Child Custody Case in Pakistan: Hizanat Rules, Guardian Court Procedure and Visitation Rights (2026 Guide)

By Justify.pk Editorial Team | Reviewed by Zeshan Haider Advocate

When a marriage breaks down, the hardest question is usually not property or maintenance but the children. Who will they live with? When can the other parent see them? Can a father take a child back at seven? Does a mother lose her children if she remarries? Many parents receive confident but wrong answers to these questions from relatives, and some lose months by filing in the wrong way.

In Pakistan, custody (حضانت, hizanat) and guardianship (ولایت, wilayat) are decided by the Guardian Court under the Guardians and Wards Act, 1890 (GWA), read with Muslim personal law and the West Pakistan Family Courts Act, 1964. This guide focuses on the practical side: who has the first right to custody, how the courts actually decide, how to file a custody or visitation petition step by step, how to get interim custody, and how to recover a child who has been taken away. For a shorter overview of the basic principles, see our guide to child custody after divorce or separation.

Key Points at a Glance

• The welfare of the minor is the paramount consideration (Section 17 GWA). Age rules guide the court but do not bind it.
• Under Hanafi law, the mother’s right of hizanat traditionally lasts until a son is seven and a daughter reaches puberty.
• The father is the natural guardian (wali) even when the child lives with the mother, and he remains liable for the child’s maintenance.
• A mother’s remarriage, poverty or employment does not automatically disqualify her; the Supreme Court has repeatedly said so.
• A child old enough to form an intelligent preference must be heard (Section 17(3) GWA).
• The non-custodial parent is normally granted a visitation schedule (ملاقات), and either parent can ask the court for interim orders while the case is pending.

Custody and Guardianship Are Not the Same

So a mother can have custody while the father remains the guardian. Under Section 19 of the GWA, the court cannot appoint another person as guardian of a minor whose father is living and not, in the court’s opinion, unfit to be guardian.

The Hizanat Rules: Who Gets Custody First?

The traditional Hanafi rules, as summarised in Mulla’s Principles of Mahomedan Law (paras 352 to 354), are:

• Mother first: the mother is entitled to custody of a son until he is seven and of a daughter until she attains puberty.
• Female relatives next: if the mother is absent or disqualified, custody passes in order to the mother’s mother, the father’s mother and other female relatives.
• Father after those ages: once the child passes the age of hizanat, the father (or other male relatives in his absence) becomes entitled to custody.
• Classical disqualifications include marriage to a man not related to the child within the prohibited degrees, misconduct, and neglect of the child.

These rules are the starting point, not the end of the inquiry. Pakistani courts consistently treat them as subject to the welfare of the child.

How Courts Actually Decide: The Welfare Test

Section 17 of the GWA directs the court to be guided by what appears to be for the welfare of the minor, consistent with the personal law of the child. The court considers the child’s age, sex and religion, the character and capacity of the proposed custodian, nearness of kin, the wishes of a deceased parent, and existing or previous relations between the child and the person seeking custody. If the minor is old enough to form an intelligent preference, the court may consider it (Section 17(3)).

The Supreme Court has applied these principles in several important decisions:

• Remarriage is not an automatic bar. In Raja Muhammad Owais v. Nazia Jabeen (C.P. 240 of 2021, decided 5 October 2022), the Supreme Court held that a mother’s second marriage does not, by itself, disentitle her to custody; the classical disqualification yields to the child’s welfare.
• Poverty is not a ground. In Bat Khan v. Sherin Bibi (2019), the Court held that a mother’s poverty is no reason to deprive her of custody, and that a jirga has no authority to decide custody.
• A working mother is not disqualified, and the child must be heard. In a 2025 review judgment written by Justice Syed Mansoor Ali Shah, the Court kept two children with their mother, a working professional, and held that family courts must hear and respect the child’s voice in custody cases.

The Lahore High Court has followed the same line. In a December 2025 ruling, it upheld custody of a 12-year-old girl with her maternal grandmother because the child clearly and intelligently preferred to stay there, and directed the father to pay maintenance and the trial court to fix a visitation schedule.

Factors that usually weigh with the court

• Who has actually been caring for the child, and the child’s emotional bond with each parent.
• The child’s schooling, health and any special needs, and continuity in those areas.
• The home environment each parent offers, including who else lives there.
• Any history of violence, abuse, addiction or neglect.
• Whether a parent has obeyed earlier court orders and supported the child’s contact with the other parent.
• The preference of a mature child, expressed freely and not under pressure.

Step-by-Step: How to File a Custody or Visitation Case

Step 1: Identify the right court

Custody, guardianship and visitation cases are heard by the Family Court acting as Guardian Court. The petition is filed where the minor ordinarily resides (Section 9 GWA). If the child has recently been moved to another city to defeat jurisdiction, raise this at the outset.

Step 2: Choose the correct petition

• Custody of the minor (Sections 7 and 25 GWA): to have the child placed with you, or returned to you.
• Visitation / meeting schedule: where the other parent has custody and you want regular contact.
• Appointment as guardian (Section 7): usually where the father is dead or unfit, or where a guardian is needed for the child’s property.

Step 3: Prepare the documents

• The child’s B-Form or birth certificate.
• CNICs of both parents and the Nikahnama.
• Divorce deed, khula decree or other proof of separation, if any.
• School records, medical records and photographs that show who has been caring for the child.
• Proof of residence and income, and evidence of any violence or neglect.

Step 4: Ask for interim orders

Cases take time, so file an application with the petition. Under Section 12 of the GWA, the court may order the child’s production and make temporary orders for custody and protection while the case is pending. An interim meeting schedule can also be fixed so that the child does not lose contact with either parent.

Step 5: Pleadings, reconciliation and evidence

After notice, the respondent files a written statement. Under the Family Courts Act, the court holds a pre-trial hearing and attempts reconciliation, then records evidence. The judge will usually meet the child, often in chambers and away from both parents, to understand the child’s wishes.

Step 6: Decision and appeal

The court passes a final order on custody and, almost always, a visitation schedule for the other parent. An appeal lies to the District Judge under Section 14 of the Family Courts Act, generally within 30 days. Custody orders are never truly final: either parent can apply again if circumstances materially change.

Visitation Rights of the Non-Custodial Parent

Courts treat contact with both parents as part of the child’s welfare. A typical schedule may provide weekly or fortnightly meetings, longer stays during school holidays and on Eid, and phone or video calls for a parent who lives abroad. Meetings are often fixed at the court premises at first and later moved to a home if things go smoothly. A parent who obstructs ordered meetings risks having the arrangement changed against them.

Maintenance Is a Separate Issue

Custody does not shift the duty to maintain the child. The father must maintain his minor children whether or not they live with him, and refusing visitation does not cancel that duty, just as non-payment of maintenance does not by itself cancel his right to meet the child. Maintenance is claimed in a separate suit before the Family Court, often combined with a claim for the wife’s dower or maintenance. If you are also ending the marriage, our guide on how to file khula in Pakistan explains how custody and maintenance claims can be joined in the same proceedings.

If the Child Is Taken Away

• Within Pakistan: apply to the Guardian Court under Section 25 GWA for return of the child, with an application for immediate production. In urgent cases of unlawful removal, a petition in the nature of habeas corpus under Section 491 of the Code of Criminal Procedure can be filed for the child’s production.
• Risk of removal abroad: ask the Guardian Court for an order restraining the child’s removal from Pakistan, and approach the authorities to place the child’s name on the relevant travel restriction lists.
• Taken abroad: Pakistan is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which may allow a return application where the other country is also a party. Get legal advice quickly; delay can weaken the case.

Common Mistakes Parents Make

• Relying on a panchayat or jirga decision instead of a court order.
• Assuming the father automatically gets a son at seven, or that remarriage automatically ends the mother’s custody.
• Coaching the child or speaking badly of the other parent; judges notice it.
• Stopping maintenance to pressure the other side, or blocking court-ordered meetings.
• Waiting too long to file after a child is removed from your care.

Frequently Asked Questions About Child Custody

Important Sources

• Supreme Court of Pakistan on remarriage and custody (Raja Muhammad Owais v. Nazia Jabeen), Oxford Human Rights Hub.
• Bat Khan v. Sherin Bibi: mother’s poverty not a ground to deny custody, SCC Online.
• Fact-check on the 2025 Supreme Court custody judgment, Geo News.

Conclusion

Custody law in Pakistan starts with the hizanat rules but ends with one question: what is best for this child? A mother does not lose her children merely because she is poor, working or remarried, and a father does not win custody merely because a son turns seven. The court will look at who has cared for the child, where the child is settled, and what the child, if mature enough, wants. File in the right court, ask for interim orders early, keep your records, and respect the other parent’s contact with the child.

Speak to a qualified family lawyer before you file or respond to a custody petition. Justify.pk’s Child Custody practice area connects you with verified advocates, and you can request a free legal consultation in confidence.

Legal Disclaimer: This article provides general legal information only and is not a substitute for advice from a qualified advocate.

Written for Justify.pk. For personalised guidance, get a free consultation at https://justify.pk/free-consultation or WhatsApp 0300-0779014.