The ‘custody clause’ that doesn’t exist
When a child begins to grow, there is a certain rhythm to life that most families imagine. First comes education, then a stable job, and eventually, marriage. These milestones are not only a social expectation in Pakistan, they are also deeply rooted in religious belief. Marriage, after all, is considered half of one's faith.
For many, the next natural step is the hope of having a child — someone to complete the family, to bring joy into the home, to give life a new purpose. But not every marriage ends in contentment. Sometimes personalities clash. Sometimes circumstances shift. And sometimes, despite all the hopes and rituals, a couple finds themselves signing divorce papers instead of celebrating anniversaries.
In these cases, it is the child who often bears the brunt of separation, especially if they are still very young. Courts are approached. Custody battles begin. Emotions run high. And in the middle of it all stands a child, unaware of the legal arguments, just needing love and stability.
As parents try to rebuild their lives, the question of remarriage enters the picture. But this is where fear creeps in. In most cases, it is the mother who hesitates. Because somewhere along the way, society has embedded the idea that if a mother remarries, she will lose her child. It doesn’t matter if there is no law that says so. The fear has taken root — in courtrooms, in lawyer’s offices, in drawing rooms, and in the quiet decisions women make when they turn away a second chance at happiness.
This misconception is not new. It has lingered for years, often used as a threat, sometimes as a tool to control, and almost always as a reason for women to stay stuck between their past and future.
The myth that governs lives
For many divorced mothers in Pakistan, the idea of starting over is never simple. It doesn’t matter how strong they are, how stable their lives become, or how kind their new partner might be. One fear continues to shape every decision they make, that remarriage means losing their child.
It’s not a clause written in law books. Yet it carries the weight of law in how it governs lives. “I didn’t tell anyone about my second marriage, not even my daughter. I kept it hidden. I still do,” said one mother who remarried quietly two years after her divorce. At the time, her daughter was just four years old. Now, several years later, she still doesn’t refer to her stepfather as ‘Abbu.’
“I told her to call him by his name. I just didn’t want her to accidentally mention anything in front of her biological father when she went to visit him. What if he found out and filed for custody? What if I lost her because of one innocent word?” asked worried mother.
This is not an isolated case. Many mothers choose secrecy over security, convinced that one wrong move could turn into a legal nightmare. There are no wedding pictures. No school visits with the stepfather. No mention of a blended home.
“It’s like living two lives,” she said. “One as a mother, one as a wife. But never together.”
In contrast, fathers who remarry face no such threat. Their new marriages rarely factor into custody challenges. In fact, Safia Lakho an advocate at High Court, Human Rights lawyer, writer and a poet, pointed out, “In some cases, when a man hears that his ex-wife has remarried, he files for custody, not because he wants full custody, but to cause disruption or request court-ordered visitation. In such cases, the new husband often wants to avoid court appearances, which complicates matters for the mother.”
For women, the stakes are different. Remarriage doesn’t just represent a new chapter. It feels like a risk to everything they fought to protect. And so, many choose silence. Others never remarry at all. Not because they don’t want to, but because they’ve been told they can’t, not without a cost.
What the law actually says
For all the fear and silence that surrounds remarriage after divorce, the actual law in Pakistan tells a different story.
Custody matters are governed by the Guardians and Wards Act, 1890, a colonial-era law that is still the backbone of family courts today. The central principle is straightforward; the welfare of the child is paramount. Not the gender of the parent. Not their bank balance. And certainly not their marital status.
“There is no legal provision in Pakistan that automatically ends custodial rights upon remarriage,” said Advocate Safia. “Custody is granted based on the welfare of the minor, which is always the court’s top priority.”
That welfare is judged case by case. If a second marriage introduces instability or harm, emotional, financial, or otherwise, the court may reconsider custody. But remarriage alone is not a disqualifier. And yet, it continues to be treated like one in courtrooms and households across the country.
Yet this basic truth is often lost beneath layers of misinformation and fear. According to Safia, the myth that remarriage causes automatic loss of custody has been weaponized for years, especially against women. “We receive many such cases where the mother is emotionally blackmailed into believing she’ll lose her child,” she explained. “There’s no legal foundation for it. But the fear is very real.”
She also highlighted another issue that puts mothers at risk. The failure to legally file for custody after divorce. “Living with the child is not the same as having legal custody. If custody is not legally granted through a court order, the child’s father, or even his family, can claim custody at any time,” she said. “Legally, he might succeed. And in many cases, they do.”
In extreme situations where one parent forcibly takes the child without consent, the other can file a Section 491 habeas corpus petition to recover the child. But by then, emotional damage is often already done.
Safia also emphasized the role of court-ordered visitation, which is meant to protect both the parent-child bond and the child’s emotional wellbeing. But without legal clarity, many parents are left in limbo, relying on informal understandings that can shatter the moment conflict arises.
Understanding the law doesn’t just offer protection. It gives parents, especially mothers, the confidence to rebuild their lives without fear of losing their children for it.
The Islamic perspective
Much of the fear surrounding remarriage and child custody in Pakistan is often wrapped in religious undertones. Families, elders, and even legal opponents are quick to quote Islamic values, but seldom with accuracy.
In reality, Islamic law does not automatically strip a mother of custody simply because she remarries. The core principle in Islamic rulings, much like the Pakistani legal system, is the welfare of the child.
Under the concept of Hizanat, the Islamic term for custodial care, mothers are generally granted the right to raise their children during early childhood. Most scholars agree that a mother holds the strongest claim to custody until a child reaches an age of discernment, often cited as 7 for boys and puberty for girls. After that, custody can be reviewed based on the child’s needs, preferences, and overall well-being.
However, these are guidelines, not rigid formulas. Even the Prophet Muhammad (PBUH) is reported to have settled custody disputes based on what was best for the child, rather than on blanket rules.
Yet, despite the flexibility within Islamic jurisprudence, the cultural narrative remains narrow. “There is a natural inclination for courts to favor the mother, especially in early years, but every case depends on its unique circumstances,” said Safia, referencing how Islamic and legal practices intersect.
She also shared how many women are unaware that remarriage alone does not invalidate their Islamic or legal right to custody, unless the new environment proves harmful to the child. But the fear persists.
In one case she handled, a woman remarried quietly and continued raising her daughter, all while avoiding courtrooms and community gatherings, not because religion demanded it, but because society misunderstood it.
The tragedy lies in how cultural fear disguises itself as religious truth, leaving many mothers isolated, uncertain, and silenced, not by law, but by misinterpretation of faith.
Double standards and social control
In most custody disputes, the weight of judgment doesn’t fall equally. Fathers can remarry weeks after divorce, pose with their new wives, introduce them to their children, and move on without fear of losing anything. But for women, that same decision becomes a minefield.
“No one asks a father if he’s allowed to remarry and still keep custody. Men do it all the time,” said one mother who continues to hide her second marriage even from her child. “But for women, we’re judged, threatened, and made to feel like we’re bad mothers just for wanting a second chance at happiness.”
This contradiction is more than cultural, it is systemic. As Safia explained, many fathers do not file for custody out of concern for their child’s well-being. Instead, some use it as a tool to intimidate, disrupt, or gain leverage over their former spouses.
“In some cases, when a man hears that his ex-wife has remarried, he files for custody, not because he wants full custody, but to cause disruption or request court-ordered visitation,” she said. “It becomes a way to reassert control.”
The fear is not entirely imagined. In some courtrooms, izzat (honor) carries more weight than legal precedent. Judges, lawyers, and even family members let cultural judgment bleed into legal advice. Women are told that a “respectable mother” would not bring another man into her child’s life.
These expectations keep women from claiming both their legal rights and personal happiness. They delay remarriage. They avoid legal proceedings. They stay silent, thinking it will protect their child. But in doing so, they often lose their own chance at a fuller life. The law may not punish them for remarrying. But society does.
At the heart of this quiet punishment lies something deeper, a lack of information, of access, of awareness. Many women don’t even know what their rights are. They don’t know what the law protects, or what the courts actually consider when deciding custody. And in that silence, myths thrive. Misconceptions take root. And lives are shaped by fear, not fact.
Cost of misinformation
One of the most damaging forces in custody battles is not the law itself, but how little people understand it. Across Pakistan, women are making life-altering decisions based on half-truths, poor legal advice, and cultural pressure disguised as legal fact.
One of the most common misconceptions is about child maintenance. Many mothers avoid filing for it, fearing that claiming financial support from the father might weaken their hold on custody.
“That’s not true. Many lawyers don’t properly brief their clients,” explained Safia. “The father remains the natural guardian of the child whether or not maintenance is claimed. In fact, filing for maintenance strengthens the case for custody. It shows that the father is fulfilling his legal and moral responsibilities while the child continues to stay with the mother.”
But it’s not just maintenance. Even before a marriage ends, many women unknowingly sign away their rights. The Nikahnama, which could serve as a legal safeguard, is often left incomplete or misunderstood. Some religious clerics skip over critical clauses, asking women to sign without explanation, including the clause that grants a woman the right to initiate divorce (Talaq-e-Tafweez).
“Women often seek khula simply to forgo the claim on haq mehr, which the husband might otherwise withhold,” Safia added. “That lack of awareness ends up costing them far more in the long run.”
Legal illiteracy, community interference, and weak legal representation combine to keep many women from asserting their rights. As a result, decisions about custody, remarriage, and even basic financial support are made in fear, not confidence. And that fear leaves a lasting mark.
“If I had better information, maybe my life could have turned out differently,” said the mother who stayed unmarried to keep her daughter. “Maybe I could have been both, a mother and a wife.”
Empowerment and legal literacy
For things to change, the first step must be awareness, not just among women, but among families, lawyers, and even judges. Legal education should begin not at the time of crisis, but at the time of marriage. Women must be encouraged to read the Nikahnama, ask questions, and understand their rights, not just in theory, but in practice.
There’s also an urgent need for courtroom sensitization and public campaigns that separate cultural taboos from legal reality. Judges and lawyers should not allow assumptions about “izzat” or remarriage to cloud decisions that are meant to be based on the welfare of a child.
“Taking a toddler away from the mother is not only unjust to her but also harmful for the child’s nutrition and emotional development,” said Safia. “In such cases, courts almost always rule in favor of the mother.”
It’s time to normalize the idea that a woman can be both, a mother and a remarried woman, without being punished for it.
With rising awareness and voices speaking up, a shift is slowly taking place. The law is not perfect, but it can be used to protect, not punish. And that begins by making sure women know that they are not alone, and they are not without rights.
Silent sacrifices
In a country where motherhood is celebrated, too many mothers are quietly punished for wanting to rebuild their lives. They stay single, hide their marriages, or live double lives, not because the law or religion demands it, but because society insists on a choice that was never meant to be made.
There is no clause in the Constitution, no verse in the Quran, and no ruling in family law that says a woman must give up her child to find love again. Yet countless women live as if that clause exists, sacrificing joy for fear, and companionship for custody.
“I just want to protect my daughter,” said one mother. “But sometimes I wonder if all this secrecy is healthy for her in the long run.”
It’s not just legal reform that’s needed. It’s truth, loud enough to drown out the myths.