Child’s Preference of the Parental Custody: Islamic Law, Theory and Practice

Abstract

This article attempts to deliberate the capability of the children to make decision about which of the parents they choose to live with under Islamic and Pakistani Family Law. The article refers to aḥdith, Islamic Law, Pakistani law, and case laws related to relevant issue. A comparative study of Islamic Laws and trends of Courts in Pakistan is carried out to examine the principles relating to minor’s choice in custody disputes after divorce under Islamic law, and civil law in Pakistan. This study is therefore not limited to descriptive research but rather it also takes the shape of comparative study in nature. In the current study, an effort is made to bring out the approach of Pakistani Court to consider the minor’s choice whether court practice is according to Islamic law or contrary to it. The article is delimited to the discussion on children’s capability of making intelligent preference only in case of separation between both parents under Islamic and Pakistani Law. In the end, it is suggested that the parameters should be laid down under Pakistani Law for children’s capability of making intelligent preference about which of the parents they choose to live with.