Understanding Child Maintenance Laws in Pakistan

There are two main types of child custody: temporary custody, which is a short-term arrangement, and permanent custody, which is a long-term legal arrangement.

Mothers generally have the right to custody of their sons until they are seven years old and daughters until they reach puberty, according to Islamic law.

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.

Fathers are entitled to custody of their sons after the age of seven and daughters once they reach puberty, unless circumstances indicate otherwise.

Courts prioritize the child’s welfare, age, gender, emotional well-being, and the ability of each parent to care for the child.

After a divorce, custody is determined based on the best interest of the child, and parents can negotiate custody arrangements, including visitation rights. Otherwise, the matter goes to Court and it decides the fate of custody.

According to Mahomedan Law by D.F. Mulla, a mother can lose custody rights if she remarries someone unrelated to the child or moves the child far away, making it impractical for the father to maintain contact. Indeed, the principles are derived from Mahomedan Law, but it is not absolute that a mother will lose her custody rights if she remarries. In various judgments, including 2024 SCMR 486, it was decided that contracting a second marriage is not a ground for changing custody from the mother. Still, each and every case has to be decided upon its own circumstances.

Essential documents include the marriage certificate, birth certificate of the child, divorce certificate (if applicable), and any relevant documents supporting the custody claim.

The non-custodial parent must file a suit in the family court, which involves submitting a complaint, notifying the custodial parent, and attending court hearings for evidence and reconciliation.

Pakistan, as an Islamic state, follows Islamic principles in custody matters, emphasizing the welfare of the child and granting rights to both parents based on gender and age considerations.

A father can apply for full custody of his child by filing a custody suit before the Family Court under Section 25 of the Guardians and Wards Act, 1890. The Court will grant full custody of the minor if it deems it fit for the welfare of the child. For example, where the mother has abandoned the child, the mother becomes unfit, or she has remarried and left the child. In all circumstances, welfare is the only prime consideration.

Khula itself does not affect the right of custody. In fact, any mode of separation has no effect on custody. The father remains a natural guardian, whereas the mother holds custody. The question of custody always remains subject to the welfare of the child. However, the rules of Hizanat also apply. Even if a mother remarries, it does not automatically amount to losing custody. Relied in 2024 SCMR 486.

After divorce between the parents, generally, the physical custody of minors stays with the mother under the principles of Hizanat, whereas the father remains their natural guardian. However, upon the application of the non-custodial parent, the Court can evaluate custody, taking into consideration the welfare of the minor. The preference of a minor is also taken into consideration, but it is not binding upon the Court.

A remarriage does not automatically disqualify a mother from custody of her children. There is no legal basis for separating a mother from her child solely because she has married again. Relied on 2024 SCMR 486.
However, the Court evaluates whether remarriage negatively affecting the welfare of the child. In some cases, where the Court finds that the child’s welfare is better served with the real father or grandmother, the Court has transferred custody. Case study cited as 2022 YLR 2482.

Under the general rules of Hizanat, a mother has a favored right of custody of children under 7 years of age for boys and till the age of puberty for girls. However, if the mother has abandoned the child or becomes unfit, and the Court considers the welfare of the child to be with the father, then the Court may grant custody to the father even if the child is under 5 years of age. The principle of welfare overrides all other principles.

When, in the eyes of the Court, a child is intelligent enough to express his or her preference, the Court may consider that opinion and preference. Mostly, above the age of 10 years, the Court may take the child’s preference into consideration, but that preference is not binding upon the Court. The Court always decides on the basis of the overall welfare of the child. Relied on 2026 PLD 332.

Interim custody is also termed temporary custody. It is a temporary arrangement of custody by the Family Court during the pendency of a suit. It is not a final decision. It is an interim order by the Court to protect the welfare of the child during the proceedings.
A parent who is allowed to keep interim custody is also barred from taking the minor anywhere outside the jurisdiction of the Court, without prior permission, till the final decision.

Permanent custody is a long-term arrangement ordered by the Court. It refers to the final outcome of a custody case, i.e., a final custody decree issued after full proceedings. It is the opposite of temporary custody. However, permanent custody is not absolute; it can also be changed if a material change occurs and it becomes harmful to the welfare of the child.

Overseas Pakistanis can file or contest a custody case in Pakistan without coming back by way of a Special Power of Attorney. The attorney appointed will file suit, attend court hearings and manage proceedings for them. However, evidence is recorded through video call via E-Court system.

Non-compliance with a Court order will not only result in contempt of Court, but the Court also has the power to enforce its order and can take coercive measures as provided under the law. The Family Court, acting as Loco Parentis, has all the powers to enforce its orders. The decree-holder has to file an execution petition to activate this mechanism.

Yes. Custody can be changed even after a decree. Either parent can file an application for a change of custody if a material change occurs affecting the welfare of the child. A change of custody can be sought on grounds based on new facts or changed circumstances.

Yes. Evidence is the basis of every case. The welfare of the child, including educational records, medical records, living conditions, and any evidence of neglect or abuse, is considered valid evidence by the Court. The contesting parties have to bring their respective evidence and proofs before the Court.

The biggest mistake a parent commits is putting personal grudges against the other parent above the welfare of the child. For example, if a non-custodial father does not pay maintenance, which is against the welfare of the child, just to tease or burden the mother, he may eventually lose his rights. On the other hand, if a mother prevents the children from meeting their non-custodial father, it amounts to non-compliance with Court orders and creates a negative impression of the mother.

Yes. The Family Court encourages reconciliation and settlement at the pre-trial stage under Section 10 of the Family Courts Act, 1964, and even post-trial reconciliation under Section 12 of the same Act.
If both parents give priority to the child’s welfare, the Court may pass an order that is beneficial for both contesting parties. It is also possible that the entire case may be settled without litigation.
If both parties agree, the Court may pass a consent decree, making the agreement between the parties, if any, a part of the decree.

When both parents share responsibility and custody of a child jointly, it may be termed as joint custody in Pakistan. Generally, Pakistani Courts follow the rules of Hizanat, but joint custody can also be arranged in cases where both parents are fit and cooperative. The Court may pass an order for joint guardianship or joint custody while awarding physical custody to one parent.

Pakistan mein child custody ke liye Family Court mein application deni hoti hai jahan minor child rehta ho ya pehle rehta raha ho. Application mein tamam zaroori facts aur documents shamil kiye jate hain. Court minor ki welfare ko sab se zyada zaroori cheez maanti hai. Mazeed maloomat ke liye LEX se rabta karein.

No parent, after divorce, can take a minor child abroad without obtaining a guardianship certificate and permission to take the minor abroad. On the other hand, if both parents agree, then written consent from the other parent can be obtained. However, if the case is already pending before the Court, obtaining the Court’s permission is necessary, whether by filing an application or by the consent of both parties.