VISITATION RIGHTS OF GRANDPARENTS UNDER FAMILY COURTS ACT 1964

Though as a general practice almost all the Guardian Courts appreciate the fact that the absence of
interaction between the minor and his real Non Custodial Parent/ Grandparent will result in
estrangement between both the minor and the parent, and for that reason consider a periodical
meeting a necessity. However, for reasons unknown, our Courts are reluctant to allow reasonable
at home visitation rights especially when the Applicant is a Non Custodial Paternal Grandparent
in the absence of availability of a Non Custodial Father.
A right to life not only include one’s own life but also life, liberty and happiness of one’s children.
Denying a person the right of company of his children / grandchildren is as severe a penalty and a
curse on him than denying him life altogether.
It is an anomaly of law that a separation is always being affected between spouses and never
between parents hence a child in no case can be penalized for a wrong he has not committed nor
taken part in. denying a right of having easy access to a minor child towards his paternal side of
relatives is like penalizing a minor child for the separation that have occurred between his parents.
It is an inalienable right of every minor child to have free access to his both paternal side of parents,
including the Non Custodial Grandparents for an appropriate time so as to develop a bonding, love
and affection with his Non Custodial Parental side of the family.
Strangely no legal definition of word Visitation Rights/ Parents and Grandparents is available
under any of the provisions of Family Laws practiced and promulgated in Pakistan, however for
the purpose of understanding the term Visitation Rights of Grandparents we can resort to the
provisions of Section 4 of the Family Laws Ordinance 1961, it is held that Purpose of enacting S.4
in Muslim Family Laws Ordinance, 1961, was to cater the need of grandchildren to remove their
sufferings but this provision could not be interpreted in a manner affecting the shares of other
descendants in the property in accordance with law of Shariah. Reliance is placed at 2005 SCMR
1595 SUPREME-COURT
It is significant to be observed at this juncture that previously access of a separation affected minor
towards his Non Custodial Parent is regulated by the provisions of Section 12 of the Guardian &
Wards Act 1890, which often results in chalking out of a schedule comprising of as minimum as
that of a mere two hours , once or twice in a month access and interaction between the divorce
affected minor child with his / her non custodial side of parents and that too within the court
premises. To address this shortcoming and mischief the Legislature through Family Courts
Amendment (LV Ordinance of 2002) introduced an independent Entry in the Schedule as well as
in the provisions of Section 7 of the FCA 1964 Act.
The provisions of Item No. 5 of Part I of the Schedule attached with the Family Courts Act 1964
are reproduced here to below for better understanding of the term Visitation Rights;

  1. Custody of children [and the visitation rights of parents to meet them].
    Since the terms ‘visit’ or ‘visitation’ are not defined under the Guardian and Wards Act 1890 or
    Family Courts Act 1964. The ‘Chambers Concise Dictionary Deluxe Edition’ defines the word
    “visit” as to pay a call upon; to go to for sightseeing; to go to stay with; to make a stay; to be in the
    habit of seeing or meeting each other at home; a short stay etc. etc. whereas The ‘Black’s Law
    Dictionary’ provides different concepts to the term “visitation” and has recognized Five Kinds of
    visitation rights such as (i) visitation; (ii) grandparent visitation; (iii) restricted visitation; (iv)
    stepped- up visitation; and (v) supervised visitation. The word ‘visitation’ is defined there with
    specific reference to Family Law, to a non-custodial parents period of access to child and also
    termed as ‘parental access’ and further defined as ‘parenting time’, residential time. A grandparent’s
    visitation is defined as a grandparent’s court approved access to a grandchild, ‘restricted and
    supervised visitation’ are defined as visitation under the orders of court in which a parent may visit
    the child or children only in the presence of some other individual and that a court may order
    supervised visitation when the visiting parent is known or believed to be prone to physical abuse,
    sexual abuse or violence, ‘stepped-up visitation’ means a visitation under the orders of a court for
    a parent who has been absent from child’s life, that begins on a very limited basis and increases as
    the child comes to know the parent. Therefore, in legal parlance the grandparents’ visitation of the
    child is well-recognized and the same takes in overnight custody also for short period.
    Therefore a Visitation’ means a non-custodial parent’s period of access to a child. . A visitation
    order means an order establishing the visiting times for a non-custodial parent with his or her
    children. Although the non-custodial parent is responsible for the care of the child during visits,
    visitation differs from custody because non-custodial parent and child do not live together as a
    family unit. Hence the word “Parents” is categorically mentioned in Section 5 of the Schedule
    attached with the Family Courts Act 1964, allows grant of visitation rights to not only the father
    but also to the grandparents of the minor.
    The word Parents as is used in the Entry is not restricted to the biological parents alone, but also
    mean and include grandparents of the minor. And this is the mischief which the legislature wanted
    to address through the instant amendment.
    “To ensure correct and true interpretation of all statutes in general, four things are to be discerned
    and considered by a Court of law and that are
    i. What was the common law before the making of the Act
    ii. What was the mischief and defect for which the common law did not provide
    iii. What remedy the Parliament hath resolved to cure the disease of the commonwealth and
    iv. The true reason of the remedy and then office of all the judges is always to make such
    construction as shall suppress the mischief and advance the remedy and to suppress subtle
    inventions and evasions for continuance of the mischief, and pro privato commodo to add force
    and life to the cure and remedy according to the true intent of the makers of the Act pro bono
    public. Reliance is placed at General Principles of Interpretation by Maxwell on the Interpretation
    of Statutes, Twelfth Edition.
    It would not have been difficult for the Legislature to use Father / Mother instead of Parents in the
    Entry had it been its intention to restrict the relief of Visitation to the biological parents alone and
    not grandparents of the minor. The cardinal rule of construction of statute entailed two features;
    first, meaning; and, second, object and purpose—“Meaning” referred to what the precise words of
    the statute [or its particular provision(s)] denoted Where as “object and purpose” referred to the
    reason, rationale, objective, aim, underlying principle, or raison d’être of the statute—Such
    interpretative approach, thus, necessarily combined both the literal and purposive approach in
    discerning the legislative intent—Intention of the legislature was discovered, determined and
    understood by bearing in mind the meaning of the words used in the statute, while taking into
    consideration the purpose and object of the statute and also the mischief which the statute sought
    to curb. Reliance is placed at 2016 PLD 514 SUPREME-COURT
    It is particular to observe that as per our traditions and culture the children are allowed to live with
    their grandparents, immediate elder members of the family and relatives during festival seasons
    and other holidays. The children are also allowed to attend family functions, festivals conducted
    in religious institutions etc. in the maternal as well as paternal houses, in order to understand the
    cultural and traditional backgrounds that are prevailing in the family and community, irrespective
    of religious and cultural differences. This is done with the prime intention of bringing up the child
    as a social being and with the objective and intention of making them responsible citizens to yield
    fruitful results to the family, society and the nation at large. It is also common and well-settled that
    the children may reside in the maternal and paternal houses along with grandparents, whenever
    such occasion demands. This will help the children to have larger perspective and broader minds
    which are also necessary for their welfare and wellbeing.
    In a recent reported judgment of the Honourable Lahore High Court, it is held that In absence of
    mother of the minor, maternal grandmother had the right to see and meet the minor—Denial of
    such legal right would tantamount to deprive the minor from the love and affection of his maternal
    grandmother and the family of his deceased mother, which was against the welfare of the minor
    for the reason that minor needed love and affection of both of his paternal and maternal relations-
    –Minor was not to be deprived of love and affection of either of the two blood relations and have
    maximum interaction with his maternal relations as well, as his permanent custody was with the
    father, otherwise the same could cause an estrangement in the mind of the child which could
    ultimately leave a vacuum in the development of his personality. Reliance is placed at 2018 MLD
    1793 LAHORE-HIGH-COURT-LAH
    It is therefore suggested that the children learn many things from their grandparents and they hear
    many stories which are termed as ‘grandpa’s and grandma’s stories’. The grandparents also enjoy
    company of the children in their old age which will be helpful to their old age life and the same
    has many dimensions and significance, correspondingly. The courts while considering custody of
    children/visitation sought for by grandparent’s, should bear in mind such realities, while reckoning
    the circumstances conducive to the welfare of the child as welfare of the minor is a paramount
    consideration for a court of law to ensure.
    References
    Constitution of Islamic Republic of Pakistan
    West Pakistan Family Courts Act 1964
    Black’s Law Dictionary 10th Edition
    Chambers Concise Dictionary Deluxe Edition
    Interpretation by Maxwell on the Interpretation of Statutes,
    Twelfth Edition.
    CITATIONS:
    2016 PLD 514 SUPREME-COURT
    2005 SCMR 1595 SUPREME-COURT
    2018 MLD 1793 LAHORE-HIGH-COURT-LAH
    Fahad Ahmad Siddiqi
    The writer is a Lahore based lawyer advocating for adoption, application and implementation of
    principles of shared parenting, and for the rights of non-custodial parents on equality basis,
    involved in child custody litigation in Pakistan. He can be reached at qaslaw@gmail.com
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