It is a settled law in Pakistan that the real father and mother are the natural guardians of the minor child. While appointing a guardian, the character, the capacity, and the fitness of the individual should be taken into consideration.
A guardian is responsible to ensure that the minor is supported, fed, dwelled, clothed, and educated in a manner suitable to his or her position in life and to the fortune which he or she is likely to enjoy upon attaining the age of majority.
The guardian appointed by the court is entitled to such allowance as the court thinks fit for the minor’s care and the effort that he or she goes through while undertaking the duties. Such an allowance could be paid out of the property of the child/ward.
A guardian appointed by the court cannot remove the ward from the limits of the court’s jurisdiction without written permission. The permission could be special or general and could be specified in the court order. Illegal removal of a ward from the court’s jurisdiction may constitute criminal prosecution.
It was held by the August Supreme Court of Pakistan that no bar or restriction was placed on the father/natural guardian against obtaining a guardianship certificate from the court, however the circumstances and bona fides of the father in obtaining such declaration/certificate needed to be examined keeping in view the peculiar facts of a case.
Guardian Court is a final arbiter for adjudicating the question of custody of children, however, where a parent holding custody of a child lawfully had been deprived of such custody, such parent could not be deprived of a remedy to regain the custody while the matter is sub judice before a Guardian Court
In exceptional cases, where the High Court find that the best interest and welfare of the minor demands that his/her custody be immediately restored to the person who was lawfully holding such custody before being deprived of the same, the Court is not denuded of jurisdiction to pass appropriate orders under S. 491, Cr.P.C. directing that custody be restored to that person as an interim measure pending final decision of the Guardian Court.
Factors to be considered by the High Court before restoring custody to mother as an interim measure:
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:
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:
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:-
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”.