The law considers minors mentally and physically weak to safeguard their interests regarding their person and property and that is why the State having the responsibility to protect the rights of minors has made statutory provisions in the form of The Guardians and Wards Act, 1890.
The State from the earliest times is supposed to be the guardian of the infants, and the earliest regulations gave effect to this principle and made provisions for the custody of minors and when the State assumes direct custody of the infant it undertakes to bring up the boy as his natural father or guardian would have done, that is in the traditions of the family to which after becoming major he has to revert.
The prime object of Guardians and Wards Act,1890 is to safeguard the interest and welfare the minors by appointing and declaring title of guardian to the custody of a ward in favor of a fit and suitable person.
A Court while acting as guardian judge exercises parental jurisdiction and it is a primary responsibility of a guardian judge, while adjudicating upon cases of appointment of guardians of person and property of minors or declaration of title of guardian to custody of wards, to play his role as a watchdog for the interest and welfare of minors. The welfare means both material and spiritual welfare of the minors.
Therefore, in deciding guardian cases which are sensitive in nature an arduous and cautious duty falls upon a guardian judge to keep in view the paramount consideration i.e the welfare of the minor and that is why it is a rationale behind the fact that jurisdiction to entertain applications under the Guardians and Wards Act,1890 in view of Section 9 of the Act vests with the District Court or under Section 4-A of the Act is ordinarily delegated to the Senior Civil Judge of the District.
The definition of term visitation rights does not find mention in the Guardians and Wards Act,1890. But according to Black s law Dictionary Visitation or Visitations Rights means in family law, visitation refers to non-custodial parent s right of access to his child; while non-custodial parent is responsible for the care of a child during visits, visitation differs from custody because non-custodial parent and child do not live together as family unit.
In marriage dissolution or custody action, permission granted by Court to a non-custodial parent to visit child or children. The Guardians and Wards Act,1890 is an old statutory law came into force on the first day of July 1890 which is one of the subject and enactment of family law but it embodies no provisions regarding visitation rights.
In Pakistan it was in the year 2002 when visitation rights were given statutory effect by an amendment in the Schedule of West Pakistan Family Courts Act,1964 and visitation rights were granted to the non-custodial parents.
It does not mean that prior to the said amendment the Courts did not grant visitation rights to the non-custodial parents but Courts keeping in view the facts and circumstances of each and every case used to award visitation rights to the non-custodial parents. However, it is a bounden duty of a guardian judge while granting visitation rights to maintain an equilibrium between a father and mother because psychologically any disassociation or deprivation of fatherly or motherly love and affection to the minors may likely cause them split personality disorder which is highly injurious to their future upbringing and welfare.
Under the Guardians and Wards Act,1890 usually three types of applications are filed i.e. application for the appointed guardians of person and property of minors, application for the declaration of title
to permanent custody and application for interim custody of minors.
The first application is moved under Section 7 by the persons mentioned in Section 8 of the Guardians and Wards Act,1890. Ordinarily, an application for permanent custody of minors under Section 25 of the Guardians and Wards Act,1890 is accompanied by an application under Section 12 for interim custody of the minor.
The decision of application under Section 7 has no concern whatsoever with the visitation rights whereas while deciding applications under Sections 25/12 of the Guardians and Wards Act,1890 a guardian judge lays down a visitation schedule by which a parent whose application for interim or permanent custody having dismissed is granted visitation rights to meet his or her minor child once or twice a month for one or two hours in or outside the Court.
The application under Section 12 is decided on the basis of the prima facie evidence available on record with a guiding factor of the welfare of the minor. Whereas the application under Section 25 of the Guardians and Wards Act,1890 is decided after taking down evidence of the parties and recording finding on a single or main issue whether it is in the interest and welfare of the minor that the petitioner is entitled to the permanent custody of minor or in whose custody welfare of the minor lies.
After fixation of visitation schedule pragmatically in order to streamline it and have a close watch and monitor of visitation rights by the guardian judge a meeting sheet or Parcha Mulaqaat is also drawn up which contains following particulars:-
(i) Title of a case;
(ii) Name of party/parent to produce the minor (s);
(iii) Name of party/parent to meet the minor (s);
(iv) Name(s) or number of minor(s);
(v) Venue/place of meetings;
(vi) Number and days of periodic of meetings in a month;
(vii) Time and duration of periodic meetings,
The venue/place of meeting should be cautiously decided and in deciding the same primarily factors like the welfare of the minor(s), convenience and mutual antipathy/bitterness between the parties should always be considered. Similarly, number, time and duration of periodic meetings must be rational and reasonable not affecting the minors.
The visitation rights for overnights should be granted in exceptional cases because shuttling of minors from one parent to the other may environmentally mal-adjust them which materially impacts the mental health and education of the minors. As the guiding consideration in deciding guardian cases and fixation of visitation schedule is the welfare of the minor and in order to achieve this paramount consideration the following principal considerations as laid down in Section 17 of the Guardians and Wards Act,1890 are kept in view namely:
(c) The religion of the minor,
(d) Character and capacity of the proposed guardian,
(e) Nearness of kin to the minor,
(f) Wishes of the deceased parent,
(g) Any existing or previous relations of the proposed guardian with the minor or his / her property,
(h) If the minor is old enough to form an intelligent preference, that preference has to be considered.
In Lahore, two guardian Courts were performing their functions since long but due to the rush of guardian cases Lahore High Court, recently in the month of March 2008, constituted a third Court in which the writer has been appointed as a guardian judge. In most of the private schools of Lahore, there is a weekly holiday on Saturday so with the object that education of minors should not be affected by visitation schedule usually Saturday is fixed by these three guardian Courts for periodic meetings for the non-custodial parents to meet their minor children in the Court premises.
Previously in these three Courts on each and every Saturday an average of 200 to 300 minors used to meet their non-custodial parents in a congested and packed atmosphere of Court premises but recently in the month of December, 2008 under the direction of Chief Justice Lahore High Court a beautiful, well-arranged and facilitated meeting room has been constructed where non-custodial parents of minors meet with their minor children conveniently, safely and comfortably.
The visitation rights are also granted to the non-custodial parents of minors after recording evidence of the parties in petition under Section 25 of The Guardians and Wards Act, 1890 which is adjudicated upon with a deciding factor i.e the welfare of the minor and in both the cases of either acceptance or rejection of petition the non-custodial parent is granted periodic visitation rights once or twice a month for a specific time.
The Court in exceptional cases, while keeping in view the paramount consideration of the welfare of the minor, may grant visitation rights for overnights. Similarly at the time of final disposal or during the pendency of petition under Section 25
The Guardians and Wards Act, 1890 the Court also lays down visitation schedule for special occasions like Eid Ul Fitr, Eid Ul Azha, summer vacations or birthdays of minors. During the pendency of petition under Section 25 the Guardians and Wards Act, 1890 a guardian Court on the application of non-custodial parents also grants visitation rights to them for summer vacations and on special occasions like Eid Ul Fitr, Eid Ul Azha and birthdays of minors.
According to Sections 352 and 357 of D.F Mulla s Principles of Muhammadan Law the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty whereas the father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty.
But in view of judicial precedents of Superior Court of Pakistan it is a trite law that notwithstanding the right of the mother or father for the permanent custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor. My personal experience tells that there are negligible cases in which custody of a minor is shifted from one parent to the other.
A parent having custody of minor is allowed to continue to retain custody of minor unless there is immediacy of the threat to the interest and welfare of the minor in the continuance of such custody. Since a mother of the minors is considered as a God s cradle on earth that is why in most of the case she is awarded to continue to the custody of minors especially where minors are suckling babies. In this context, a comparative study of our country and U.S indicates that according to more recent U.S Census Bureau divorce statistics, about 2.5 million people get divorced each year.
According to the National Center for Health Statistics (NCHS), nearly 75 percent of all child custody awards are made to the mothers. Only about 10 percent of child custody awards are made to fathers. The rest of the child custody awards involve some sort of joint custody arrangement.
In the Courts at the time of visitation of minors with their non-custodial parents’ very sentimental scenes are seen where often an emotionally charged atmosphere is created. Such situation is created due to the ego-centric attitude of parents of minors which substantially affects the welfare of innocent minors a lot and demands parents to resolve their disputes of child custody amicably by adopting tolerant attitude only for the welfare of the minors.
It is my personal experience that a guardian judge through his concerted efforts by convincing the parents of the minors and with their mutual consensus can decide extremely complicated and knotty cases amicably which shall not only result in expeditious and inexpensive justice but also reduce the heavy backlog of cases and objectively prime consideration of the welfare of the minors can also be achieved significantly.
The writer is a Guardian Judge currently posted at Lahore.