Can Guardianship Laws in Pakistan Adapt to the Changing Role of Mothers in Modern Families?

The concept of guardianship in Pakistan has traditionally been shaped by cultural norms, religious principles, and colonial-era legislation, particularly the Guardians and Wards Act of 1890. Historically, fathers have been regarded as natural guardians, especially concerning legal authority and property matters, while mothers were seen as the primary custodians responsible for the daily care of children. However, with rapid social and economic changes, the role of mothers in Pakistan’s family structure is evolving significantly. This raises an important question: can Guardianship Laws In Pakistan adapt to these changing realities?

Traditional Framework of Guardianship

In the classical interpretation, guardianship is divided into two key aspects:

• Custody (Hizanat): Primarily linked to who takes care of the child’s day-to-day needs. Mothers, especially for younger children, are given priority under Islamic law.

• Guardianship (Wilayat): A broader concept involving legal decision-making, property management, and long-term planning for the child. Fathers are traditionally recognized as the natural guardians in these matters.

This distinction has long favored paternal authority in legal settings, leaving mothers with limited recognition in guardianship beyond custody rights.

The Changing Role of Mothers

In modern Pakistan, mothers increasingly participate as equal contributors to family life—financially, socially, and emotionally. Women today are professionals, business owners, decision-makers, and, in many cases, single parents, shouldering complete responsibility for their children. This evolution has challenged the traditional view that mothers are only caregivers without legal authority.

In situations of divorce, separation, or the father’s absence, mothers often manage both upbringing and financial responsibilities. Despite this reality, legal recognition of mothers as full guardians is still limited, creating friction between societal practices and the formal guardianship framework.

Courts and the Welfare Principle

Pakistani courts, guided by the welfare principle, have shown increasing flexibility. Judges frequently emphasize that the child’s best interests override rigid interpretations of parental roles. For instance, while a father may be legally recognized as the natural guardian, courts have ruled in favor of mothers where they provide a more stable, nurturing, and secure environment.

This judicial trend suggests that Guardianship Laws In Pakistan, though rooted in tradition, are gradually adapting to modern circumstances by acknowledging the evolving role of mothers.

Challenges in Reform

Despite progressive judicial interpretations, legal reform has been slow. The Guardians and Wards Act of 1890, being a colonial-era law, does not explicitly recognize mothers as natural guardians. This creates practical difficulties for mothers in matters such as:

• Enrolling children in schools or universities.

• Managing inheritance or property left in a child’s name.

• Traveling abroad with their children without the father’s formal consent.

These gaps highlight the need for legislative reform that explicitly acknowledges mothers’ equal status as guardians when circumstances require.

Global Perspectives and Influence

Globally, many countries with similar cultural and religious backgrounds have updated their guardianship laws to reflect gender equality and the child’s best interest. For example, reforms in family law across several Muslim-majority nations grant mothers greater authority in guardianship matters. These international developments place moral and legal pressure on Pakistan to modernize its guardianship framework to remain aligned with evolving standards of child rights and gender justice.

The Way Forward

For guardianship laws in Pakistan to adapt effectively, a multi-layered approach is needed:

• Legislative Reform: Amendments to existing laws to explicitly grant mothers recognition as natural guardians in appropriate circumstances.

• Judicial Sensitivity: Continued emphasis on child welfare rather than rigid parental entitlements.

• Awareness Campaigns: Educating families about the legal responsibilities of guardianship to reduce disputes.

• Policy Integration: Aligning guardianship laws with Pakistan’s commitments to international child rights conventions.

Conclusion

Guardianship laws in Pakistan are at a crossroads, caught between historical frameworks and the realities of modern family life. As mothers continue to take on expanded roles in nurturing and providing for their children, the legal system must evolve to reflect this transformation. Reforming guardianship laws is not only a matter of gender equality but also essential for ensuring children’s welfare in today’s changing society. For those navigating these complex issues, professional legal guidance is crucial. Hamza & Hamza Law Associates specialize in family and guardianship matters, offering trusted expertise to help families achieve legal solutions that protect both parental rights and the best interests of children.