Child Custody in Pakistan: The Guardians and Wards Act 1890, Hizanat, Welfare Test, and Overseas Parents

Child custody disputes are among the most difficult matters that come before a Pakistani court. When a marriage ends or parents separate, the question of who will raise the child, where the child will live, and how the other parent will see the child falls to be decided under the Guardians and Wards Act 1890. This statute is more than 130 years old, yet it remains the primary legislation governing guardianship of minors in Pakistan. It operates alongside personal laws of the parties and is applied by Family Courts constituted under the West Pakistan Family Courts Act 1964.

This guide explains how custody proceedings work under the Guardians and Wards Act 1890, what the court considers when deciding between competing claims, the rights of mothers and fathers under Muslim personal law, the special position of overseas Pakistani parents, and the procedure for obtaining a guardianship certificate where a minor has property.

The Statutory Framework

The Guardians and Wards Act 1890 is a central enactment that applies throughout Pakistan. It recognises two distinct types of guardianship. The first is guardianship of the person of the minor, which concerns the physical care, residence, upbringing, education, and welfare of the child. The second is guardianship of the property of the minor, which concerns management of assets belonging to the child. A single person may be appointed guardian of both the person and the property, or different persons may be appointed for each.

Under Section 4 of the Act, a minor is a person who has not attained the age of majority under the Majority Act 1875. In ordinary cases majority is eighteen years, but where a guardian has been appointed by a court the minor continues to be governed by the Act until twenty-one years of age. A guardian is a person having the care of the person of the minor, or of the minor's property, or both. A ward is a minor for whose person or property, or both, there is a guardian.

Section 7 is the key provision. It empowers the District Court to pass an order appointing a guardian where the court is satisfied that it is for the welfare of a minor. The welfare of the minor is the paramount consideration. This statutory standard overrides any claim based on the personal law of the parties where the two are in conflict on a particular fact, as the Supreme Court of Pakistan has confirmed repeatedly.

Jurisdiction of the Family Court

Although the Guardians and Wards Act 1890 refers throughout to the District Court, jurisdiction in respect of the person of a minor has been transferred to the Family Courts by the West Pakistan Family Courts Act 1964. Section 5 of that Act and its Schedule list the matters within the exclusive jurisdiction of Family Courts, and custody of children falls squarely within that list. Applications concerning guardianship of property, however, continue to be filed before the District Court or the Guardian Judge in most provinces.

An application must be filed in the court having jurisdiction in the place where the minor ordinarily resides. This is important in cases involving parents who live in different districts or different countries. Ordinary residence means the place where the child has been living in a settled manner, not merely a temporary visit. Courts have held that a child brought to Pakistan for a holiday does not acquire ordinary residence here simply because the visit was extended by one parent in breach of the arrangements made with the other.

Hizanat Under Muslim Personal Law

For Muslim families the concept of hizanat, or the right of custody, operates alongside the statutory scheme. Under Hanafi jurisprudence which is followed by most Pakistanis, the mother is entitled to the custody of her son until he is seven years old and her daughter until she attains puberty. This rule is not absolute. It yields wherever the welfare of the child requires a different arrangement.

The Supreme Court of Pakistan has explained on many occasions that hizanat is a right held in trust for the benefit of the child. It is not a property right of the mother or the father. If the mother remarries a person who is not within the prohibited degrees of relationship to the child, her right of hizanat is generally lost under classical Hanafi rules, although modern judgments have softened this position where welfare clearly points to the mother retaining custody. If the father is shown to be unfit, custody will remain with the mother even after the ages mentioned above. The fitness of a parent covers moral character, financial capacity, the home environment, any history of violence, and the child's own emotional attachment.

A father's right is that of natural guardianship in respect of the person and property of the minor. Even when physical custody is with the mother, the father remains the natural guardian under Muslim law and his consent is required for important decisions such as marriage of a minor daughter, issue of a passport, or travel abroad.

The Welfare Test in Practice

Welfare is not defined in the Act. It has been shaped by case law. Courts in Pakistan look at a cluster of factors. These include the age and sex of the child, the wishes of the child where the child is old enough to express a view, the financial means of each parent, the moral character of each parent, the home environment each parent can offer, the availability of extended family support, the schooling arrangements, the health and special needs of the child, and the history of the relationship between the child and each parent.

The Lahore High Court and the Islamabad High Court have repeatedly held that welfare is not reducible to who has more money. A modest but loving and stable home is preferred to an affluent but disturbed one. Courts are also reluctant to disrupt established arrangements. If a child has been living with one parent for a long period and is settled in school and in the community, the court will be slow to order a change unless there is compelling reason.

The wishes of the child are given weight once the child is old enough to understand the consequences. Judges in Pakistan commonly interview the child in chambers, away from both parents and their lawyers, so that the child can speak freely. The judge then records an impression of the child's wishes and considers them alongside the other welfare factors.

Visitation and Meeting Rights

A parent who does not have physical custody is entitled to meet the child. Section 12 of the Act empowers the court to pass interim orders for the production and temporary custody of the minor during the pendency of proceedings. In practice, Family Courts routinely order meetings between the child and the non-custodial parent on designated days and at designated places.

The usual arrangement is a weekly or fortnightly visit in a neutral venue, often the court premises or a relative's home, with the timings and duration fixed in the order. Where relations between the parents are sharp, supervised visitation may be ordered. Overnight stays and school holiday access are common subjects of further applications. Breach of a visitation order is a serious matter and may be enforced by proceedings for contempt or by revision of the custody order itself.

Overseas Pakistani Parents

A large number of custody disputes now involve at least one parent who lives abroad. The Supreme Court and the High Courts have developed a line of authority dealing with the removal of a child from Pakistan and the return of a child who has been kept here against the wishes of the other parent. Pakistan is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980, which means that foreign custody orders are not automatically enforced. Instead, the courts apply the welfare test afresh, taking into account any foreign proceedings as part of the overall picture.

Where a child is ordinarily resident abroad and has been brought to Pakistan by one parent, courts have directed the return of the child to the country of habitual residence if that serves the child's welfare. Judgments of the Lahore High Court and the Islamabad High Court have emphasised that the jurisdiction of the country where the child lives should generally be respected. This is not a hard rule. If the home country offers conditions that would harm the child, the Pakistani court may retain the matter.

Travel orders are another common application. A custodial parent who wishes to take the child abroad for a holiday or for education must obtain the permission of the court if the other parent does not agree. The court usually requires an undertaking to return the child by a specified date, surrender of passports with a trusted third party, and sometimes a monetary security.

Guardianship of Property

Where a minor owns property, whether by inheritance, gift, or any other mode, a guardian of the property must be appointed by the court before the property can be sold, mortgaged, or leased for a term exceeding five years. Section 29 of the Act prohibits alienation of the ward's immovable property without the previous permission of the court. Section 30 makes any sale without such permission voidable at the instance of any person affected by it.

An application for appointment as guardian of property is filed before the District Court or the Guardian Judge. The petition must describe the property, the minor's interest in it, the relationship of the applicant to the minor, and the purpose for which the appointment is sought. Notice is issued to the relatives and to any other interested person. The court examines the fitness of the proposed guardian and the necessity of the proposed transaction. A bond or security is commonly required. Periodic accounts must be filed.

Procedure: How to File

A custody application begins with a petition under Section 7 read with Section 25 of the Guardians and Wards Act 1890. The petition sets out the particulars of the parents and the child, the marriage and its breakdown, the present whereabouts of the child, and the grounds on which custody is sought. It is accompanied by affidavits, copies of the nikahnama, birth certificate, CNIC copies, school records, medical records where relevant, and any police report or previous court order.

On filing, the court issues notice to the respondent. Pre-trial reconciliation is attempted under the Family Courts Act 1964. If reconciliation fails, issues are framed and evidence is recorded. The court may order a home study, may interview the child, and may consider reports from schools and doctors. Judgment is then reserved and a reasoned order is passed.

Appeals lie to the District Court from an order of the Family Court, and further to the High Court in revision. Custody orders are not final in the strict sense. They may be varied by the court at a later stage if circumstances change. A parent whose circumstances improve, or who can show that the arrangement is no longer in the welfare of the child, may seek modification.

Practical Advice

Parties should keep records. A diary of visits, school reports, medical records, and photographs at family events carry real weight in court. Witnesses who know the child and the home environment are valuable. Personal attacks on the other parent without proof tend to damage the attacking party rather than help. Judges prefer parents who show restraint and focus on the child.

Settlement is almost always preferable to a contested hearing. A negotiated parenting plan, even if drawn up with the assistance of lawyers and recorded in a consent order, provides a degree of stability that litigation cannot offer. Family Courts actively encourage settlement and will record a consent order that is in the welfare of the child.

Custody law in Pakistan blends an old statute with living personal law and decades of case law. It gives courts wide discretion, anchored at all times in the welfare of the child. Anyone involved in a custody dispute should take advice early, act with dignity, and keep the focus where the law keeps it: on the child's best interests.