KARACHI, June 8: Rampant corruption and the poor or slow implementation of court orders means that in child custody disputes, the majority of mothers are forced into out of court settlements even in cases where the court has already decided in their favour.

This is a disturbing situation since in theory, the courts, as well as the laws of the land, appear to lean in favour of the mother’s rights in child custody battles. It is believed that in cases where the child is of a young age, the mothers are granted custody in 99 per cent of the cases.

In reality, however, there are untold numbers of mothers such as Saima, who are forced to submit to unfair demands in order to retain some rights over their children, even when the court has already granted them custody.

Saima’s ordeal started, she explained, when her husband “stole” their daughter away and she had no clue about what to do. Her marriage had been troubled for some time: “My husband used to demand money from my family and every time we had a fight and I went to my parents’ house with my daughter, he would come and take her away, saying that I could do whatever I wanted but our daughter would remain with him,” she told Dawn. “Eventually, I had had enough and told my parents that I could not remain with him any longer, and that I wanted custody of our daughter. Meanwhile, my husband divorced me.”

The next year-and-a-half was nightmarish for Saima, as both families argued over the child’s custody. Her husband refused to relinquish control of the child and finally, Saima approached a friend who was a lawyer.

“It took the court seven to eight months to decide in my favour,” she recalled, “but the decision proved to be entirely futile. My husband had friends in the police force and as a result, every time the court directed that my daughter be recovered and be placed in my care, the police would report that they had found both father and child absent from the location visited.”

Over two years after she had started the battle for the custody of her child, Saima had to give in. “My desperation was such that I finally agreed to an out of court settlement, in which my ex-husband decreed that I would never marry again and that he would not be bound to pay the child maintenance sum set by the court,” she said sadly.

Between theory and reality

On paper, the laws concerning child custody are favourable for mothers. According to lawyer Noor Naz Agha, the president of the Pakistan Women Lawyers’ Association, Fiqh-i-Hanafia gives the mother custody of a daughter until the child is seven years old, and of a son until he is five. Fiqh-i-Jafriya follows the same guideline in terms of daughters but limits a mother’s custodial rights over a son to two years. “Regardless of this, however, in 99 per cent of the cases the court grants custody to the mother, particularly if the child is of a tender age,” she explained.

Similarly, lawyer Aftab Bano Rajput told Dawn that if a mother files a custody petition in court, the court decides the case after deliberating upon the grounds on which the petition has been filed. “In such cases, the decision is usually taken within days, which proves quite convenient,” she said. Referring to the concessions granted to women, she explained that if the child lives with the mother and it is the man who appeals to the court for custody, he has to pay the woman a minimum of Rs500 for the taxi she hires to attend the hearing. But if the child lives with the father and the mother approaches the court, she does not have to pay anything.

In practice, however, fathers and their families often resort to virtually holding the child hostage in order to get the mother to accede to their demands. The women, anguished about the real or prospective separation from their children, are left in no position to bargain, particularly since each appeal to the court pleading for its decree to be implemented takes additional time and effort.

And while child custody cases are aimed at being settled within a few days, lawyer Riffat Mughal said that a case can stretch up to two or even five years, while the minimum duration in practice is five or six months. “However,” she pointed out, “no matter which parent the child is living with, the other parent has the right to meet the child, who therefore remains in contact with both the parents.”

The facts of the matter

Rising divorce and separation rates in the country are reflected in the number of custody cases registered with various courts.

In the first five months of this year alone, 248 Guardian and Ward cases were registered in Karachi of which 21 were filed in District West, 55 in District East, 50 in District South, 53 in Malir District and 58 in the Centre. These cases are brought to various courts in five districts of the city. Earlier, the family and criminal courts used to be separate; however, now both the cases are dealt by the same courts. District South has 16 courts, East has 20, West has 10, Central has 12, whereas Malir has seven courts.

If the child is of a young age, custody is usually granted to the mother. Nevertheless children – especially those who are somewhat older – can dangle in uncertainty for years while their parents fight out the custody battles.

Ms Mughal told Dawn that custody cases are primarily filed by mothers, and that a new trend in such proceedings is that the court may seek the preference of children as young as 14 or 15 in terms of the parent they wish to live with. “Basically, the court keeps the child’s welfare in mind and then decides which of the two parents would be more suitable for childcare,” she said. “It is not necessary for the parents to be divorced when a child custody case is filed, but they should be living separately. Nevertheless, about 80 per cent of the cases are filed after a divorce has taken place.”

Ms Agha pointed out that under Section 25 of the Guardian and Ward Act of 1891, if interim custody is pending and the court observes that one of the parties is incapable of caring for the child, the court can award custody to the other parent. “However, a meeting every 15 days with the other parent is necessary,” she added.

On the other hand, the court may grant custody to the father if the mother has remarried or has been proved to be of a doubtful character, said Ms Agha. Her observation was echoed by Ms Mughal, who pointed out that during child custody cases the husband often accuses his wife of having a ‘weak’ character, or reasons that the woman may remarry a man not known to the family and thus indirectly harm the child.

Such considerations, particularly in a patriarchal society whose wheels are greased by the money and influential contacts that are overwhelmingly under male control, can make it too easy for a man to blacken his former spouse’s character and use her child as a means of blackmail or coercion. While the courts are to be commended for attempting to expedite proceedings and protect the mother’s rights, the fact remains that too many women are driven by desperation into out of court settlements. This points to a glaring gap between the spirit of the law and its implementation – a gap that can prove disastrous for women who fear losing custody of their child on top of undergoing the trauma of separation or divorce from their husbands.