Phenomena of Plight of Single Parent Families & Need for Reforms in Guardian/ Family Courts

Since the 90's there has been a great deal of change in the mindset of men, women and families towards carrying on with a bad marriage. Since then attitudes toward divorce, second marriages and single parenthood have drastically changed however Courts have not been able to address this phenomena through adequate reforms. Given that there has been considerable increase in these cases with around one million or more pending cases in family and guardian courts of Pakistan. Such magnitude of pending litigation is due to weak legal reforms, inefficient case management systems and lack of understanding of judges with respect to single parent family units .

Going to a family and/ or Guardian court is nothing less than a trauma or truly a night mare for any litigant/parent. Reason being they are not aware of the court procedures, misguided and are not ready for the delays and inadequacy of so called "relief" meted out to them. Strangely these delays seem to be out of control of the courts themselves and have been so for last three decades. The key issues in single parent cases are custody and maintenance and these cases take at least two years or more to be decided. In the meanwhile, as interim arrangements, very low maintenance is ordered for fathers to pay which places mothers at a complete disadvantage, while the father enjoys visitation rights.

There are some disturbing statistics of back log and over burdened judges in these courts . The statistics at Guardian court, Lahore shows that 7 Guardian Judges are dealing with 9484 new cases and 16 judges at Family court are dealing with 16215 new cases annually. There are already 25699 pending cases in these courts. In addition both Guardian and family judges are required to hear other civil matters such as succession cases. Accordingly on an average each judge is dealing with at least a 1000 cases in a year. How can there be justice if judges are overburdened? resulting in applying same court orders in most cases without going in distinguishing factors of each case which is very important for dispensation of justice. Custodial disputes are the most volatile cases in Guardian courts with an average of 18000 cases filed annually only in Lahore.

There are 156 districts and 404 tehsils with Guardian courts and by a rough estimate almost one million Guardian cases are being filed annually and almost the same number of these cases already pending in Guardian courts around the country. This is a serious quantum of custody/family cases and yet both judiciary and government seem oblivious to the seriousness of these matters and connected child/family welfare issues. There is need for urgent reforms to manage quick disposal and reduce this backlog for welfare of families. There is a dire need to set up separate complexes for Family and Guardian courts where all facilities for children be provided for visitation.

Most of the parents are willing to forego their right of visitation as they refuse to meet children in dismal condition at present court premises. Another issue is of compliance of court's visitation schedule which is a nightmare for the custodian parent. Visitation is generally used as blackmailing tactic by the father, who can continuously violate the visitation schedule by unlawfully keeping children for weeks and courts in practice cannot provide relief to the mother unless habeas corpus petition is filed for physical recovery of the children. Guardian courts seems to be completely helpless in getting visitation orders implemented and recovering children from practice of visitation parental kidnappings. In such cases of violation it becomes extremely important to provide guideline to judges to order visitation only in court premises, enforce orders for recovery or production of children through contempt proceedings and award heavy financial penalties or arrest the violators.

In practice there are only warnings given and no penalty, costs, arrests or punishment is awarded to the violating party. In custody cases mostly women have to run from pillar to post to ensure adherence of the father not only to visitation schedule but also to get regular maintenance payments. In section 12 A of the Family Courts Act, 1964, it is clearly stated that maintenance cases are to be decided within 6 months from filing however in reality it takes at least two years. In the meanwhile the interim maintenance awarded by the court is ridiculously low, which does not correspond to the financial status of the father and is used to add misery to the women as custodial parent.

There are many instances where the fact is blatant and obvious on record to the judge, that a father can pay much more and still the judge orders a meager amount as maintenance. There are many cases where father who has declared earnings of Rs 1 crore a month and was ordered to pay Rs 25000 per child, in another instance a rich landlord was ordered to pay Rs 6000 per child. It is apparent most of the times these judges are not even applying their minds. To add to this injustice, law does not allow appeal in interim maintenance and for next two years the mother and children suffer due to almost no financial maintenance. This leaves the women completely at mercy of the father of the children, who uses delaying tactics to avoid final decision and even if at all there is a final order minimal amounts are awarded not proportionate with financial status of the Father.

In order to reduce plight of single mothers and children, immediate measures on emergency footing should be taken. Some could be to:

• double the number of judges in existing family and guardian courts for hearing exclusively these cases;
• provide special training on family laws and custodial matters to judges while updating them with present economic- social realities;
• guidelines to be provided to these courts with respect to ordering adequate interim maintenance amounts, realistic visitation schedules with powers of recovery of children and ways to get the aforesaid implemented;
• cases to be supervised to be decided within 6 months and if judge cannot satisfy on reasons for delay, then such case must be transferred to another judge to be decided within 60 days;
• ensure timely justice by not allowing frivolous applications and adjournments, adding costs to parties for seeking more than three adjournments in 6 months period;
• Non performing judges should be taken to task and vii) if maintenance is not paid regularly, no visitation right should be given to the parent or suspended to force the father to pay maintenance.

It is a grave state of affairs that mostly for mothers, as custodial parent, it is a constant spiral of litigation to get relief through damaged court system and she is made to suffer at hands of the outdated legal process which lacks emotional and financial empathy placing her at complete disadvantage. Justice is hence denied.