February 8th, 2022
By Rehan Piracha
The Senate has passed an amendment bill that will ensure custody of male and female children up to the age of seven and 16 years respectively to divorcee and widowed mothers.
On February 7, the upper house passed Senator Farooq Naek’s The Guardians and Wards (Amendment) Bill, 2020, by a majority vote despite government objections over the non-inclusion of recommendations of the Council of Islamic Ideology in the proposed legislation.
Speaking on the floor of the house, the bill’s mover Senator Naek from the Pakistan People’s Party underlined the importance of the bill for divorced and widowed mothers in the country.
He said there had been no attempts by any government to bring changes in the century-old Guardians and Wards Act 1890. He said his amendment bill was an attempt to codify the right of custody of minor children to mothers in case of divorce or death of a father. “There is no mention of the age limit of children for their custody to a mother in Islam,” Naek explained.
The Guardians and Wards Act 1890 was also silent on the matter of age limit of a boy and girl for grant of custody to a mother, he said. “According to Mulla’s book Principles of Mahomedan Law, a mother has an uncontested right of custody of a boy till the age of seven years while a father could take away custody from the mother through court after a boy is over seven years of age,” Naek said.
In case of female children, a mother could retain custody of a girl child till 16 years of age or till puberty, the PPP senator said. “After reaching this age, a father can contest custody of the girl or the girl can decide herself if she wishes to live with her father or mother,” Naek explained.
The PPP senator said the above instances were traditions and there was no Islamic law with regard to age limit of minors wherein their custody was given to mothers. Although superior courts were already extending the right of custody to mothers it was not in the legislative form, he added.
Naek said the proposed amendment bill would ensure custody of male and female children to divorcee/widow mothers, up to the age of seven and 16 years respectively.
Under the bill, a mother would be entitled to be appointed as a guardian of the minor where the father is either deceased or unfit to take care of the child in the opinion of the court.
Secondly, the amendment bill provides protection to a mother’s right of custody of children and removes discretion of the family courts in this regard, Naek said. Besides, the amendment bill also lists relatives from paternal and maternal sides who would get custody of children in case a mother remarries or is not found fit to retain their custody, the PPP senator said.
Minister of State for Parliamentary Affairs Ali Muhammad Khan suggested the House to incorporate the recommendations of Council of Islamic Ideology (CII) in the proposed amendment to make it more effective. He was of the view that the Ulema from all schools of thought had representation in the CII, so their recommendations should be incorporated to avoid any hurdle in smooth implementation of the legislation.
Responding to the minister’s objections, Naek said the amendment bill had been passed by the standing committee on law and justice. He said it would go to the National Assembly for further consideration, so the government should propose their amendments for better legislation.
The minister said the religious affairs ministry principally agreed with the amendment bill but it has called for incorporation of the CII recommendations. He said if the recommendations were not included in the bill it would stall its legislation in the lower house.
Senate Deputy Chairman Mirza Muhammad Afridi, who was chairing the session, told the minister that the government should bring an amendment as the standing committee had already passed the bill. After that, the Senate deputy chairman presented the bill with clause-by-clause reading that was passed with a majority vote.
The amendment bill has to be passed by the National Assembly for its enactment. However, the bill is likely to join several other opposition bills that are pending before the National Assembly after their passage by the upper house.