ISLAMABAD: The Supreme Court regretted on Friday that if women with physical disabilities were not considered able to take care of their children, then they would stand excluded from participation in family life and from the much higher proclaimed objective of participation in all spheres of national life.

“Article 25(3), 34, Chapter 2 of the constitution as well as the Principles of Policy also requires that the State should protect ‘the mother and the child’ but if a child is taken away from the mother, he is deprived of her love, the benefit of upbringing [by] the mother and the child’s relationship is fragmented,” observed Justice Qazi Faez Isa.

A two-judge SC bench comprising Justice Isa and Justice Mushir Alam had taken up an appeal against Sept 16, 2019 Peshawar High Court (PHC) judgement which had rejected the decision of the family judge.

Ms Beena was married to Raj Mohammad from whom she had a son, Mohammad Rayyan, who was born in Oct 2012. After obtaining Khula (dissolution of marriage) the mother sought custody of her son and the family judge granted it to her.

Observes women with physical disabilities should be allowed to take care of their children

However, the father challenged the decision before the PHC which set aside the family court’s order.

In its order, the high court noted the record revealed that the mother was a crippled / disable lady, who took Khula from the petitioner of her own free will by waiving off her dower and agreeing that the boy would remain in the custody of his father. The only reason given by the mother for seeking custody of her son was that the father’s character was bad but this fact had not been proved through cogent evidence, the high court held.

Advocate Jamila Jahanoor Aslam, who represented Ms Beena, told the Supreme Court that she was compelled to obtain Khula from her husband by foregoing her Haq Mehr, which comprised of a house constructed on a five-marla plot of land and four tolas of gold, by signing on the dotted line of an agreement of March 16, 2018. The agreement also provided that the mother would not claim the custody of her son.

The Supreme Court however set aside the high court order and ordered that the custody of the child be handed over to the mother within seven days from the date of this order, failing which the police officer and the social welfare officer concerned would ensure compliance.

In determining the welfare of the child and his custody, the judgement authored by Justice Isa said, neither the mother’s physical condition nor her income was determinative factors.

It was inappropriate to refer to the mother as crippled or disabled in the high court judgement, Justice Isa said, adding the petitioner had a physical disability but she should not be called cripple or disabled.

Ms Beena had not resorted to beggary; she worked and earned an honest living and to denigrate such a lady was inappropriate, the judge said. Instead she should be admired for demonstrating remarkable determination and perseverance.

Citing a Lahore High Court judgement, Justice Isa said they endorsed that pejorative words, like cripple or disabled, “seriously offend the right to be a person thereby infringing constitutional guarantees like right to life, right to human dignity and right to non-discrimination of persons with disabilities, thereby violating Articles 9, 14 and 25 of the Constitution”.

The constitution allowed the state to make any special provision for the protection of women and children but did not permit discrimination, Justice Isa emphasised.

To be financially underprivileged, to be weighed down with a child, to give birth or to have a disability was not something to be derided, the judgement said, adding for a mother to bear the pain of childbirth, the greatest human natural pain, but then to have her child wrested away from her on the pretext that she was incapable of taking care of the child was insensitive in the extreme, and might also be characterised as hypocritical.

In regards to the rights of the mother and child, the law, Islamic principles and the constitution were often violated, the verdict said, adding it was inexcusable when constitutional office holders, who took an oath to uphold the constitution and were paid to do so, undermined such rights.

The high status of motherhood was reflected in the naming of a chapter of the Holy Quran after Maryam (Mary), the only chapter named after a woman, the judgement said, adding Almighty Allah recalled her qualities and bestowed on her a number of titles: a purified (tahharaki) and chosen (istafaqi) one, a sign (ayatan) of God.

The lady Maryam was mentioned 34 times in Holy Quran, Justice Isa said, adding the mother of Prophet Isa faced the pangs of childbirth alone. She, like lady Hajira, overcame formidable odds to care for her child. “These great ladies are acknowledged and incorporated into the Faith, enriching Islam’s glorious tradition. It is for believers to ponder and reflect upon their lives, and to derive lessons from it,” the judgment said.

Published in Dawn, July 18th, 2020