Mere second marriage by father would not disentitle him from getting custody of his minor daughter/son. Mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled if she took second husband not related to the minor within prohibited degree, thus custody of minor in such case would belong to her real father.

The Family Court has exclusive jurisdiction under S.5 of West Pakistan Family Courts

Act, 1964 to entertain, hear and adjudicate all matters which fall within the First Schedule to West Pakistan Family Courts Act, 1964 and the same includes custody and guardianship matters.

For the purposes of determining “territorial jurisdiction” of the Family Court, it is the West Pakistan Family Courts Act, 1964, and rules framed thereunder, which are taken into account and not the provision of S.25 of Guardians and Wards Act, 1890.

According to Rule 6(a) of West Pakistan Family Courts Rules, 1965, there are three factual eventualities which are relevant for the purposes of determination of “territorial jurisdiction” of Family Court;

First, where the cause of action wholly or in part has arisen, meaning thereby in the custody or guardianship disputes if minors are with the mother and they have been illegally and improperly removed and taken away from the place where they were living with her (or vice versa for father as well) the cause of action is said to have arisen at such place, otherwise the cause of action is deemed to have arisen where the minors are residing.

Second, under Rule 6(b) West Pakistan Family Courts Rules, 1965, where the parties reside or last resided.

Third, as per proviso to Rule 6 of West Pakistan Family Courts Rules, 1965, in a suit for dissolution of marriage or dower where the wife ordinarily resided.

In view of the addition of proviso to Section 7(2) of West Pakistan Family Courts Act, 1964, if a suit for dissolution of marriage joins other causes of action mentioned in that proviso, such suit also falls in the third category, otherwise not.

Persons entitled to be the guardians of the property of minor

De facto guardian has no power to transfer any right or interest in the immovable property of the minor.

A person may neither be a legal guardian nor a guardian appointed by the court but may have voluntarily placed himself in charge of the person and property of a minor is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor. A de facto guardian has no power to transfer any right or interest in the immovable property of the minor.

The following persons are entitled in the order mentioned below to be the guardians of the property of a minor:

• The father;
• The executor appointed by the father’s will;
• The paternal grandfather;
• The executor appointed by the will of the paternal grandfather.

In default of the legal guardians (as above) the duty of appointing a guardian for the protection and preservation of the minor’s property falls on the Judge as representing the State.

Under the Islamic law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the gender of the child. But she is not the natural guardian alone; the father or if he is dead, his executor (under the Sunni Law), is the legal guardian.

If the father dies without appointing an executor (Wasi) and his father is alive, the guardianship of his minor children devolves to their grandfather. Should he also be dead, and have left an executor, it vests in him.

In default of these de jure guardians, the duty of appointing a guardian for the protection and preservation of the infant’s property devolves to the Judge as the representative of the sovereign.

When the mother is the father’s executrix or is appointed by the Judge as guardian of the minors, she has all the powers of a de jure guardian.

Best evidence to prove the fact of the age of a child is from those who would have in the ordinary course of life personal knowledge.

Statement of the mother of the child concerned with regard to the age; entries in the Birth Register and the Matriculation Certificate can be considered as unimpeachable evidence.

A court on the application of any interested person or on its own motion may remove a guardian for the following reasons:

• For abuse of trust;
• For continued failure to perform the duties;
• For incapacity to perform the duties;
• For ill-treatment, or neglect to take proper care of the ward;
• For contumacious disregard of any of the Guardian & Wards Act’s provisions or of any orders of the court;
• For conviction of an offense implying a defect of character;
• For having an interest adverse to the faithful performance of his duties;
• For ceasing to reside within the local limits of the court’s jurisdiction;
• For bankruptcy or insolvency in the case of a guardian of prop

A guardian may also apply to the court for discharging him or her from the responsibility of being a guardian. A person also ceases to be a guardian in the case of his or her death, removal, or discharge; upon the ward ceasing to be a minor; upon the female ward’s marriage whose husband is not unfit to be a her guardian; or upon the court itself assuming superintendence of the minor.

When originally the guardian had to be appointed, the Court of Protection had to observe the following procedure mentioned in Section 30 of the Mental Health Ordinance:

Section 30. Regulation of proceedings of the Court of Protection.-

(1) The following provisions shall regulate the proceedings of the Court of Protection with regard to the matter to which they relate, namely:-

• Notice shall be given to the mentally disordered person of the time and place at which it is proposed to hold the inquiry;
• if it appears that personal service on the alleged mentally disordered person would be ineffectual, the Court may direct such substituted service of notice as it thinks fit;
• the Court may also direct a copy of such notice to be served upon any relative of the alleged mentally disordered person and upon any other person to whom in the opinion of the Court notice of the application should be given;
• the Court may require the alleged mentally disordered person to attend, at such convenient time and place as it may appoint for the purpose of being personally examined by the Court or to any person from whom the Court may desire to have a report of the mental capacity and condition of such mentally disordered person;
• the Court may likewise make an order authorizing any person or persons therein named to have access to the alleged mentally disordered person for the purpose of personal examination; and
• the attendance and examination of the alleged mentally disordered person under the provisions of clause (d) and clause (e) shall, if the alleged mentally disordered person be a woman who, according to customs of the country, ought not to be compelled to appear in public, be regulated by the law and practice for the examination of such persons in other civil cases.
  • The Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said proceedings.

Upon the completion of the inquiry, the Court shall determine whether the alleged mentally disordered person is suffering from mental disorder and is incapable of managing himself and his affairs, or may come to a special finding that such person lacks the capacity to manage his affairs, but is capable of managing himself and is not dangerous to himself or to others, or may make any such order it deems fit, in the circumstances of the case, in the best interests of such person”.

• Where the Court has reason to believe that any person who was found to be mentally disordered has ceased to be mentally disordered, it may direct any court subordinate to it to inquire whether such person has ceased to be mentally disordered.
• An inquiry under subsection (1) shall, so far as may be, conducted under this Ordinance.
• If after an inquiry under this section, it is found that the mental disorder of a person has ceased, the Court shall order all actions taken in respect of such person under this Ordinance to be set aside on such terms and conditions as that Court thinks fit to impose.
• Without prejudice to the general powers given above, the court shall have powers to make such orders and give such directions as the Court thinks fit, for the betterment of such a person.”