Guardianship / Child Custody Law in Pakistan

Guardianship / Child Custody Law in Pakistan

Guardianship / Child Custody Pakistan is modelled after the Guardianship and Wards Act of 1890, which was passed during the British colonial rule of India. A Guardian and Wards department was established in each province that handled matters related to minors and guardians. Guardians include anyone who has been granted custody of a minor by a court.

Guardianship and Wards are responsible for all matters related to minors, including Guardianship / Child Custody hearings. Divorce or separation from your spouse requires filing a divorce petition with your local district court. At some point during or after your divorce proceedings, you will likely have to go through a Guardianship / Child Custody hearing if you have children.

A judge presiding over your case will determine who should have primary custody of your children by considering their best interests as well as:

  • A person who can provide financial assistance to the children
  • What is each parent’s living situation (where do they live?)
  • The person who has been taking care of the children since they were born (the “primary caregiver”).

If you are granted primary care, it does not mean that you will be granted physical custody of your child; it simply means that you will be responsible for the major decisions about their lives, such as where they will go to school, what religion they will practice, and other financial decisions. Children’s primary caretakers are also chosen based on who is emotionally capable of handling these responsibilities.

Guardianship is a Legal Arrangement

Guardianship is the natural arrangement, while legal guardianship is the legal arrangement with respect to the care and upbringing of a minor. In the absence of a parent, an adult, who is competent and capable of acting as a guardian, can be appointed by the court to become the guardian of the minor. The functions of the guardian are to provide for the basic needs and protection of the ward.

Guardianship / Custody of Children after Divorce

Pakistani law states that, upon divorce, a child under the age of seven will go to the mother, unless the father is specifically granted custody. When a divorce occurs in Pakistan, a child under seven will go to the mother, unless the father has been specifically granted custody. When there is a custody court order, or if one parent or guardian passes away, the other parent will have sole legal and physical responsibility for the child.

Guardianship/Custody Cases Mostly Originated From Lahore High Court

A majority of guardianship/custody cases originate from the Lahore High Court in Pakistan. Most cases involve children born out of wedlock where only one parent has claimed paternity and disputes over child support. If a woman seeks sole physical custody of her child after divorce, she must prove that she has been the primary caregiver for the child and that her spouse may pose a danger to their well-being without her. It is important for a mother who wants joint physical custody to gather evidence proving that she is capable of caring for her child as both parents are expected to.

Judgements on Guardianship / Child Custody by the Family Courts

When parental figures seek legal assistance in this matter, family courts in Pakistan make most decisions on Guardianship / Child Custody; however, if they feel the decision does not align with what is best for the future welfare of their dependents, they have the right to appeal it. For review and consideration by the Appellate Bench, once an official complaint has been filed against a lower court’s decision on custodial matters during a marriage, the lower court’s ruling will be overturned. You may be able to receive full or partial responsibility for your dependents if your case is accepted on appeal based on the merits of your case and the circumstances of your separation from your spouse.

Guardianship / Child Custody in Pakistan

Guardianship / Child Custody in Pakistan is governed by the Custody of Children Act, of 1959. According to it, the following is provided:

  • Children who are unable to care for themselves or manage their own affairs and property may require a guardian to be appointed by the court.
  • When a court finds that an individual lacks mental capacity, it can appoint a guardian.
  • Parental supervision of a minor is permitted unless a court of appropriate jurisdiction grants permission to do otherwise.

Custody or Guardianship of children is granted to the Parent who can provide the best physical and moral environment for the child.

Children require stability in their lives, as well as constant nurturing (both physically and emotionally) to stay healthy and happy. The custody of a child is awarded to the right parent for this reason.

To determine which parent will be granted custody of your child, you must first understand Pakistan’s laws on Guardianship / Child Custody. Several factors will influence the decision-making process, but there are a few that deserve special attention. In considering whether both parents should be present in the child’s life, the court will consider the child’s best interests.

When deciding who should have legal custody over your child, you should also consider his or her age (if he or she is under 15 years old). The court will listen to your wish that your child remains with you if you can see a future for them through their dreams, desires, and aspirations.

Guardian and Wards Act in Pakistan

Pakistani Child Custody Law emphasizes the concept of “inherent jurisdiction.” It’s the primary power that a Court has over its jurisdiction and authority, and it’s generally characterized by its ability to perform specific functions without the need for written orders or adjudications. This includes how a court uses its inherent powers over the guardianship of minors in the case of Guardianship / Child Custody. Guardianship has the following inherent powers:

  • Guardians must be appointed
  • Under sections 20(3) or 26(1), guardians can be removed or replaced
  • Taking into account the provisions made under sections 17 (1) through 25 (2), appointing or changing where necessary.

Getting custody of a young Child / Guardianship through a court?

A court hearing is usually held after the parents of a child have divorced and the parent with custody retains custody. Parents have an equal right to raise their children, so each parent’s ability to do so is considered equally. Pakistani Guardianship / Child Custody law provides that neither parent should be denied the right to be a parent; either parent can present their case if they have a good reason for keeping or giving up custody.



Legal Guardianship is granted by Family Courts

A child’s care and maintenance are to be provided by their parents in accordance with Pakistani family laws. A court may, however, grant guardianship of children in certain circumstances. Anyone who is responsible for the welfare of a minor or restricted adult is considered to be a guardian.

Guardianship can be granted through adoption (by a couple), will, or court order.

In Pakistan, the guardianship of minors under the age of 18 is governed by section 172 of the Pakistan Penal Code, 1860, and the Punjab Court of District Judges (Junior Division) Act, 1870.

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Guardianship of Minors has Become An Issue

The Guardianship of minors through Family Courts has recently become an issue of great debate in the country, especially after a series of cases that came before the courts, challenging the manner in which the powers given to family courts under the Guardians and Wards Act, 1890 had been used by the authorities. On examination of the matter, little clarification was provided.

Guardians and Wards Act, 1890

Guardianship of minors through family courts continued to be regulated by the Guardians and Wards Act, of 1890. In exercising jurisdiction under this Act, the Court relied on the principles laid down in Young v. Young (1876) LR1 P and D 396 to determine whether a guardian should be discharged and accounts requested.

The Difference Between Legal Guardianship and Child Custody


The difference between legal guardianship and child custody has already been stressed. Marriage, divorce, minority, guardianship, and adoption laws in Pakistan have undergone a paradigm shift over the past decades. It should be noted that Pakistan inherited the Hindu Law of Mitahit Adoption (adoption by substitution) from India through Section 88 of the old Indian Code of Civil Procedure 1908, which itself was based on Sir Matthew Hale’s 18th-century treatise. In countries such as the UK, USA, etc., adoption is based on the concept of proprietary parental rights and duties rather than liabilities. Pakistan Code offers little more than a weak codification of traditional Muslim rules for adoption sanctioned by the Holy Quran and Sunnah.

The implementation of the Child Protection Policy


In Pakistan, the Child Protection Policy, also known as the State Policy for the Protection and Welfare of Minors, is being implemented. Having ratified the Convention on the Rights of the Child (UNCRC) and its Optional Protocol, Pakistan is an active member. A State is obliged under Article 42 of the Convention to take all appropriate legislative, administrative, social, and educational measures to protect and care for children within its territory from neglect, exploitation, abuse, and exploitation. As a matter of right, children are entitled to a special level of care, assistance, and protection from the state.

Guardianship and custody are legal relationships between adults and children. A child’s custody would be determined by their biological parents, whereas guardianship would be determined by their nonbiological parents. In the event of a separation or divorce, custody may be a necessary part of the proceedings, while guardianship is usually an approach that is more long-term. Expert financial advice can be obtained from a professional financial advisor. Taking a closer look at guardianship and custody, let’s compare their key differences.

What Is the Meaning of Child Custody?

Custody is the legal relationship between a child and one of their parents, typically their biological parents. 

“Custody” refers to the relationship between a child and his or her parents, typically his or her biological parents. A dispute over child custody is often caused by a separation or divorce between the parents. Physical custody can be assigned to children or legal custody can be assigned to them. Child’s physical custody refers to their living arrangements, medical care, and other basic needs on a daily basis. As opposed to physical custody, legal custody involves making important decisions for the child. According to these distinctions, a parent could even have partial physical custody of their child.

What Is the Guardianship?


A guardianship is often established when a child under the age of 18 needs someone to make legal decisions on their behalf.  Guardianship primarily serves the purpose of helping incapacitated people who, since they are unable to care for themselves, need assistance.

The option of adult guardianship may be available to someone who is 18 or older in some cases.

Guardians are different from parents in that they can make legal and physical decisions for children. Although legal guardianship can be compared to adoption in some respects, biological parents remain legally responsible for their child during the guardianship process. 

As guardians, parents retain all parental rights and responsibilities, but technically they cannot act as guardians. It is important to note, however, that they forfeit their legal rights upon adoption.

Children whose parents are physically or mentally incapable of caring for them are taken care of by legal guardians. For various reasons, a person may be incarcerated, deceased, or incapacitated. Legal guardians may be relatives, such as aunts, uncles, or grandparents.


Appointing Custodians vs. Guardians

Custody of a child can only be granted by a court. The judge makes the final decision, although parents are able to make recommendations to the court.

Guardianships are also finalized in court, but parents can appoint them. Guardianship may be exercised by another person if a parent is incarcerated. No parenting rights or responsibilities can be transferred without a court order, however.

It is mandatory in both scenarios to fill out the necessary paperwork to prove the child’s best interests are at the forefront of the proceedings, as well as to pay for legal fees. Upon filing the paperwork with the court, a meeting will be scheduled between the child and all potential parties involved.

Term of Custodianship vs. Guardianship


It is generally accepted that the process of determining custody is flexible and can be modified based on significant changes in circumstances if the child’s best interest is served.

Unlike guardianship, which typically lasts much longer – usually until the child reaches 18 years of age, or until the guardian dies. Temporary or emergency guardianship can sometimes be granted.

In general, a court will use the standard of “best interests of the child” to determine whether a person is the most suitable for the support of the child.

When dealing with large family issues, especially those involving children, guardianship and custody are important approaches. Living arrangements, time spent with parents, parental availability, and individual financial decisions all need to be considered. It is crucial to understand the procedures, duration, and basics of each procedure before making a decision that is in the best interests of the child and family.