Balancing Parental Rights and the Best Interests of the Child: A Doctrinal Analysis of Custody Laws in Pakistan

Abstract

The juridical structure of child custody in Pakistan is marked by the conflict between parental rights established under the system of personal law and the principle of supremacy of the welfare of the child. The study investigates the doctrinal balance of these interests in Pakistan, as set out in statutes and case law. The paper describes how custody laws developed out of classical Islamic practice (giving mothers custody (ḥiḍāna) about young children and defining fathers as protectors) to more modern interpretations of law with reference to the best interests of the child. A doctrinal approach is used, discussing major laws- such as the Guardians and Wards Act 1890 and the Muslim Family Laws Ordinance 1961, and constitutional principles, as well as landmark court cases of 2010 to 2025. As indicated by the findings statutory law only gives broad standards, whereas the jurisprudence of the superior courts has gradually shifted the scale towards child welfare at the expense of maternal or paternal rights. Important rulings of the Supreme Court, as well as the High Court, show that elements like moral behavior of a parent, remarriage, financial viability, and the wishes of the child are being put in the context of the well-being of the child. The gaps in the legal framework were identified in the paper, including outdated presumptions, insufficient detailed guidelines, and reforms are proposed. The conclusion of this analysis highlights that the main idea behind custody determination in Pakistan is to keep the child in a good position, both psychological, emotional, and physically, despite the attempt of the legal system to adhere to the right of the parent in an Islamic environment.