Divorce is painful enough for the adults involved — but the greatest concern for most parents is: what happens to the children? Who will they live with? Who pays for their upbringing? Can a parent take them abroad? In Pakistan, these questions are governed by a specific legal framework, and understanding it is essential for any parent going through a divorce.

⚖️ 1. Legal Framework

Child custody and maintenance after divorce in Pakistan are governed by:

• Guardian and Wards Act, 1890 — the primary law governing custody and guardianship
• Muslim Family Laws Ordinance, 1961 — covering maintenance obligations
• Family Courts Act, 1964 — which gives Family Courts jurisdiction over custody disputes
• Islamic personal law (Fiqh) — which defines the age-based custody rules (Hizanat)

👶 2. Who Gets Custody? The Rule of Hizanat

Under Islamic personal law as applied in Pakistan, the mother (hizanat) has primary right to custody of young children. The general rules are:

• Boys: Mother has custody until the age of 7 years
• Girls: Mother has custody until puberty

After these ages, custody ordinarily passes to the father. However, Pakistani courts have significant discretion and regularly deviate from these default rules if the welfare of the child requires it. The child’s best interest — not strict age rules — is the ultimate standard.

🏛️ 3. The Role of Family Court

Either parent can file a custody petition before the Family Court. The court will consider:

• The child’s age and gender
• The moral character and financial capacity of each parent
• The child’s own preference (especially for older children)
• Which parent has been the primary caregiver
• Whether either parent has remarried
• The living environment and stability each parent can provide

Courts in Pakistan have repeatedly held that the welfare of the child supersedes all other considerations — including the strict Fiqh rules on age.

💰 4. Child Maintenance After Divorce

Regardless of who has custody, the father is legally obligated to financially maintain his children after divorce. This includes:

• Food, clothing, and shelter
• Education expenses
• Medical expenses

The amount is determined by the father’s financial capacity and the child’s reasonable needs. If the father refuses to pay, the custodial parent can file a maintenance application before the Family Court and obtain a court order for enforcement.

✈️ 5. Can a Parent Take Children Abroad?

Neither parent can take a child out of Pakistan without the other parent’s consent or a court order. If you are concerned your ex-spouse may attempt to take the children abroad, you should:

• File an urgent application before the Family Court for a travel restraint order
• Inform the Federal Investigation Agency (FIA) and passport authorities
• Apply to have the child’s passport impounded

Courts act swiftly in such matters when children’s welfare is at stake.

👁️ 6. Visitation Rights for the Non-Custodial Parent

The parent who does not have custody is entitled to visitation rights. Courts typically set out a visitation schedule covering weekends, school holidays, and special occasions. Denying the non-custodial parent access to the children without court sanction is itself a legal violation.

✅ Practical Tips

• File for custody early: The parent who takes proactive legal steps first has a stronger position
• Document your role as caregiver: School records, medical visits, daily routines all matter
• Never use children as bargaining chips: Courts view this negatively
• Get a court order — not just an agreement: Verbal arrangements are unenforceable
• If the father refuses maintenance, go to court: The law is clearly on your side

📞 Need Legal Assistance?

At HSJ Legal, we handle child custody, maintenance, and divorce proceedings with the sensitivity these matters deserve. Advocate Hina Saleem Jessani is a High Court Advocate based in Karachi.

👉 Contact HSJ Legal for a consultation.