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 acumen, but of our humanity. The court must look beyond the papers and see the person. For the measure of civilisation is not how it treats the powerful, but how it protects the powerless.
And none are more powerless than a child whose home has broken.
The Best Interests of the Minor: Legal Standard or Judicial Intuition?
The phrase “best interests of the minor” is now the law’s favourite banner in custody cases. It is noble. It is lofty. But it is also vague. Like a star in the sky—bright to look at, but far to touch.
Courts speak of it with reverence. Yet what it means in each case depends less on rules and more on the judge’s sense of right and wrong. No two children are the same. No two families, either. What helps one child may harm another. That is why the law gives guidance, but not guarantees.
Section 17 of the Guardian and Wards Act, 1890, gives the judge a compass, not a map. It lists age, sex, religion, the character of the proposed guardian, and the minor’s own wishes if they are old enough to understand (The Guardian and Wards Act, 1890). But it leaves much unsaid. And rightly so. Life cannot be boxed into neat little categories.
In truth, the judge must do more than follow the law. He must feel it. He must leave behind the cold bench of logic and step into the warm soil of life. The law gives him a robe, but justice demands a heart.
In Fatima Bibi v. Muhammad Yasin (PLD 1959 Lah 566), the court made this clear. The mother, once doubted, proved to hold a bond that no statute could sever. Her arms had been the child’s world. That mattered more than any accusation. The court looked beyond the paper and saw love.
Still, we must ask: is “best interest” a rule or a feeling? The truth lies in between. If the law is too stiff, we lose the child in the paperwork. If the court drifts too far on instinct, justice becomes guesswork.
As Mnookin (1975) warned, family law is filled with hard choices—and few perfect answers. The judge must not only apply the law, but also shape it gently to fit the child’s life. Like a gardener, he must know that every flower needs different care.
Judicial discretion must walk hand in hand with reason. It must stay rooted in precedent but watered with empathy (Freeman, 2007). For the child may not speak in court. But his silence says much. His drawings, his fears, his hugs—they tell the real story.
Justice in custody is not about who wins the child. It is about who gives the child a better life. Not the better parent, but the better future.
Justice Between Unequal Parties: Power Imbalances in Custody Litigation
The court, they say, is the great equaliser. But in custody cases, that is often a hopeful myth. When parents walk into court, they do not always walk in as equals. One comes with lawyers and ledgers. The other, with little more than love—and sometimes, even that is questioned.
Let us speak plainly. The mother, more often than not, is the primary caregiver. She knows the child’s fears, the night-time tears, the favourite toy, and the illness that kept him awake. Yet, she walks into court already judged—too emotional, too soft, too unsure. Meanwhile, the father stands firm—his collar straight, his wallet full, his voice calm. But calm is not always care. And firmness is not the same as love.
The law should not ask who looks stronger. It should ask who has stood by the child in the storm. That is the real test. Yet in many cases, the test fails.
Money speaks loudly. Litigation is not cheap. It takes time, energy, and yes, money. A wealthy parent can stretch a case like rubber—filing objections, seeking delays, and hiring experts. The poorer parent tires. She is worn down by paperwork, court dates, and bus fares. Sometimes, the court feels more like a battlefield than a place of refuge.
Carol Smart (1984) warned us that family law, in its silence, can deepen inequality. It may wear the mask of fairness while quietly tipping the scales. The courtroom, though draped in neutrality, does not always hear both sides equally.
And then, there is the cruelest weapon of all—parental alienation. A child’s heart, gently turned. One parent poisons the mind, softly, steadily, until the other becomes a stranger. It happens quietly. No bruises. No broken glass. Just a distance that grows. The child says, “I don’t want to meet.” The court hears “choice,” but it may be coercion.
In A v. A (Parental Alienation) [2013] EWHC 3554 (Fam), the English court called it what it is—a form of emotional abuse. In Pakistan, the term is rarely used. But its shadow is cast over many cases. The child, silent in law, speaks through actions. And the judge must learn to read them.
This is where the Guardian Judge must rise—not just as a jurist, but as a custodian of truth. He must look beyond the pleadings. Ask not only “Who wants the child?” but “Who turned the child?” The robe, here, is not just a symbol of authority. It is a weight. A burden of conscience.
Because the child does not file petitions, the child does not object or adjourn. But the child suffers from the result. And so, the Guardian Judge is not writing a judgment. He is writing a future.
Justice, in these cases, must not be blind. It must be seen clearly, especially when one party wears armour and the other walks barefoot.
The Role of Procedural Fairness in Custody Cases
Justice must not only be done—it must be seen to be done. Nowhere is this more important than in custody cases. The stakes are high. Not in money, but in memory. Not in legal points, but in a child’s life.
Custody disputes do not begin with crime or punishment. They begin with pain—two parents, one child, and a home torn in two. But even in matters so delicate, due process remains the anchor. Both parents have a right to be heard. To know the case against them. To speak their truth. To be treated fairly. Take that away, and you silence half the story—and half the child.
But the reality is far from ideal. Delays creep in like weeds in a garden. Hearings are adjourned and adjourned again. Justice, like a train, keeps being promised but never arrives. The parent who comes in good faith begins to lose faith. The child, caught in between, grows up faster than the case moves forward.
Ex parte orders, though needed in some emergencies, are often misused. A parent seeks quick relief, knowing the other cannot be heard. The child is placed with one side “for now,” but “now” becomes months. Then comes the familiar argument: “The child has settled.” But settlement through delay is no true choice. It is quiet surrender.
In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, the English Family Court warned: temporary relief must not become permanent just because the clock kept ticking. What starts as an interim must be judged on merit, not on how long it has lasted.
Another trick in the game is the misuse of interim relief. One parent may cry urgency, feign illness, or use school exams to delay handover. The court, thinking of the child’s comfort, grants time. But every delay cuts deeper. The bond between the child and the other parent thins—and sometimes breaks.
In Pakistan, we see this in cases like Nasreen Bibi v. Additional District Judge, Lahore (PLD 2016 Lah 86). A mother’s case is struck off for not attending. Later, she seeks restoration. But by then, the child may have been moved, settled, even renamed in a new school. The judge now must pick not between right and wrong, but between two hardened versions of the past. The court must hear her again, yes—but not if her absence was simply careless.
The judge in such cases is not just following a procedure. He is tuning a fine instrument. Pull the strings too tight, and the melody breaks. Let them hang too loose, and there is no music at all. Balance is everything.
Procedural fairness, then, is not a bonus. It is the backbone of justice in family law. It keeps things upright when emotions pull sideways. The court must be swift, yes—but never hasty. Firm, but never cruel. Every order must remember that behind the legal files, a child is waiting—waiting to know who will walk them home.
When Justice Delays or Compromises Safety
Justice delayed, they say, is justice denied. In custody cases, it can be worse. It can be a child in danger.
Here, time is not just passing. It is pressing. A missed hearing may allow fear to grow. A skipped meeting may tear a bond. A delay in action may leave a scar no judgment can ever heal.
Sometimes, the court must act—not with soft words, but with swift steps. Section 100 of the Code of Criminal Procedure is no ordinary provision. It is the court’s rescue rope. When a child is hidden or kept away unlawfully, the judge must not sit idly. This section allows a search. It allows recovery. And above all, it allows hope (Criminal Procedure Code, 1898, § 100).
But it must not be used lightly. Nor must it be ignored. When a parent hides a child behind locked doors, the court must not knock and walk away. It must ensure its orders do not gather dust while children cry behind curtains.
Too often, the court’s schedule becomes a game of excuses. One parent waits, the other sends messages. “The child is unwell.” “There is a test tomorrow.” “We’re out of town.” But these delays are not harmless. They are not petty. They teach the child that court orders are optional. That justice is weak.
Repeated failure to follow meeting schedules is quiet contempt—but deep and damaging. It turns one parent into a visitor. It turns the child into a pawn. Slowly, painfully, the bond breaks.
In Mst. Sughra Bibi v. Additional District Judge, Lahore (PLD 2000 Lah 521), the court rightly said: the harm done by denying visitation goes far beyond the case file. It wounds the soul of the child. And that wound is not seen, but felt, for years.
The court must do more than pass orders. It must protect them. A court that does not enforce its directions is not a court—it is a stage for empty promises. Respect for the robe comes not by demand, but by resolve, especially when children are used as weapons in adult battles.
A judgment unenforced is not just paper lost. It is dignity lost. The robe loses its weight when its words are ignored.
So, the judge must act—not to punish, but to protect, not in anger, but in duty. The message must be loud and clear: court orders are not mere words. They are binding. They are real. They matter.
In family law, justice is not just fairness between parents. It is safety for the child. It is sanity in chaos. It is stability in a shaken world.
Reforming the Custody Jurisprudence in Pakistan
The law, like an old tree, must be trimmed from time to time—else it grows wild and loses its shape. Custody law in Pakistan is no different. Though rooted in principle, it has become overgrown. Delays clog its branches. Confusion clouds its leaves. The time for reform is not tomorrow. It is now.
First, the courts must stop guessing when it comes to meeting schedules. At present, there is no clear rule. One judge may allow meetings every Sunday. Another may wait three weeks to decide whether a father can meet his child on Eid. Much depends on how clever the lawyers are—or how patient the judge is. But justice should not depend on chance. And a child should not be left waiting at the gate, wondering if today is the day.
We need a simple law. A law that sets out standard timings. A law that tells us who gets the holidays, who decides the venue, and how missed meetings must be handled. Other countries do this. So can we. As Jafree (2020) rightly put it, “a child needs structure, not improvisation.”
Second, the system must look the same in every corner of the country. Justice in Lahore must look like justice in Layyah. At present, it does not. Some judges allow the maternal grandparents to visit. Others do not. Some districts are strict. Others are silent. But the sun does not shine differently in Karachi than it does in Kohat—and the law should not either.
The Lahore High Court has tried. Its circulars and policies are a step forward (Lahore High Court, 2023). But more is needed. These instructions must become binding. They must be made law, not mere guidance.
Third, we need special benches—judges who know children, not just statutes. A child is not a file. His world is not written in affidavits. Family life is tender, and a judge who handles custody must have training, patience, and a heart that listens.
Finally, we must bring child psychologists into court. A child may not speak clearly in front of lawyers, but their silence says more than words. A trained expert can see between the lines and hear what the child cannot say. In the UK and South Africa, such professionals help courts understand what truly matters (Children’s Act, 2005; Children and Families Act, 2014).
Without reform, custody law becomes a revolving door—orders passed, disobeyed, then passed again. The child becomes lost in the shuffle.
The law must be like a lighthouse—steady, visible, and unmoved by every angry wave. We owe it to the parents who come seeking justice. But above all, we owe it to the children, who never asked to be in court, but carry the weight of every order on their little shoulders.
Conclusion
Custody law is not just about legal papers. It is about people. It is about who holds the child’s hand when storms roll in. Who answers the questions that no law can frame? Who gives warmth, not just shelter? Who helps a young soul find their way through the fog of family breakdown?
Justice in this field must be clear-eyed and tender-hearted. It must focus on the child, but not be childish. It must not assume that all parents are angels. Nor pretend that every dispute is balanced. It must ask not only what is being claimed, but why. And behind every claim, it must look for the child’s truth.
This calls not for more rigid rules, but for deeper understanding. Judges must know more than just sections and schedules. They must know how homes fall apart, how children grieve in silence, how wounds of the heart leave no scars on the skin. Family court judges must be trained in psychology, in social work, and in recognising emotional harm that hides behind polite language.
A judgment in a custody case must not be written like a financial statement. It should be built like a bridge. A bridge between two broken homes. Strong enough to carry a child across. Safe enough to keep them from falling.
Discretion, too, must be rightly used. The law cannot predict every case. And it should not try. But when judges use discretion, they must use it wisely, not wildly. It is a power, not a whim. It must be guided by precedent, shaped by logic, and softened by human experience.
No judge can carry this burden alone. Even the best minds cannot see every side. There must be support. Welfare officers. Psychologists. Proper meeting rooms. Proper enforcement. Without these, even the finest judgment may collapse like a house of cards.
As the Supreme Court said in Dr. Imran v. Mst. Asma Bibi (PLD 2013 SC 516), the welfare of the child is the first and final test. But that test must be judged with conscience. Not just by the letter of the law, but by its spirit—by logic, love, and humanity.
In the end, the child will not remember how elegant the order sounded. But they will remember how it made them feel. Did it help them sleep peacefully? Did it keep them safe? Did it let them grow in love?
That, in the end, is the true measure of justice.
References
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- Aristotle. (2009). Nicomachean Ethics (W.D. Ross, Trans.). Oxford University Press.
- Fortin, J. (2009). Children’s Rights and the Developing Law (3rd ed.). Cambridge University Press.
- Kamali, M. H. (2008). Shari’ah Law: An Introduction. Oneworld Publications.
- A v. A (Parental Alienation), [2013] EWHC 3554 (Fam).
- Smart, C. (1984). The Ties that Bind: Law, Marriage and the Reproduction of Patriarchal Relations. Routledge & Kegan Paul.
- Fatima Bibi v. Muhammad Yasin, PLD 1959 Lah 566.
- Freeman, M. (2007). Children’s Rights and the Best Interests Principle. The International Journal of Children’s Rights, 15(1), 1–20.
- Mnookin, R. H. (1975). Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy. Law and Contemporary Problems, 39(3), 226–293.
- The Guardian and Wards Act, 1890 (Pak.).
- Nasreen Bibi v. Additional District Judge, Lahore, PLD 2016 Lah 86.
- Re L (Care: Threshold Criteria) [2007] 1 FLR 2050.
- Criminal Procedure Code, 1898, § 100 (Pak.).
- Mst. Sughra Bibi v. Additional District Judge, Lahore, PLD 2000 Lah 521.
- Children and Families Act, 2014 (UK).
- Children’s Act, 2005 (South Africa).
- Jafree, R. (2020). Family Law in Pakistan: Challenges and Reform. Pakistan Law Review, 7(2), 145–167.
- Lahore High Court. (2023). Circular on Standardising Family Court Proceedings. Lahore High Court Administrative Policy Branch.
- Dr. Imran v. Mst. Asma Bibi, PLD 2013 SC 516 (Pak.).
