Who gets guardianship of a minor child in Pakistan?
Two people separate. Or a parent dies. And the family is suddenly fighting over the child. Who decides? In Pakistan the answer starts with one law, the Guardians and Wards Act 1890, and one idea: the welfare of the child comes first. This guide explains who is a guardian and how you apply.
Guardianship and custody are not the same
Under section 4 of the Act, a guardian is a person having the care of the person of a minor, or of his property, or of both. Custody is the day to day care: food, school, sleep, love. Guardianship is the legal authority: signing papers, managing money. In Muhammad Hanif v Abdul Samad (PLD 2009 SC 751), the Supreme Court held that a mother holds the custody of a young child while the father stays the guardian of the person and property.
Who is the natural guardian of a child in Pakistan?
For a Muslim child, the father is the natural guardian. The mother holds a separate right called hizanat, the right to keep the child with her in the early years. Under the classical rules that courts still use as a starting point, a mother keeps a son until he is seven and a daughter until she reaches puberty (Sardar Hussain v Mst. Parveen Umer, PLD 2004 SC 357; Maryam Tariq v SHO, PLD 2015 Kar 382). Courts move past these ages when the welfare of the child needs it. In Mst. Imtiaz Begum v Tariq Mehmood (1995 CLC 800), the Lahore High Court tied the age to when a child starts school. See our guide on how courts decide child custody in Pakistan for more.
What does the welfare of the minor mean?
Section 17 of the Guardians and Wards Act 1890 is the heart of the law. The court must be guided by what appears to be for the welfare of the minor, consistent with the law to which the minor is subject. The factors are:
- the age, sex and religion of the child
- the character and capacity of the person asking to be guardian
- how close that person is to the child by blood
- the wishes of a deceased parent, if any
- how the proposed guardian has behaved with the child so far
If the child is old enough to form a sensible preference, the court may consider it (section 17(3)). The Lahore High Court said it plainly in Zohra Begum v Latif Ahmad Munawwar (PLD 1965 Lah 695): every rule of Muhammadan law about custody is only an application of the welfare principle.
What do recent Supreme Court judgments say?
In PLD 2024 SC 47, the Supreme Court said the natural guardianship of the father is not absolute and must be weighed against the child's best interests. A father filing from abroad does not have the same claim as a mother giving daily care. In Shaista Habib v Muhammad Arif Habib (PLD 2024 SC 629), the Supreme Court gave custody to the mother and said courts must look at the emotional and psychological needs of the child.
A second marriage does not automatically take a mother's custody away (2023 SCMR 2123; Shabana Naz v Muhammad Saleem, 2014 SCMR 343). Lower income does not lose it either (Mst. Razia Bibi v Riaz Ahmad, 2004 SCMR 821). Custody questions often follow a khula, so read our khula guide if you are going through a divorce.
When will the court refuse to appoint a guardian?
Section 19 stops the court from appointing a guardian of the person when the father is alive and fit, or when a married female minor has a fit husband. The father stays the guardian unless the court finds him unfit.
Which court hears a guardianship case?
The Family Court. The West Pakistan Family Courts Act 1964 gives Family Courts exclusive jurisdiction over the custody of children and guardianship (section 5 and the Schedule). Section 25 says a Family Court is deemed to be a District Court for the Guardians and Wards Act 1890 and follows its procedure. You apply to the court of the district where the minor ordinarily lives (section 9 of the Act).
The people allowed to apply are the person claiming to be guardian, any relative or friend of the minor, and the Collector (section 8). The court fee on a plaint before a Family Court is one rupee (section 19 of the Family Courts Act). The court can pass interim orders for the temporary custody of the child while the case runs (section 12 of the Act). You can check your family court case status online.
What do you need to file the application?
The plaint must state the material facts and list the witnesses with their names and addresses (section 7 of the Family Courts Act). Carry:
- the CNIC of the parents and the B form of the child
- the nikahnama or divorce record
- proof of income and address
- school and health records
Ask the court registry for the exact list in your district.
What if the child is taken away?
Section 25 of the Act gives a guardian the right to apply for the return of the ward. If it is for the welfare of the child, the court can order the return and even use arrest to hand the child over. Taking a ward out of the court's area can mean a fine of up to one thousand rupees or six months in civil jail (section 44). Refusing to produce the child is a separate offence (section 45).
Can a guardian be removed?
Yes. Section 39 lists the grounds: abuse of trust, continued failure of duty, incapacity, ill treatment or neglect, a conviction that shows bad character, or moving out of the court's district.
Until what age does guardianship last?
A child becomes a major at 18 under the Majority Act 1875, or 21 if a guardian was appointed by the court. Guardianship ends when the child becomes a major, when the guardian dies or is removed, and for a female ward when she marries a fit husband (section 41).
Can you appeal?
Yes. Section 47 gives a right of appeal to the High Court from orders on guardianship, return of a ward, and removal of a guardian. Under section 14 of the Family Courts Act, a Family Court decree goes to the High Court when a District Judge presided, and to the District Court otherwise.
When both parents die, a relative or friend can apply. The court picks whoever fits the welfare test in section 17, with nearness of kin as one factor. Grandparents and close family usually stand first, but welfare decides. Full adoption is not part of Pakistani law. The route is guardianship. Our adoption law in Pakistan guide explains it. Browse more plain language guides on the Lexiber blog, or see how Lexiber AI shows the exact law behind every answer.
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