AS our collective consciousness untangles itself from stories and headlines dense with 鈥榙owned Rafale jets鈥 and 鈥榤un torr jawabs鈥, one must turn to recent Supreme Court judgements as a sobering reminder of how crucial the fight for social justice is. Deep within the shadows of societal shame is a segment of society that, albeit often talked about, is rarely safeguarded. What follows is the story of a socially enabled and culturally accepted crime.
A woman may endure years of mistreatment, humiliation and psychological abuse in her marriage, but the moment she considers leaving, the question of custody stops her. So, she must accept her fate and withdraw to the fortress of sabr. Inversely, if her husband decides he no longer wants to stay in the marriage, he can claim the children and divorce his wife, often under the false pretext of her having questionable morals 鈥 a very convenient way to escape a failed marriage. This ghastly outcome, barely imaginable to women in urban Punjab, looms large for most women in unhappy marriages in Balochistan 鈥 she must give up her children, or rather, they are forcefully taken from her by the husband鈥檚 family. The end of their marriage, even in case of the husband鈥檚 demise, spells the end of motherhood for her.
Balochistan is a diverse pool of cultures, its various tribes and sub-tribes intertwined with strings of customs and practices that encourage settlement of personal disputes outside the courtroom. These settlements are made at the behest of male family heads and always at the expense of the women, with immense importance given to lineage, overriding considerations of child welfare and parental capability, and dictating that children, especially boys, belong to the father and his family. The gap between the law and lived reality is stark and shows just how little autonomy women have when it comes to making their own decisions. They are often kept silent by their own families, who in some cases outright refuse financial support for the children, for they carry the stain of their morally inept mother. Instead, women are encouraged to give up their children in the slim hope of a fresh start in the form of a new marriage. Why must she be forbidden from ever seeing her children again? A common reply is that it is a kindness 鈥 literally translated, 鈥榟er heart will find patience if she does not see them鈥.
The end of her marriage can spell the end of a woman鈥檚 motherhood.
Custody laws under the Guardians and Wards Act, 1890, and the Family Courts Act, 1964, prioritise the welfare of the child and grant courts the authority to determine custody based on a child鈥檚 best interests. In 鈥楳ir Bat Khan Vs Sherin Bibi鈥, the Supreme Court opined that jirgas/tribal councils have no legal authority to decide the custody of children; by doing so, such tribal councils violate the law and Islamic injunctions. 鈥淎 mother cannot be compelled to part with her child. She cannot be called upon to barter the right to her child鈥檚 custody to secure a divorce, nor can a child be used to settle personal scores.鈥 In 鈥楴ational Commission on Status of Women vs Government of Pakistan鈥, the Supreme Court has categorically stated that jirga decisions are a threat to the principles of natural justice as there is no predictability or certainty in these decisions; personal knowledge and hearsay cannot be used as tools for determining civil rights.
Despite policy initiatives 鈥 such as the Balochistan Child Protection Act, 2016 鈥 which aim to align provincial law with international human rights standards, women still face intense pressure not to challenge tribal authority; the fear of social backlash and a lack of legal enforcement means that their rights remain inaccessible. The National Commission on the Status of Women has acknowledged the urgency of this issue and urged region-specific research and targeted legal reform. Meaningful social reform can only be achieved through a better understanding of the principles underpinning society鈥檚 belief systems through legal education and, at the very least, support and encouragement for women at home. There is also a need for child welfare assessments, especially in tribal belts, and the creation of mobile family courts which are convened in local languages.
The law exists for the purpose of defining the contours of societal norms and to provide recourse to the downtrodden. It is, however, no surprise that these laws are bypassed and circumvented in cultures where patriarchy stands tall 鈥 edifices built by men, enforced by them and deeply entrenched in the belief systems, which dictate that a father without his children is a free man but a mother without her children is a failed woman. And although an article cannot obliterate a cultural practice altogether, it can at least shed light on an issue that is rarely highlighted, and encourage autonomy for women.
The writer is a lawyer.
Published in Dawn, June 28th, 2025