Can a mother lose custody of her child under Pakistani law? Our research paper reads 99 judgments of the Supreme Court, the Peshawar High Court and the Federal Shariat Court (1954 to 2026) on hizanat, the mother's right to the physical custody of a young child. This article summarises what they decide.

What is the mother's right of hizanat?

Under Muslim personal law, the mother has hizanat of a son until he is seven and of a daughter until she reaches puberty. The father remains the natural guardian (wali). The courts treat the mother's right as a strong starting point, not as an absolute right of either parent. The Shia and Shafi'i periods differ (PLD 2025 Lahore 540), but no Peshawar judgment in our study applies them.

The welfare of the child decides

Sections 17 and 25 of the Guardians and Wards Act, 1890 make the welfare of the minor the controlling consideration. Welfare is all-encompassing (Raja Muhammad Owais v. Mst. Nazia Jabeen, 2022 SCMR 2123), and it must be proved by evidence, not presumed (2026 CLC 1052 (Peshawar)). A custody order made without a finding on welfare cannot stand (Shaista Habib v. Muhammad Arif Habib, PLD 2024 SC 629).

What does not take custody away from the mother?

  • Poverty, disability, lack of income, or working outside the home.
  • Unproved allegations of insanity or illness (2017 CLCN 59 (Peshawar)).
  • An agreement, khula settlement or jirga decision surrendering custody. Such agreements are unenforceable (Mst. Haseena Bibi v. Abdul Haleem, PLD 2024 SC 291); custody cannot be the price of khula (Mst. Beena v. Raja Muhammad, PLD 2020 SC 508); and a jirga cannot decide custody (Mir Bat Khan v. Mst. Sherin Bibi, 2019 SCMR 520).

Does the mother lose custody if she remarries?

Not automatically. A second marriage is not a stand-alone disqualification (Raja Muhammad Owais, 2022 SCMR 2123), and remarriage does not by itself disentitle her (Asjad Ullah v. Mst. Asia Bano, PLD 2025 SC 541). It costs her the preferential right, not her eligibility (2026 CLC 1052 (Peshawar)). Custody may shift where she marries a stranger to the child within the restricted range of relationship, or where the remarriage causes real harm (2026 MLD 908 (Peshawar)).

What else can shift custody?

  • Living abroad and conducting the case only through an attorney (PLD 2025 SC 47).
  • A criminal record together with no income (2023 CLC 916 (Peshawar)).
  • The father's own conduct can also disentitle him (2000 SCMR 838). In Nighat Firdous v. Khadim Hussain (1998 SCMR 1593) a neglectful father lost custody to the maternal aunt.

What are the father's rights?

The father must maintain the child whoever has custody (PLD 2026 SC 170). After the period of hizanat ends, he may obtain custody where the child's welfare supports it; older children may go to a willing father (Nasir Raza v. ADJ Jhelum, 2018 SCMR 590). He is entitled to visitation, which the court should make effective.

Grandparents and other relatives

Maternal grandparents may keep a child where the evidence on welfare supports it (2020 MLD 302 (Peshawar); 1994 SCMR 339). Custody is not given to a stranger (2013 CLC 1784 (Peshawar)).

Does the child's own wish count?

The child must be heard and his or her view seriously considered (PLD 2026 SC 238). But the preference is not decisive, and the court will watch for tutoring (2022 YLR 2482 (Peshawar)).

Habeas corpus or the Guardian Court?

A habeas corpus petition under section 491 Cr.P.C. is mainly used to restore a young child recently taken from the mother (2021 YLR 1267 (Peshawar)). It is an exceptional remedy and no substitute for proceedings before the Guardian Court (2021 MLD 725 (Peshawar)). It cannot decide custody permanently (1988 SCMR 1891), and it fails after unexplained delay (2001 SCMR 1782).

Practical checklist: for mothers

  • Apply for interim custody under section 12 promptly; you do not need to show urgency.
  • If a young child has just been taken from you, move quickly for habeas corpus.
  • Prove welfare with school, health and caregiving records.
  • Do not rely on any document surrendering custody; state expressly that it is void.

Practical checklist: for fathers

  • Appear in person; litigating from a distance through an attorney can count against you.
  • Keep paying maintenance.
  • Prove concrete harm to the child in the mother's home; remarriage or poverty alone will not be enough.
  • Enforce your visitation rights, and seek mediation where appropriate.

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This article is general information on the law, not advice on your own case. Time limits can matter, so speak to an advocate promptly about your own matter.