The Custody of Children (A Comparative Study of the Shari’ah, English and Pakistani Law)

The Custody of Children

(A Comparative Study of the Shari’ah, English
and Pakistani Law)
*Abdul Haye Abro
Abstract
This article examines the existing law relating to the right of custody. It provides a
comparative study of British common law and the existing Pakistani laws in fact a
legacy of the legal system left by the British India. The study reveals that there are
many differences in both of the jurisdictions regarding the method of interpretation
of law relating to the custody of children. The principle is the same at both
jurisdictions i.e. to assess the welfare of the children; however, variation arises when
it is interpreted. The Pakistan is a common law country. The Guardian & Ward law
traces back to 1890 when the country was ruled by the English under British India.
The differences in the method of interpretation of law are due to nature of Islamic
state. The state religion of Pakistan is Islam. The discussion revealed that character
and morality as defined by Islam is one of the paramount considerations for deciding
the cases of the grant of the custody.
In spite of the differences, there is a lot of harmony do exist between the
laws of these states. Both of the jurisdictions strive to bring the welfare of the child
in accordance with their social values.1
Keywords: Custody of Children, Islamic law, English Law, Pakistani Law,
Hidana
Introduction:
This paper compares the jurisprudence developed in the common law of the
England and the law of Pakistan. The arguments developed in this article will
evidence the fact that despite being a common law country, the interpretation of
common law principles in Pakistan has become significantly different since its birth
in 1947. The study highlights the differences in the method of interpretation of the
law relating to child custody.
The custody of children was granted in accordance with the principles of
the common law in the undivided India. Now, the principle is the same i.e. the
welfare of the child for the grant of the custody. But the way the principle is
interpreted is different from the one it was interpreted in accordance with the
common law principles. These differences are owing to the fact that the Pakistan is a
country based in Islamic ideology and Article 2 of the Constitution of the Islamic
Republic of Pakistan declares Islam as the state religion.2 Since Islam is the grand
norm of the constitution.3 Therefore, any law which is repugnant to Islam is null and
void.4

____________________________________________________________________
*Associate Professor Department of Shari’ah, International Islamic University Islamabad.

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The paper discusses the English jurisprudence that has developed with
regard to the issue of custody and also laws relevant to the same which may be found
enshrined in Islamic jurisprudence. This discussion is useful in understanding to the
grand norm of the laws in the two selected jurisdictions. After embarking upon a
discussion on the general principles, the article endeavours to trace the brief
development of the law in the selected jurisdictions. Analysis of this development is
of immense importance since it helps in understanding how the common law
principles were originally applied in the undivided British-India and continue to be
applied in Pakistan.
English Perspective
Until parents separate5, both the mother and the father of the born child
have an equal right and equal responsibility to raise their child and to make decisions
about their child’s care and upbringing. After separation, arrangements to share their
parenting rights and responsibilities become imperative. This often leads to hectic
court proceedings in which both of the parents struggle to claim right of the custody
of the child. The courts at both jurisdictions are legally required to look into and
decide in accordance with the welfare and the best interest of the child. Before
analysing comparatively as to what constitutes the welfare of a child in the selected
jurisdictions, it is suitable to discuss the concept of the custody generally. 6
Custody in English law has been used to connote two meanings; in the
earlier law perspective, it meant the person’s rights of control to the child, whereas in
the other perspective, it only designated as care and control7. In the legal perspective,
custody refers to the right to make the important decisions about the care and
upbringing of a child. In addition to decision-making, custody normally includes the
physical care, control, and upbringing of the child. The child usually lives with the
parent who has the custody.
The statutory law has also defined the custody in quite similar way. The
Children Act, 1975, defined custody as “parental rights and duties as relate to the
person of the child (including the place and manner in which his time is spent”8. In a
strict sense, legal custody was defined in the Domestic Proceedings and magistrates’
Courts Act, 1978, as the rights and duties which by law the mother and the father
have in relation to the person of a legitimate child even though the particular child is
illegitimate.9
The custody is not merely a physical transfer of the child from one parent to
the other or to the parent who held it earlier. The essence of custody is to grant the
power to either parents or both of them to make decisions for the child. But the
Courts do not act in a mechanical way but the exercise high precaution in deciding
the applications of the custody. This is because the courts count several factors while
deciding the application. These factors are discussed in the later part of the paper.
The right to confer custody generally rests in the courts’ discretion; courts can
hesitate to enforce it if it is proved to be against the wishes of the child. It starts with
a right of control and ends with little more than advice.

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The Custody of Children (A Comparative Study of the Shari’ah, English and Pakistani Law)

Since the inception of the Children’s Act of 1989 however, the term custody
has been abandoned in favour of the terms Residence and Contact. Residence orders
by the courts of England determine with whom the child would live while contact
simply signifies the right of the parents limited to meet and spend time with their
child only. A residence order not only determines whom the child will live with but
also vests in the person (obtaining the residence order) the parental authority, i.e. the
authority to make decisions in respect of the child.10
Sharī‛ah law’s perspective:
The legal term for custody11 in Sharī‛ah law is Hadānah which refers to the
upbringing of a minor child by the mother or by someone legally entitled to it.12
Children are focus of gravity in Islamic family tradition and law. Child upbringing is
a paramount joint responsibility when spouses are living together. This includes the
child’s physical care and health, emotional, educational, and religious welfare. When
spouses separate by divorce or annulment, welfare responsibilities get also split
according to the best abilities of each parent. While fathers are vested with financial
burden and legal guardianship roles, mothers are given role of physical career and
emotive guardian of child(ren). Inherently, Islamic system balances between
multitude levels of child(ren)’s need.
There is no specific verse in the Quran on the right of custody, but Jurists
by way of analogy deduce it from the Qur’anic verse related to fosterage. In verse
233 of Surah albaqarah, Allah (swt) says that:
The mothers shall give such to their offspring for two whole years, if the
father desires to complete the term. But he shall bear the cost of their food and
clothing on equitable terms. No soul shall have a burden laid on it greater than it
can bear. No mother shall be treated unfairly on account of her child. Nor father
on account of his child, an heir shall be chargeable in the same way. If they both
decide on weaning, by mutual consent, and after due consultation, there is no
blame on them. If ye decide on a foster-mother for your offspring, there is no
blame on you, provided ye pay (the mother) what ye offered, on equitable terms.
But fear God and know that God sees well what ye do.13
The jurists of Islamic law thus held that since a child is dependent on the
mother for fosterage, consequently the custody of the child also would belong to the
mother.14
The law with regard to the right to custody can also be deduced by having
recourse to the prophetic traditions, for example:
 According to ‘amr Ibn Shu‘aib, a woman came to the Prophet (PBUH) and
said: 'Truly my belly served as a container for my son here, and my breast served as
a skin-bag for him (to drink out of) and my bosom served as a refuge for him; and
now his father has divorced me, and he (also) desires to take him away from me.'
The Prophet (PBUH) said: 'you have a better right to have him, as long as you do not
marry again’.15

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 It was reported by Qāsim b. Muhammad. He stated that ‛Omar b. al-khattāb

had married a woman from the Ansār. She gave birth to a son whose name was
‘āsim. ‘Omar divorced the woman. One day when ‘Omar was proceeding on his
horse-back towards Qubā’, he found his son playing in front of the mosque. He
caught hold of him and placed him on the horse-back. A quarrel arose between the
maternal grand-mother and Omar about (the custody of) that boy. Both of them came
to Abu Bakr who was the caliph. Omar said, “He is my son” Abu Bakr said, “O,
‛Omar! Leave this woman and the child” ‛Omar said nothing in reply (raised no
objection to this decision).16
The mother is recognized as generally the fittest person to take care of the
children, because of the instinctive love and tenderness she feels for them and her
closer contact with them throughout pregnancy, nursing, and childhood. All the
Sunni and Shi`a schools of fiqh unanimously hold that the mother has the first claim
to the custody of her child regardless of whether she live with her husband or have
been separated. However, if the mother remarries she would generally forfeit her
right to custody. In recognition of an infant's need for female care, all the juristic
schools give first preference to a mother's claim to physical custody of her young
child provided that she satisfies all the requirements for a female custodian. 17
After divorce, the mother is entitled to custody wages from the father during
the custody period.18 This is meant to help her maintain the child. However, the
period of female custody ends once the child reaches a certain age of custodial
transfer. The Hanbalī and Shafi‛ī schools do not distinguish between girl and boy
regarding the duration of female custody. The Hanbalīs maintain that the female
custodian should have custody from birth until the child reaches the age of seven, at
which point he or she may choose between parents.19 The Shafi‛īs allow female
custody until the child reaches the age of discretion and may choose either parent as
custodian. The Malikīs rule that female custody of a boy shall last until he reaches
puberty, and for a girl until she marries. Under the Hanafī law, female custody of a
boy ends when he is able to feed, clothe, and cleanse himself. Most of the Hanafī
jurists set this age of independence at seven years, although some set it at nine.
Hanafī jurists differ on when a mother's custody of her daughter ends. Most maintain
that the mother's custody ends when the girl reaches puberty, set at either nine or
eleven years of age. However, others allow the mother's custody to last until the girl
reaches the age of womanhood.20
Eligibility for guardianship:
At the time of determining the custody of a child, there are certain
conditions pertaining to the persons claiming custody which must be satisfied before
the child is given into their custody. Some of these conditions are common to both
males and female while some are specific to either females or males. The common
conditions for custody include majority, sanity, freedom, ability of upbringing the
ward, looking after its interests and protecting it both physically and morally.21
The first and foremost prerequisite specific to the hadina (female custodian)
is that she must not be married to any male who is not in prohibited degree to the
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The Custody of Children (A Comparative Study of the Shari’ah, English and Pakistani Law)

ward. Furthermore, it is also essential that the hadina herself be a relation that falls in
the prohibited degree towards the ward, a female who falls in the prohibited degree
on grounds of fosterage is not eligible to become hadina of the minor.22.
Wages for Custody:
Under Islamic law, the hadina may or may not be the mother of the minor.
The Hanafi fuqaha subscribe to the view that if custody is of the minor is decided in
favour of the mother she is not entitled to claim wages for it during the subsistence
of her marriage or the iddat since she receives maintenance in both cases.23 However
in cases where the woman receives no such maintenance, she becomes entitled to
custody wages. On the other hand, a hadina who is not the mother of the minor is
entitled to custody wages; 24 she may however offer her services for free.25 This
view is upheld by all the schools. Another peculiar aspect of Hanafi School is that in
a case where a woman entitled to custody refuses to take it without wages while
another woman falling in the prohibited degree to the minor offers to accept it
without any wages, then she would be given precedence over the former.26 Thus
even a woman who volunteers to take custody without cost may even be given
preference over the mother of the minor (who refuses to do the same if not given due
wages).
Conditions for custody
Initially, the child is entitled to live in a conducive family environment within the
care of both the parents. However, conditions for child custody may have to be
decided in three instances; on the death of either parent, during separation and in
Matrimonial causes.
 Custody on the Death of either parent: As earlier noted, courts
empowered fathers to appoint testamentary guardians who could take over the care
of their children after death. Mothers had little if any intervention until 1891 when
the Custody of children Act 1891 was enacted and which manifested the concept of
equality of parents’ rights and powers with respect to their children. This Act didn’t
only give mothers powers to act jointly with fathers’ appointed testamentary
guardians but also gave her limited powers to appoint testamentary guardians.
Section 3 of the Guardianship of Minors Act 1971 provided that on the death of
either parent the survivor shall be guardian of their legitimate minor children
together with any guardian appointed by the other.
In Pakistan, father can’t appoint testamentary guardian. The mother is the
natural guardian of the child unless the welfare of child is in question. In such a case,
the family court decides the issue of the welfare of the child.
 After separation: The question of custody also comes into play after
separation of the parents. The current statistical data indicate an increase in the
number of divorcing parents. Children in this state will be in a transient state before
their parents form new relationships. The issue of child’s custody comes in to decide
where the child should live at the time when parents part.

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 Matrimonial causes: Section 42 (1) of the Matrimonial causes Act

empowers the court to grant custody to anyone in case custody has been granted to
the other parent, and to both parents when custodianship order is made to the third
person, or the child is placed in the care of the local authority, or he is made a ward
of court. In these cases, both parents can be given reasonable access to the child as
they sort out their disputes. The court has wide jurisdictions in granting access
under any circumstance, including cases of illegitimate children. Granting access is
mainly based on two considerations:
(i) The welfare of the child: the child’s welfare remains the paramount
consideration while granting access to a child and it will be refused if the parent is
not a fit and proper person to see the child at all.27 However, a parent’s previous
conduct may not be a sufficient reason for denying access to a child unless it is
proved to have an effect on his welfare. For instance, in B. v. B., 28 the court of
Appeal regretfully denied access to the father of a 16 year old boy who had
developed such hostility to him that it might have been harmful to force them to
meet..
(ii) Effect on the parent with actual custody: The court must put into
account what will be the effect of allowing access on the parent with actual custody.
It can therefore deny it if deemed to be not in the former’s interest. 29 However this
may be unravelled by sanctioning access with a presence of a neutral third person or
a welfare officer. The basis for granting custody preference will be on the child’s
welfare which is the paramount consideration as provided by the Guardianship of
Infants Act 1925. Let us now examine the two cardinal issues in children custody;
child’s welfare and access.
Child’s Welfare:
In England the law relating to the custody of the child is governed by the
Children Act of 1989. The law obliges the courts to look into the welfare of the child
while determining the question of the custody. The Section 1 of the Children Act
1989 states that “when a court determines any question with respect to the
upbringing of a child, or the administration of a child’s property or income, the
child’s welfare shall be the court’s paramount consideration.”30 This section implies
that upbringing applies only to those processes of which the child is the object, and
to those in which the child is the subject.31
Child’s welfare, or sometimes expressed as its best interest is the paramount
fact that has to be considered when resolving questions of its custody and
upbringing. This, as Lord Mac Dermott held, is the top item in a list of items to the
matter in question, when all relevant facts, relationships, claims and wishes of
parents, risks, choices and other circumstances have been taken into account and
weighed, it is the best interests of the child that rules upon or determines the course
to be followed. 32 The child’s “best interests” encompasses what the entire courts
think about what is good for the child both physically and emotionally, including any
special needs it may have. However, reaching at the best interests of the child cannot

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be achieved by quantitative methods of assessment, it is not a straight forward issue,

but can be resolved by using some sort of “points system”.33
Section 1 (3) of The children Act sets out a list of factors to which the court
should have regard in determining issues relating to the child’s welfare. It was hoped
that such a list would help achieve greater consistency and clarity in the application
of the law. The list includes the following:
The child’s wishes and feelings:
The relevance of a child’s own wishes was re-enforced by the Gillick decision
which regarded the right of the child to be heard as a cornerstone of the legislation.34
In Re s (contact: children’s views) [2002], the father sought contact with his three
children, V, JO and JA, aged 16, 14 and 12 respectively. It was held that there was no
point in making an order in respect of V, who was opposed to contact. JO was prepared
to have limited contact with his father, but only on his own terms and the courts simply
ordered that he makes himself available for contact by mutual agreement. The judge
noted that the father had not grasped the fact that his children were young adults and
that hectoring them, and not listening to them, was likely to be counter-reproductive.
Since the youngest child had maintained contact with his father, the order allowed him
some choice – “commensurate with his age” – about what form of contact should take.
In another case, the court ordered contact against the wishes of the mother,
at least in part because of the child’s express wish that contact should continue.35
However, this varies according to the child’s age and understanding and the
child’s wishes are never the paramount consideration; for instance in Re R (A Minor)
(Residence: Religion) [1993]2 F.L.R. 63, CA, a boy of nine who was living wholly
within what the judge describes as the “stifling” religious conditions of the Exclusive
Brethren believed he should neither live with nor even see his father, his only
surviving parent. But the court made a residence order in favour of the father based
on the view that to be bound by the child’s religious beliefs would amount to an
abandonment of the court’s duty to decide what the child’s welfare viewed
objectively, required.
Similarly in Pakistan, the wishes of the child are duly considered by the
judges at the time of determining custody. The case of Sardar Hussain v. Mst.
Parveen Umer36 for example, pertained to determining lawful custody of three minor
children of Sardar Hussain and Parveen Umar who had been divorced. Pursuant to
the divorce, Parveen contracted a second marriage and continued to retain the
custody of the minors. Sardar Hussain thus, filed a petition before the supreme court
of Pakistan to obtain custody of his sons who had attained age of seven years. The
learned counsel for the petitioner contended that as per Islamic Law, the father was
entitled to the custody of the sons and also that the contracting of a second marriage
by the respondent raised concerns as to the welfare of the children. The learned
Supreme Court however, relying on the judgment of the Civil Petition No.1246 took
into consideration the fact that although the three minors were entrusted to the
petitioner for more than 15 days, yet there was no change in their attachment or
inclination towards their father. Furthermore, upon questioning by the court, it was
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evidenced that they had a sentimental attachment towards their mother and
considered their father almost alien. Thus, the court dismissed the petition, keeping
in view the paramount consideration of the welfare of children, while determining
the issue of custody and also the child’s own wishes.
The wishes of the child however are not the sole factor upon which the
courts in Pakistan would grant custody. In the case of Mst. Nighat Firdous v. Khadim
Hussain37 the honourable Supreme Court maintained that, ‘The preference of the
minor, in guardianship cases, is ordinarily taken into consideration but it is not
always relevant because the minor is not the best judge of his/her welfare’.
Assessing the existing position
The child’s welfare can be evaluated by assessing its prevailing conditions of care
and control and what it reflects on his future mental and physical health. In many
cases, courts have considered the effects of change of care and control on a child’s
development, and denied a claimant the right to custody, if change will prove to be
detrimental to the child’s development.38
This factor is equally valued in Pakistan. The Supreme Court of Pakistan
held that ‘nearness of kin to the minor’ is to be valued while deciding the application
for the grant of the custody by the Courts of the Pakistan.39 This shows that the law
is similar to both selected jurisdiction on this point.
Personality and character of the claimant:
It is obvious that one’s personality and character is most likely to affect the
child. Therefore, the two must be taken into consideration so that a child whose
custody rights have been granted in his favour, is not exposed to the danger, e.g. of
physical ill-treatment, moral corruption, among others. However, the importance of
stability may be outweighed by other factors; for instance in Re M (Child’s
Upbringing)40 the court decided that a Zulu child, who had been cared for in England
by a white woman, should be returned to his parents (the woman’s former servants)
in South Africa. This ruling was based on the consideration that the child’s cultural
background outweighed the importance of maintaining the status quo. Unfortunately,
the arrangement order did not work out and the child returned to England with in a
relatively short period.
The personality and character of the claimant is given prime importance
while deciding the application for the grant of the custody. Being an Islamic country,
the Courts are likely to grant the custody to a parent who holds good moral character
in preference to one whose integrity is doubtful.41The case of Josip Stimac v.
Mellitta Syed Shah42 in the Pakistan concerned the custody of minors whose parents
are alive by their maternal grandparents. The case revolved around the custody of
two minor girls, Sana aged 13 and Abrash aged 6 (Austrian Nationals) whose mother
had been sentenced to jail in Pakistan on account of drug trafficking. Resultantly the
minors were also confined along with their mother in jail. Nevertheless, the maternal
grandparent of the minors who also possessed Austrian nationality filed a petition
before the Lahore High Court for the release and custody of the minors. During the
proceedings however it was brought to the notice of the court that the father of the
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minors, had already filed a petition under section 25 of the Guardian and Wards Act
for the custody of the minors. The learned Advocate general in this behalf submitted
that till the final verdict of the Guardian Court on the issue of custody, the LHC
should order for the minors to be sent to SOS village. Thus, the court had to decide
whether custody of the minors was to be awarded to their father or grandparents, or
were they to be sent to the SOS village. The court was not in favour of sending the
children to an orphanage thus they had to choose between the father and
grandparents. It was held that the custody be given to the grandparents since they had
been living there and seeking education prior to the arrest of their mother and it was
thus in the best interest of the minors that they live there with their grandparents and
elder brother. The father was denied custody since he failed to come forward and ask
for custody despite the fact that he had been required by the court to do so. However
in this case is question regarding the character of the claimant has not been clearly
raised and the case has been decided on the basis of the best interest of the children.
Sex and Age of children:
Disputes of child custody can be resolved basing on the child’s sex and age.
Normally, children of tender age and particularly girls need mothers’ care and
control, and not doing so may be deemed as not being in the child’s best interests.
Likewise, boys of an older age are presumed to be more inclined to fathers than to
mothers, so if this is supported with empirical evidence, awarding custody to the
contrary may be deemed as not being in the child’s best interest.
In Brixey v Lynas,43 it was held that “the advantage to a very young child of
being with his mother is a consideration which must be taken into account in
deciding where lie its best interests it is neither a presumption nor a principle but
rather recognition of a widely held belief based on practical experience and the
working of nature… where a very young child has been with its mother since birth
and there is no criticism of her ability to care for the child only the strongest
competing advantages are likely to prevail”.44 However, this position is much likely
to change based on other factors. For instance, In Re D (a child) residence: ability to
parent) [2001]2 F.C.R. 751,CA, the father obtained a residence order when his
daughter was only one year old, due to concerns over the mother’s drinking habits.
This order was confirmed at a final hearing and upheld on appeal. Though the
mother was available as a full-time career, the importance of this was diminished
where the attachment between mother and child had been interrupted, and the father
had been caring for the child for longer than the mother.
As a matter of general principle the custody of a male child up to the age of
7 and female child up to the age of 9 should be given mother. This is in accordance
with the Hanafi School. However, there is a difference of opinion on this point from
the Maliki school which states the male child is to be with mother up to the age of
his puberty and female child to be till her marriage.45 According to Shafi‛ī School the
child will be with her mother up to the age 7 or 8 years, thereafter, the child will be
given option to choose the parent with whom to live. This means that preferably the
guardianship of very young children should be handed over to the mother. According
to the Hanbli school, male child up to the age of 7 years will remain with mother,
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thereafter the child will be given option of selection; whereas, female after seven
years of age will remain with father till her puberty. 46 Hence, it is clear that under
Islamic Law the interpretation of the right to custody differs in according to the
individual’s Fiqh. This is in harmony to the Muslim Personal Law of Pakistan. For
that reason, if a person believes in the Hanafi law, the custody will be decided in
accordance with the Hanafi law.
Faith and Moral Conduct:
The role and effect of faith on individuals is quite indisputable and each
parent strives to see that his or her child follows the footsteps of his religious
inclination. Previously, in the nineteenth century, courts were loath to give custody
to a person whose beliefs differed from those of the child, probably on the ground of
the fear of proselytism which may spark off conflict of interests between the child
and its caretaker. This is contained statutory reference to “background” which may
involve the consideration of the child’s cultural and religious background47. But,
application for custody may be dismissed or denied on grounds of the claimant’s
religious belief and devotion if proved to be against the child’s welfare, e.g. in terms
of his socialization, or curtailing his opportunities for further education48. For
instance, in Re P (Section 91 (14) Guidelines) (Residence and Religious heritage),49
CA, the orthodox Jewish parents were unable to care for a Down's syndrome baby
and she was fostered with non-practicing Catholic foster parents. The parents applied
for the child to be returned to them when the child was eight, and backed their
application with the claim that a child had a presumptive right to be brought up by
her own parents in her own religion, and that although a move would cause short-
term trauma, the long-term benefits of culture and heritage would shift the balance
decisively in favour of the parents. But the court of Appeal rejected this claim basing
on the belief that though the importance of an Orthodox Jew of religion was a factor
to be put in the balance but could not be overwhelming. Moreover, the child would
not appreciate the reasons why she was being moved from the family in which she
had lived for seven years. But sometimes the court will resort to attempts to preserve
both aspects of the child’s background. For instance, in Re S (Change of Names:
Cultural Factors),50 Fam Div: a Muslim girl who eloped to Gretna Green with a Sikh
man had a child with but their marriage was not successful and after the divorce, the
mother wanted to change her son’s Sikh names on the basis that the Muslim
community would not otherwise accept him. The court held that the child should be
known by Muslim names and be brought as such in order to ease his integration into
the community but his Sikh identity had to be preserved by encouraging the child to
respect the Sikh faith as well.
As per prevailing common law in Pakistan faith is the paramount
consideration in deciding the welfare of the child.51
On the question of a claimant’s moral conduct, it was the practice of the
divorce courts during the nineteenth century not to give care and control to a mother
who had been guilty of adultery. This position was rescinded in Custody of Infants
Act of 1873. When this proviso was ignored, the courts could no longer be

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concerned with punishing any adult for his conduct, by denying him custody rights
on grounds of his or her moral conduct.
The moral scrutiny of potential applicant of custody is still in place in
Pakistan. If the character of the applicant is notorious, the courts are reluctant to
grant the custody. The Court refused the custody to father who married second wife
on the ground that the child is likely to be spoiled in the atmosphere of step mother.52
The Past Behaviour:
The past behaviour of a parent is not considered unless it makes them less
able to act effectively as a parent, for instance the violence or abuse towards any
child or a member of the family or household would usually be considered or if the
child’s morals may be corrupted or affected by assimilation.53 But the judge would
not take into account which parent was to blame for the break-up of their
relationship. Therefore, the post behaviour is considered in Pakistan for deciding the
application.
Accommodation and Material Advantages:
Parties to custody disputes may not be at the same position as far as
providing the child with material support is concerned. The court will therefore be
concerned to award custody rights to a claimant who is in position to bring happiness
to the child even though his or her financial position may not be as such better than
the other party to the dispute. However, this point must be assessed in relation to the
stability of home life where the child will be placed by custody order. The child’s
own wishes should also be considered if he or she is old enough to express its own
wishes, unless proved to have been coached by one parent at the expense of its long-
term interests that the court may feel justified. 54
In Pakistan, the financial position is not that much important in considering
the application. The father is required to provide maintenance to a child, who is in
the custody of the mother.55
There is a harmony of the law regarding certain factors which are taken into
consideration while granting the custody of the child in both jurisdictions. These
factors are briefly discussed as under:
 The emotional ties between the child and each person seeking custody or
access, other family members who live with the child and anybody else involved in
caring for the child. This includes love and connections the children have with other
people in their lives (e.g. grandparents, teachers, and friends).
In Re B (Residence order: Status Quo),56 a residence order was made in
favour of the father despite the child’s tender age (four years). The father had given
up his work to care for the child full time. Two years later, the mother (who had
remarried) applied for and was granted a residence order. Although the welfare
officer had reported that there was no overwhelming reason for moving the child, the
judge took the view that short-term distress caused by the change of would be
relatively insignificant compared to the benefits the child would gain from the
improvements in the contact arrangements that he thought would follow the change.
The court of appeal held that this decision was plainly wrong, and that the
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Pakistan Journal of Islamic Research Vol 14, 2014

overwhelming importance for securing the child’s future was preservation of the
status quo.
Education and training for the children (e.g. the opportunity for stable
school attendance and participation in extracurricular activities). The court will often
be primarily concerned with the dangers of uprooting a child from a school where
satisfactory progress is being made. But there may be cases I which there is a clash
of values to be resolved: for instance, in May v May [1986]1 F.L.R. 325, CA, the
question was whether two boys, aged six and eight, should live with their father or
their mother. There was no conflict about the competence of either parent, but there
was a conflict of values between them. The father attached importance to academic
achievement, punctuality, tidiness, and giving assistance in the household. The
mother and her cohabitant had, in contrast, a much more free and easy approach to
life and to such issues as the amount of time that the children should spend working,
the time they should spend watching television and so on. The court of appeal
refused to upset the trial judge’s decision that the children should live with the father.
 The child’s wishes (when the child is mature enough to know and express
them).
 The stability of the child’s present home environment and how long the
child has been in that home is also taken into consideration. In Re E (children)
residence order) [2001] EWCA Civ 567, the court made a residence order in favour
of the father because there were a number of concerns about the mother, including
the fact that she had a number of unsatisfactory relationship, including one with a
violent partner. This led to a conclusion that the children were at some risk from
violence.
 The ability and willingness of each parent to take care of the physical,
emotional, and other needs of the child.
 The plans each parent has for the care and upbringing of the child.
 The permanence and stability of the family each parent would provide.
 The biological or adoptive relationship between the child and each person
seeking custody or access. This is usually considered when someone other than a
parent is seeking custody or access.
 The previous conduct in terms of the person who has done most of the
parenting until now. This will prove the parent’s ability to do a good job of caring for
the children.
Access:
The issue of access arises automatically when custody rights have been
granted in favour of one of the parents. Its objective is to allow periodical visits at
specified times so that the aggrieved party can keep in touch with the child.
Types of Access:
 Reasonable access: Access arrangements are often left open and flexible, if
parents can agree. This can be the case whether custody and access are decided by an
agreement between the parents or by court order. The agreement or order does not
specify when or how often the parent with access can spend time with his or her

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The Custody of Children (A Comparative Study of the Shari’ah, English and Pakistani Law)

child. Instead, it simply states that one parent will have custody and the other parent
is to have “reasonable access”.57 The same principle is still applied in Pakistan.58
 Fixed or limited access: Like in the reasonable access, the terms of access
are fixed, either by written agreement or by court order. The order or agreement sets
out how often access visits will take place, how long they will last, and probably give
the exact times for the visits.59 Some orders also specify where access will take
place, or any other conditions of access. The same agreement can be made by the
parties in Pakistan. However, the court refused to grant access for the female child to
her father at night time.60
 Supervised access: Under certain circumstances, a judge might order that
someone else must be there when the access parent and the child are together. The
other person might be a relative, a friend, a worker at a supervised access centre, or a
Children’s Aid worker. Supervised access is ordered when the judge has concerns
about how the parent with access will behave while he or she is with the child.
Ruling on supervised access may be based on the past experience, for example, if the
non- custodial parent has abused the child in the past, or has threatened or tried to
take the child away from the parent with custody. 61
There are similar precedents available in the Pakistan when it comes to the
concerns of the court that there is likelihood of the harm of the child by granting
access. But such orders are rare in nature because a parent who could harm the child
or impede in the court orders is likely to be refused access.62
 Refusal of access: Only in the most extreme cases will a judge deny a
parent access. For example, access might be denied when serious child abuse has
been proven and the abusing parent refuses treatment. The same is true for Pakistan.
The parent is not entitled to any kind of access if it comes on record that the parent is
abusing the child. This is because the courts look into the welfare of the child in
deciding the custody and not the emotions of the parents.63
 Custody of children in Matrimonial causes: Failure to provide reasonable
maintenance to a child may tantamount to making an order for its custody. Such a
child is legally dubbed a child of the family. The law is concerned of the child’s
welfare during divorce proceedings, nullity and judicial separation. Under these
circumstances, the court is at choice either to direct the child to be made a ward of
court, or placed under supervision of the welfare officer. In both situations, the court
may make an order for financial provision compelling the parent(s) to provide
maintenance to the child.
In Pakistan, it is the responsibility of a father to provide maintenance of the
child. Therefore, it is not an issue that the mother cannot maintain the child to be
delivered to the father for the sole factor of maintenance. If the court comes to the
conclusion that the welfare of the child lies with the father, the court is likely to order
the father to provide maintenance. The Supreme Court of Pakistan held:
Mere inability to maintain minors or poverty was no ground for depriving mother of
her right of custody over her minor children. Father being a natural guardian was

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Pakistan Journal of Islamic Research Vol 14, 2014

bound and responsible to provide maintenance to children even though they were in
the custody of their mother.64
 The Right of Access under Islamic Law: In accordance with the
principles of Islamic law if a mother has been given the custody of the minor, she is
cannot prevent the father form meeting the child. Similarly the father who has been
granted custody cannot stop the mother from meeting her child. Although there is no
mention of the frequency of access in the classical Islamic texts but it may be
deduced by analogy with a wife’s right to see her parents, to be once a week.65
Conclusion:
The study reveals that there are differences in both the jurisdictions
regarding the method of interpretation of law relating to the custody of children. The
principle is the same at both jurisdictions i.e. to assess the welfare of the children in
accordance with their social values.
However, the variation arises when it is interpreted. The Pakistan is a
common law country. The Guardian & Ward law traces back to 1890 when the
country was ruled by the English under British India. The differences in the method
of interpretation of law are due to the fact that state religion of Pakistan is Islam.
Therefore, the same law is given an Islamic flavour by applying Islamic values while
interpreting the general principles enshrined in the Act.
The discussion revealed that character and morality as defined by Islam is one of the
paramount considerations for deciding the cases of the grant of the custody. The
differences are also due to the question of the financial position of the parties.
Nevertheless, the new interpretation revealed that the financial position is not much
important as it is the responsibility of the father to pay maintenance even though the
child is in the custody of the mother.

References / Notes:

1
This is because Pakistan has inherited its legal system from the British India.
2
The Constitution of the Islamic Republic of Pakistan, Article 2
3
The Constitution of the Islamic Republic of Pakistan, Article 2-A declares the
preamble of the constitution as the substantive part. The preamble states that all laws
of the Pakistan are to comply with the principles of the Islam.
4
The Constitution of the Islamic Republic of Pakistan, Article 2-A declares the
preamble of the constitution as the substantive part. The preamble states that all laws
of the Pakistan should comply with Islamic principles.
5
It is pertinent to note here that English law does not discriminate between cases
pertaining to the custody of children born outside of a wed lock and those who are
born within it,
6
P M. Bromley, Family Law, 6th ed., 1981, p.282
7
P M. Bromley, Family Law, 6th ed., 1981, p.282
8
The Children Act, 1975, Section 86; Interpretation Act 1978, Schedule 1 and
schedule 2, paragraph 4
9
The Court Act, 1978, Section 36
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The Custody of Children (A Comparative Study of the Shari’ah, English and Pakistani Law)

10
Rachael Stretch, Q&A Family Law 2011-2012 (), 199.
11
Under Islamic law, custody is considered as being the right of a child established
since birth. Custody being a form of guardianship, is divided by the jurists into three
categories i.e. guardianship of the infant (hadana) guardianship of education (wilayat
al tarbiyya) and guardianship of property (al wilayatu alal maal). al-Mawsū‛ah al-
Fiqhiyyah, Vol.45, p.187
12
Tanzīlu-Ur- Rahmān, A Code of Muslim Personal Law, Vol.I, p. 718
13
Qur’ān 2:233, Translation by Abdullah Yusuf Ali <
http://www.qurantoday.com/BaqSec30.htm> Accessed 21 May 2011
14
al-Mawsū‛ah al-Fiqhiyyah, Vol.17, p.302
15
al-Bayhaqi: al-Sunan al-Kubrā, Deccan, Vol. VIII, pp.4-5
16
Ibid. p.4
17
Bidayat al mujtahid, Dar al Hadith, Cairo 2004, Vol.3, p.79; al-Fiqh ‘alā al-
mazāhib al-khamsah,Dār al-‘ilm lil-malayīn, Beirut,1982,1982, pp.377-378
18
Ibid.
19
al-Mughnī, Vol. VII, pp.614-16.
20
Badāi‛ al sanā’i‛, Vol. IV p. 42; Fathul Qadīr Vol.VII, p.316; Hāshiyat al-dasūqī
‘ala al-sharh al-kabīr,Vol.II p.532-533; Mughnī al-muhtaj Vol.III, pp.456-460; al-
Mawsū‛ah al-Fiqhiyyah, Vol.17, pp.314-317
21
Jamal J. Nasir, The Islamic Law of Personal Status (Graham &Trotman 1990)
178
22
Ibid 180
23
Ibid 181
24
Ibid 181
25
Ibid 181
26
Ibid 182
27
[1973] 3 All ER. 493
28
[1971] 3 All ER. 683
29
M. v. J., [1973] 2 All E.R. 81
30
The Children Act 1989, Section 1
31
Kelly v BBC [2000]3 F.C.R. 509, Fam Div.
32
J. v. C, [1977]1 All E.R.647
33
Bromley, p.295
34
The Gillick decision was made on the basis that, in the absence of an express
statutory rule, e.g. the one requiring parental consent to the marriage of a minor
child, all parental authority as expressed by Lord Scarman "yields to the child's right
to make his own decisions when he reaches a sufficient understanding and
intelligence to be capable of making up his own mind on the matter requiring
decision. The house of Lord by a 3-2 majority held that the application of a mother to
the court to declare that young people could in some circumstances be given
contraceptive advice and treatment without their parent's knowledge and consent was
unlawful and wrong, should have been dismissed. See: Gillick v West Norfold and
wisbech Area HA [1986] A.C. 113, HL.
35
I v N [2003] EWHC 327
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Pakistan Journal of Islamic Research Vol 14, 2014

36
PLD 2004 Supreme Court 357
37
1998 SCMR 1593
38
[1965] 3 All E.R. 231, 249
39
1981 CLC 78
40
[1996]2 F.L.R. 441, CA
41
1985 MLD 161
42
PLD 2009 Lahore 393
43
[1996] 2 F.L.R. 499 at 509
44
Cretney’s family Law p. 303, and Brixey v Lynas [1996] 2 F.L.R. 499 at 509
45
al-Mawsū‛ah al-Fiqhiyyah (The Encyclopaedia of Fiqh) KVol. 17 , pp 314-316
46
al-Mawsū‛ah al-Fiqhiyyah (The Encyclopaedia of Fiqh) KVol. 17 , pp 314-316
47
Cretney, p. 305
48
Hewison v. Hewison (1977), Family Law 207 CA
49
[1999] 2 F.L.R. 573
50
[2001] 2 F L R 1005
51
PLD 1972 Pesh. 1
52
NLR 1980 (Lah) 318
53
S v S (Custody of Children) (1978), 1 FLR 143, CA
54
[1977] 1 All ER.647, [1967] 1 All E.R, 202, 210
55
PLD 1994 AJ & K 1
56
[1998] 1 F.L.R. 368, CA
57
Re W (A Minor) (1982)126 Sol Jo 725, Court of Appeal.
58
1996 CLC 1
59
Re E (P) (An Infant), [1969]1 All ER 323
60
1985 CLC 592
61
Children Act 1975, and S.38 The Domestic proceedings and Magistrates’ Court
Act 1978
62
1984 P Cr L J 3088
63
The Guardians & Wards Act, 1890, Section 17
64
PLD 1994 AJ & K 1
65
Jamal J. Nasir, The Islamic Law of Personal Status (Graham &Trotman 1990)
185
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