Right of Hizanat in Islam and Determining the Right of Custody of Minors through Alternative Dispute Resolution (ADR) in Pakistan

Authors

  • Shakeel Ahmed Advocate High Court & LL.M Scholar at university of Karachi.
  • Abdul Rasheed Lecturer, Department of Islamic Studies, Bahria University Karachi.
  • Mosa Lakhani Senior lecturer, Bahria University Karachi.

Keywords:

Hizanat, custody of minor, Alternative Dispute Resolution, Guardian and Ward.

Abstract

In Pakistan, the Guardian and Wards Act, 1890, stands as the primary legislation governing the custody of minors. Islamic principles recognize the mother as the de facto guardian, with specific age-related considerations in both Hanafi and Shia laws. The Act classifies guardianship into custody, property, and marriage guardianship. Emphasizing the critical role of nurturing children for a prosperous future, disputes over custody often lead to protracted legal battles. The traditional court-centric approach, involving hearings, evidence, and visitation rights, not only affects the minors negatively but also incurs time and financial burdens on the father. Recognizing these challenges, an emerging solution is Alternative Dispute Resolution (ADR), a set of practices outside the courts, aiming for efficient legal dispute resolution  
In Pakistan, both informal and formal Alternative Dispute Resolution (ADR) mechanisms are actively employed. Informally, systems like Jirga and Panchayat have long been utilized for justice administration. Formally, various laws, including the Arbitration Act 1940, Section 89-A of the Code of Civil Procedure, 1908, and Sections 10 and 12 of the West Pakistan Family Courts Act, 1964, provide provisions for the establishment and legitimacy of ADR. This paper advocates for the adoption of ADR in custody disputes, emphasizing its potential benefits for the well-being of minors, as well as the parents. The research explores Islamic law principles concerning minor custody in Pakistan and delves into the application of ADR mechanisms in resolving such cases. In the context of divorce and separation, this research study explores the complex area of child custody within the framework of Islamic beliefs and Pakistan's legislation. The increasing number of divorces in the country today raises important questions about child custody, which calls for a thorough examination of the Islamic Rights of Hizanat and the function of Alternative Dispute Resolution (ADR) processes.

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Published

16-03-2024

How to Cite

Shakeel Ahmed, Abdul Rasheed, & Mosa Lakhani. (2024). Right of Hizanat in Islam and Determining the Right of Custody of Minors through Alternative Dispute Resolution (ADR) in Pakistan. INKISHAF, 4(11), 72–90. Retrieved from https://inkishaf.org/index.php/home/article/view/381

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