Adoption and guardianship remain serious and sensitive issues in Pakistan. Parents are often left deeply distressed, particularly in cases of separation, where disputes over visitation rights and guardianship can continue for years in court.
In many situations, when one parent is granted custody or visitation rights, the other parent spends years navigating the court system without meaningful relief. The emotional and financial toll is immense.
Recently, a heartbreaking case came before the court that highlights a major legal gap in Pakistan’s system.
A woman who had raised a baby girl since birth, from the day she was born in the hospital, cared for her for seven years. She was not the biological mother, but she was the only mother the child had ever known. After seven years, the biological mother reappeared and took the child away. The child reportedly did not even recognize her biological mother.
The reason behind this tragedy is simple yet profound: Pakistan does not have a formal adoption law.
Guardianship Under Islamic Jurisprudence
Under traditional Islamic jurisprudence:
- A male child typically remains with the mother until the age of seven.
- After seven years, the father has a preferential right to custody.
- A female child may remain with the mother until puberty.
- However, if the mother remarries, and the new husband is considered a non-mahram to the child, custody may shift to the father.
These principles are often applied in guardianship matters. However, they are not absolute and must be interpreted in light of the child’s welfare.
The Guardian and Wards Act, 1890
Legally, guardianship in Pakistan is governed by the Guardian and Wards Act of 1890.
Section 17 of this Act clearly states that the welfare of the minor is the paramount consideration for the court.
This means the court must evaluate:
- The age of the child
- The religion of the child
- The gender of the child
- The emotional attachment of the child
- The financial, moral, social, and economic capacity of the guardian
- Where the child’s overall welfare will be best protected
The law prioritizes welfare, not merely biological preference.
The Problem: No Proper Adoption Framework
Unfortunately, adoption as it exists in many other countries is not formally recognized under Pakistani law. What often happens is that a child is informally adopted and raised for years.
Then, after two or three years, or even much later, the biological parent may return. Sometimes it is emotional attachment. Sometimes it is pressure. Sometimes it is manipulation or blackmail, knowing that courts often give weight to biological ties.
The result?
The child suffers.
From a psychological perspective, the consequences can be severe. A child who has grown up believing that the adoptive parents are their real mother and father experiences shock, confusion, and emotional trauma upon learning otherwise. Identity disturbance, anxiety, and long-term psychological issues can follow.
In the recent case I witnessed, the woman who had raised the child for seven years cried helplessly in court. Yet the legal vacuum surrounding adoption left her with little protection.
The Way Forward
If we truly apply Section 17 of the Guardian and Wards Act, the welfare of the child must come first. If the caregiving parent, regardless of biological status,provides a stable, morally sound, financially secure, and emotionally supportive environment, then custody should reflect that reality.
Family courts must look beyond rigid technicalities and focus on the best interests of the child.
Legal Action in the High Court
We have filed a constitutional writ petition in the High Court, which is expected to be decided in December. Our hope is to secure a judgment that addresses adoption properly within Pakistan’s legal framework and provides clearer protection for children and caregiving parents.
This is not just a legal issue, it is a humanitarian one.
Children are not property. They are human beings whose emotional stability and welfare must be protected above all else.
We remain hopeful that meaningful reform and judicial clarity will emerge.