Gender, Religion, Custody: The Case of Amina Tarar

Last month, the Lahore High Court made an interesting decision: to hand over a Pakistani child, Amina Tarar, to her French mother.  The case made headlines because the child’s mother, Ingrid Brandon Burger, is a non-Muslim. Amina’s father, Abdul Razzak Tarar, had taken the child from France to Pakistan in 2005, but the parties disagree on whether the mother had consented at the time. What is known is that French courts had given the mother custody shortly prior to Amina leaving the country, and that Ms. Burger had also filed a custody case in another court in Pakistan, which she also won.  So this new case was about enforcing two custodial agreements already in place.

In international custody cases, you can go about the governing law in a number of ways: was the child taken illegally from his or her country of residence, who was designated as the custodial parent at the time of separation and divorce, and so on.  In forcing the father, who was also wanted for kidnapping, to hand over Amina, the judge, Justice Manzoor Ahmad Malik, chose to rely on Pakistani law and enforce judgements from both French and another Pakistani court granting the mother custody.  The letter of the law is, namely, that children of Amina’s age (11) are too young to be kept away from their mothers under Pakistani law.

I’m surprised at the lack of media coverage on a case that is at the crossroads of fathers’ rights and Islamic law and the development of the Pakistani judiciary.  I think the fact that the mother is a non-Muslim is a sideshow to what is really a fascinating piece of case law for Pakistan.  There are many elements of this case which make it a landmark decision. Firstly, we are dealing with the effective enforcement of a foreign custody judgment (the French one). Secondly, the LHC confirmed the judgement of a second custodial court, so the threat of forum shopping (when people go to different courts hoping for difference outcomes) was denied.

For me, there are two things going on in the judge’s decision: 1. The LHC is showing the strength of the Pakistani judiciary to interpret and enforce rulings (even those from other jurisdictions) based on Pakistani law; and 2. Legal precedents and Pakistani laws that have their origins in religious jurisprudence (in this case, mothers having custody of minor children) are interpreted in a unique way and are being applied to non-Muslims. What is even more amazing is that, according to the Tribune, this is the second case for the Lahore High Court where they have ruled in favor of a non-Muslim mother.  The cases were similar in that both Ms. Collin (the mother in the first case) and Ms. Burger had French custody judgements on their side, although Ms. Collin had a son and not a daughter.

I think this case does bring up a number of questions. I’m torn because the case law sets a great precedence for parents seeking to enforce custody judgments: If the LHC is involved, it won’t be as easy anymore to hide your kid in Pakistan if your marriage goes south.  But morally and personally, the case brings up a lot of troubling questions. For some, the bingo is:  Should custody of Amina have been given to a non-Muslim? Does it matter?  Also, couldn’t it be argued that, since Amina has already spent so many years away from her mother and is now nearing puberty, the Islamic argument, on which the Pakistani code is based, regarding how children shouldn’t be kept away from their mothers, no longer applies?

The most troubling in this long tug-of war is, what about Amina? She likely no longer has any useful memories of France or of her mother, or the language skills to guide her into her teen years, which are tumultuous enough. Regardless of the circumstances of how she got there, I think it is safe to claim that being in Pakistan with her Pakistani family is all she knows.  It is tangential but useful to mention that certain countries’ immigration laws start placing conditions for regular family reunification at her age due to the hurdles she will have to overcome in terms of language learning and the famous “integration” in moving to a different country.  Finally, I think the wrong questions are being asked regarding the religion of the mother, because it is immaterial, except insofar as the “unique” interpretation mentioned above.  For me, this is where fathers’ rights come in: what if the situation were reversed? Aren’t we usually more sympathetic to mothers who kidnap their own children?  What if it was a father trying to gain access to his child? Could it be argued that since her father illegally took her from France, his rights as a father should be discounted? What if the mother had done the same thing?   In your opinion, what would have been the right decision for Amina?

  • Humayra

    OMG. This article expresses so many, um, patriarchalist notions that I hardly know where to begin.
    First of all, I would hope that you might try to put yourself in the shoes of a child in that situation, or actually talk to someone who has, before deciding that because she barely knows her mother, she would be better off staying with her father. In real life, parents kidnapping children causes a lot of suffering–for the children, as well as the parent who loses the child.

    Second, Muslim feminists themselves have long been questioning the patriarchal bias of custody laws as laid down by various madhhabs (and which influence custody laws in a number of Muslim countries today). It is only the father who can actually have guardianship of the child according to the madhhabs–at most, the mother may temporarily have custody of younger children, IF she meets a number of criteria. Such criteria usually include her not remarrying. These rules are often an important factor in keeping women even in abusive marriages, because they fear losing their children. They are also very unequal rules–men can remarry and still keep their children, for instance. These rules are not stated in the Quran (which says nothing about the custody of older children, and assumes that women will remarry after divorce). They are based on a few vague hadith, and on patriarchal traditions that regard children as essentially belonging to men, while women are just vessels for carrying offspring.

    I know that converts often tend to romanticize Islam and traditional fiqh rules, but really… a site like this one ought to bear in mind that there’s a significant privilege difference between European converts and born Muslim women in conservative Muslim-majority communities, especially on issues like this. Converts in Europe and North America who are educated and have access to varying opinions can sometimes have the luxury of picking and choosing–choosing to follow Maliki law on custody, for instance, which is somewhat more lenient on mother’s rights to children after divorce. So, converts may have the illusion that they can wangle the system to suit their needs. LOL. All I can say is, I hope you never have to deal with the realities of how that stuff works in practice.

    • http://www.nicolecunningham.ch Nicole

      Humayra, have I done something personally to offend you? Because none of your points have any bearing on or relation to the article I wrote. Are you having computer problems and accidentally read something else? Do I need to contact our webmasters?

      First- I never said in the article she needed to go to her mother, I kindly ask you to reread the first sentence of the last paragraph. I never said that and I don’t understand how you can get that from what I said.

      I take serious offense to you dismissing me as a convert who takes liberties with fiqh for two reasons.

      First, a close reading of what I said, where I presented the facts of the case, mentioned that the LHC took a strange interpretation of what the base Shariah law involved was, and then I left the last paragraph open for discussion.

      I will chalk it up to that you have an ax to grind and my article just happened to be in your crosshairs.

      Secondly, the fact that white converts such as myself have a privileged position is nothing new, it isn’t really apropos in this article because I was talking about Pakistani case law, not Shariah. Likewise, I didn’t even go towards Islamic feminism or feminist interpretations of Shariah. In this article, I chose to write about what I do know about, which is cross-border and international law.

      On a personal note, with the arrogance and assumptions born Muslims ake towards us, it is no wonder so many converts leave Islam after a few years. Your comment made me quite sad and hurt my feelings because I don’t understand where it comes from.

      Finally, if you find our content lacking, the blue box on the right of your screen is a link where you can send articles for submission.

      Kind regards,
      Nicole

      • Zahra

        If the parents married in France (which is likely the case) and had their child in France, it is so wrong for him to take the child away from her mother and go to Pakistan when the marriage went south, he obviously did it to keep her from her mother and hide her in pakistan. If he was so concerned with the mothers religion he wouldnt have married a non muslim in the the first place. If parents really care about their kids they will do whats right for the child, which is to keep both parents in their life

  • http://www.bangyoulater.com Kent

    I think they took the right decision for Amina, to hand her over to her mother. I grew up without my mother and i know how hard it is. No one can replace your mother.
    I really don’t know what to say if the situation were reversed…

  • http://www.patheos.com/blogs/mmw/ Krista

    Just a note that any further comments about Nicole’s personal relationship and experiences with Islam/fiqh/etc. will not be approved. You can disagree with the arguments that she makes can be done without resorting to baseless and unfair assumptions about her personal life.

  • uhhh

    Uhhh yeah, I think this might be worth a post or commenting on.
    http://thinkprogress.org/security/2012/03/07/439449/exiled-iranian-women-nude/?mobile=nc

  • http://www.blogistan.co.uk/blog/ Yusuf Smith

    The judgement was taken on the basis of secular law (perhaps one based on a distorted interpretation of Shari’ah), not based on the interests of the child or her wishes. The court found that the father has no right to custody of a child of that age (it does not mention whether there are women who could fulfil a maternal role for the girl), and that the girl’s wishes were irrelevant. It did not even consider the fact that the girl was Muslim and was to be taken back to a country where there is a rising hostility to Islam.

    The judgement is completely indefensible and is likely to be the result of political pressure, as it is unthinkable for a Muslim judge to hand over a Muslim child to a non-Muslim parent who intended to take them to a non-Muslim country, particularly against their wishes. The preservation of someone’s Islam, particularly when that person is vulnerable – one considers how the exemption for women was made in the treaty of Hudaibiyya.

    • http://www.nicolecunningham.ch Nicole

      Salams Yusuf,

      When you said, “The judgement was taken on the basis of secular law (perhaps one based on a distorted interpretation of Shari’ah)”, that is exactly what I meant when I said that the LHC interpreted existing laws (secular laws with their basis in Shariah) “in a unique way.”

      I have also had the comment offline that there was political pressure involved. I’m not so sure. Political pressure hasn’t worked in the case of the Canadian woman stuck in Saudi Arabia with her kids. I can’t say we can say two cases in Pakistan make it a trend that the international community says “Jump” and people cough up kids. It could be part of the answer, but not all. The interesting takewaway for me is how the LHC chose to go about its ruling.

  • Ayah

    OK, why was it necessary to say “Just a note that any further comments about Nicole’s personal relationship and experiences with Islam/fiqh/etc. will not be approved.”?
    I’m not sure I saw any personal comments. I think Nicole got a bit defensive in this case, really. Custody is a complex and highly charged topic, but one I thought could be discussed here, of all places, without the author of the piece lashing out when her work (or thoughts, or self) is criticized. That’s one of the hazards of writing in a public space–people will, fairly and unfairly, criticize you.
    It seems in this case that the dreaded convert conversation is what provoked the unnecessary threat of deleting comments. Why is this? While it seems an unspoken rule that we may discuss at length the travails of converts, we are not EVER allowed to bring up some of the very common mistakes and assumptions made by many converts. So it may indeed seem to some of us that, yes, white converts are asserting their privilege in order to derail and to shut down certain conversations altogether.
    As a side note, I, too, have noted that MMW has become a decidedly more conservative site and a disturbing number of posts work to reinforce patriarchal interpretations of Islam. A very sad turn of events. (Please note that I’ve been careful not to get “personal,” so I do hope my comment is published.)

    • http://www.patheos.com/blogs/mmw/ Krista

      You say you didn’t see the personal comments – I’m not sure how to read Humayra’s last paragraph as anything other than personal, but maybe I have that wrong.

      I understand the point that you (and Humayra) are making about privilege. I’ve written about it, and I see it play out in many ways in my own life, and I’m guessing Nicole probably does too. I don’t think any of us who write for this blog and who have become Muslim are under any illusions about Islam being some kind of happy fairy land where nothing goes wrong. (which doesn’t negate the many ways that privilege does play out), but yeah, it happens for sure.

      And if Nicole’s piece was talking about how Islam is perfect and therefore this child must go with her Muslim father, then maybe that would be relevant. But that’s not what she was saying; she actually specifically said that “the fact that the mother is a non-Muslim is a sideshow.” She’s not making a religious argument here. And there are ways to disagree with her argument without making assumptions about how Nicole views Islam as a whole, which is entirely irrelevant. By the same token, we also block comments that attack our writers for not being religious enough (which is actually what happens more often – our trash folder has seen some pretty spectacular examples).

      As for your comment that we’ve become more conservative, I honestly appreciate the feedback. There are others who write us off for being too “progressive,” so we clearly won’t ever please everyone, but it’s truly helpful to know what people are thinking about us, as we continue trying to improve the site.

    • http://www.nicolecunningham.ch Nicole

      Why do you think I was defensive?

      I welcome constructive criticism on this post, which others have given but when the original commenter said after a long litany of only tangentially related comments about my skin color and social status and how I took liberties with sharia, islamic feminisim, Islam itself, fiqh “- I know that converts often tend to romanticize Islam and traditional fiqh rules” – that was a cheap shot on my status as a convert, and in a context where I was not discussing fiqh rules at all, and was based on her poor reading/knee jerk reaction to her personal and flawed interpretations of the words I wrote.

      Sometimes born Muslims don’t understand that for converts, having their religion and personal practice of it called into question almost daily, gets very old. I’m sorry if you felt I was being defensive for calling out a bigoted comment unrelated to the topic at hand.

      I find it very sad that as one of your sisters in Islam, my Islam gets called into question, and then you say, “well I don’t know what the problem was.”

  • http://www.emberinternetmarketing.com Hani

    Humayra,

    Pick someone on your own “size” and don’t look down on converts. I’m sure you know what are the consequences of hurting other Muslims?

  • Lara A

    Salaam Alaikum,

    It’s really simple folks:Play the ball, not the player.

    In other words, debate, discuss and disagree with the ideas in the post all you want,but making personal attacks/ assumptions on the writer is not ok and saying “You’re a bad feminist” is just as shoddy as calling someone “A bad Muslim”.

    And the insulting of someone because of how they came to Islam is very low discourse indeed.

    No one should be treated in this manner and to reject this behaviour is being neither defensive or touchy, it is having respect for yourself, others and meaningful discussions.

    On to the actual post itself. Child custody battles are horrible, that is a given. What concerns me about this case is that the rulings appears to be counter to the child’s own wishes…but Parental Alienation Syndrome is real and it could have well been the case here.

    I applaud the judges for thinking outside of the standard Dad wins verdict and for recognising that he had kidnapped the child, but the child’s distress at the verdict is very troubling.

  • Chris

    I have to agree with Humayra, to a certain extent. While I would not have voiced my concerns the way she did, and I dont know if I would have voiced them at all had it not been for her comment, I felt a little uncomfortable with the somewhat sweeping statement: “..and is now nearing puberty, the Islamic argument, on which the Pakistani code is based, regarding how children shouldn’t be kept away from their mothers”. To my awareness, there is no such “Islamic argument” children (girls) should be with their mothers in puberty. As Humayra has said, I am aware of rules where children are to be with their mothers only at a young age, and then generally to be “handed” to the father and his family.

    On another note, from an ethical point of view, I am highly uncomfortable with the notions the reality shaped by a criminal act (the abduction of one’s own child) should be respected “because the child has grown used to this reality”.

    As to your questions – no, I do not think the situation or ethical judgment would be different if the mother had abducted her child. Let’s also not forget, in patriarchal societies, East or West, it is far often the fathers who do not accept courts’ verdicts and choose to take matters into their hands. I also do not think the religion of the parent is the most important determinant of whether s/he is a fit parent, or the parent with a stronger psychosocial relationship with the child. This psychosocial relationship, in my opinion, is the most important criterion – not patriarchal notions of patrilinearity in the East or mothers’ prime importance in child rearing in the West, which both result in an automatism of child custody for the father or the mother. There should not be an automatism, but taking into consideration of who is closest to the child, who has formed the strongest relationship with the child, who has taken care of the child the most.

    And no parent should be able to create realities based on crime, which would then lead any court to an upholding of that unjust status.

    Also: Are you aware of how many early childhood memories children have? I remember in detail incidences of me at age 2, 3, 4. I actually told my father something that happened when I was not even 2, he disputed it and verified it with a 3rd person concerned. Turned out I was right. So it is highly unlikely there is no memory of the mother even had the child been taken at age 2 (which I believe is not the case for this custody dispute). Also, languages “set up” in a young enough child’s brain can be reactivated later to a much greater degree than to start a language anew.

    • http://www.nicolecunningham.ch Nicole

      Hi Chris,
      Thank you for your comment. I meant “up until” puberty for which there is a body of theology as you can agree. I will see if I can edit that phrase.

      I must need to take writing lessons because I didn’t think I was taking a position on whether or not the girl should stay with her mother or the importance of the parents’ religious choices, which is what you and Humayra seem to imply?

  • Lara A

    Salaam Alaikum,

    Chris – Whatever the basis of the reality, the fact is, it is Amina’s reality and it appears that she now has a much stronger relationship with her father. By removing her from her father against her wishes, because of his actions, it could be argued that she is being punished for his misdeeds.

    Also, while it may be easier to relearn a language, it’s still not any easy process and I wonder what steps will be taken to ensure that Amina is able to keep in touch with her Pakistan culture.

    Just to be clear, I think your argument is a valid one, but then I think you could argue on behalf of all three participants here without actually being wrong.

  • Amira

    Salaam all,

    Nicole, to answer your inquiry above, yes, I too got a definite sense from this article that you were questioning the right of the non-Muslim mother to receive custody of her daughter. I think this sense came primarily from the fact that you brought up several points early on which you based in traditional Islamic law’s opinion of giving custody to the father, and you did not pose questions to dispute these notions, however in your last paragraph in particular you pose many questions which seem to take issue with the court’s decision to grant custody to the mother. I grant that this may have been completely unintentional on your part, and not in fact what you were trying to convey, but I hope I have been able to clarify why the article does indeed seem to favor the “father’s rights,” you do mention this term early on as well, it gives the article the tone of pitying the father. This is definitely not wrong in itself, as the father certainly does have rights, and if this is your opinion then more power to you, but I believe the people who took offense to your piece saw the fact that you questioned the mother’s rights somewhat more extensively than the father’s as a sign that the author of this piece does not support the LHC’s decision. I feel like your actual intention was to point out how interesting it was in this case that foreign law seems to have superceded traditional “Islamic” law in the Pakistani courts, and if there are any implications of that, which is definitely a topic warranting a productive discussion. Allahu alam :)

    Now for my two cents, based on the fact that he kidnapped his daughter and took her to Pakistan (presumably- though you noted it was ambiguous whether the mother gave consent) against her mother’s wishes, many people would find it difficult to classify the father as a fit custodial parent. Bear in mind that, according to Shariah, this does not absolve him of supporting his daughter, but this can be done even if she is not living with him. This may seem cruel, but we have to think about which parent is, quite frankly, not a kidnapper. This also does not mean the father cannot be involved in her life. Of course, I wish Amina herself had more of a say in the proceedings, but considering she is so young, it would be atypical to say the least for a court in any country to weight her opinion solely over other legal considerations.

    And just to add one more thing, I think you must have a lot of personal strength to have decided to convert to Islam in the first place, and to continue being Muslim in an environment where Muslims question your personal practice and intellectual process to an excess. This is unfair and I hope inshaAllah that it stops one day. However, born Muslims often face this same criticism and insulting of their intellectual capacity and personal opinions. Just speak to a sister who does not wear hijab (I apologize if you resent being compared to a sister who does not wear hijab, as many people would say that converting is not a sin, but not wearing hijab is according to most scholars), or a woman who is divorced. The Muslim community unfortunately carries a lot of cultural baggage which can make its members very judgmental and close-minded. Not everyone is like that, and it is my sincere wish that you find more Muslims who make your proud to be a part of our community, and not who make you feel inferior or drive you away. I am proud that you are part of our ummah, and I appreciate your contributions. Jazakallah and Peace be with you sister :)

  • http://www.nicolecunningham.ch Nicole

    Salams Amira
    THANK YOU.

  • Chris

    Beautiful points, Amira.
    Nicole – I took the notion you found the mother’s faith a relevant criterion for (not) granting her custody from the general tone of the article in combination with a question you phrased on whether the mother’s (Christian) faith should play a role in custody disputes (which I believe is the same Amira has assumed, I just wanted to clarify for you as you were questioning your writing, which I was not at all).

    Lara – Amira has already said it more openly and sincerely than I did, and I will go with her: A parent who does not respect the law/a Judge’s verdict, nor the co-parent is a doubtful parent (we do not know of any spousal abuse his wife may have subjected him to; this would be one of the few reasons that would make the decision to flee and deprive the co-parent of the child understandable) per se. The child has been punished for her mother’s choice to divorce or to seek custody already by the father. I do not think twisting the case to have the child stay with someone who took the most unfair means of taking the child to his home country, where he holds “dometic advantage” than to stay in the home country of both parents *and* the child as a favour to the child is any fair or good. Also in the legal regime I am in it is now a felony to incite the child against the other parent. Everything the father has brought in Pakistani courts (what has been reported of what he said) sounds a lot like unfair using of the child, and playing with her mind. Hardly a fit parent from that perspective, too.

  • Amira

    You’re very welcome Nicole, and everyone else who was aided by my comment in any way. May Allah SWT reward all of you for trying to maintain unity and diversity in our ummah, love you all for the sake of Allah! :)

  • Lauren

    “fathers’ rights and Islamic law”

    Mother’s have rights too. The mother had custody and the father basically kidnapped his daughter and then brainwashed her against her mother. Just because he’s a muslim doesn’t mean that the mother doesn’t have a right to see her child. Children are not property. Does being a muslim automatically make someone the better parent, even if (for example) said parent was abusing the child? That’s BS


CLOSE | X

HIDE | X