The Supreme Court of Pakistan announced a historic verdict. The second marriage of the mother cannot become a stand-alone reason to disqualify her right to custody.
Justice Ayesha Malik, during a case involving a mother with three children, said that the custody of children is concerned with the welfare of the minor and that time and time again that is the court’s paramount consideration when giving judgement.
During the courtroom, she said:
“The court’s jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parent’s ability to provide for the child including physical and emotional needs, and medical care but also relevant is the parent’s ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child,” the ruling observed.
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Moreover, the court also added that there is no particular mathematical formula to calculate the minor’s welfare because there are many factors involved in the process including household environment, care, comfort, attention, etc.
“Accordingly, the concept of welfare of the child is an all-encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional well-being of the child.”
“The UNCRC recognizes that the child should grow up in an environment of love, happiness and understanding. Article 3 provides that in all actions concerning children whether by courts of law or public, or private welfare institutions amongst others, the best interest of the child shall be a primary consideration.”
Similarly, Article 7 states that a child has the right to be cared for by their parents and Article 9 requires that in the event of a separation the child should be in contact with both parents (unless there is a cause for harm). Article 12 states that if a child is capable to express their view, then it should be given weight. Similarly, Section 17 requires that the minor’s guardian will be based on the age, sex and religion of the minor and the character and capacity of the guardian.
“These provisions and the principles of Mohammedan Law have been examined by this Court in several judgments where it has held that the conditions contained in Paras 352 and 354 of Mullah’s Mohammadan Law are not absolute and are subject to the welfare of the child.”
In the said case, the children had expressed their wish to stay with the mother, she is an educated woman running a private school. She lives in her own house and is able to care for the children.
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