Minor girl’s custody granted to father after mother’s remarriage

The Sindh High Court (SHC) has allowed the custody of a six-year-old girl to her father after her mother’s remarriage, setting aside the family court’s order.

Petitioner Waseem Younus had assailed the family court’s order under which the custody of his six-year-old daughter had been declined. His counsel said the mother had lost her right to custody upon contracting a second marriage, from which she had two other children for the fulfilment of her motherhood.

The counsel said the petitioner had not remarried and he had all of his attention available for the minor, adding that the father had a respectable information technology job that allowed him to work from home, so he was able to take care of the minor better than the mother.

He said the custody of the minor should not be allowed to her mother to live with her stepfather, as the act was unacceptable socially and morally in our society.

The respondent’s counsel confirmed that the mother had remarried but now had full access to the funds from her spouse, who already had two other wives with children, but they lived separately. He said the minor was a female child and her welfare always stayed with her mother.

Replying to a query of the court, the mother of the minor admitted that she had remarried and had two children from that marriage, and that her current spouse had two other wives, who, however, lived separately, but their children often visited her house too.

After hearing the arguments of the counsel, a single SHC bench headed by Justice Zulfiqar Ahmed Khan said that the petitioner’s emphasis custody of the minor on the basis that the mother had married another man disentitled her to custody under Islamic law.

The court said that in cases of remarriage, the circumstances change; hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child, and fundamental to this decision is the best interest of the child and not that of the parents.

The bench said that there is no cavil to the facts that Islamic law clearly disentitles a mother from the custody of the child upon contracting a second marriage, and a stepfather to a female child is regarded Na-mahram (stranger).

Therefore, added the court, the remaining custody of the minor daughter with the mother becomes inappropriate in the presence of the real father who is a single man with no children.

The bench said that the well-being as well as the upbringing of a female child with the stepfather in the given circumstances would be less than desirable.

The court set aside the family court’s order and ordered handing over the custody of the minor to her father, while the visitation rights of the mother would be governed by the mechanism provided in the order of the family court.

The bench ordered that the father of the girl would hand over the custody of the minor to her mother on alternate Saturdays and Sundays of the month for four hours from 12 noon to 4pm, and on the second day of both Eids for five hours from 1pm to 6pm. The court also directed the father to provide the minor’s custody to the mother during the summer holidays for 15 days and during the winter holidays for five days for a period of four hours from 1pm to 5pm according to the convenience of both parties.

The bench said that if both parties fail to arrive at an amicable settlement as to the date of such periods, such period of 15 days in the summer holidays is set from the very first day of the holidays.

The court said that the last five days would be deemed in the winter holidays schedule. The petitioner will also hand over the minor’s custody to the mother on her birthday for four hours from 4pm to 8pm, ordered the bench.