In Pakistan, child custody is the most traumatic aspect that arises soon after the divorce or legal separation.

The courts in Pakistan become very conscious while deciding the custody of the child and the primary factor they take into consideration is the welfare of the child. However, the law also provides other factors which the court must take into consideration.

Question of child’s custody is to be addressed by reference to his status under the applicable laws of Pakistan, more appropriately the Islamic law which does not recognize a Common Law marriage or partnership as a valid marriage with the result that a child born to parents, having a Common Law marriage, is born outside marriage and cannot be regarded as a legitimate child.

Under Islamic Law, the father of an illegitimate child has no legal tie with the child even though he is the biological father and the blood tie between the two is undisputed. Mother of an illegitimate child is not only entitled to the custody of the child but is also regarded as the guardian of the child to the total exclusion of the father.

Non-Muslin mother suffers no disability as Islamic Law allows a non-Muslim mother to exercise the same rights of custody as are enjoyed by a Muslim mother

It is well settled law that the welfare of the minor would always be the paramount consideration rather a decisive factor, however the poverty of the mother alone would not be sufficient to hold her disentitled for custody of the minor as legally the burden to maintain the child was on the father.
Even the physical disability of the mother would not be sufficient to hold her disentitled from custody of the child.

It was held by the August Supreme Court of Pakistan in a case titled “Mst. BEENA VS RAJA MUHAMMAD” reported as P L D 2020 Supreme Court 508 that

If both the parents are fit for the custody of minors hence then the decisive factor would be the right of Hizanat/custody because of which the custody of male-children may be given to father while that of female-children may be given to mother.

Though rules of personal law are subservient to the welfare of the minor but said principle itself spoke that a departure thereto would come into play when the welfare of the minor was likely to prejudice because of the fitness of a parent.