Abstract

In the quiet corners of family courts, louder than the gavel, rises the cry of a child, caught between parents who once loved and now battle. Custody disputes, though dressed in legal robes, are not merely matters of law. They are matters of the heart.

Love has turned sour. Trust has turned to dust. And so, the court is called—not just to decide—but to guide, not as a cold umpire of rules, but as a guardian of what truly matters.

Justice here is not about numbers. You cannot carve a child’s time as you slice a loaf of bread. It is not about weekends, holidays, or income slips. It is about warmth. Presence. Tenderness. Justice must follow the beat of a child’s heart, not the beat of a lawyer’s drum.

In Pakistan, where culture clings tightly to the law, custody becomes more than a case. It becomes a cause. The Guardian and Wards Act lights the way, but often the judge must feel the path with bare hands. One must read not only the files, but the faces. One must weigh not only the words, but the silences.

This article asks: Are we giving children justice, or just judgment? Do the courts favour the loudest voice or the truest soul? Has procedure become the thief of time, when time is all a child needs? Can our courts become more than battlegrounds—can they become sanctuaries of healing?

For custody is no trophy. The child is not a prize. The child is the smallest litigant of all—mute, but not blind; silent, but not unfeeling. The court must speak for the one who cannot.

Introduction

Custody is not just about where a child sleeps. It is about where he feels safe. It is not merely a right—it is a responsibility. To hold a child is to hold a life in trust.

Few matters test a court’s soul more than this. The broken home casts long shadows. Parents come—not always for peace—but often for power. One sees the child as a flag to wave. The other, a trophy to keep. They forget the child is neither. The child is a person, not a possession.

As Mnookin (1975) said, “custody disputes are not contests between good and evil, but between different versions of love.” One parent may offer riches and fine clothes. The other time, and laughter. One builds a house. The other builds a home.

The court must stand like Solomon. It must not be fooled by money or moved by tears. It must weigh not what is said, but what is shown. Custody is not won in words; it is earned in care. In Gohar v. Sugra Begum (PLD 1960 SC 240), the Supreme Court of Pakistan ruled that even a biological bond can be outweighed by welfare. A poor mother’s embrace may be safer than a rich man’s silence.

The law may guide. But it cannot feel. That is the task of the judge.

This article argues that justice in custody is not about winning. It is about belonging. Courts must rise above the quarrel. They must guard the future, not referee the past. The real party in every case is not the petitioner or the respondent. It is the child. The child speaks no legalese—but every cry, every silence, is a plea.

As the United Nations (1989) rightly declared in its Convention on the Rights of the Child, the best interest of the child must be the guiding star. Not convenience. Not vengeance. Not formality.

In the end, justice must be done—not only in the courtroom, but in the child’s daily life. The law, in such cases, is not just in books. It is in bedtime stories. In lunchboxes. In the hand that holds them when they are sick. As seen in Re S (A Minor) [1994] 1 FLR 236, custody decisions shape lives, not just orders.

For justice in custody is not the law in theory. It is love in practice.

Theoretical Foundations of Justice in Family Law

Justice, according to Aristotle, is not about giving equally, but rather about giving fairly. It is not about counting coins. It is about weighing needs. This is what he called distributive justice—to give each their due, not by rigid formula, but by good sense (Aristotle, trans. 2009). And nowhere is this truer than in family law.

You cannot measure a child’s needs with a yardstick. One child may need more time, another more tenderness. Some want toys, others just time. What fits one may not fit another. It is not one-size-fits-all. Justice in such cases must be like a tailor, not a factory line.

Islamic law, too, speaks with a clear voice. It puts the weak at the heart of the law. The doctrine of Maslahah—the public interest—tells us that when families fall apart, the child’s welfare must light the way (Kamali, 2008). Pride has no place. Pain must not cloud the path. The law must ask not “Who has the right?” but “What is right for the child?”

Another key principle is Hifz al-Nasl—the protection of lineage and children. Islam sees the child not as a private belonging but as a public trust. He is not a possession, but a promise. A society that neglects its children does not just break families—it breaks its own future (Al-Qaradawi, 1994).

English law, too, has its wisdom. It speaks through the old and noble doctrine of Parens Patriae—the state as parent of all children. When the parents stumble, the court steps in. Not with force, but with firmness. Not to punish, but to protect. The judge becomes more than a decision-maker. He becomes a guardian.

As Fortin (2009) observed, custody cases ask judges to wear two hats: one of law, one of love. And when the law runs out of words, justice must still speak. That is the true test of the court—not only to know the law, but to know what is just.

These principles—from Aristotle’s Athens to the Holy Qur’an, from Westminster to Lahore—stand as pillars of family law. They tell us the same thing: a child is not a battlefield. He is not a prize in a tug-of-war. He is a person, growing, watching, and feeling.

Every custody case, in the end, is a test—not only of legal........

© Courting The Law