“Justice should not only be done but should manifestly and undoubtedly be seen to be done,” said Lord Hewart. Yet, in Pakistan’s family courts, this deal collapses under the weight of inconsistent custody practices. For mothers, the process becomes a gamble rather than a reliable legal protection. Consistently vulnerable to a system whose structural flaws enable uncertainties, their voices continue to be dismissed.
The Guardians and Wards Act 1890 forms the basis of Pakistan’s custody and guardianship framework, but its interpretative language leaves significant room for judicial discretion. The Act directs courts to appoint a guardian according to the “welfare of the minor” and lists factors such as the child’s age, sex, religion, the proposed custodian’s character, and the child’s stated preference if he/she is mature enough to do so. Because these terms are undefined and open-ended, judges effectively determine what “welfare” means in practice.
This interpretive flexibility creates a system where mothers’ rights are vulnerable to delay tactics, inconsistent evidentiary standards, personal biases disguised as judicial discretion, and decisions that are easily undermined in practice. Instead of providing clarity, the process becomes tumultuous, where procedural uncertainty undermines women’s claims.
In Imitiaz Begum v. Tariq Mehmood, the Lahore High Court held that a custodian must not be fasiq (morally unreliable) or kha’in (dishonest), defining these terms as the opposites of adil (just) and amin (trustworthy). The court stated that a person may be disqualified if the judge has reason to believe they fall into either category. This approach complicates the assessment of a custodian’s character, as it allows moral and behavioural judgements to rest on subjective impressions rather than clearly defined evidentiary standards.
This subjectivity disproportionately harms mothers, who are far more likely to face honour-based allegations and character attacks by the opposing party. This is exemplified by Munawwar Bibi v. Muhammad Amin, where the mother sought custody, and the father responded by accusing her of “bad character” and filing a zina case against her and her brother-in-law. Although the husband’s appeal did not negate the presumption of innocence, the trial court denied her custody on the basis of unproven allegations. The appellate court restored custody to the mother, but the High Court reversed this decision and again awarded custody to the father, relying on the same character-based claims, despite the absence of any legal finding against her. It was not until the Supreme Court that the mother’s acquittal was recognised as conclusive evidence of her innocence.
The mother endured years of litigation, repeated appeals, and the emotional burden of defending herself against allegations that had no substantive evidence. The reputational damage of the zina accusation, even after the acquittal, lingered throughout the custody proceedings, exposing how easily a woman’s social standing can be weaponised in a system that allows assumption instead of precise evidence. Had the law detailed or attempted to detail objective criteria for assessing character, the case would not have hinged on moral speculation, nor would the mother’s honour have been so vulnerable to manipulation.
Undefined welfare standards permit personal and cultural assumptions to override concrete indicators of parental care, further entrenching the gendered vulnerabilities already present in Pakistan’s custody framework. This appears in Christine Brass v. Dr Javed Iqbal, where the Peshawar High Court denied custody to a Canadian mother on the sole ground that Canada was a non-Muslim country and therefore an unsuitable environment for the child.
This reasoning effectively treated the mother’s religion as a deficiency, allowing her parental fitness to be judged through a religious lens rather than through evidence of caregiving ability or emotional attachment. Because only Muslim men are permitted to marry non-Muslim women under Islamic law, such a precedent disproportionately disadvantages mothers, who are uniquely exposed to losing custody on the basis of their faith. This was also seen in Mrs Mosselle Gubbay v Khawaja Ahmad Said, where the mother of the child was denied custody because she was Jewish Indian.
However, in other cases this reasoning has not been applied, and custody has been given to mothers of a different religion due to other conditions. Yet, this ambiguity allows religion to be invoked selectively, inviting unpredictable legal processes.
Moreover, despite recent progressive rulings from the Supreme Court and High Courts affirming that a mother’s remarriage does not disqualify her from custody, including the case Raja Muhammad Owais v. Mst. Nazia Jabeen, the persistence of contradictory precedents and the absence of explicit statutory clarity allow outdated biases to resurface in custody disputes. This unnecessarily creates confusion in judicial decision-making and subjects the mothers to unfair legal vulnerability. In Nazia Siddique v. Additional District Judge, the Lahore High Court had to overturn lower court rulings that removed custody from a mother simply because she remarried, stressing that such decisions were illegal and ignored the child’s welfare as the priority. The very need for such correction exposes how inconsistent court proceedings continue to harm women. This, again, stems from statutory vagueness.
Even if the mother is given custody of her children, she is still vulnerable to financial exploitation. Under the Muslim Family Laws Ordinance 1961, Section 9 outlines that a child has the right to receive adequate maintenance, which must be fulfilled primarily by the father. However, there are no fixed guidelines for deciding the rate of maintenance. The law simply advises the judiciary to estimate according to his property, income, lifestyle, etc. Yet, in many cases fathers evade financial responsibility, dragging the women back into strenuous legal procedures, causing psychological and emotional unrest. There should be a framework that either provides maintenance from the state or a financial scheme, which protects mothers and children when the father is jobless or deliberately evading responsibility. This would create a legal safeguard for the mothers’ rights, protecting them from exploitation and instability.
Fathers may also exploit their social position and institutional connections to undermine mothers long before formal custody proceedings, during interim visitation. In one case, a father removed the child from the mother’s care before the trial concluded. Despite the court ruling in the mother’s favour, the father leveraged personal connections within the police, as each time the court ordered them to retrieve the child, officers falsely reported the child and father absent from the location.
A pattern of non-compliance emerges, enabled by institutional corruption, that leaves mothers vulnerable to emotional intimidation and coercion. To move beyond rights on paper and into protection in practice, family courts must provide enforceable protection not only after the judgement but before and during it.
Overall, the core problem is that the law’s attempt to blend Western, colonial, and Islamic frameworks has produced a structure too fragmented to deliver justice. In attempting to be everything, we end up standing nowhere. We raise more questions than we answer. The ones having to bear that burden the most are vulnerable mothers. Only by replacing ambiguity with clarity can Pakistan move from a system of legal gambling to one of genuine justice.