Peer-reviewed article

CHILD PARTICIPATION IN CUSTODY DECISIONS: LEGAL PERSPECTIVES AND ETHICAL CONSIDERATIONS

Tehreem Farrukh · 10 Nov 2023

Abstract

This paper explores the rights granted to children in custody matters in Pakistan as per the law. Its aim is to examine the provisions of the Guardian and Wards Act of 1890 (hereinafter referred to as Act 1890) and Islamic law, analyzing judicial precedents to identify any loopholes and deficiencies. Additionally, the research paper focuses on highlighting the gaps and deficiencies present in the provisions concerning child custody in Pakistan. It argues that the Act 1890 grants domestic courts broad discretionary powers when dealing with custody disputes, leading to inconsistent judgments. Given the importance of custody in determining a child's welfare after parental divorce, it is concerning that Pakistan lacks comprehensive laws regarding the rights of children to be heard and give consent in such disputes. The Act of 1890 provides limited guidance on the rights of children to be heard and give consent in custody disputes, leaving it largely up to the court's discretion, which often leads to conflicting rulings. Due to the lack of clear legal provisions in the Act, parties involved in custody issues have to rely on case laws to find guidelines. The paper will propose specific measures to reconcile the existing fragmented practices. It will also suggest laws and remedies implemented by other developed countries worldwide to address the gaps and loopholes in the provisions of the Act of 1890, ultimately aiming to improve the well-being of children involved in custody disputes.