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 2020, MLD 933, a troubling pattern emerged. The line between custody (which is temporary and practical) and guardianship (which is legal and enduring) was blurred beyond recognition. The court, in a suit for maintenance, treated the custodial mother’s claims as unchallengeable, ignoring the father’s guardianship rights altogether.
The critical insight is this: The father, while named guardian by law, is often stripped of actual parental influence. He is consulted on paper but unheard in practice. The one who pays for the uniform is not allowed to see the child wear it. The one who secures the future is denied the present.
The Law’s Great Dilemma
Herein lies the dilemma. Statutes name the father as the guardian. Courts insist on the child’s welfare. Yet in combining the two, the law forgets the man who stands in the middle. The father is expected to be present at the cheque and absent from life. This silent sidelining creates an imbalance—one that no statute yet corrects and few judgments dare confront.
III. Financial Liability of the Father: Legal and Islamic Perspectives
In family law, there is one truth upon which both the courts and the classical jurists agree: a child must be fed. The question, however, is not whether—but when, how, and to what extent the father alone must bear the burden. The law is clear in its demand. The interpretation, however, is murky. And between duty and fairness lies a stretch of sand where fathers are often made to walk alone.
A. Islamic Law on Maintenance
The Holy Qur’an, in a verse both tender and categorical, lays down the principle:
” The father of the child shall bear the cost of the mother’s food and clothing on a reasonable basis” (Surah Al Baqarah, 2:233, Sahih International).”
This verse sets the foundation: the father is to provide. But it also sets the limit—“on a reasonable basis.” That reason, according to classical Islamic jurists, is not arbitrary. It is rooted in the principle of tamkin: the woman’s cohabitation and obedience within the bounds of marriage.
Imam Abu Hanifa was firm on this: if the wife leaves the marital home without just cause—she is nashiza, disobedient—then she forfeits her right to maintenance (Ibn Abidin, Radd al-Muhtar, Vol. 2). Imam al-Shafi’i agreed. A woman who defies the command to reside with her husband, without a valid reason, has no claim over his wallet (al-Umm, Shafi’i, Vol. 5).
In other words, access and obedience are the gatekeepers of financial liability. The jurists did not impose a duty without condition. Islam is not a law of blind burden—it is a law of balance.
B. Statutory Imposition of Liability
But turn to the modern statute book, and this balance begins to slip. Under Section 9 of the Muslim Family Laws Ordinance, 1961, any woman or guardian may file a suit for maintenance. The law is swift in its procedure but slow in its scrutiny. Whether the wife left the house of her own will, whether she denied access to the children, or whether she remarried—all are often left unexamined.
The courts, pressed for speed and sympathy, often award maintenance by default. The presumption leans heavily against the husband, and little inquiry is made into the woman’s tamkin or nashuz. In effect, the rule becomes: once married, always liable—come what may.
C. Case Law Inconsistency
The inconsistency in judicial interpretation adds fuel to this fire.
In PLD 2007 Lahore 198, the court rightly held that a wife who left the home without reasonable cause was not entitled to maintenance. It echoed the classical position. If you turn your back on the home, you cannot knock on its door for money.
However, in contrast, in 2016, CLC 1223, the court held the father liable regardless of whether the wife had valid grounds for departure. The court awarded maintenance without weighing the facts of desertion, second marriage, or access denial. Justice, in that instance, was done—but not seen to be done.
The deeper issue is this: there is no clear doctrine to distinguish ouster (a woman forced out) from nashuz (a woman who leaves willfully). The courts glide over this line without drawing it. The result? Fathers are made to pay even when the mother flouts marital norms, denies visitation, or conceals remarriage.
Islamic law tied maintenance to access and obedience, not as punishment, but as proportion. Pakistani law, however, has detached this link, leaving fathers to carry the weight of duty without the dignity of fatherhood. It is time to bring back the balance. For the Qur’an speaks of fairness, and so must the courts.
IV. Strategic Use of Custody: Second Marriage, Character & Ex Parte Orders
Custody, they say, is the jewel in the crown of family litigation. And in many cases in Pakistan, it is worn not for the sake of the child, but as a badge of leverage. What should be a matter of nurture becomes a matter of strategy. The father is caught in a maze, where the laws of guardianship speak in his favour, but the facts on the ground slip through his fingers.
A. Unregistered Second Marriages by Mothers
Let us begin with the trick of concealment. It has become common practice for a custodial mother to contract a second marriage, and yet leave it unregistered. Why? To sidestep the legal implications. For under Section 25 of the Guardians and Wards Act, 1890, the father may challenge custody if the mother’s second marriage is shown to affect the child’s welfare. But if the marriage is never registered, it is never formally known.
The Qur’an, however, commands clarity. It states:
“Marry those that please you of women, two or three or four ….( Qur’an 4:3)- and again,” “…..so that it may not be secret among you.” (Quran 4:24)ur’an 4:3) — and again, “…so that it may not be a secret among you.” (Qur’an 4:24).
Islamic law demands transparency in marital status, not secrecy. A mother who hides her remarriage is not just concealing her personal life; she is frustrating the father’s right to raise concerns under law. Yet the courts have been largely silent. There is no legal penalty for non-registration, and no adverse inference drawn. The burden lies wholly on the father—to find out, to prove, to petition.
B. Ex Parte Guardianship
If concealment were not enough, we now turn to ex parte guardianship, where the mother obtains a guardian certificate without notice to the father. This is no small matter. A certificate issued behind closed doors can shift the entire course of a child’s upbringing.
In 2021, YLR 1458 Lahore, the Guardian Court issued a certificate without notifying the father. He remained in the dark while decisions about his child’s future were made in his absence. This is not due process—it is denial in disguise.
Courts must remember: notice is not a courtesy—it is a right. To proceed without it is to strike the father out of the child’s life without trial.
C. Character and Custody
Now let us speak of moral standing, a subject often avoided but never irrelevant. Classical Islamic jurists were clear: a custodian must be of upright character, capable of tarbiyat—the moral and spiritual upbringing of the child.
Ibn Qudamah, in al-Mughni, and Al-Kasani, in Bada’i al-Sana’i, both insist that if a mother’s conduct is suspect—if she is known to lie, manipulate, or live in a way that harms the child’s development—custody may be revoked.
This is not old thinking. The Supreme Court in 2017 SCMR 353 held that “the welfare of the minor cannot be severed from the moral fabric of the custodian.” Yet on the ground, this principle is often ignored. Courts turn a blind eye to remarriages, concealments, and character evidence, so long as the mother appears nurturing.
But fatherhood, too, is part of welfare. And if the scales are to balance, courts must look not only at who holds the child, but how they hold them, and why they do so.
V. Maintenance Without Access: Legal and Ethical Crisis
In theory, the law is even-handed. In practice, it often casts the father in a strange role — not as a parent in flesh and spirit, but as a financial ghost. He is made to pay for the child he cannot hold, cannot visit, and sometimes cannot even see. This, we are told, is justice. But justice without access is charity by compulsion, not fairness by law.
A. Visitation and Denial of Access
Every family judge has seen it: a court order passed in favour of the father for visitation — clear as day, ink still fresh — yet on the date of the meeting, the minor does not arrive. Or worse, the child arrives in tears, afraid, brainwashed, or silent. In my own courtroom, Guardian Judge Evening Court Lahore, I have had countless parties who casually flout visitation schedules. Some do not bring the child at all. Others bring them only to provoke conflict, then retreat behind the shield of “the child is not willing.”
One case remains etched in memory: the mother was ordered to bring the child to court every Saturday at 4 PM. The father arrived — punctual, hopeful — week after week. And week after week, the child was “sick,” “at a wedding,” or simply “not in the mood.” After four failed attempts, the father wept — not from sorrow alone, but from the sheer powerlessness of legal remedy.
Section 25 of the Guardians and Wards Act, 1890, allows the father to seek custody and visitation. But it does not bite. There is no clear execution mechanism, no swift contempt proceedings, and no meaningful deterrence against denial of access. In truth, the order exists only in ink, not in enforcement.
B. Emotional and Legal Alienation of the Father
This is where the law becomes not a shield, but a sword. The father is punished by silence — made to fund a future he cannot share. He becomes financially present but emotionally erased. The mother, on the other hand, is rarely questioned. Her refusal to produce the child is called “discretion,” her remarriage is “private,” and her hostility is “irrelevant.”
Courts grill the father for his income, tax returns, and even car ownership — yet no questions are asked when he says: “I have not seen my child in six months.” The legal lens magnifies only his bank account, not his broken bond.
C. Conceptual Extension: Can Tamkin and Access Be Linked for Children Too?
In Islamic law, tamkin — the wife’s willingness to live with the husband — is a precondition for maintenance (Kamali, 2008). If she refuses without valid reason, the husband is not bound to pay.
Why, then, should a father be forced to pay when the mother denies him access to the child without a lawful excuse?
This paper proposes a conceptual analogy: that just as tamkin governs spousal maintenance, a doctrine of access should govern child maintenance. If visitation orders are consistently violated, the court must reconsider or condition the financial obligations placed on the father. The law should not demand a cheque from a man whose child has become a stranger to him.
VI. Weaponizing Children: Ego Battles, Parental Alienation, and Social Realities
Children are not weapons. They are not pawns to be moved about in a chess match of bitterness. And yet, in far too many custody disputes, they are treated as such—used, manipulated, hidden, or forgotten. In truth, many children suffer not from divorce, but from what comes after—the bruising battle of egos played out in family courts and drawing rooms alike.
A. Children as Bargaining Chips
The court sees this drama daily. A mother withholds the child until maintenance is paid. A father refuses to deposit school fees unless access is granted. A child is caught in the middle, confused, loyal to both, yet trusted by neither.
In my own courtroom, I have seen children reduced to bargaining chips. One mother refused to present the child unless the father signed a property relinquishment deed. Another case involved a mother hiding her second marriage by keeping the child away, knowing well that disclosure might tip the custody scale. In both cases, the child was not a person with rights, but a lever of power.
Islamic jurists, including Ibn Qudamah, warned against using children to settle marital scores (al-Mughni, 1994). They saw such acts not only as injustice to the parent but as zulm (oppression) against the child.
B. Parental Alienation as Emotional Abuse
In the West, parental alienation is now recognised as a form of emotional abuse. The United Kingdom’s Children Act 1989 encourages courts to preserve the child’s bond with both parents. The American Psychological Association defines alienation as “a child’s unjustified rejection of a parent due to psychological manipulation by the other.”
But in Pakistan, no law names it, let alone curtails it. A child who calls her father “stranger” after months of silence is not seen as a victim, but as a product of maternal preference. The law is blind to the silent shaping of young minds.
What is needed is simple but firm: a legal recognition that denial of emotional access is as cruel as denial of financial support. A child needs more than money—they need memory, presence, and love. If a parent poisons the child’s heart against the other, it is not parenting—it is slow harm.
C. Children Abandoned at Grandparents’ Home
In some cases, custody is granted in name but outsourced in practice. The child lives not with the mother but with her elderly parents. The father, though willing and capable, is kept away. The mother appears only at hearings; the grandparents raise the child in shadows.
This is custody without caregiving—a legal illusion. The father’s role is reduced to funding this absent parenting while being denied a say in the child’s life.
Islamic law views tarbiyat (nurturing) as the custodian’s duty, not one to be farmed out. If the mother delegates the child’s care but denies the father’s presence, can this be called welfare?
VII. Reform Recommendations
The law must be just—and not just in words, but in outcome. It must not hand over one parent a sword and the other a ledger. When it comes to children, justice must walk with balance in both hands: one holding duty, the other holding dignity. If family law is to serve its true purpose, then reform must begin where the injustice lies—in access, accountability, and the proper understanding of intent.
1. Link Maintenance to Lawful Access
Let us begin with the simplest truth: if access is unlawfully denied, maintenance must not flow unconditionally. This is not revenge—it is reason. A father who is denied all contact with his child, without cause and against court orders, should not be made to pay without question.
Just as tamkin is a precondition for spousal maintenance under Islamic law (Kamali, 2008), a similar principle must be adapted for child custody. The best interest of the child is not served by cutting the father out of the picture, then billing him for the frame.
Courts must be empowered to pause, adjust, or review maintenance awards where visitation is repeatedly obstructed.
2. Mandatory Registration of Second Marriages for Custodial Parents
Too many custody disputes are shaped by silence, especially when second marriages are hidden. A mother who remarries may change the moral and logistical environment in which the child is raised.
To prevent concealment and misuse, the law must require mandatory registration of second marriages, particularly for custodial parents. A registered marriage brings the truth to light; an unregistered one casts shadows where rights disappear.
3. Enforcement Mechanisms for Visitation Orders
Court orders must not be polite suggestions. They are commands backed by law. And yet, visitation orders are broken with impunity.
There must be contempt powers specifically tailored for the violation of child access. Deliberate denial should lead to warnings, fines, and in extreme cases, review of custody itself.
Justice that cannot be enforced is no justice at all.
4. Judicial Training on Ouster vs. Exit
Courts must learn to see the difference between a woman driven out and one who walked away to gain an advantage. Too often, both are treated the same.
Judicial training is required to distinguish genuine ouster from tactical separation. This distinction matters—not only for maintenance awards but for custody and credibility.
5. Recognize Parental Alienation as a Legal Wrong
Parental alienation must be named for what it is: a quiet form of cruelty. A child who is taught to hate one parent suffers a wound no court can bandage.
Pakistan must recognize parental alienation as a factor in custody and maintenance adjudication. It is already acknowledged in jurisdictions such as the U.K. and the U.S. (APA, 2020; Children Act 1989). There is no reason Pakistan should remain silent while children are turned into tools of vengeance.
VIII. Conclusion
The law, if it is to be just, must do more than count coins in a father’s pocket. It must also count the tears on a child’s face and the silence in a father’s heart. Pakistani family law has long focused its gaze on the father’s wallet, while turning its back on his wounds. That imbalance must end.
It is not justice to turn a man into a walking pay slip while denying him the joy of fatherhood. It is not fairness to demand maintenance with rigour, but enforce visitation with softness, delay, or not at all. If the law gives a mother the right to nurture, then it must give the father the right to connect. Parenting is not a one-way street. It is a bridge, and both sides must be allowed to cross.
Islamic law knew this well. The classical jurists never viewed the father as a mere financier. They saw him as a pillar of guidance, discipline, and emotional upbringing. The obligation to maintain was not divorced from access. It was deeply connected to it, through tamkin, through tarbiyat, and through mutual trust. When that trust is broken, the balance must be restored, not blindly enforced.
Across the world, laws are moving toward shared parenting. Courts in the West now recognize that a child thrives best when both parents are present, not just in the courtroom, but in the child’s daily life. In the United Kingdom, in the United States, and even in parts of the Muslim world, the rights of non-custodial fathers are being reaffirmed. And so too must it happen here.
Our courts must rise to the moment. They must move beyond routine decrees and adopt a principled stance. They must ask hard questions: Has this mother denied access without lawful cause? Has the father’s financial duty been matched with emotional dignity? Is the welfare of the child being used as a sword instead of a shield?
Let it be said that the law is not only for resolving conflict, but for restoring balance. And balance cannot come where one parent carries all the burden, while the other holds all the power.
The time has come for Pakistani family law to grow out of its one-eyed view of fatherhood. Let us build a jurisprudence that sees not just the money a man gives, but the love he offers. Let us craft a legal framework where children are not pulled apart by bitterness, but held together by shared responsibility. For in the end, justice in family law is not measured in rupees, but in relationships preserved, memories made, and futures protected.
References:-
Kamali, M. H. (2008). Shari’ah Law: An Introduction. Oneworld Publications.
Muslim Family Laws Ordinance, 1961 (Pak.).
Guardians and Wards Act, 1890 (Pak.).
PLD 2007 Lahore 198.
Government of Pakistan. (1890). Guardians and Wards Act. Retrieved from https://pakistanlaw.gov.pk
Government of Pakistan. (1961). Muslim Family Laws Ordinance. Retrieved from https://pakistanlaw.gov.pk
Government of Pakistan. (1964). Family Courts Act. Retrieved from https://pakistanlaw.gov.pk
PLD 2004 SC 219.
2020 MLD 933.
Al-Shafi’i, M. I. (2003). Al-Umm (Vol. 5). Dar al-Ma’rifah.
Government of Pakistan. (1961). Muslim Family Laws Ordinance. Retrieved from https://pakistanlaw.gov.pk
Holy Qur’an, Surah al-Baqarah 2:233. (Sahih International translation).
Ibn Abidin, M. A. (1994). Radd al-Muhtar ‘ala al-Durr al-Mukhtar (Vol. 2). Dar al-Fikr.
PLD 2007 Lahore 198.
2016 CLC 1223.
Al-Kasani, A. (n.d.). Bada’i al-Sana’i fi Tartib al-Shara’i. Dar al-Kutub al-Ilmiyyah.
Ibn Qudamah, A. A. (1994). Al-Mughni. Beirut: Dar al-Fikr.
Government of Pakistan. (1890). Guardians and Wards Act. Retrieved from https://pakistanlaw.gov.pk
Holy Qur’an, Surah An-Nisa 4:3, 4:24. (Sahih International translation).
2021 YLR 1458 Lahore.
2017 SCMR 353.
Government of Pakistan. (1890). Guardians and Wards Act. Retrieved from https://pakistanlaw.gov.pk
Kamali, M. H. (2008). Shari’ah Law: An Introduction. Oxford: Oneworld Publications.
Family Court Lahore, Unreported Visitation Orders, 2023–2025 (Author’s Personal Judicial Record)
Ibn Qudamah, A. A. (1994). Al-Mughni (Vol. 3). Beirut: Dar al-Fikr.
Children Act, 1989 (UK).
American Psychological Association. (2020). Parental Alienation and Child Custody. Retrieved from https://www.apa.org
American Psychological Association. (2020). Parental Alienation and Child Custody. Retrieved from https://www.apa.org
Children Act, 1989 (UK).
Kamali, M. H. (2008). Shari’ah Law: An Introduction. Oxford: Oneworld Publications.
