Professional Guidance on Child Custody Law in Pakistan
After the divorce or the separation between the parents of the child or the children, the matter relating to the custody of the minor remains a core conflict between parents. When a matter comes before the court relating to the minor of the separated parents, the family court or the Guardian court (as the case may be) gains the status of Loco Parentis.
Here we will try to simplify the procedure for determining the child custody after divorce or separation in Pakistan and the parents’ Visitation Rights after separation or divorce.
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Know the Basics
Before discussing technicalities, it will be beneficial to understand the basics of child custody in Pakistan.
Basic Definitions
Minor Child: “Minor” means a person who, under the provisions of the Majority Act, of 1875 (IX of 1875), is to be deemed not to have attained his majority
Parents: “Parents” means mother or father or grandmother or grandfather, maternal or paternal.
Non-custodial Parent: The parent who does not have custody would be called a non-custodial parent.
Types of Child Custody in Pakistan
There are two types of Custody of a child:
- Temporary Custody of a child.
The parent who has physical custody, i.e., Hizanat of the minor child, but the other parent claims custody of the same child, and the claim is pending in a family court, meaning hereby that the parent who has custody has temporary custody. It is granted to ensure a child’s stability during the pendency of litigation. It is not final; it remains in place until the court grants permanent custody. Temporary custody of a child can only be modified or changed by the Family Court if the Court deems it fit for the welfare of the child.
However, the parent with temporary custody takes care of the child’s daily needs, but the other parent has visitation rights during this period.
- Permanent Custody of a child.
It is a long-term legal arrangement in which the Court grants one parent physical and legal custody of the child after all court proceedings have concluded. Permanent custody of the minor child lasts until the child reaches the age of majority or until a court changes it due to prevailing circumstances such as a child’s welfare and better upbringing. The non-custodial parent in this scenario enjoys visitation rights.
Child Custody in Islam and Principles of Mahomedan Law by D.F Mulla
The Constitution of Pakistan of 1973, Pakistan is an Islamic state. Being an Islamic State, Pakistan follows Islamic laws determining child custody in Pakistan; there are basic principles regarding child custody that D. F Mulla defines.
Child Custody Rights for Mothers
Section 238 of the Principles of Mahomedan Law by D.F. Mulla states that Custody of infants and young children is primarily granted to the mother of the children as a right of Hizanat. In the circumstances, if the son is below 7 years of age and the daughter is below 14 or reaches the age of puberty will stay with the mother.
The same section is reproduced below;
“238. The mother is entitled to the custody of her male child until he has completed the age of seven year, and of her female child until she has attained puberty, and the right is not lost though she may have been divorced by her husband.
Shiah Law. – Under the Shiah Law, the mother is entitled to the custody of her male child until he is weaned, and for her female child until she has completed the age of seven years: Baillie, Part II, 95.”
Mother’s Right of Custody How Lost
Due to Remarriage: The mother loses her right of custody if she marries someone unrelated to the child and falls within the prohibited degree. Custody may be restored after the end of the marriage by the death of the husband or divorce.
Moving the Child to a Distant Place: If the mother moves the child to a location so far away that it becomes difficult or impractical for the father to maintain, contact, or look after the child, she may lose her right to custody.
The relevant Section 241 of the Principles of Mahomedan Law by D.F. Mulla is reproduced hereunder;
“241. Neither a mother nor any other female relative mentioned in s. 239 is entitled to the custody of an infant, if she marries a person not related to the infant within the prohibited degrees, as long as the marriage subsists; but the right is restored on the dissolution of the marriage by death or divorce. The mother is not entitled to retain custody of her infant child, if she removes the child to a distant place so as to render it impracticable for the father to look after the child.”
Child Custody Rights for Fathers
Including but not limited to two sections, i.e., 240 and 242 of Muhammadan Law by D.F. Mulla, provide the basic principle of a father’s right to have custody of a child, reproduced below;
240. In default of all the female relatives mentioned Right of above the right of custody passes to (1) the father, (2) paternal father’s father how high soever, (3) full brother, (4) con- relatives. sanguine brother, (5) full brother’s son, (6) consanguine brother’s son, (7) full paternal uncle, (8) consanguine paternal uncle, and other paternal male relatives in the order enumerated in the Table of Residuaries (s. 52).
No male is entitled to the custody of a female child, unless he stands within the prohibited degrees of relationship to her.
………..
242. The father is entitled to the custody of a boy when he has completed the age of seven years, and of a girl when she has attained puberty. Failing father, the right of custody devolves upon the paternal relatives mentioned in s. 240.”
Explanation: If a mother loses the right to custody of a child, the custody passes to the father. The father is entitled to custody once the boy turns seven, and for girls, the father gets custody when the girl reaches puberty. If the father is unavailable, custody moves to other paternal male relatives in a specific order, such as the grandfather, brothers, or uncles, as listed in family law. However, no male relative can have custody of a female child unless he is closely related to her and falls within the prohibited degree (like an uncle or grandfather).
Child Custody After Divorce in Islam:
Divorce or any other mode of dissolution of a marriage does not affect the rights of custody as the paramount consideration while deciding the custody is the welfare of the child.
The following are the kinds of child custody in Pakistan:
Physical Custody (Hizanat)
When a parent holds the physical custody of a child and is responsible for the child’s daily needs and well-being without the custody being challenged by a non-custodial parent. Typically, the mother is given physical custody of minor children, especially infants, unless there are specific circumstances that disqualify her (e.g., remarriage, contagious disease, or inability to care for the child).
Legal Custody
When the child of the child comes into question, and a dispute arises between the parent having custody and the non-custodial parent, and the matter goes to the Family for adjudication, the Family Courts then gain the status of Loco Parentis and act in favor of the welfare of the minor child. The foremost concern that the family court looks into is the welfare of the minors. Considering the welfare of the minor as a paramount consideration, the family court gives custody to the parent deemed fit and proper. The family may have the power to change custody. The custody after the final outcome of litigation is the legal custody.
Joint Custody
It is when both parents enjoy custody and visitation rights. Unfortunately, Pakistani law for custody does not formally have a specific legal framework for joint physical custody yet. However, expert family Lawyers of M/S LEX are trying and continue to promote joint custody, co-parenting, and shared decision-making, involving consent from both parents, in their recent cases. In this way, many disputes will be resolved amicably.
Conversely, mutual understanding between parents can still determine and apply for joint custody. Parents can enter into an agreement of joint custody and co-parenting for the betterment of the child’s welfare. Our law firm in Pakistan has drafted many successful joint custody agreements.
Case Law
Courts always appreciated and showed satisfaction over a mutually agreed arrangement regarding the custody of minors. In a custody case under Sections 12 and 25, the case reported as 1986 SCMR 426 SUPREME-COURT; the Court suggested the parties propose a viable formula for the minors’ welfare. The parties submitted a compromised statement requesting a six-month interim arrangement to foster conducive relations for a final custody solution, which the Supreme Court approved.
Joint Guardianship
However, Section 15 of the Guardian and Ward Act, 1890, allows minors to have more than one guardian for either their person or property (or both). The court has the authority to appoint or declare joint guardians. This means that two or more individuals can share the responsibilities of guardianship.
Child Custody Law in Pakistan
In Pakistan, the Guardian and Wards Act of 1890 is the primary source for dealing with the custody of minor children. The basic sections are Sections 12 and 25 of the Act. However, the filing and adjudication of the custody case is dealt under The west Pakistan Family Court Act, 1964 of its Item No. 5 of Part I of Schedule under section 5 of the Act of 1964.
Overview
- Section 25 is affiliated with the title of guardian to the custody of the ward. Under this section, the non-custodial parent asks the Family Court to grant the physical custody of the child.
- Section 12 gives the court the power to make interlocutory orders requiring the production of minors. An application under section 12 is filed with the petition under section 25 for producing the child in court. After production, if the party requests a visitation schedule, the court, after hearing the parties and considering the welfare of the Minor, chalks up a Visitation schedule.
- Section 5 of the West Pakistan Family Courts Act, 1964, along with the schedule made under this section, outlines the jurisdiction of Family Courts. Specifically, Item No. 5 of the schedule grants Family Courts the authority to handle matters related to children’s custody and the non-custodial parent’s visitation rights.
Jurisdiction of Court to Adjudicate Child Custody Cases in Pakistan?
According to Rule 5 of First Schedule under section 5 of Family Courts Rules, 1965, a case regarding a child’s custody will be heard in the Family Court where the child resides. As observed in 2022 PLD 171, the court held that; In matters of guardianship and custody of minors, territorial jurisdiction is determined by the provisions of the Family Courts Act, 1964, and the Family Courts Rules, 1965. Therefore, these laws govern where such cases should be filed and heard.
Important Principles that The Court Follows While Determining the Custody of The Child
Including but not limited to the following are the principles that a court follows while determining the question of custody. These guidelines can also be observed in the latest judgment cited as 2024 PLD 629 SC. A simplified version is produced below;
- Welfare of the Child as the Paramount Consideration
The foremost principle is ensuring the child’s best interest and welfare when determining custody. As it can be observed in 2023 MLD 218, where court held that;
Under Section 25 and Islamic Law, neither parent has an absolute right to a child’s custody; the paramount concern is the child’s welfare, intellectual, moral, and spiritual well-being. Welfare is determined based on evidence and circumstances of each case, allowing deviation from Hizanat principles in the child’s supreme interest.
- Age and Gender of the Children:
The basic factor that the family court considered is the Age of the children if the minor is an infant then the rights of the meeting with the infant minor are limited and may be limited to the court premises. In the same way, the age of the children plays a vital role in chalking the visitation schedule of the minors. The gender is equally important as the age. The family courts majorly look at gender if the minor is a girl and the non-custodial parent does not have a female in his place then this aspect is also considered for granting visitation rights.
- Father as Natural Guardian and Mother’s Right to Custody (Hizanat):
The father is the natural guardian, but the mother has the right to custody (hizanat) until the child reaches a certain age.
- Child Custody After Khula or Separation:
The mother retains custody rights even after divorce or separation, provided it is in the child’s best interest.
- Father’s Obligation to Maintain the Child:
The father remains financially responsible for the child, even if the mother has custody.
- Financial Status Does Not Affect Mother’s Custody Rights:
A mother’s inability to financially support the child does not disqualify her from custody, as the father is obligated to provide maintenance.
- Exceptions to Father’s Custodial Rights:
The father’s right to custody after a child reaches the prescribed age or puberty is not absolute and is subject to the child’s welfare.
- Factors in Determining Custody:
Factors such as the child’s emotional, physical, and mental well-being and the parent’s ability to care for the child.
- Minor’s right of Choice:
The Convention on the Rights of the Child, 1989 grants children the right to be heard in matters affecting their well-being. Their views must be considered according to their age and maturity, ensuring their input is respected in decisions about their welfare.
- Mother’s Remarriage and Custody:
The mother’s remarriage is not an automatic disqualification for custody; each case must be judged on its own merits.
- Protecting the Child from Harm:
Custody decisions should protect the child from any form of physical, mental, or emotional harm.
- The children’s comfort level with the non-custodial parent:
This factor is also important because if the minors show discomfort with the non-custodial parent.
- Timing and commitment of the non-custodial parent:
This factor is also considerable and noticeable. The family court pondered the availability of the non-custodial parent to maintain the child.
- Bonding of the children with the non-custodial parent:
The non-custodial parent does have a strong bond with the minors for seeking visitation rights after the divorce. The parents who neglect their children after the separation for some years usually do not have and even usually lose the bonding with the minors. This is an important factor for the court to consider while conceding the prayers of visitation and meetings
Documents Required in Case of Child Custody
Mandatory documents
- Marriage Certificate of parents
- Birth Certificate of Child or,
- B-Form or,
- NADRA Smart card
- Divorce Certificate (In case of Divorce between parents)
- Proof of second marriage (In a case where a parent has contracted a second marriage after divorce)
Optional Documents
Any document that proves the welfare and better upbringing of the child in favor of the custodial parent or non-custodial parent. Those documents may include;
- Any document relating to the financial status of parents
- Educational documents related to the minor
- Educational documents related to the parent
- Any formal documents related to the membership of the child in any activity
- Wealth statements of the parents from FBR or any certified authority of the state
- Documents showing the good status of the parent’s family.
Procedure Child Custody Cases in Pakistan
As we have already discussed, Family Courts constituted under the West Pakistan Family Court Act, 1964, have the power to adjudicate matters related to child custody. Here, we will take a bird’ s-eye view of the procedure of court proceedings followed by the Family Courts.
1. Filing of Suit as Per Section 7 of The Family Court Act
The non-custodial parent may file a suit before the family court under the section seeking custody of a child. The complaint shall contain all the facts necessary for the court to grant and decide the applicant’s case. All the relevant documents the court must consider when delivering the final judgment must be annexed.
2. Intimation to The Defendant/the Custodian Parent Under Section 8
The family court shall fix a date that is not more than 30 days for the appearance of the custodian parent, and the family court shall issue a summons to the defendant for his appearance. Every summons is accompanied by a copy of the complaint.
3. Written Statement Under Section 9 or Proceeding Ex-Parte Decree
On the date fixed for the appearance, the defendant shall file his written statement along with the documents relied upon. If the defendant fails to appear before the family court on a date fixed, the family court may proceed ex-parte against the defendant. If the defendant appears on any other date and shows good cause for his previous non-appearance, he may be allowed to appear and contest the case.
4. Pre-Trial Proceedings for Reconciliation Between Parents Under Section 10
After filing the written statement, the family court fixes a date of appearances of both parents before the court and tries to reconcile the matter in dispute, and if parents disagree on a mutual settlement, then the court frames issues and fixes the date of evidence of the parties.
5. Recording of Evidence and Cross-Questioning to The Witnesses Under Section 11
When the case is fixed for evidence, the parties produce respective evidence and witnesses, and the other party cross-examines the witness(s). The court shall not summon any witness if, after framing of issues, the party to concern will not intimate the court within three days of framing of issues.
6. Post-Trial Reconciliation Proceedings and Final Judgment Under Section 12
After the closing of evidence of the parties, the court shall make another effort to effect compromise or reconciliation between the parties. If the court fails, then the court announces its judgment and decree.
7. Execution of The Decree Passed by The Family Court
After passing the decree, if no appeal is preferred under section 14 and no injunctive order has been passed, then the applicant files an execution petition before the family court, and the family court, as Loco Parentis, shall execute all power of the High Court to execute the Decree.
Effect on Right of Child Custody After Khula in Pakistan
Dissolution of marriage, either by way of khula or divorce or any other mode, does not affect in any way the right of custody of the mother. The only key consideration is the welfare of the child.
The following are some important case laws:
1. Where the Mother Was Granted Custody
In 2009 MLD 736 it was held that when Under Section 25, after divorce, when the father remarries and lives abroad while the mother remains unmarried and provides proper care and education, the welfare of the minors is best served in the custody of the mother. Therefore, the court deemed that the children’s welfare was with their mother in these circumstances.
2. Custody of The Child if Mother Remarries
Pakistani Judiciary, in its latest view, observed that a mother remarries and contracts a second marriage. It does not bar her from having her child’s custody. It can be observed in 2024 SCMR 486 where it was held by the Supreme Court that even A mother’s remarriage does not automatically disqualify her from the custody of her children under the law. A holistic reading of Islamic principles and international conventions confirms there is no legal basis for separating a mother from her child solely because she remarries.
3. Where Maternal Grandmother Allowed Custody
In 1978 SCMR 192 It was held that Even though the father bears all expenses for his minor daughter’s maintenance and education after divorcing the mother who remarries, he is not automatically entitled to custody before she attains puberty. Custody remains with the well-to-do maternal grandparents who are capable of properly caring for her.
4. Welfare of Child as a Paramount Consideration
It is also clarified in 2022 YLR 2482 when it was that Under Section 25, the paramount consideration in granting custody of a minor is the child’s welfare and well-being, which includes their health, education, and physical, mental, and psychological development. All other considerations are subordinate to ensuring the child’s best interests.
5. Minor's Right of Choice
In 2022 MLD 1693, it was held that Under Sections 17 and 25, and Article 12(1) of the UN Convention on the Rights of the Child, a minor’s right to choose is recognized in custody matters. Children have the right to be heard, and their views should be given due weight according to their age and maturity, reflecting practices from the time of the Prophet (S.A.W.W) and international law.
Welfare Principle
In the judgment reported as 2022 YLR 2095, it was held that Under Section 7, custody decisions must be guided by the welfare principle, focusing on the child’s best interests. Since no set formula defines a child’s welfare, each case must be evaluated based on its unique circumstances.
Conclusion
The increasing number of child custody cases in Pakistan can be attributed to the rising ratio of divorce and khula cases. When a child custody matter is presented before the Family Court, the court acts as loco parentis, ensuring that the welfare of the child remains the paramount consideration. The court assesses whether the parent seeking custody can meet the child’s emotional, educational, and physical needs.
However, it is also reflected in the Pakistani law for child custody after divorce that its determination is based on the age and specific circumstances of the child but the overriding focus remains on the child’s welfare. Given the complexity of child custody cases in Pakistan, it is important to seek professional guidance.
M/s Legally-Ethically-Expertly (LEX), a leading law firm with experienced lawyers, provides this article’s information for public awareness through our website, lex.com.pk. We strive to provide valuable insights to the general public but do not regard this content as legal advice. However, for personalized guidance or assistance with legal matters, we encourage our valued readers to contact our expert family lawyers in Pakistan by calling or WhatsApp at +92-310-8888539, or email at info@lex.com.pk. We are here to assist with tailored solutions.
Frequently Asked Legal Questions
Q1. What is child custody in Pakistan?
Q2. What are the types of child custody in Pakistan?
Q3. What rights do mothers have regarding child custody in Pakistan?
Q4. What is a concept of child custody age in Pakistan?
Q5. What rights do fathers have regarding child custody?
Q6. What factors do courts consider when determining child custody?
Q7. How does child custody after a divorce works in Pakistan?
Q8. Can a mother lose her custody rights?
Q9. What documents are required for child custody cases in Pakistan?
Q10. What is the process for filing a child custody case in Pakistan?
Q11. How does Islamic law affect child custody in Pakistan?
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