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Child Custody Cases In Pakistan – Appeals against Visitation Orders

LAW OF INTERIM INJUNCTION IN FAMILY / CUSTODY CASES

by ! Fahad Ahmad Siddiqi.

Scores of Appeals against Visitation Orders passed by the Guardian Courts are pending adjudication in almost each Appellate Court at Lahore and hundreds of such Appeals are pending adjudication throughout the province of Punjab in Guardian Appellate Courts even for the last more than 2-3 years.

The core reason in majority of such Appeals is only one, and that is the Learned Appellate Courts has granted Stay Orders/ Interim Injunctions, merely on the presentation of an affidavit by the Appellant. In almost all such Appeals, multiple dates have also been issued to the Appellants and a number of Applications for vacations of Stay/ Interim Injunctions has been filed but to no avail.

The instant Article relates to the Law of Interim Injunction in Family Jurisprudence. It is an issue which has not yet been addressed by any of the Courts of appropriate jurisdiction except that mere notices and summons are issued one after the other. It is to be noted that the failure of the Appellate Courts at Lahore to ensure compliance of their Orders has resulted in gross miscarriage of justice to not only the Non Custodial Parents but also, the minor children are left alone to bear the brunt of the lax laws as well as the failure on the part of the Appellate Courts to ensure compliance of their orders thereof.

Child Custody Cases In Pakistan - Appeals against Visitation Orders

Child Custody Cases In Pakistan – Appeals against Visitation Orders

Our hierarchy of Courts in Family Jurisdiction are expected to exercise a quasi parental jurisdiction and to act a Locus Parentis, deal with the delicate matters touching the rights of the people , particularly the deprived minor children and their Non Custodial Parents, instead of dealing with their such rights of Access and Visitation in a mechanical manner. There is a need to adopt a new line of action to start with the creation of a society, which is dreamed of as a social welfare State. Grant of interim injunctions against Visitation Rights of minor merely on the affidavits of the Appellants without appreciation of delicacies of child psychology serves no useful purpose to the Custodial side of Parents involved in child custody litigation nor the needy minors rather their miseries are enhanced. This sorry state of affairs needs to be addressed by the judiciary at large.

 

As you all know, an injunction is a legal remedy which is imposed by a court. In simple terms, an injunction means that one of the parties to a certain action must either do something or refrain from doing something. Once the court makes its decision, the parties must abide by the ruling. If the party fails to adhere to the injunction, there can be stiff monetary penalties and even imprisonment in certain instances.

There are different kinds of injunctions: a preliminary injunction, a temporary restraining order and a permanent injunction. A preliminary injunction is one which is given to a party prior to a trial. Since a full trial has not yet occurred, the courts are usually reluctant to issue this type of injunction unless it is absolutely necessary and great damage may occur without the preliminary injunction.

Another type of injunction is known as the temporary restraining order. This type of injunction is very limited in time and scope. The purpose of the temporary restraining order is to give the court time to review the matter in order to determine whether to grant a preliminary injunction.

On the other hand, a permanent injunction is one granted after the trial regarding the matter. A permanent injunction can be issued after a preliminary injunction or temporary restraining order. If a permanent injunction is granted, it means that the party must either stop acting or begin acting in a certain way permanent

 Requirements

In most jurisdictions, an injunction will not be granted unless the party seeking the injunction can prove that they will cause irreparable injury if the court does not grant the injunction. Irreparable injury means that the harm inflicted on one party is so bad that no monetary or other type of payment is a good enough reward for putting up with the circumstances. In addition, the party must show there is no other remedy available. Furthermore, the party must demonstrate that if the court balances the parties’ interests, the balance will tilt in favor of the party seeking the injunction.

Relief of injunction

That the relief of injunction is a discretionary and an equitable relief which a party to litigation cannot claim as a matter of right and he who seeks equity must come to the court with clean hands. Before grant of such relief conscience of the court has to be satisfied that the party seeking such relief has not acted inequitably. And the party seeking interim injunction must also satisfy the Court that an interference is necessary to protect it from the species of injury which the Court called “irreparable loss” before the legal right could be established. For adjudication of the question of granting or withholding preventive equitable relief , an injury is set to be irreparable because no legal remedy furnish full compensation for it or there was no adequate redress for such injury or there existed inherent ineffectiveness of legal remedy for such injury.  Reliance is placed at 2019 YLR 815 Karachi

 

I understand that under the mandate of Family Jurisprudence in as much as the Locus Parentis capacity, a Learned Appellate Court, before grant of an ad interim injunction in an Appeal, merely on the basis of an Affidavit of the Appellant, is required to appreciate that it is a common practice among couples to use kids as pawns in the game of emotional chess. It amounts to absolutely irresponsible parenting to scar children emotionally post separation. In due course the parents move on in their lives and onto another partners but children carry the trauma of being manipulated and torn apart emotionally, all their lives.

A Court’s powers with regard to Visitation Rights and Custody of Minor are in the nature of parental jurisdiction, and it must act in a way a wise parent would do—Expression “welfare'” would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor—Technicalities of law are not adhered to in such type of cases. Reliance is placed at 2002 PLD 267 Supreme Court

In my legal experience I have seen a large number of these kids suffering from personality problems, conduct, disorder, and substance abuse, criminal and anti social traits etc and all just because of appropriate contact denial between the Non Custodial Parents with their children involved in Child Custody Litigation in the garb of procedural technicalities. An Appellate Court should be aware of the fact that where in any proceedings before it, the visitation right of a minor is in question, then, in deciding that question, the Court must have regard to the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that visitation is superior to that of the mother, or the mother’s claim is superior to that of the father.”, hence an Order suspending the rights of the minor to have better access and approach towards his Non Custodial Parent must not be dealt on the basis of mere technicalities. The suspension of the Order granting Visitation Rights of the minor required due diligence to be practiced by the learned Appellate Courts seized of the matter and at least an opportunity must have been allowed to the Non Custodial side of parents prior to suspending the operation of the Order.

An Order granting suspension of the operation of Visitation Rights granted by an Appellate Court merely on the basis of an Affidavit submitted by the Appellant on the first date of hearing and in the absence of issuance of notices to the Non Custodial Parents, I believe falls within the classification of an unqualified and an unreasonable restriction on the fundamental rights of access and movement of the minor child as the same are protected under the provisions of Article 15 of the Constitution of Islamic Republic of Pakistan. It is further significant to observe here, that a question whether a law imposes reasonable restriction on the freedom of movement of a person is justifiable and in determining this question the Court has to look at the nature and extent of the restriction, the manner in which it is imposed the nature of the right alleged to have been infringed and the underlying purpose of the restriction imposed. However, in the subject matter under discussion not even a single aspect is usually looked into by the Learned Appellate Judges functioning in Lahore, while restricting the access of the Non Custodial Parent (Fathers mostly) to his minor children and restricting his visit / meeting with his children to be held in a Court premises and for 2 hours twice a month. Reliance is placed at PLD 1958 SC 41

 

That it is further significant to be noted here that it is the fundamental and  basic human right of a minor child to share love, affection and care of his mother as well as love, affection, company and guiding hand of his father, in addition it is again a Fundamental Right of the minor child as well as that of the Non Custodial Parent ( Fathers mostly) that their dignity and subject to law their privacy of home shall be inviolable. That time and again, it is observed by the Honourable Supreme Court of Pakistan to the effect that the Right conferred under Article 14 of the Constitution , is not to any premises , home or office , but to the person , the man/ woman, wherever he / she may be. Reliance is placed at PLD 1998 S.C. 388 & 2010 PLD 119 Karachi

That every Court, including the Appellate Court is under Legal Obligation to state reasons as to why it understands it fit that operation of the Visitation Rights allowed to the Non Custodial Parent shall be Stayed. It is peculiar to understand at this juncture that every Public or Judicial functionary is duty bound to decide the application of the Citizen after application of mind, after addition of Section 24-A, in General Clauses Act as was laid down by the Supreme Court of Pakistan. Reliance is placed at 1998 SCMR 2268.

That further the Provisions of Article 4 of the Constitution of Islamic Republic of Pakistan categorically lays down that it is the inalienable Right of every citizen to enjoy the protection of law and to be treated in accordance with the law. If the provision of Article 4 of the Constitution is to be read in juxta position with the provisions of Section 14 of the Family Courts Act 1964, it is clear that the law is silent as to the grant of ad interim injunction / suspension of operation of Visitation Rights of the minor without affording an opportunity of being heard to the Child as well as to his Non Custodial Parent in whose favour the Order of Visitation has been passed by the Learned Guardian Court. The practice carried out by the Appellate Courts at Lahore in particular and Courts throughout Pakistan is against the mandate of fundamental rights of the citizens as are enshrined within the regime of the Constitution of Pakistan, 1973.

It is an admitted proposition of Law by now that A Court of law without assigning any valid reasons cannot  take any action detrimental to the life and liberty of any person except in accordance with the law nor shall a person be prevented from or be hindered in doing that which is not prohibited by law.

When the lis is between the parents, there are three main characters of the scenario, a mother, a father and a child and in certain cases the brothers and sisters of the minor, they are all the stake holders and the emotions and feelings of every one of them should be kept in view while deciding the noted issue, besides the personal law of the minor and rule about his welfare as mentioned earlier which should be of pivotal consideration.

All these putting together contemplate that regarding the visitation schedule neither the mother should be altogether deprived of the complete custody of the minor nor the father should be deterred and prevented to meet and see his own child with whom in the normal situation, he shall have a free access and interaction and could shower his love and affection, if the relation between the parents was normal; this also is true position vice versa. Reliance is placed at 2009 CLC 1443 Lahore

 

The third important character is the Child himself, who under the law of nature should have the privilege of the love and affection of both the parents, which is one of the greatest blessings of Allah Almighty, but if for certain reasons, the parents on account of their discord and disparity have fallen apart, the Child shall not be deprived of having the maximum of what he/ she could achieve from either of the parents. And it does not behoove of the adversary parties, who may even have hatred towards each other to claim exclusive possessory rights over the child to the exclusion of others, as one could demand in the matter of property disputes etc. it is further an admitted notion of law that the Visitation Rights of a real Non Custodial Father involves the rights of minor toward their father as well. Hence without assigning any valid reason while staying/ granting an ad interim injunction to the Custodial Parent in an Appeal merely on her affidavit on the first date of hearing is an act that tantamount to deprive the minor from his fundamental rights protected under multiple provisions of the Constitution of Islamic Republic of Pakistan 1973. Reliance is placed at 2019 MLD 804 Karachi

It is therefore observed to be the need of the hour that some serious steps should be initiated by our superior judiciary in this regard and to curb the abuse of process of law being carried out in the name of welfare of minor shall be brought to a halt. Special education and workshops are required to be conducted to cause awareness for the Learned Guardian Judges that they are obliged to pass speaking orders while acting as a Judge and while curtailing Civil Rights of Non Custodial Parents (fathers mostly) they must assign valid reasons as to why a minor should be produced in a court premises for the purposes of meeting his Non Custodial Parent, especially when every case is required to be decided on its own facts.

It is further most humbly suggested that the Learned Judges appointed as Guardian Judges, shall be given special training to the effect that the principles of Natural Justice are fully applicable in Guardianship Proceedings as well, if an accused is the most favourite child of a criminal law than a Non Custodial Father shares almost the similar status in Child Custody litigation, hence he should be considered a human being at least if not a most favourite child of law and must be given basic amenities, he is entitled under the Constitution of Islamic Republic of Pakistan,

That the Honourable Chief Justice of the Lahore High Court is requested through this Article that please take notice of the helm of affairs being carried out in the Guardian Courts throughout the Province of Punjab and a direction be issued to all the Learned Judges functioning within the supervision of this Hon’ble Court, in the Province of Punjab,   to ensure protection of Fundamental Rights of Fair Trial, Right of Privacy and Dignity of Man, Right of Fair Trial and other rights of children from broken families and of the non-custodian parents, by announcing a reasonable at home “MINIMUM STANDARD” visitation schedule right from the start of the Child Custody Litigation, in the similar manner as that of the fixation of interim maintenance allowance under the provision of Family Courts Act 1964. This relief of “minimum at home visitation schedule” should be available to all non-custodial parents without discrimination from the very beginning of the trial, at least during the interim stage till the final disposal of litigation pending adjudication before the Learned Guardian / Family Judges respectively.

References

  1. Constitution of Islamic Republic of Pakistan
  2. Family Court Act 1964
  3. General Clauses Act 1897

Citations

  1. PLD 1958 S.C 41; 1998 SCMR 2268; PLD 1998 S.C. 388 ; 2002 PLD 267 Supreme Court ; 2009 CLC 1443 Lahore; 2010 PLD 119 Karachi; 2012 SCMR 1235; 2019 MLD 830 Karachi; 2019 YLR 815 Karachi

 

Fahad Ahmad Siddiqi

The writer is a Lahore based lawyer advocating for adoption, application and implementation of principles of shared parenting, for the grant of annual visitation schedules comprising of at home frequent visitation rights to the already divorced affected minor children and for the rights of non-custodial parents involved in child custody litigation in Pakistan. He can be reached at qaslaw@gmail.com

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