ISLAMABAD: Giving protection to mothers in relation to the custody of their children, the Guardians and Wards (Amendment) Act 2020 bill passed by the upper house of parliament says the real mother is entitled to the custody of her male child until he attains the age of seven years and of a female child until she attains puberty or the age of 16 years.

Moved by Pakistan Peoples Party Senator Farooq H. Naek as a private member’s bill, the Guardians and Wards (Amendment) Act 2020, which is yet to be approved by the National Assembly, clarifies the existing case law and affords protection to mothers regarding their children’s custody and further purports to codify the hierarchy of preference in relation to the custody.

Section 19-A, which has been inserted along with sections 19-B to 19-G, pertains to the right of the real mother to the custody of her children.

However, in absence of the real mother, or if she renounces her right or her right is legally held to have lapsed, the custody of her son less than seven years of age and of her daughter who has not attained the age of puberty or 16 years shall vest successively in the female relatives in the following order: maternal grandmother however so high in degree, paternal grandmother however so high in degree, full sister, uterine sister, consanguine sister, full sister’s daughter, uterine sister’s daughter, consanguine sister’s daughter, mother’s sister and father’s sister, according to Section 19-B of the amended law.

When none of the women, eligible for custody under sections 19A and 19B, are available or willing to accept it or such a woman is disentitled to Hizanat, the male relatives shall then become eligible for the custody of the child in the following order: father, maternal grandfather however so high in degree, paternal grandfather however so high in degree, full brother, uterine brother, consanguine brother, full brother’s son, uterine brother’s son and consanguine brother’s son, states Section 19-C.

Similarly, when none of the persons mentioned in sections 19A, 19B and 19C are available or in case they are unwilling to accept or their Hizanat (legal right to custody) has lapsed, Hizanat shall then vest in the nearest relative by order of inheritance subject to the welfare of the child provided that in deciding where the right shall vest preference shall be given to the female relatives of the child. The right of Hizanat under sections 19-A, 19-B or 19-C of the Amendment Act may lapse only if the court decides that a child’s welfare does not lie in being in the custody of such person.

Notwithstanding the provisions of sections 19-A to 19-E, where the male child has reached the age of seven and the female child has reached the age of ten years, his or her preference custody shall be given due consideration.

Published in Dawn, February 9th, 2022