek (1998: 166) citing the work of IbnQudamah.
Al-Sarkhasi (1993: 208).
Refer also to Warshak (2003).
See eg Monroe and Perretta (1971).
Ijtihad is generally understood to mean the process of individual reasoning undertaken by the mujtahid
(person who does Ijtihad) to find the best possible answer in light of dictates of justice, equity and good
conscience. Islamic jurists are divided whether Ijtihad is allowed or not but facts do suggest that Ijtihad is
carried on both by individual scholars and by Public authorities in Muslim countries. See for this Hallaq
(1984); Kamali (2008). In the context of child custody and Pakistan see Davis (1985). For a contrasting
view see Coulson (1964) and Schacht (1964: 70–71).
Al-Zuhalyli (1989: 726).
Al-Khatib (nd: 195).
Ibid., 196.
Al-Nawawi (nd: 392).
Ibid., 196; see also Sabiq (1987: 305).
Al-Nawawi (nd: 392).
The Quran, Surat Al-Nisa’, Verse 141.
Al-Bukhari (1994: 338).
Al-Sarkhasi (1993: 210).
Al-Asbahi (nd: 245–46).
Kitabiyah here means people of the book such as Christians and Jews.
Muslim man cannot marry a non-Muslim woman other than kitabiyah. The case of majousiyah(magian)
is only relevant where the wife refuses to embrace Islam and the husband (upon embracing Islam) leaves
her or by analogy to all other women who are not kitabiyah.
Haskafi (1992: 308).
Al-Asbahi (nd: 246).
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
40
41
42
43
44
45
46
47
48
The Best Interests of the Child and Islamic Law
76
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
93
The criterion is that the distance must be less than the minimum distance of journey during which a
person can shorten his/her prayers (masafat al-qasr). Dr Muhammad Muhsin Khan has stated in his
translation of Sahih al-Bukhari that according to the practice of Caliph Umar this comes down to approximately 48 miles. See Al-Bukhari (1994: 297).
Al-Asbahi (nd: 245); Al-Nawawi (nd: 393).
Al-Nawawi (nd: 393); Al-Khatib (nd: 196).
Such as that of better education and better career opportunities. See Al-Marghinani (1982: 139–40).
Ibid., 139.
Al-Shafi’ie (1973: 261).
Al-Sarkhasi (1993: 210).
Juristic opinion differs as to the meaning of the relative in this context. See Zahraa and Malek (1998: 173).
For Hanafi law see Al-Sarkhasi (1993: 210); For Maliki law, see Ibn Rushd (1906: 261).
For Imam Malik’s views, see Ibn Qayyim al-Jawziyyah (2003: 130); see also Ibn Hazm (1988: 147).
In context of Pakistan this was due to the large number of Pakistanis settling abroad specially in
European and North American countries.
The first reported case of parental child abduction to Pakistan is MosselleGubbay v Ahmad Said, PLD
1957 (W.P) Kar. 50. See Pearl and Menski (1998:415).
This case in unreported. Details can be found at http://tribune.com.pk/story/337833/lhc-givescustody-of-11-year-old-to-french-mother/ (accessed 19 April 2014).
For full text of the Convention, see http://www.ohchr.org.
Ibid.
Pakistan being a Dualistic Country Constitutionally requires an Act of Parliament for any International
Treaty to attain the force of law.
Article 3 paragraph 1 states that in all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of
the child shall be a primary consideration. For full text of the Convention, see http://www.ohchr.org.
There have been constant parental child abduction cases from United Kingdom to Pakistan with 35 reported cases in 2012–2013. See http://www.bbc.com/news/uk-25343314 (accessed 8 March 2014).
UK–Pakistan Judicial Protocol on Children Matters, 2003. For details see Freeman (2009).
This term here means the custody disputes arising from the concerned child being abducted by a parent
to a different jurisdiction from that of the domicile of the child.
As per Article 227 of the Constitution of Pakistan, 1973.
See Sections 359–361 of the Pakistan Penal Code (1860).
See Sections 364–374 of the Pakistan Penal Code (1860).
Hereafter referred to as the Act.
Section 6 of the Act states that ‘in the case of a minor who is not a European British subject, nothing in
this Act shall be construed to take away or derogate from, any power to appoint a guardian of his person
or property, or both, which is valid by the law to which the minor is subject’.
Section 17(1) reads: ‘In appointing or declaring the guardian of a minor, the Court shall, subject to the
provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.’
Section 9 of the Act gives such jurisdiction to a court.
The term is used for any court or the officer of the court who has the authority to make an order relating to the guardianship of the person and property of the minor. For details see sections 4, 4A, and 9 of
the Guardians and Wards Act 1890.
See supra note 9.
Section 7 of the Act concerns the power of the Court to make order as to guardianship after becoming
satisfied that such an order would be in the welfare of the child.
Section 12 of the Act gives the Court the authority to make interim orders like ordering the one having
custody to produce the child and even order temporary custody until a final decision is made.
Section 25 of the Act states that ‘if a ward leaves or is removed from the custody of a guardian of his
person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of
his guardian, may make an order for his return, and for the purpose of enforcing the order may cause
the ward to be arrested and be delivered into the custody of the guardian’.
See section 17 of the Act. Muhammad (1992).
Ibid.
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
77
78
79
80
81
82
83
84
85
86
94
110
111
112
113
114
115
116
117
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
Shabnam Ishaque and Muhammad Mustafa Khan
Such as capacity and character of the proposed guardian or custodian, his/her nearness of kin to the
minor, child’s intelligent preferences, his/her age, sex and religion.
Some schools of Islamic jurisprudence allow for such a right to exist and some do not.
This is because Pakistan is a predominantly Muslim populated country and domestic interfaith marriages are negligible to the extent of being almost non-existent.
(2007) PLD 300 Lahore High Court.
Misbah Rana held dual Pakistani/British nationality.
Ibid., paras 13–15.
Haram here means the food which is not allowed in Islamic law for consumption.
The concerned person the mother lived with was not within degrees of prohibited relations with
Misbah as required by Islamic law.
PLD 2007 Supreme Court 292.
Ibid., para 7. All the travel and other expenses of Ms Fairley coming to Pakistan or Misbah going to
Scotland to see her mother were to be borne by Mr Rana.
This is because Pakistan is not a party to the Hague Convention on the Civil Aspects of the Abduction
of Children (1980).
The court could have avoided the problem of jurisdiction by invoking section 20 of the Pakistan Code
of Civil Procedure (1908).
For details see http://www.heraldscotland.com/news/home-news/molly-i-chose-to-come-back-tobritain-1.1084969 (accessed 25 March 2014).
(2009) PLD 48 Lahore High Court.
(2011) PLD 423 Lahore High Court.
Peggy Collins v Muhammad Ishfaque Malik, para 4.
Ibid., para 7.
Ibid. The court further noted that the father was just eager to hold on to the child at any cost and was
not interested in his welfare.
Ibid., paras 7–8.
The child was born out of common law marriage which Islam does not recognize as legitimate so the
child born was illegitimate and the custody of an illegitimate child in Islam lies with the mother.
Application under Guardian and Wards Act is the orthodox procedural requirement for granting of any
award of custody.
(2013) CLC 568 Supreme Court (AJ&K).
Azad Jammu & Kashmir is a self-governing territory controlled by Pakistan. Hereinafter referred to as AJ&K.
Ibid., paras 2–5.
2013 CLC 1749.
Abdul Qadir v BibiSabira, paras 5–8.
See Mst Raffiat Tariq v D.P.O. Sanghar and 2 Others 2009 P Cr. L J 118; MianZameerTufail v Ayesha
Bibi and 2 Others 2009 CLC 717; Muhammad Faisal v Muhammad Hafeez- Ul- Rehman Khan and 3
Others 2009 MLD, 724; Muhammad Nazir v Additional District Judge, Mianwali 2009 CLC 1010.
Shaukat Hayat Khan v Additional District Judge, Mianwali 2013 CLC 601; Mst Gulnaz v Mst. Amina
2012 CLC 761; Rashid Iqbal v Mst Uzma Khan 2010 YLR 3246.
Mst ShaziaBano v Government of Sindh through Secretary Home Department 2014 YLD 152.
Dr Saima Malik v Capital City Police Officer Lahore 2012 P Cr. L J 1433; Muhammad Faraz v Mehfeez
PLD 2012 Islamabad 61; Mst Raffiat Tariq v D.P.O. Sanghar and 2 Others 2009 P Cr. L J 118.
Syed Akhter Shah v Mst Shabana 2013 YLR 926; Mst AneetaTanveer v Muhammad Younus 2010 YLR
513; Dr FauziaHaneef v Dr RaashidJavaid PLD 2010 Lahore 206; Muhammad Tayyab v Additional
District Judge 2010 CLC 821.
MianZameerTufail v Ayesha Bibi and 2 Others 2009 CLC 717. This indicates that Pakistani Superior
Courts place emphasis on the fact that litigation should not linger on more than it is necessary as any
delay will add to the pain and suffering of the child. To that they subscribe to the same principles
endorsed by the courts in the UK. See C v Solihull MBC [1993] 1 FLR 209 and Re B (A Minor)
(Contact) (Interim order) [1994] 2 FLR 269.
Mst Aliya Fazil v Mirza Farhan Rabbani 2013 MLD 1631.
Muhammad Nadeem Qadir v Additional District Judge, Lahore and Others 2012 SCMR 609.
Ali Hayat v KholodShafi and 2 Others 2013 YLR 954; RaziaBibi v Additional District Judge, Sargodha and
2 Others 2009 YLR 222.
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
118
119
The Best Interests of the Child and Islamic Law
145
146
147
148
149
150
154
155
156
157
158
159
160
161
162
163
164
165
95
Abdul Qadir v BibiSabira 2013 CLC 1749; Mst NusratParveen v Abdul Ghafoor and 4 Others 2011 YLR
1495; Attique Rabbani Butt v Mst Sadia Butt and Others PLD 2009 Lahore 344; Samra Zaman v S.H.O.
Police Station Ghulam Muhammad Abad, Faisalabad and 3 Others 2009 YLR 1678.
Normally in these cases the father has contracted a second marriage and the prospective female custodian is the step mother.
ShabanaNaz v Muhammad Saleem 2014 SCMR 343.
Ibid., paras 13–14.
See Fahmida Begum v Habib Ahmad PLD 1968 Lahore 1112.
Shariat Court is the highest court with jurisdiction to rule on matters related to Islamic law in AJ&K.
The only appeal from the ruling of Shariat Court is to the Supreme Court of AJ&K.
Muhammad Zaman v AmeerHamza 2009 CLC 230 [Shariat Court (AJ&K)].
Abdul Majeed v Additional District Judge, Talagang and 2 Others 2009 CLC 1143.
Mst Aziza v SSP, District Tando Muhammad Khan and 3 Others 2012 YLR 2881; Mst Muhammad Jan v
District Judge, Attock 2010 MLD 42; Mst FarzanaKausar v Muhammad Tufail and 2 Others 2009 YLR
2339.
Mst KarismaBibi v Additional District Judge, Attock and Others 2009 YLR 1522.
Shahray Khan v Mst Aziz Fatimah and Others 2010 YLR 599.
BushraAsghar v Dr Rehmat Ali and 3 Others 2012 MLD 1755. For comparable UK cases, see C v C
[1988] 1 FLR 462 and Adams v Adams [1984] FLR 768.
Where adoption was with the consent of the mother.
Mst Nafeesa v Mir Bahadur and 2 Others 2013 CLC 1784.
For this see MosselleGubbay v Ahmad Said (1957) PLD 50; AtiaWaris v Sultan Ahmad Khan PLD 1959
(W.P.) Lahore 205; Grace Abdul HadiHaqqani v Abdul HadiHaqqani PLD 1961 (W.P.) Karachi 296.
Stranger here mean the person who is not within prohibited degrees of relationship for marriage with
the child upon his/her reaching such an age. For details on the prohibited degrees of relationship for
marriage see Fyzee (1974).
Pakistani Courts have also stressed that it is not an inevitable conclusion of the application of Islamic
principles that a mother who remarries to a stranger will lose her right to custody. Rather each case will
be decided on its own facts with the utmost consideration being the ‘best interest’ of the child concerned. See Muhammad Zaman v AmeerHamza 2009 CLC 230 [Shariat Court (AJ&K)].
It means here that the most equitable rules of any Islamic school of jurisprudence will be applied in an
individual case which best ensures the welfare of the child.
Meaning that such interpretation is given to an Islamic rule through independent reasoning in light of
whole body of Islamic law which coheres with the dictates of morality and justice.
See sections 7 17 of the Guardian and Wards Act of 1890 in this regard.
This includes the child’s emotional, physical, and educational needs, his/her needs due to the reasons of
age, sex, his/her progressive growth and development. This too is not very different from the factors
considered in any custody dispute within a contemporary legal system.
R EF E RE NC E S
Abid, S. A. (1993) Manual of Family Laws in Pakistan, Lahore: Civil and Criminal Law Publications.
Abu Dawood, Sunan Abu Dawood (1984), Kitab al-Talaq, vol. 2 (Engl trans. Ahmad Hasan)
Lahore: Sh. Muhammad Ashraf Publishers & Booksellers.
Al-Asbahi, Malik b. Anas (nd) Mudawwanah al-Kubra, Vol. 2, 1st edn, Al-Matba’ah Al-Khairiyyah,
1324H.
Al-Bukhari, Summarised Sahih Al-Bukhari, Engl. Trans. Dr Muhammad Muhsin Khan (1994) The
Book of Funerals, Riyadh: Maktabah Dar-us-Salam.
Al-Jarjani, Ali bin Muhammad (1995) Kitab al-Ta’rifat, Beirut: Dar al-Karub al-Ilmiyyah.
Al-Khatib (1977) Mughni al-Muhtaj, Engl. Trans. Howard, Lahore: Law Publishing Company.
Al-Khatib, Muhammad A. (nd) Al-Iqna’ fi Hal AlfazAbiShuja’, Vol. 1, Dar al-Haya’Al-Kutb
al-’Arabiyyah, Egypt.
Al-Marghinani (1982) Burhan Al-Din, Hedaya, Engl. Trans. Charles Hamilton, Lahore: Premier
Book House.
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
151
152
153
96
Shabnam Ishaque and Muhammad Mustafa Khan
Downloaded from http://lawfam.oxfordjournals.org/ at Universitaet Zuerich on November 27, 2015
Al-Nawawi, Mukhyee Al-Din Abu Zakariyya yahya ibn sharaf (nd) Minhaj al Talibeen, Engl. Trans.
Howard, Lahore: Law Publishing Company.
Al-Sarkhasi, Shams Al- Din Muhammad (1993) Al Mabsoot, vol. 5, Beirut: Dar Al-Ma’rifah.
Al-Sayyid, S. (1987) Fiqh al-Sunnah, vol. 2, Beirut: Dar al-Kitab Al-’Arabi.
Al-Shafi’ie, M. I. (1973) Al-Umm, vol. 5, Beirut: Dar al-Ma’rifah.
Al-Zuhayli, W. (1989) Al-fiqh al Islami Wa Adilatuhu, Damascus: Dar Al-Fikr.
Balchin, C. (ed) (1994) A Handbook of Family Law in Pakistan, 2nd edn., Lahore: Shirkar Gah.
Bharatiya, V. P. (1996) Syed Khalid Rashid’s Muslim Law, 3rd rev. and enl. edn., Lucknow: Eastern
Book Company.
Coulson, N. J. (1964) A History of Islamic Law, Edinburgh: Edinburgh University Press.
Davis, M. F. (1985) ‘Child custody in Pakistan: the role of Ijtihad’, Boston College Third World Law
Journal 5, 119–28.
Ellen, K. (1909) The Century of the Child, New York: G.P. Putnam’s Sons.
Fehlberg, B., Smyth, B. and Trinder, L. (2014) ‘Parenting issues after separation: developments in
common law countries’ in J. Eekelaar and R. George (eds), Routledge Handbook of Family Law
and Policy, Abingdon: Routledge, ch. 3.3.
Freeman, M. (2009), ‘When the 1980 Hague child abduction convention does not apply: the UKPakistan protocol’, International Family Law 181.
Fyzee, A. A. A. (1974) Outlines of Muhammadan Law, 4th edn, Oxford: Oxford University Press.
Hallaq, W. B. (1984) ‘Was the gate of Ijtihad closed?’ International Journal of Middle East Studies 16,
3–41.
Haskafi, M. A. (1992) The Durr-ul-Mukhtar, Engl. Trans. B. M. Dayal, New Delhi: KitabBhavan.
Henderson, M. E. (1997) ‘U.S. State Court Review of Islamic law custody decrees – when are
Islamic custody decrees in child’s best interests?’, Brandeis Journal of Family and Law 36, 423–44.
Hodkinson, K. (1984) Muslim Family Law: A Sourcebook, London and Canberra: Croom Helm.
Ibn Hazm, A. Muhammad ’Ali b. Ahmad (1988) Al-MuhallaBil-’Athaar, vol. 10, Beirut: Dar alKutub al- ’Ilmiyyah.
Ibn Qayyim al-Jawziyyah Ibn (2003) Zad al-Ma’ad fi Hadyie Khair al-’lbad, vols. 3–4, Jordan: Dar
al-Furqan.
Ibn Rushd, Muhammad b. Ahmad (1906) Kitab Al-Muqaddimaat al-Mumahhidat, vol. 2, 1st edn,
Egypt: Al-Matba’ah Al-Khairiyyah.
Kamali, M. H. (1991) Principles of Islamic Jurisprudence, rev. edn, Cambridge: Islamic Texts Society.
Kamali, M. H. (2008) Shariah law: An Introduction, London: Oneworld Publications.
Lane, E. W. (1984) Arabic-English Lexicon, vol. 1, Cambridge: Islamic Texts Society.
Monroe, L. and Perretta, C. A. (1971) ‘A child’s right to counsel in custody cases’, Family Law
Quarterly 5, 108.
Muhammad, S. (1992) The Guardians and Wards Act (VIII of 1890) & The Majority Act (IX of
1875), P.L.D Commentary.
Nasir, J. J. (1990) The Islamic Law of Personal Status, 2nd edn, London: Graham & Trotman.
Pearl, D. and Menski, W. (1998) Muslim Family Law, 3rd edn, London: Sweet & Maxwell.
Schacht, J. (1964) An Introduction to Islamic Law, Oxford: Oxford University Press.
Warshak, R. A. (2003) ‘Pay offs and pitfalls of listening to children’, Family Relations 52, 373–84.
Wehr, H. (1980) A Dictionary of Modern Written Arabic (ed. J. Milton Cowan) London: MacDonald
& Evans Ltd.
Young, J. (2003) ‘The constitutional limits of judicial activism: judicial conduct of international relations and child abduction’, Modern Law Review 66, 823–36.
Zahraa, M. and Malek, N. A. (1998) ‘The concepts of custody in Islamic law’, Arab Law Quarterly
13, 155–77.