A compromising matter –Tariq Husain -Pakistan Press Foundation (PPF)

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A compromising matter –Tariq Husain

According to various Supreme Court and High Court judgements, the welfare of the minors is the paramount consideration in deciding custody, and can never be set aside. Some judgements have even said that technicalities should not be used as an excuse by lower courts to ignore the welfare of minors.

A report entitled “Mother loses mental balance as children given in father’s custody” appeared in a daily on August 9, 2005. The mother was admitted to the Pakistan Institute of Medical Sciences after a court took her children away from her. The children – a boy of 10 and a girl almost 9 – were clinging to their mother, but were handed over crying and screaming to their father and paternal grandmother in the premises of the court.

The father, Mohammed Akram, had filed a petition under Section 491 of the Criminal Procedure Code (CrPC) for the recovery of the children, whose mother had taken them from their paternal relatives on August 3, 2005. He was present with his counsel, Gulzar Sheikh, when his ex-wife and children were brought from the government-run Crisis Centre for Women. The mother could not engage a lawyer between the time the bailiff reached her and the time she was brought to the court later that same day.

The petition was filed on August 6, 2005; the parties were ordered to appear the same day, and the bailiff and police were directed to produce the mother and children by 2 pm that very day.

The court order given on August 6, 2005 by Additional Sessions Judge Mubeen Shah observes, “At this stage [the mother] has started raising hue and cry and created a scene in the court and is reluctant to deliver the children and but needful [sic] has been done by the lady constable present in court. Although the conduct depicted by the [mother] calls for a legal action but being a woman [sic] I simply administer a warning to her.”

Court records show that this was the third time in two years that the two divorced parents had fought in court for the custody of the children. The mother, Taj Bibi, lost all three cases. She had contracted a court marriage with Mohammed Akram in 1989. Their second child was born in 1997. In 1998, Akram, apparently without the consent of his first wife, contracted a second marriage, which is evidenced by a nikahnamah (but this is not mentioned in his petitions of August 6 and earlier). Taj Bibi left her in-laws in 2003 and filed an application for dissolution of marriage.

This and the remainder of her story are narrated in a petition she filed in March 2004, under Section 491 CrPC, for recovering the children from their paternal grandmother, father and uncles. Her contention was that the children had been removed from her custody through fraud, misrepresentation, collusion and illegal means. Additional Sessions Judge Tauqeer Niazi dismissed the petition, noting, “Since the custody of the minors was delivered to [the father] through the process of law, it cannot be presumed as illegal or fraudulent.”

Both these verdicts relied on a decision given on October 28, 2003, by Civil Judge/Guardian Judge Zeeshan Chaudhry, who handed over custody of the children to the father. This order decided a petition for the custody of the children that the father had filed under the Guardians and Wards Act (1890). The decision was based on an agreement signed by Mohammed Akram and Taj Bibi on September 19, 2003, and confirmed by them in person before Judge Chaudhry.

The agreement is written in Urdu and duly witnessed by two people. It includes the following points: the wife has received haq meher; she is voluntarily giving up her son and daughter and handing them over to the father; she shall have no right over the children; she has received all her clothes, jewellery and other possessions, and has no right to any household effects; she has received Rs6,000 as iddat and shall not be entitled to any more; she will be allowed to meet the children from time to time at their father’s residence; subject to these terms and conditions, the husband will be bound to divorce the wife.

The agreement suggests that the wife wanted a divorce, for which she voluntarily gave up her claims and rights as an ex-wife and mother. But court records show that she filed for dissolution of marriage only four days later, on September 23, 2003. Her husband filed for custody of the children on the same day, but in a different court. The husband claimed that the wife left his house on September 15 and took the children. Neither party mentioned the agreement of 19 September in the suits they filed on 23 September. But on October 28, both parties and their counsels affirmed the agreement in two different courts!

Read with the agreement of September 19, 2003, Mohammed Akram’s petition suggests the following sequence of events:

During 15-22 September, the mother was busy at work from noon to 10 pm, leaving the children alone at home, but turning down repeated requests from the father to meet them. During 15-18 September, however, she would also have been negotiating an agreement with Akram for surrendering all her rights and claims. And on September 19, she dropped everything and went to the kutchehry, where she signed and registered an agreement to hand over the children to Mohammed Akram.

But on September 20, Akram signed three affidavits for a petition to obtain custody of these children. When he filed this petition on September 23, he forgot to mention that his wife had voluntarily given him custody on 19 September.

Even if it is accepted that the September 19 agreement was admissible in court (the subject of the concluding report), it is not clear why the courts ignored the welfare of the children for two years.

According to various Supreme Court and High Court judgements, the welfare of the minors is the paramount consideration in deciding custody, and can never be set aside. Some judgements have even said that technicalities should not be used as an excuse by lower courts to ignore the welfare of minors.

These are points that every concerned parent and child can easily understand. So it is hard to understand why none of the orders of the lower courts even mentioned the welfare of the minors.

The writer is an international consultant working with Enterprise & Development Consulting (Pvt) Limited, Islamabad, and specialises in grassroots development and governance. This is the first of a two-part article series. Names have been changed to protect the privacy of those involved
Source: Daily Times
Date:9/3/2007