Abstract

They say the law is no respecter of persons, but in matters of family, it often takes sides- quietly, consistently, and without ever quite saying so. In Pakistan, the letter of the law bestows guardianship and financial obligation squarely upon the father’s shoulders. He is to provide the bread, pay the bills, and underwrite the children’s future. Yet when it comes to the actual care, presence, and upbringing of the children, the soul of fatherhood, he is more often than not left out in the cold. This article takes up the cause of the forgotten father: not the negligent one who flees his duties, but the one who is dutifully bound, yet legally denied.

Through the lens of equity, Shari’ah, and statutory interpretation, this article lays bare the quiet injustices endured by such men—men who are summoned to court for maintenance while being kept from their children by ex parte guardianship orders; men who are accused of ousting wives who left of their own volition; men whose children are spirited away after the mother’s unregistered second marriage; men who are asked to pay but forbidden to parent. The law, in its current state, demands of the father everything but gives him little in return.

The heart of the problem lies in the disjunction between Islamic injunctions, Pakistani statutes, and judicial practice. Islamic law ties financial responsibility to cohabitation and access, tamkin being not just a physical state but a condition for financial liability. Yet Pakistani courts often ignore these roots, applying maintenance orders without regard to the father’s denied access. Moreover, in a number of cases, mothers who have entered into second marriages—often concealed or unregistered—continue to claim maintenance and custody as if no change has occurred. The legal fiction persists, and the father is left fighting a battle on paper while losing his children in reality.

The article argues, with force and clarity, that there is room—indeed, necessity—for reform. The doctrine of tamkin, long applied in spousal disputes, ought to find recognition in matters of child access and custody. Visitation must not be treated as a favour but as a right tethered to parental duties. And if mothers refuse access without a lawful cause, then the courts must reconsider financial awards made in the name of welfare. Equity, after all, is not blind—it sees with the heart and balances both sides of the scale.

I. Introduction

In the halls of justice, family law often walks with a limp. One leg is swift and strong when it comes to imposing financial responsibility on the father. The other, when tasked with protecting his emotional bond with the child, drags behind or vanishes altogether. The result? A man may be asked to pay for a child he cannot see, to provide love through ledger entries, and to father only in name but not in practice. This article takes up the cause of that imbalance—a quiet injustice that hides in plain sight.

In Pakistan, the law is unambiguous on one point: the father is the natural guardian and the primary financial provider (Guardians and Wards Act, 1890, Section 17). But it is less certain, and certainly less generous, when it comes to securing his role as a parent in the child’s life. Maintenance claims are heard promptly; visitation disputes, if raised, are too often treated as side notes. The court’s scale tips heavily toward monetary obligations, while emotional connections hang in the air like unanswered questions.

The issue becomes graver still when the mother has left the matrimonial home willingly, sometimes with the children in tow, sometimes after entering an unregistered second marriage, and yet, the man is still summoned to court as the sole bearer of duty. He is called upon not just to maintain, but to do so unquestioningly—even as his access is denied, his role reduced, and his love cast in shadow.

This paper seeks to examine whether the law is truly just or merely efficient. It asks three essential questions. First: Does Pakistani law overburden fathers while underscrutinizing custodial mothers? Case after case suggests that it does (PLD 2007 Lahore 198). While the father’s income is investigated to the last decimal, the mother’s conduct—whether she denies access or enters a second marriage—is rarely examined with equal care.

Second: Can the Islamic doctrines of tamkin (cohabitation or access) and nashuz (refusal without lawful cause) shed new light on custody and child access? In classical Islamic law, a husband is not liable for maintenance if the wife is nashiza (disobedient) without justification (Kamali, 2008). Could not a similar lens apply to a mother who withholds a child from the father?

Third: Is there a case for linking access with maintenance, so that a father is not treated as an ATM with no access code? If access is denied without a lawful cause, should not the courts consider pausing or reviewing maintenance orders?

Justice, as the old saying goes, must be even-handed. It must not lean too heavily on one parent while letting the other slip through the cracks. For in this quiet courtroom corner of custody and maintenance, what is at stake is not only fairness between spouses, but the future of the child, who needs not just bread on the table, but the father who breaks it.

In family law, the roles of guardian and custodian often walk side by side, but in Pakistan, they part ways when it matters most. The law, in its bare text, declares the father the natural guardian. He is the legal mind behind the child’s future, the one who signs the school forms, approves surgeries, and pays the tuition. But in reality, his role is often clipped at the wings. While he remains guardian in law, he becomes a stranger in life.

A. Statutory Framework

Let us start where all lawyers begin—with the statute book.

The Guardians and Wards Act, 1890, is the central law governing the appointment and powers of guardians. Under Section 17, the court must consider the welfare of the minor above all else. And rightly so. But welfare, as we shall see, is a term as wide as the sky—and just as cloudy.

The Muslim Family Laws Ordinance, 1961, by contrast, is more specific. It speaks of maintenance, marriage, divorce, and guardianship, but says little about shared parenting. Section 9 allows the wife or any guardian to sue the husband for maintenance of children, but it does not link that right to access, conduct, or actual caregiving.

Then there is the Family Courts Act, 1964, which streamlines procedure but not substance. Section 5 enlists matters of guardianship, custody, and maintenance, bringing them all under one roof. Yet too often, the room is dark for one parent and lit only for the other.

Lastly, Section 25 of the Guardians and Wards Act allows the father to seek custody. But that path is thorny, prolonged, and full of potholes. Even when he secures an order, enforcement is another uphill battle, often mocked by delay and defiance.

B. Judicial Interpretation

The courts, like all creatures of precedent, have left behind a trail of insight—but not always clarity.

In PLD 2004 SC 219, the apex court held that the “welfare of the minor” reigns supreme. That much is settled. But what followed was silence—no discussion on whether welfare includes a child’s need for a father’s presence, love, and guidance. Welfare, it seems, is sometimes read as synonymous with maternal custody, without deeper inquiry.

In........

© Courting The Law