Can a father get custody of his children under Pakistani law?

Legally and Theoratically

The theoretical answer is, yes. Legally speaking, a father has as much right to his children's custody as a mother, as long as it remains subordinate to the paramountcy of the child's welfare. Pakistani family law, whether derived from Islamic jurisprudence, statutory law, or judicial precedents, consistently emphasizes that the welfare of the child is the overriding consideration. Custody is not an automatic entitlement for either parent; instead, it is a trust governed by the best interests of the child. In pure doctrinal terms, the legal position does not presume custody in favor of the mother or father — both are equal contenders in principle.

The Honourable and learned Supreme Court and High Courts have laid down foundational jurisprudence to define the custodial rights of parents, the limits of those rights, and the duties owed to children. Through a long line of judgments, the apex courts have reiterated that while Islamic principles such as Hidhanat (preferential right of custody for mothers of minor children) inform the law, they are not absolute. Courts have the inherent jurisdiction to override parental rights if the child's physical, emotional, educational, or moral welfare demands it. Judgments have methodically outlined factors such as age, gender, education, emotional bonding, character of the parents, and stability of environment, all of which must be evaluated to determine the proper custodian. Thus, in theory and legal doctrine, there remains an avenue for fathers to obtain custody if they demonstrably serve the child's welfare better.

Practically?

The practical and applied answer, however, is a stark and definite no. In real-world courtroom practice, the honourable courts almost universally grant the custody of minor children to mothers, relying primarily on the Islamic principle of Hidhanat as a starting point. Particularly for very young children (those who have not reached the age of discernment), the prevailing judicial mindset heavily favors maternal custody unless there are extraordinary circumstances — such as proven neglect, abuse, or moral unfitness — which are often very difficult to establish to the satisfaction of the honourable courts. Fathers are more commonly granted very limited and visitation rights or strict interim contact rather than actual physical custody under the Islamic principle of Wilayah (guardianship). The burden of proof on the father to rebut the presumption in favor of the mother is extremely high, and in most cases, the child's welfare is judicially presumed to be better served with the mother unless clear and cogent evidence proves otherwise.

In practice, the father's right to guardianship — or more accurately, his responsibility as a guardian — is subordinated to his financial obligation to provide maintenance for the child. This framework is derived from the Islamic principle of Nafaqah (obligation of maintenance), which imposes upon the father the duty to financially support his minor children regardless of custodial arrangements. The practical effect of this principle is inherently and proactively restrictive of the father's complete role and participation in the child's life. Fathers are often viewed primarily as financial providers, while their emotional, developmental, and day-to-day parental involvement is minimized or sidelined unless they simultaneously fulfill the financial obligations to the court's satisfaction. This structural bias tends to fragment the father’s holistic relationship with his child, reducing it to a transactional dynamic rather than a fully participatory parental role.

This limitation stands in contrast to the teachings of the Prophet Muhammad (peace be upon him), who emphasized the profound importance of a father's active involvement in his child's upbringing. He is reported to have said, "There is no gift that a father gives his child more virtuous than good tarbiyah" - Sunan Tirmadhi, 4977. This hadith underscores the irreplaceable value of a father's direct engagement in nurturing his child's character and moral development. However, the prevailing legal framework, which emphasizes the father's role as a financial provider, often undermines his capacity to fulfill this essential duty. The emphasis on maintenance obligations over active parenting reflects a systemic undervaluation of the father's role in the child's emotional and moral upbringing.

Notable Laws and Case Laws