Post-Divorce Guardianship and Men
The case of Feminist Zealots in Pakistan
By: Waqas A. Khan
The desire to marry the opposite gender of choice is a human instinct. However, the pretty dress, standing before family and friends, the party, honeymoon and all the dinners come to an end when one from the couple decides to break their wedlock.
In our country, most divorces are initiated by men. Dominated by chauvinism, taking their wife as a slave or paid “substance,” they use divorce as an ever-present threat to keep her within prescribed limits. These limits often are humiliating and derogatory to the wife.
Women, who decline to submit to such “limits,” are divorced. A huge percentage accepts it as their fate without any further consequences to the aggressor. But thanks to a growing awareness of women rights, more divorced women are approaching the courts to receive their due as per law.
In Lahore alone, from February 2015 to February 2016, about 60, 000 divorce cases were registered. As the awareness about women rights and the laws specific to women are increasing, the balance of aggression also is changing. In 2015, 66% of the divorce cases, in Lahore, were filed by the females; although this does not hint that in these who the aggressor was. Laws focusing on female empowerment and the freedom to exercise independent choice, are meant to change the attitude of men toward them. That does not negate the fact that most men in Pakistan take their wives as hostage or booty.
In some cases, though, women bring the relationship to an end because of their wicked interests or by creating circumstances in which the wedlock cannot be sustained. These women usually are aware that whatever the circumstances, and whoever the aggressor, that the courts will favor them. These women “design” their cases to make them look like “victims.” Their presence in court becomes a reason to deny justice to the victim men because of the many female-specific laws in the absence of male-specific laws to prevent such misuse.
Female-specific laws in Pakistan include:
- The Guardians and Wards Act, 1890
- The Foreign Marriages Act, 1903
- Child Marriage Restraint Act, 1929
- The Dissolution of Muslim Marriages Act, 1939
- The Muslim Family Laws Ordinance, 1961
- West Pakistan Rules Under The Muslim Family Laws Ordinance, 1961
- West Pakistan Family Court Act, 1964
- West Pakistan Family Court Rules, 1965
- Dowry and Bridal Gifts (Restriction) Act, 1976
- Dowry and Bridal Gifts (Restriction) Rules, 1976
- The Hudood Ordinances, 1979
- Qanun-e-Shahadat Order, 1984 (Law of Evidence)
- The Pakistan Citizenship Act, 1951, partially amended in 2001
- Amendments in Family Courts Act for khula etc. in 2002.
- The Criminal Law (Amendment) Act, 2004 (on ‘honour’ crimes)
- Protection of Women (Criminal Laws Amendment) Act, 2006
- Criminal Law (Amendment) Act, 2010 (on sexual harassment)
- The Protection against Harassment of Women at the Workplace Act, 2010
- Prevention of Anti-Women Practices (Criminal Law Amendment)Act, 2011
- The Acid Control and Acid Crime Prevention Act, 2010
- The Women in Distress and Detention Fund (Amendment) Act, 2011
- The Women Protection Bill (2016)
With a judicial system fast moving toward one that favors women, the argument here is not to negate or discourage the women rights, because weak women means weaker and inhuman society, but to shine light upon the men who are being victimized by the discriminatory practices of a majority family and guardian judges in Pakistan.
Fahad Ahmad Siddiqui, a renowned constitutional and practicing attorney on this subject, described the inability and cowardice of judges to go against the wrong judicial practice and public sentiment. In his view, there should be more use of the judicious mind and less reliance on the available evidence, which often is scarce in such cases. Children are used as evidentiary pawn by both the courts and the contesting parents. Mothers often are given interim and permanent custody by judges who neglect the legal rights of non-aggressor fathers.
Siddiqui said, “The aggressors in the custodial litigation often use innocent child/children as a tool to seek vengeance and feel no hesitation in inflicting severe emotional and psychological abuse on the child, thereby seriously affecting the child in his/ her development in the later part of life. Among many implications that a divorce has on the individual, family and society at large, the children of divorced couples are the ones who bear the brunt of the entire process. It is a common practice among couples to use kids as pawns in this game of emotional chess and it amounts to absolutely irresponsible parenting to scar children emotionally post separation. In due course the parents move on with their lives and onto other partners but the children carry the trauma of being manipulated and torn apart emotionally, throughout their lives. In my legal experience I have seen a large number of these kids suffering from personality disorders, substance abuse, criminal conduct and antisocial traits.”
Sardran Aman Khan Tareen, Advocate Supreme Court of Pakistan from KPK, is a famous name in family and guardianship litigation. Tackling this issue, he said, “I feel that the courts were created to prevent human feelings and emotions from being suffered by providing justice without discrimination, money and property came second. However, very few judges today take care of these feelings and emotions. Family and guardianship cases are the ones where the “whole” judicious mind must come to practice as in case of a wrong decision the children, would suffer irreparable loss.”
That is the reason he has not abandoned appearing in the District Courts in these cases even though his extremely busy schedule in the High Court and Supreme Court makes it nearly impossible to do so.
“Welfare of the minors is not connected to what the concocted children say on the whims of aggressor parent but on the judicious mind which the court must use to save the children from the permanent suffering,” Khan said.
But, there are exceptions. A few landmark judgments in this regard give a hope that somewhere, somehow, men are equal to women in the eyes of Pakistani law.
In one recent case, in the Haripur, KPK, Saima Asim, Senior Civil Judge, last month issued a landmark judgment in favor of a father who submitted in front of court that the children would live under the custody of their mother during the proceedings of a patch up and in court settlement with a hope that he would ultimately get his family united and children suffering might stop. But in response, his ex-wife, who was using his settlement statement as a means to permanently abandon her former spouse and keep him from taking the custody of children (who were receiving poor quality education and living in inhuman conditions with her), the court said: “any previous compromise or any previous order of the court cannot bind hands of the family court. Court can recall its previous order provided sufficient grounds are provided that, after previous order what were new and evolving circumstances keeping in view interest of minor.” A new petition by the father for the custody was accepted for further evidence and proof.
Ansar Jabbar Dogar Advocate believes the law is perfectly balanced, but in most cases it is rare that a court allows a child to visit his/her father. Often, the father is asked to submit a surety bond of a value as much as Rs. 20-50 lac to meet his child at home for a few hours or a day. In 2014 CLC 1168, the Lahore High Court held the “right of father to see his children could not be curtailed by imposing condition of submission of sureties every time he had to meet his own children.” But how many times have non-custodial fathers received interim physical custody of their minor children without submission of surety bonds. Sadly, the practice continues.
Ahmad Nawaz Khan Advocate is of the view that the issue of court-supervised meetings for non-custodial fathers with their children is something that needs an urgent attention. “The courts allow this meeting once in a month for 2 hours in the court premises and very few courts count these 2 hours even. It is usually come and go where the concocted children due to the extreme pressure of the aggressor, either decline to meet or start crying creating an environment which disturbs court proceedings and hence the meetings are ended.
G. A. Khan advocate said that out of 718 hours in a month, 2 such hours are awarded to the non-custodial father, making it nearly impossible for him to talk and love the children in the presence of his ex-wife. Although the higher courts in India and Pakistan have decided repeatedly that in such meetings, the custodial parents shall not sit and the non-custodial be given a fair and free time to talk to his/her children. It is important to note that the law does not even bind the courts to restrict the meeting for two hours.”
A few feminist zealots want women to have their cake and eat it, too. But we’re not speaking of sugary confections; these are children. Courts in Pakistan, must put their judicious minds to use by taking bold steps and making decisions to ensure that the children in their courtrooms do not become distant to noncustodial parent.
Children must not be allowed to lack intimacy and detachment. Without addressing this situation, they will be left to become hesitant, fearful or scared, blame the noncustodial parent for the situation, become quarrelsome and aggressive, slide into defiance and stubbornness, be filled with anxiety, become depressed, agitated or prone to temper tantrums, or lack attention, concentration, confidence and self-esteem.
They deserve better.