Can a Child’s Preference Override Legal Custody Rules In Pakistan?
Child Custody Laws In Pakistan are governed primarily by the Guardians and Wards Act, 1890 (GWA), supported by Islamic principles for Muslims and personal laws for non-Muslim minorities. While courts give significant weight to various factors such as the child’s welfare, parental fitness, and financial stability, one important and often debated factor is the preference or wishes of the child. This raises an important question: Can a child’s preference override legal custody rules in Pakistan?
The short answer is: the child’s preference is considered, but it does not automatically override legal custody rules. Let’s explore how Pakistani law and courts address this issue.
The Welfare of the Child: The Supreme Principle
In all custody cases, Pakistani courts apply the welfare of the child as the most important consideration. Section 17 of the Guardians and Wards Act, 1890, specifically empowers the court to consider the child’s welfare above all else, including parental rights or personal laws.
The courts recognize that the welfare principle is broad and includes:
- Emotional well-being
- Physical care
- Educational needs
- Financial support
- Psychological stability
- Moral and religious upbringing
Within this framework, the child’s own preference is one factor among many but is not automatically decisive.
When Is the Child’s Preference Considered?
Pakistani courts may consider a child’s preference particularly when:
- The child has reached an age of maturity.
- The child demonstrates sufficient understanding.
- The child’s wishes appear genuine and not influenced by manipulation.
There is no fixed legal age after which a child’s preference becomes decisive, but generally, courts start giving more weight to the child’s wishes once the child crosses 9 to 12 years of age, depending on their maturity and understanding. In certain cases, even younger children may be heard if the court believes they are capable of expressing independent and reasoned preferences.
Judicial Interviews
Pakistani family courts often conduct in-camera interviews of the child BY Child Custody Laws In Pakistan to assess their preference. During these interviews, judges examine whether the child’s wishes are sincere or influenced by one parent, relatives, or external factors. The courts are careful to ensure that children are not pressured or coached into choosing one parent over the other.
If a child shows a strong, well-reasoned preference for one parent, the court may consider this as a significant factor, but it still evaluates whether that preference aligns with the child’s overall welfare.
Preference Cannot Override Welfare
While a mature child’s preference carries weight, it cannot override the welfare principle. For example:
- If a child prefers to live with a parent who is morally unfit, financially unstable, or neglectful, the court may deny custody to that parent despite the child’s wishes.
- If a child is being manipulated or alienated by one parent, the court may disregard the child’s stated preference.
- If the preferred parent’s home environment is unsafe, the court will not risk the child’s welfare based on mere preference.
In many cases, even if the child expresses a desire to stay with one parent, the court may grant custody to the other parent while allowing generous visitation rights to ensure the child maintains relationships with both parents.
Important Case Law
Pakistani superior courts have issued several judgments clarifying this issue. The Supreme Court of Pakistan emphasized that while a child’s preference is important, it cannot be the sole deciding factor if it conflicts with the child’s best interests.
Similarly, in Khalid Pervez vs. State (PLD 1992 SC 66), the Court reiterated that custody decisions must always prioritize the child’s welfare, even if it means going against the child’s expressed preference.
Practical Challenges
While the legal principles are clear, practical challenges often arise:
- Children may feel torn between parents.
- One parent may attempt to influence the child emotionally or psychologically.
- Children may lack full understanding of long-term consequences.
Therefore, judges exercise caution and discretion when evaluating the child’s preferences in custody disputes.
Conclusion
In conclusion, a child’s preference does not automatically override legal custody rules in Pakistan. While courts do consider the child’s wishes, especially as the child matures, these preferences must align with the overall welfare and best interests of the child. The ultimate decision rests with the court like Hamza & Hamza Law Associates, which carefully balances multiple factors to ensure that the child’s upbringing is secure, stable, and in line with their long-term well-being.
