Who gets the children after divorce?
This is the first question parents ask when a marriage ends. The answer is not simple. The court decides, and the court looks at one thing before everything else. The welfare of the child.
In Pakistan, child custody is governed by the Guardians and Wards Act 1890 and the Family Courts Act 1964. Courts also apply Islamic family law. The result is a mix of clear rules and wide discretion. Let us go through it step by step. Everything on this page is part of the Lexiber blog, where you can read more about Pakistani law explained in plain language.
Hizanat and guardianship: two different things
Pakistani law separates custody from guardianship, even though people use the words loosely.
Custody (hizanat) is the day to day care of the child. Where the child lives, who feeds them, who takes them to school.
Guardianship (wilayat) is the legal authority over the child. It covers decisions about property, education, medical treatment and marriage. Under Muslim personal law, the father is the natural guardian.
The mother can hold custody while the father remains the guardian. The father stays responsible for maintenance either way. If you are ending a marriage, understand both roles before you file, because they are decided separately. The divorce process in Pakistan and the custody question often run side by side.
The mother's right to custody
Under Islamic law as applied in Pakistan, the mother has a preferential right to custody of a son until he is seven years old, and of a daughter until she reaches puberty. The Supreme Court confirmed this in Feroze Begum v Muhammad Hussain (1978 SCMR 299).
This right continues even after divorce. A mother who has been divorced does not lose her right to hizanat.
The same judgment makes a second point. The father is the natural guardian, and the mother's custody is subordinate to his control. But the mother's inability to maintain the children is not a ground to take them away. Maintenance is the father's duty.
What the court considers: the welfare principle
Section 17 of the Guardians and Wards Act 1890 makes welfare the paramount consideration. The court looks at the age, sex and religion of the child, the character and capacity of the proposed guardian, how close the guardian is to the child, the wishes of a deceased parent, and the existing relationship between the guardian and the child.
If the child is old enough to form an intelligent preference, the court may consider it.
The Supreme Court has held that welfare means the moral, spiritual, physical, psychological and educational wellbeing of the child. Welfare is a question of fact. It must be proved by evidence, not assumed (Rahimullah Choudhary v Mrs. Sayeda Helali Begum, 1974 SCMR 305).
And the welfare of the child beats every other consideration, including the legal rights of the parents (Khan Muhammad v Mst. Surayya Bibi, 2008 SCMR 480 and Mehmood Akhtar v District Judge Attock, 2004 SCMR 1839).
When the mother can lose custody
The mother's right to hizanat is not absolute. The general rule is that a mother loses her preferential right if she marries a man who is not a close relative of the child within the prohibited degrees.
But even this is not automatic. If the welfare of the child points to the mother, the court can keep the child with her. In 2000 SCMR 838, the Supreme Court restored custody to a mother who had remarried, because the father had neglected the child for years and the mother's family was raising him well.
Bad character, neglect, or taking the child out of Pakistan without the father's consent or court permission can also cost the mother her custody.
The father's path to custody
The father is the natural guardian, but he does not get custody automatically when the hizanat period ends. He has to file a case and prove that custody with him is in the child's welfare.
Courts have also said that a father who delays too long in claiming custody can lose his right. In Nazeer Begum v Abdul Sattar, a five year delay was treated as unreasonable.
Where the father has remarried and there is no woman in his house to look after the child, courts have kept the child with the mother (PLD 2000 Peshawar 23).
What the child wants matters, up to a point
Section 17(3) of the Act lets the court consider the child's preference if the child is old enough to form an intelligent one. But the Supreme Court has held that a minor is not the best judge of his or her own interests. The child's wish is heard, then weighed against welfare.
In Asjad Ullah v Mst. Asia Bano (Civil Petition 3920 of 2024, decided 22 April 2025), a father who lived abroad and had never met his daughter asked for custody of the twelve year old girl. The courts refused, keeping her with her mother, because welfare lay where the child had grown up.
Visitation rights
The parent who does not have custody still has the right to meet the child. The Family Courts Act 1964 puts visitation rights of parents in the list of matters the Family Court can decide (Part I of the Schedule).
The court usually fixes a schedule. Weekly visits, holidays, Eid. If the parent with custody blocks visits, the other parent can go back to court. Denial of court ordered visitation can be treated as contempt.
Where to file a custody case
Custody cases go to the Family Court. Section 5 of the Family Courts Act 1964 gives Family Courts exclusive jurisdiction over custody of children and visitation rights. Section 25 of the same Act treats the Family Court as a District Court for the purposes of the Guardians and Wards Act 1890.
If you are already filing for divorce, you can add the custody claim to the same plaint. The law allows a plaint for dissolution of marriage to carry claims about custody and visitation. A khula in Pakistan case can raise the same claims.
Appeals from a Family Court go to the District Court. The court fee for a family suit is a flat fifteen rupees.
What this means for you
If you are a mother, your right to keep young children is real, but it depends on how you live and where the child's welfare points. If you are a father, you are the guardian and you must maintain the children, but custody is decided on welfare, not on your title alone.
The practical advice is the same for both sides. Keep the child's routine stable. Do not take the child abroad without the other parent's consent. And get a lawyer before you file, because every case turns on its own facts. The rules for filing for divorce in Pakistan show how family claims are put together in one plaint.
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