Introduction
In Pakistan, the rights of women who choose to remarry after divorce and bear the additional responsibility of children from previous marriages are clouded by societal taboos and entrenched legal complexities. This article goes deeper into this intricate web of legal principles, societal norms, and recent jurisprudence. It focuses intensely on a landmark judgment by Justice Ayesha Malik to examine the following crucial questions:
1. Do women retain custody of their children after remarrying?
2. Can stepfathers adopt their stepchildren?
3. Why does a deep-seated societal taboo persist against divorced women remarrying, especially when they have children?
The case of Raja Muhammad Owais vs. Mst. Nazia Jabeen stands as a testament to the countless women in Pakistan who endure the injustice of losing custodyof their children due to remarriage. This article aims to shed light on their plight by examining the broader legal framework in Pakistan, including Islamic Shariah Law and international conventions, in order to unveil the glaring gender hypocrisy that lurks beneath the surface.
I. The Case of Raja Muhammad Owais vs. Mst. Nazia Jabeen
The heart-wrenching case of Raja Muhammad Owais vs. Mst. Nazia Jabeen serves as a painful reminder of the struggles faced by countless women in Pakistan. This case unfolds as follows:
1. The petitioner and respondent were once united in marriage and blessed with four children.
2. Their marriage, like many others, succumbed to the weight of its own problems and ended in divorce on 30.01.2017.
3. The respondent, seeking custody of her four children, bravely disclosed her remarriage during the custody application.
4. Two of the children made an autonomous choice to live with their mother, prompting their move on 15.11.2017.
This courtroom battle centered on the mother’s right to retain custody and the heart-wrenching revelation that her remarriage had become the fulcrum upon which her maternal rights teetered.
II. Legal Framework: A Cloak Of Hypocrisy
A. Islamic Law and the Gender Divide
Islamic law, as it is interpreted in Pakistan, addresses the custody of children after a divorce, adding another layer to the injustice faced by women who choose to remarry. D.F. Mullah’s Mohammadan Law elucidates that a mother is entitled to the custody (hizanat) of her children until specific age milestones are reached. However, if she chooses to remarry, custody is abruptly considered the exclusive prerogative of the father. This principle, cloaked in an aura of traditionalism, is far from absolute; it is subject to the welfare of the child, as highlighted in several Supreme Court judgments.
1. Muhammad Siddique v. Lahore High Court (PLD 2003 SC 887)
2. Mst. Shahista Naz v. Muhammad Naeem Ahmed (2004 SCMR 990)
3. Mst. Hameed Mai v. Irshad Hussain (PLD 2002 SC 267)
4. Shabana Naz v. Muhammad Saleem (2014 SCMR 343)
These judgments, while striving to dispel the prevailing bias, emphasize that the welfare of the child should always reign supreme. They remind us that a mother’s remarriage should not constitute an automatic disqualification for custody, urging us to recognize exceptional circumstances that may warrant her retaining custody.
B. International Conventions: Breaking Free from Chains
Pakistan ratified the United Nations Convention on the Rights of the Child (UNCRC) in 1990, albeit with reservations based on Islamic law.
However, the year 1997 witnessed a significant change, as those reservations were finally withdrawn, unequivocally bringing the UNCRC into full effect within Pakistan’s borders.
The UNCRC unequivocally places the best interests of the child at the forefront of all actions involving children, including custody matters. It recognizes the child’s inherent right to be cared for byparents and encourages children’s participation in custody decisions, setting a precedent for a progressive society.
III. The Burden of Hypocrisy: Societal Taboos and Gender Bias
In Pakistan, societal norms, entrenched in a long history of patriarchal dominance, continue to stigmatize remarriage for divorced women, particularly those with children. This unforgiving societal taboo roots itself in traditional norms, limited perceptions of morality, and persistent gender bias.
Women who contemplate remarriage often find themselves standing at the crossroads of personal happiness and the potential loss of custody of their children, especially their daughters. The weight of this hypocritical gender disparity is immense and unjust.
IV. Justice Ayesha Malik’s Judgment: A Ray Of Hope
Justice Ayesha Malik’s judgment in the case of Raja Muhammad Owais vs. Mst. Nazia Jabeen shines as a beacon of hope in the shadowed lives of these women. Her decision courageously proclaims that the welfare of the child must always stand as the primary criterion for custody.
It is a judgment that echoes the principles of previous Supreme Court rulings, declaring unequivocally that a mother’s remarriage should never be an absolute disqualification for custody. Justice Ayesha Malik’s judgment, though a welcome stride, should have manifested much earlier, considering the lives it impacts.
V. Women's Right to Live Unburdened
Above all, every woman deserves the right and freedom to live life on her own terms. It is a fundamental human right, recognized internationally, and even understood and accepted by children themselves. The end of a failed marriage should never condemn a woman to a life devoid of personal choices and happiness.
Pakistan’s legal framework, deeply rooted in Islamic Shariah Law, permits men to marry multiple times and similarly allows women to remarry following the
Iddat period, ostensibly emphasizing gender equality. However, the persistence of societal biases and gender stereotypes paints a starkly different picture.
V. Conclusion: Challenging Hypocrisy, Restoring Justice
In conclusion, the legal rights of women who dare to remarry while bearing the weight of children from past marriages are ensnared in a web of evolving legal interpretations and deep seated societal norms.
While South Asian societies, especially Pakistan, have historically stigmatized remarriage for divorced women, recent legal judgments, exemplified by Justice Ayesha Malik’s verdict, strive to rectify this glaring hypocrisy. The legal framework in Pakistan, deeply rooted in Islamic principles and international conventions, fervently upholds the welfare of the child as the ultimate criterion in custody matters.
It is imperative that we continue to challenge societal taboos and gender bias, allowing every woman to exercise her right to live life on her own terms, free from the unjust restrictions imposed upon her by the shadow of her past.