It is a legal myth that the rights granted to a woman under the law are adversely affected if she chooses to remarry, especially if she is a mother. Widowed or divorced women have the same legal right to marry as women getting married for the first time.
Moreover, the remarriage of a woman does not affect her legal rights in a marriage. She is as independent to decide the terms of her marriage, as any other woman would be.
Furthermore, the second marriage of a mother does not automatically disqualify her from the custody of her children, and is only one factor amongst many to be considered in the granting of custodial rights.
This matter was settled by the recent judgment of the Supreme Court of Pakistan, Raja Muhammad Owais v Mst. Nazia Jabeen, 2022 SCMR 2123, delivered by Justice Ayesha Malik, wherein the court once again clarified that the second marriage of a mother cannot be a standalone reason to disqualify her right to custody; instead, the paramount interest is the child's welfare (whether a girl or a boy) and not the interest of the parents.
To determine the welfare of the child, the entire living arrangement has to be considered.
The same consideration regarding the welfare of the child would be equally applicable to a father’s second marriage as well.
Therefore, as long as the mother can show that she will be able to ensure her child’s best interest, no one has the right to take her children away from her on account of her second marriage. Such an act would be against the law.
It is also important to note that the principle of the ‘welfare of the child’ supersedes any stipulation that may be made in a marriage contract / nikkahnama regarding custody of a child, such as ‘if the wife contracts a second marriage, she will hand over custody to the husband’.
Ultimately, the question of custody will be decided based on the existing circumstances of the parents and granted to the parent that can actually ensure the welfare of the child. This
covers not only the manner in which the child has to be cared for but will also include the physical, mental and emotional well-being of the child.
While both Islam and the law permit a woman including a mother to remarry, the society habitually disapproves. Divorced women are often blamed for being divorced and therefore considered less eligible and entitled to remarriage. Mothers in particular are told to focus on their children and that remarriage will lead to their children being neglected to even worse, taken from them. There is no doubt that these statements are part of the social realities women find themselves in, but it is best to encourage women to focus on the legal realities: that they have the right to remarry, equal rights in the marriage, and especially if they have children, that they will not be required to surrender their custody as a prerequisite or a consequence of the second marriage.