The lawyer’s profession is diligent, and one should control his reflexes to avoid the clash between his internal behavior and the hectic crisis before the Honorable Courts. It is sometimes exhausting to consume everything during court proceedings. This profession thus demands a person who must have total control of emotional steering.
One afternoon at City Court Karachi, I saw a grieving mother who had just lost the guardianship of two children aged six and seven. Her counsel consoled her by promising he would take the custody back by filing an appeal before a higher forum. He assured her of every possible and legal way to gain back the custody of her children.
As a people, we are quickly enmeshed by emotions, empathize, misinterpretations, and half-truths screened through TV channels rather than reasoning. To avoid getting entangled in the emotional quagmire, we should seek help from the constitutionality of precedents. So, to claim guardianship, a fitting guardian can invoke Section 25 of the G &W Act, where a court may order his return if the ward leaves or is removed from the custody of the rightful guardian. It is pertinent to note that the child’s welfare will remain a priority for the courts to consider.
There are many occasions where a competent court refused custody of a child by pressing into service the provisions of Section 17 of the Guardians and Wards Act of 1890 for interim maintenance. The Federal Shariat Court also insisted that “Father is the natural guardian and lap of a mother is the cradle of God, is subservient and subordinate to welfare of minor as contemplated by Section 25 of Guardians and Ward Act 1890, which was also in accordance with Islamic jurisprudence. PLD 2021 Federal Shariat Court. It further expounded that a natural or certified guardian may turn out to be an undesirable person, or the Court may find it not for the welfare of the minor to deliver him into custody.
Whence, custody transfer will be made unless the Court is satisfied that it will be for the ward’s welfare. Section 7 of the Guardians and Wards Act defines the guardian’s appointment and the factors that disqualify both mother and father from custody. For instance, if the father is a habitual criminal and drug addict or maltreats his children and other factors observed, omit the father from claiming custody.
Also, the Court appoints a mother as a guardian after taking due care and observation. Para 354 of the Muhammadan Law provides for disqualification of a female from custody of the minor, which includes the mother, and one of the instances laid down is that if she marries a person not related to the child within the prohibited degree and is a stranger. 2014 SCMR 343
She may be entitled to the custody of a minor, also called Hizanat. At seven, the right over the son ends while she can claim custody of the daughter until puberty. The mother is not a natural guardian under Muslim laws and has only the right of custody of the child until the age of Hizanat. It is essential to consider the mother’s conduct. If that is found objectionable, she may not be given custody rights. The Muhammadan law also provides that the mother is entitled to custody of her male child until he has completed the age of seven and her female child until she attained puberty unless she marries a second husband.
It is now easy to conclude by saying that it is not about the certified guardian or mother; it is rather only dependent on the interest and welfare of the minor which determines the custody and physical possession of a child. The Apex court on many occasions in guardian matters had repeated that minors’ welfare remains the supreme consideration.
