Challenges faced by Courts and Parties in Guardianship Cases.
Cessante ratione legis, cessat et ipsa lex (the reason for a law ceasing, the law itself ceases) is a
Latin Maxim That if a law does not change with time, it ceases to exist. In the same manner,
Family courts in Pakistan are facing significant challenges in resolving child custody disputes
due to a lack of updated laws badly impacted by societal attitudes, leading to acrimonious
disputes and marginalization of non-custodial parents. With more than 41,000 annual divorces
badly affecting the lives of children, post-separation parenting has become common. The
existing system of family laws often highlights custodial parents’ rights, restricting non-custodial
parents’ access to their children; such treatment not only overlooks the actual attributes of justice
but also affects human dignity, leading to challenges like adversarial trials, gender bias, and
stereotypes, which perpetuate “A winner takes all” mentality causing long term harm to the
welfare of children.
Rapid Modernization in Pakistan and new factors contributing to the increasing complexities of
relationships are growing exponentially. Our legal framework for child custody, however,
remains outdated. It assumes that custody can only be vested with one party. This approach needs
revision. Amid a bitter divorce, the most vulnerable party is often the child due to societal
expectations. As a result, children are frequently treated as trophies to be won. Post-separation or
post-divorce parenting is an everyday reality, with 90% of children living with their mothers and
only 2% with fathers, despite rarely shared custody orders. Leaving a significant number of
fathers as non-custodial parents.
Pakistan’s child custody litigation is governed by two laws/ statutes: (1) the Guardians and
Wards Act 1890 and the Family Court Act 1964. Interestingly, neither of the statutes provides
joint custody or shared parenting; instead, sole custody is awarded to one parent, leaving the
non-custodial parent with limited access to their children, who are also to be held within the
court premises once or twice a month. The family/guardian court possesses quasi-parental
jurisdiction; as a quasi-judicial forum, the family court has the flexibility to adapt its procedures,
but challenges and short outcomes of existing practices have plagued its implementation.
These are some of the short outcomes leading to inappropriate decisions as regards custody and
welfare of the minor and post-divorce parenting.
The nature of the trial itself, where one takes them all
Absence of codified Guidelines
Lack of judicial interest
Limited understanding of child development and family dynamics
Lack of arbitration and counseling
Denial of appropriate contact
Policy Recommendations for Family Law Reforms.
Introduction to new updated versions of laws that are adequate for the current era.
Adopting the concept of a Joint parenting system
Welfare of parents' rights along with minor’s welfare.
Psychological Evaluation
Introduction of penal laws in family acts.
Conclusion:
The family justice system in Pakistan is facing multiple challenges in deciding child custody
litigation, affecting the decision-making, which prolongs the litigation and compromises the
child’s best interest. To address this, an effort is necessary to amend the laws consistent with the
modern world by introducing new reforms ensuring equity and justice for all parties, including
minors. Whereby protecting the child’s welfare and well-being in the future.
