The Supreme Court of Pakistan has ruled that a child is not a "passive recipient" of adult decisions amid his or her parent’s divorce, going on to state that a mother’s employment does not diminish her suitability as a custodian.

 

According to journalist Benazir Shah, the apex court, in a recent order authored by Justice Mansoor Ali Shah regarding the custody of children after parents’ divorce, ruled that a child was not a passive recipient but an active rights-holder whose voice must be heard when determining custody or guardianship.

 

The court also ruled on what a mother’s employment meant in the case of a custody battle. “More importantly the judgement added that a mother’s employment does not diminish her suitability as a custodian,” Shah wrote in a post on X.

 

She further quoted the court as saying that a mother’s employment reflected her resilience and commitment to providing a secure, nurturing and dignified upbringing for her children.

 

“While fully mindful of the limited scope of our review jurisdiction, we deemed it necessary to revisit the matter in light of two foundational principles enshrined in the UN Convention on the Rights of the Child (CRC): Article 3, which mandates that the best interests of the child shall be a primary consideration in all actions concerning them; and Article 12, which guarantees every child the right to express their views freely in all matters affecting them, with due weight given in accordance with their age and maturity,” read the ruling, a copy of which is available with The Current.

 

Referring to failure in providing the children an opportunity to be heard, the court said it found it imperative to re-examine the case to ensure that their rights were not only acknowledged but meaningfully upheld. “To rectify this oversight and to ensure that the children’s welfare and perspectives were given due consideration, this court deemed it necessary to interact directly with both children involved.”

 

The top court also stressed the importance of the child’s voice, justice and the judicial obligation to apply a child-centered framework.

 

“We underline that a child must be heard so that her best interests can be properly understood and protected. The participation of a child in legal proceedings is not a formality; it is fundamental to a justice system that respects the dignity and agency of the child. Listening to the voice of a child gives them a sense of worth, inclusion, and trust in the judicial process,” it said, adding that listening to a child did not mean obeying them, but rather understanding their perspective deeply enough to act in their best interests.

 

On mothers’ employment as a factor in determination of securing custody of a child, the court ruled that Article 16 ensured equality in matters of marriage and family life, including the rights and responsibilities of parents, irrespective of marital or employment status.

 

“General Recommendation No. 21 on equality in marriage and family relations under Article 16 specifically calls for states to ensure that custody and guardianship laws do not discriminate against women on the basis of their employment status and uphold shared responsibility of parents for child-rearing,” the court said.

 

It maintained that to penalise a mother for exercising her right to work would run afoul of these guarantees.