Family Law

Child Custody in Pakistan: How Guardian Courts Decide

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Custody disputes are among the most painful matters that come before the Family Courts, and they are also among the most widely misunderstood. Parents frequently arrive believing the outcome is fixed by a rule about the child's age. It is not. Parents searching for the best child custody lawyer in Karachi are usually trying to work out one thing first — what the court will actually weigh, not what either parent believes they deserve.

Custody and guardianship are two different things

Pakistani law separates two concepts that English usage tends to merge:

• Hizanat — physical custody: the day-to-day care, upbringing and residence of the child. This commonly rests with the mother, particularly for younger children.
• Wilayat — guardianship: legal authority over major decisions concerning the child's education, property and welfare, together with financial responsibility. The father is ordinarily the natural guardian.

These can and often do sit with different parents simultaneously. A mother having custody does not displace the father's guardianship, and a father remaining natural guardian does not entitle him to physical custody. Confusing the two is the source of a great deal of unnecessary litigation.

The welfare principle overrides everything

Section 17 of the Guardians and Wards Act, 1890 makes the welfare of the minor the paramount consideration. The superior courts have repeatedly held that custody is not a proprietary right of the parents but a trust for the benefit of the child. Every presumption, every parental claim, and every other factor is subordinate to this single test.

A point that matters enormously in practice: the courts treat welfare as a question of fact to be proved by evidence, not established by presumption. A parent who arrives asserting an entitlement, without evidence about the child's actual circumstances, is arguing the wrong case.

The Hizanat age presumptions — and their limits

Under Hanafi principles as applied in Pakistan, the mother has a preferential right to custody of a son until roughly the age of seven, and of a daughter until puberty. After those points the father generally becomes entitled to custody as natural guardian.

But these are presumptions, not automatic switches. They set the starting point of the analysis, not its conclusion. A child does not change households by operation of law on a birthday: the court still applies the welfare test, and a well-evidenced case can displace the presumption in either direction — a father can obtain custody of a young child where the mother is genuinely unfit or absent, and a mother can retain custody past the presumptive age where continuity plainly serves the child.

What courts treat as "welfare"

There is no statutory definition, which is deliberate — it allows case-by-case assessment. In practice the courts have consistently examined:

• The child's health, and the physical safety of each proposed environment
• Education — continuity of schooling, and each parent's capacity to support it
• Physical, mental and psychological development
• Emotional attachment to the proposed custodian, and the disruption a change would cause
• Moral and spiritual upbringing, and the child's religious environment
• Financial capacity to provide for the child — though this is one factor, not the decisive one; a wealthier parent does not win on that basis alone
• Keeping siblings together, which courts generally regard as being in the children's interests

Under Section 17(3), the minor's own preference is given weight where the child is of sufficient understanding to form an intelligent view. Courts do interview children, and the older and more articulate the child, the more this weighs.

Interim custody and visitation

A custody case is a plenary suit — a full trial with pleadings, documentary evidence and examination of witnesses — not a matter disposed of in a single hearing. It takes time, and children cannot wait for the final decree.

Section 12 allows the court to make interim arrangements while the main petition is pending. These orders matter more than their "temporary" label suggests: a child settled in one household for the duration of a long case builds a status quo that is difficult to unwind at final decree, precisely because disruption itself becomes a welfare concern. The non-custodial parent is ordinarily granted visitation, and courts can enforce visitation where one parent obstructs it.

Things that do not automatically decide the case

Several assumptions cause real damage:

• Taking khula does not cost a mother custody. The mode of dissolution — khula, talaq or otherwise — has no automatic effect on custody. Custody remains subject to the welfare test regardless.
• Remarriage does not automatically end a mother's custody. It is a factor the court may consider in context, but it is not a disqualification, and recent Supreme Court authority has confirmed this.
• Being the natural guardian does not equal custody. A father's guardianship is real but distinct from physical custody, as above.
• Withholding a child does not establish a position. Retaining a child in defiance of an order, or removing them to frustrate proceedings, tends to weigh against the parent doing it — courts read it as prioritising the parental dispute over the child.

Relocation

Applications to move a child's residence — particularly abroad — attract closer scrutiny, because relocation directly affects the other parent's contact. These are among the most contested matters in this area, and they require careful evidence about schooling, care arrangements and how contact with the remaining parent would realistically be maintained.

How we approach these cases

The single most useful thing a parent can do is stop arguing about entitlement and start assembling evidence about the child's actual life — school records, medical history, who does the daily care, the living environment, and the practical realities of each proposed arrangement. That is the material the welfare test runs on, and it is what a Guardian Court can act upon.

Taking a child abroad: leave of the court, passports and abduction

Once a Guardian Court has appointed or declared a guardian of the child's person, section 26 of the Guardians and Wards Act, 1890 says that guardian must not remove the child from the court's jurisdiction without its leave. Section 26(2) allows the leave to be special or general, so the court can permit a single trip or a longer move. While a custody case is pending, the court may also direct both parents not to take the child out of the court's limits.

The court decides these applications on the child's welfare, not on which parent is asking. Two High Court of Sindh decisions show how this works in practice:

• In C.P. No. S-202 of 2024 (21 February 2024) the court refused to interfere with permission granted to a mother, a doctor who had taken a job in Qatar, to take her daughter with her. The father's visitation rights were expressly kept in place.
• In Scherazade Jamali v. Hashim Gillani (C.P. No. S-04 of 2017, 2018) a trial-court restriction on the child's movement was set aside and the passport ordered returned, because the restriction appeared to be “a tool to settle score” with the mother rather than a welfare measure. The father, as natural guardian, kept a say in the choice of school, which he could not unreasonably withhold.

If you want to travel or relocate with a child during or after a custody case, apply first. Bring the school admission or job offer, the address abroad, the proposed contact arrangement for the other parent (holidays, video calls), and an offer to return the child for hearings. Leaving first and explaining later is the surest way to lose the court's confidence.

If a child is taken out of Pakistan, or kept abroad, without consent, the 1980 Hague Convention on the Civil Aspects of International Child Abduction may help. Pakistan acceded on 22 December 2016 and the Convention has applied to it since 1 March 2017, but only with countries that have accepted Pakistan's accession. The Central Authority is the Ministry of Law and Justice, which receives applications through the Office of the Solicitor General in Islamabad; it does not provide lawyers or legal advice.

Remarriage, a father abroad, and the separate question of money

The High Court of Sindh applied the remarriage rule in two Karachi cases in May 2025. In Mst. Tooba v. Abdul Malik (C.P. No. S-79 of 2024) and Mst. Wajiha Fatima v. Syed Badar Abbas Jafri (C.P. No. S-1168 of 2024) appellate orders taking young children from their remarried mothers were set aside. Relying on Raja Muhammad Owais v. Mst. Nazia Jabeen (2022 SCMR 2123), the court said the old disqualification on remarriage is “not absolute” and that welfare decides. Evidence from the new household carried weight: in Tooba the court faulted the appellate court for discounting the stepfather's evidence that he would maintain the child and live with her.

A remarried mother should therefore treat the stepfather as a witness, not a liability: who lives in the home, the child's room and school, and his attitude to the child are what the court wants to know.

A father living abroad keeps his guardianship and can seek custody or visitation, but the court will ask how any arrangement would work in practice: who would care for the child day to day, and in which country. Contact by video call and holiday visits are the usual answer where one parent is overseas.

Custody and maintenance are decided separately. A father who is refused custody, or says he is denied access, must still maintain the child; his remedy is in the custody case, not in stopping payment. See our guide to child maintenance and the father's duty.

Common questions

This article is general information about Pakistani law and procedure, not legal advice for any specific matter. If this touches on something you're currently facing, get in touch and we'll advise on your facts directly.