The Best Interests of the Child: A Prevailing Consideration within Islamic Principles and a Governing Principle in Child Custody Cases in Pakistan

Abstract

Few legal scenarios are as emotionally charged as child custody disputes in divorce cases. Such disputes traumatize parents and adversely affect the concerned child who has to face loss of relationship, or at best, reduced relationship with one parent, a change of friends, home, school and even country of residence in some cases. This article focuses on existing laws concerning child custody in Pakistan in the context of their grounding within Islamic principles of custody and guardianship. It is not intended to argue for or against Islamic law but to analyse the approach taken by Pakistani Superior Courts when interpreting existing statutory provisions and the extent to which these decisions are taken in reference to underlying Islamic principles concerning custody of children. Case law of Pakistani Superior Courts from at least the past 5 years will be the source of this analysis particularly concerning the principle of the welfare of the child and how this particular objective has if at all played a role in court decisions favouring one parent over the other when awarding custody.