Second marriage alone no bar to custody, rules Peshawar High Court

PESHAWAR: A single-member bench of the Peshawar High Court has ruled that a mother's second marriage cannot, on its own, be treated as a conclusive ground for denying her the custody of her child, holding that such disputes must be decided on an assessment of the child's actual circumstances rather than the parent's marital status.

Justice Mohammad Naeem Anwar, sitting alone, said the court in custody matters was required to undertake an objective assessment of the minor's existing circumstances, emotional attachment, settled environment, educational needs and the comparative suitability of the custodial arrangements being proposed.

Dawn reported that the bench described this as a settled principle of law governing the question of custody, and set out those tests as the basis on which a court should decide where a child lives. ProPakistani carried the same account of the ruling, reporting that the high court held a mother's second marriage alone cannot justify denying her custody.

The effect of the reasoning is that a remarried mother is not to be treated as automatically unsuitable as a guardian; instead, the court is to weigh how a change of custody would affect the child's surroundings, schooling and emotional ties against what each parent can offer.

The reports did not identify the parties to the case, the case number or the date on which the order was passed, and it was not stated whether the ruling came in an appeal against a decision of a family court.

Custody and guardianship disputes in Pakistan are heard first by family courts, with appeals lying before the high courts. Questions over whether a mother who remarries forfeits custody have repeatedly come before the superior courts, and the outcome has generally turned on the welfare of the minor rather than on a fixed rule.

The Peshawar High Court's order adds to that line of authority in Khyber Pakhtunkhwa, and lawyers representing parents in guardianship proceedings are likely to cite it where a father's case rests chiefly on the mother's remarriage.

No detailed judgment text was available in the reports on which this article is based, and no statement from either side in the case was carried.