Author: Sadia Javed, Advocate High Court
CEO of: SJ Law Experts, Islamabad
Email: SJLawExperts@gmail.com
Email: SadiaJaved.Lawyer@gmail.com
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As a family lawyer, I would like to discuss the guardianship law. In Pakistan, the legal framework of governing guardianship and the custody of minors is established under the Guardians and Wards Act, 1890. This Act provides the legal foundation for the appointment of guardians for minors and outlines the principles that guide courts in making custody decisions. The central tenet of the Act, and indeed of all guardianship cases, is the welfare of the minor, which is the paramount consideration in any decision related to the custody and care of children.
The Guardians and Wards Act, 1890:
Moreover, the Guardians and Wards Act, 1890, is a comprehensive law that regulates the appointment of guardians for minors. It applies to both Muslims and non-Muslims in Pakistan, ensuring that the interests of minors are protected regardless of their religious background. The Act outlines the procedures for the appointment of guardians, the powers and duties of guardians, and the circumstances under which guardianship can be revoked or modified.
Whereas, under the Act, a guardian can be appointed by the court for the person or property of a minor. The court has the discretion to appoint a guardian from among the parents, grandparents, or other relatives, depending on what it deems to be in the best interest of the minor. In the Guardian courts, established under the Act, have the authority to make decisions regarding the guardianship and custody of minors. These courts have exclusive jurisdiction over matters related to the guardianship of minors, and their decisions are guided by the principles set forth in the Act. Further to add, as an experienced guardianship lawyer, child custody lawyer and a family lawyer the Act distinguishes between two types of guardianship: guardianship of the person and guardianship of property. Guardianship of the person refers to the responsibility for the care, upbringing, and education of the minor, while guardianship of property involves managing the minor’s financial affairs and assets. In addition to the above, the welfare of the minor is the cornerstone of all decisions related to guardianship and custody under the Guardians and Wards Act, 1890. The Act emphasizes that the best interests of the minor must always take precedence over the rights or claims of parents, grandparents, or other relatives.
Guardianship Courts in Pakistan:
Our Courts always considered the factors, when determining the welfare of the minor, the court takes into account various factors, including the emotional and physical well-being of the minor, ensuring that the guardian or custodian can provide a safe and nurturing environment, and the minor’s educational needs and overall development are crucial considerations. The court ensures that the guardian can provide adequate educational opportunities and support the minor’s growth. Moreover, the moral and religious upbringing of the minor is another significant factor. The court considers whether the guardian can provide an environment that aligns with the minor’s religious and moral values, and the existing relationship between the minor and the proposed guardian is also important. The court takes into account the level of attachment and affection between the minor and the guardian. If the minor is of sufficient age and maturity, the court may consider the minor’s own preference regarding guardianship and custody. Additionally, custody decisions under the Act are made with the primary goal of ensuring the welfare of the minor. The court may grant custody to one parent, both parents jointly, or, in some cases, to grandparents or other relatives. The decision is based on a holistic assessment of what arrangement would best serve the minor’s interests.The court may also decide between temporary and permanent custody arrangements. Temporary custody may be granted during the pendency of a guardianship case, while permanent custody is determined after a thorough evaluation of all relevant factors.
The Guardians and Wards Act, 1890, provides a robust legal framework for protecting the welfare of minors, but the application of the law also has significant social implications.While parents have natural rights over their children, the Act emphasizes that these rights are subordinate to the welfare of the minor. This can sometimes lead to challenging situations where a parent’s wishes may be overridden in favor of the child’s best interests.In Pakistani society, where extended families often play a central role in child-rearing, the Act allows for the possibility of grandparents or other relatives being appointed as guardians. This reflects the social reality in which children may have close bonds with extended family members who can provide a stable and loving environment.The complexity of guardianship cases under the Act often necessitates legal representation and advocacy. Lawyers play a crucial role in presenting the case to the court, ensuring that all relevant factors are considered in the determination of the minor’s welfare.
The Guardians and Wards Act, 1890, remains a vital piece of legislation in Pakistan’s family law system, ensuring that the welfare of minors is the central concern in all guardianship and custody matters. As society continues to evolve, the Act provides a stable legal foundation for protecting the interests of children, balancing parental rights with the overarching need to secure the best possible future for the minor. In doing so, it upholds the principle that the well-being of the child is, and must always be, the primary consideration in any decision related to guardianship.
If you would like to appoint a guardianship lawyer, child custody lawyer or family lawyer, do contact SJ Law Experts, Islamabad.
