How Does Pakistani Law View Paternal Custody If The Mother Is Deemed Unfit?

Hamza and Hamza
1 day ago
3 min read

Child Custody Laws In Pakistan are primarily governed by the Guardians and Wards Act, 1890, which applies to all citizens regardless of their religion. In the case of Muslim families, Islamic jurisprudence—particularly the Hanafi school of thought—also influences custody decisions. Generally, the law favors the mother’s right to custody (known as hizanat) of minor children, especially at a young age. However, this right is not absolute. If a mother is found to be unfit, the father may be awarded custody, subject to the principle of the "welfare of the minor," which remains the paramount concern in all custody decisions.

Grounds for Declaring a Mother Unfit

Under both Pakistani statutory and Islamic legal principles, a mother can be deemed unfit for custody under several circumstances. These include:

Immoral conduct: If the mother is involved in activities considered socially or morally unacceptable, courts may question her suitability as a custodian.
Mental or physical incapacity: If the mother suffers from a serious mental illness or physical disability that affects her ability to care for the child.
Neglect or abuse: If there is evidence of child abuse or serious neglect by the mother.
Remarriage: Under Islamic principles, if the mother remarries someone who is not a close blood relative (na-mahram) to the child, her right to custody can be forfeited, although this is not automatic and is subject to judicial discretion.

When a mother is declared unfit, the next logical custodian is usually the father. However, the court does not automatically grant him custody. Instead, the court examines his ability to provide for the child’s emotional, educational, financial, and moral needs.

Father’s Custody Rights in Light of the Law

The father is considered the natural guardian of the child under Child Custody Laws In Pakistan. Unlike hizanat (custody), which is about day-to-day care, wilayat (guardianship) includes the legal authority to make decisions regarding the child’s education, marriage, and financial matters. The father typically holds this guardianship unless a court decides otherwise.

If the mother is found unfit, and there are no other suitable female relatives (such as the maternal grandmother), the father becomes the primary candidate for custody. However, even then, the welfare of the minor is the decisive factor. The court will assess the father's character, income, mental health, and ability to care for the child.

In Mst. Balqis Fatima vs. Najm-ul-Ikram Qureshi (1959), the Lahore High Court held that the welfare of the minor child supersedes all other considerations, including the father’s legal right to custody.

The Welfare Principle

The cornerstone of Pakistani custody law is the welfare of the child. This concept encompasses:

Emotional and psychological well-being
Educational needs
Health and safety
Moral and religious upbringing
Stability and continuity of care

Even if the mother is declared unfit and the father seeks custody, he must demonstrate that he can meet these welfare needs. Courts also consider the child’s age and preferences (if the child is old enough to express a reasoned opinion).

Alternative Custodians

If neither parent is deemed fit, the court may award custody to a third party—usually a close relative such as a grandparent, aunt, or uncle. Again, this decision is based on the best interests of the child. In some cases, the court may also place the child in state care, though this is rare.

Conclusion

Pakistani law provides a framework that allows the father to obtain custody if the mother is deemed unfit, but such custody is not granted automatically. The court must be satisfied that the father's guardianship aligns with the child’s best interests. This balanced approach of Hamza & Hamza Law Associates ensures that the welfare of the child remains the primary concern, regardless of traditional parental rights or gender norms. As such, fathers do have a pathway to custody under Pakistani law, but it is one that requires meeting both legal and moral standards.