POWER OF THE COURT TO MAKE ORDER AS TO GUARDIANSHIP: U/SEC:7

 

Where the Court is satisfied that it is for the welfare of a Minor that an order should be made,

(a) Appointing a Guardian of his person or property or both, or

(b) Declaring a person to be such a guardian; the Court may make an order accordingly.

 

An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.

 

PERSONS WHO CAN APPLY FOR APPOINTMENT OF GUARDIAN/ WHO IS ENTITLED TO CUSTODY OF WARD? U/SEC: 8

An order shall not be made under the last foregoing Section except on the application of:-

 

(a) The person desirous of being, or claiming to be, the guardian of the minor; or

(b) Any relative or friend of the minor; or

(c) The Collector of the District or other local area within which the minor ordinarily resides or in which he has property; or

(d) The Collector having authority with respect to the class to which the minor belongs.

APPOINTMENT OF GUARDIAN:

RULES FOR THE GUARDIANSHIP OF A MINOR/ GROUNDS ON WHICH COURT CAN APPOINT THE GUARDIAN:

 

MATTERS TO BE CONSIDERED BY THE COURT IN APPOINTING GUARDIAN: SECTION 17

 

In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. In considering what will be for the welfare of the minor, the Court shall have regard to:

the age, sex and religion of the minor,

the character and capacity of the proposed guardian and his nearness of kin to the minor,  

the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. 

If the minor is old enough to form an intelligent preference, the Court may consider that preference.

The Court shall not appoint or declare any person to be a guardian against this will.

 

CASES IN WHICH COURT CANNOT APPOINT A GUARDIAN: SECTION 19

Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the persons of a minor;

 

who is a married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person; or

whose father is living and is not, in the opinion of the Court unfit to be guardian of the person of the minor, or

whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

WHEN DOES MOTHER BECOME DISQULIFIED FROM THE CUSTODY?

Child custody is governed by the Guardians and Wards Act 1890. According to GWA the court decides the cases in accordance to personal law which terms the minor as subject. The unanimous rule is that;

                           “After divorce a male child is given the right to custody till 7 years (Hanafi law) and till the age of puberty for female child.”

                   The courts shall decide about character and competence of the proposed guardian, keeping in view the age, sex and religion of the minor and their opinion, if their discretion is worthy to be noticed. In case of a very young minor or a female child, mother is preferred for custody by the court. The attachment and association of the child are absolute in deciding the case in any manner.

Ordinarily Mother is entitled to custody of Minor U/Hanfi Law - Male 7, and Female having attained the age of puberty U/Malki & Shafi Law –

 

Females when disqualified for custody of Minors.

 

A female including the mother who is otherwise entitled to the custody of a child, loses the right of custody-

 

(a) If she marries a person not related to the child within the prohibited degrees, A stranger, but the right revives on the dissolution of the marriage by death or divorce, or

 

(b) If she goes and resides during the subsistence of the marriage at a distance from the father’s place of residence or,

 

(c) If she is leading an immoral life , as where she is a prostitute or,

 

If she neglects to take proper care of the child.

Custody in Cases of Differences of Religion or Apostasy (rejection of faith)

According to Muslim jurisprudence outlined in Fatawa-i-Alamgiri,***** apostasy by the mother is a ground for disqualifying her from Hizanat of her children because a woman who abandons Muslim religion has to be kept in prison till she returns to Islam and is therefore incapable of looking after the minor.

There are however divergent views on the issue of custody in cases of a difference of religion. The Hedaya states that a zimmeea or female infidel’

 

CASES IN WHICH A LEGAL GUARDIAN CAN SELL THE IMMOVABLE PROPERTY OF MINOR:

WITH THE PERMISSION OF COURT; WHERE A GUARDIAN APPOINTED BY WILL OR OTHER INSTRUMENT: U/SEC:28

Where a guardian has been appointed by will or other instrument by imposing restriction; the court permits him by an order in writing notwithstanding the restriction, to dispose of any immovable property.

 

WITH THE PERMISSON OF COURT IN WRITIING; WHERE GUARDIAN APPOINTED/DECLARED BY THE COURT: U/SEC 29

Where a person has been appointed or declared by the Court to by guardian of the property of a ward, he shall not, without the previous permission of the Court sale the property.

Exception: u/sec 30.A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections(28 & 29)  is voidable at the instance of any other person affected thereby.

 

U/section 31: Permission to the guardian to do any of the acts mentioned in Section 29 shall not be granted by the Court except in case of

necessity or

for an evident advantage to the ward.

 

DUTIES, RIGHTS AND LIBILITIES OF GUARDIAN:

DUTIES OF GUARDIAN:

Duty not to make any profit out of his office:u/sec: 20

A guardian stands in a fiduciary relation to his wards, and, save as provided by the will 'or other instrument, if any, by which he was appointed, or by this Act, he must not make any profit out of his office.

 

Duties to look after his support, health and education:: u/sec: 24

A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.

 

 

Duty not remove the ward from the jurisdiction of country:: u/sec:26

A guardian of the person appointed or declared by the Court, unless he is the Collector or is a guardian appointed by will or other instrument, shall not without the leave of the Court by which he was appointed or declared, remove the ward from the limits of its jurisdiction except for such purposes as may be prescribed.

 

Duty to do all acts for the protection or benefits of the property: u/sec: 27

A guardian of the property of a ward is bound to deal there-with as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property

 

RIGHTS OF GUARDIAN:

 

Right to remuneration: u/sec: 22

(1) A guardian appointed or declared by the Court shall be entitled to such allowance, if any, as the Court thinks fit for his care and pains in the execution of his duties.

 

(2) When an officer of the Government, as such officer, is so appointed or declared to be guardian, such fees shall be paid to the Government out of the property of the ward as the Provincial Government, by general or special order, directs.

 

Right to apply to the court for opinion in management of property of ward. U/sec: 33

A guardian appointed or declared by the Court may apply by petition to the Court which appointed or declared him for its opinion, advice or direction on any present question respecting the management or administration of the property of his ward.

 

Right of survivorship among joint guardians. U/sec: 38

On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivors until a further appointment is made by the Court.

 

Right to discharge from guardianship: u/sec: 40:

 If a guardian appointed or declared by the Court desires to resign his office, he may apply to the Court to be discharged

 

LIBILITIES:

 

CONTROL OF COLLECTOR AS GUARDIAN: U/SEC: 23

A Collector appointed or declared by the Court to be guardian, of the person or property, or both, of a minor shall, in all matters connected with the guardianship of his ward, be subject to the control of the Provincial Government or of such authority as that Government, by notification in the official Gazette, appoints in this behalf.

 

TITLE OF GUARDIAN TO CUSTODY OF WARD: U/SEC: 25

(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian

 

OBLIGATIONS ON GUARDIAN OF PROPERTY APPOINTED OR DECLARED BY THE COURT: U/SEC:34.. Where a guardian of the property of a ward has been appointed or declared by the Court and such guardian is not the Collector, he shall :-

 (a) if so required by the Court, give a bond, as nearly as may be in the prescribed form, to the Judge of the Court to ensure for the benefit of the Judge for the time being, with or without sureties, as may be prescribed, engaging duly to account for what he may receive in respect of the property of ward ;

 (b) if so required by the Court, deliver to the Court, within six months from the date of his appointment or declaration by the Court or within such other time as the Court directs, a statement of the immovable property belonging to the ward, of the money and other movable property which he has received on behalf of the ward up to the date of delivering the statement, and of the debts due on that date to or from the ward ;

(c) if so required by the Court, exhibit his accounts in the Court a such times and in such form as the Court from time to time directs ;

 (d) if so required by the Court, pay into the Court at such time as the Court directs the balance due from him on those accounts, or so much thereof as the Court directs ; and

 (e) apply for the maintenance, education and advancement of the ward and of such persons as are dependent on him, and for the celebration of ceremonies to which the ward or any of those persons may be a party, such portion of the income of the ward as the Court from time to time directs, and if the Court so directs, the whole or any part of that property.

 

SUIT AGAINST GUARDIAN WHERE ADMINISTRATION BOND WAS TAKEN: U/SEC: 35

 

Where a guardian appointed or declared by the Court has given a bond duly to account for what he may receive in respect of the property of  his ward, the Court may, on application made by petition and on being satisfied that the engagement of the bond has not been kept, and upon such terms as to security or providing that any money received be paid into the Court, or otherwise as the Court thinks fit assign the bond to some proper person, who shall thereupon be entitled to sue on the bond in his own name as if the bond has been originally given to him instead of to the Judge of the Court, and shall be entitled to recover thereon as trustee for the ward, in respect of any breach thereof.

 

SUIT AGAINST GUARDIANS WHERE ADMINISTRATION BOND WAS NOT TAKEN: U/SEC 36

. (1) Where a guardian appointed or declared by the Court has not given a bond as aforesaid, any person with the leave of the Court, may as, next friend, at any time during the continuance of the minority of the ward, and upon such terms as aforesaid, institute a suit against the guardian, or, in case of his death, against his representative, for an account of what the guardian has received in respect of the property of the ward, and may recover in the suit, as trustee for the ward, such amount as may be found to be payable by the guardian or his representative, as the case may be. (2) Omitted by the Federal Laws [Revision and Declaration) Ordinance XXVII of 1981].

 

GENERAL LIABILITY OF GUARDIAN AND TRUSTEE. U/SEC: 37

 Nothing in either of the two last foregoing sections shall be construed to deprive a ward or his representative of any remedy' against his guardian, or the representative of the guardian, which not being expressly provided in either of these sections any other beneficiary or his representative would have against his trustee or representative of the trustee.

REMOVAL OF GUARDIAN. U/SEC: 39

The Court may on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes, namely :-

(a) for abuse of his trust;

(b) for continued failure to perform the duties of his trust ;

(c) for incapacity to perform the duties of his trust;

(d) for ill-treatment, or neglect to take proper care, of his ward;

 (e) for contumacious disregard of any provision of his Act or of any order of the Court ;

(f) for conviction of an offence implying, in the opinion of the Court, defect of character which unfits him to be the guardian of his ward ;

(g) for having an interest adverse to the faithful performance of his duties ;

(h) for ceasing to reside within the local limits of the jurisdiction of the Court ;

(i) in the case of a guardian of the property for bankruptcy or insolvency ;

(j) by reason of the guardianship of the guardian ceasing, or being liable to cease, under the law to which the minor is subject : Provided that a guardian appointed by will or other instrument, whether he has been declared under this Act or not shall not be removed-

for the cause mentioned in clause (g) unless the adverse interest accrued after the death of the person who appointed him, or it is shown that person made and maintained the appointment in ignorance of the adverse interest ; or

(b) for the cause mentioned in clause (h) unless such guardian has taken up such a residence as in the opinion of the Court, renders it impracticable for him to discharge the functions of guardian.

 

CESSATION OF AUTHORITY OF GUARDIAN. U/sec: 41

(1) The powers of a guardian of the person cease :-

(a) by his death, removal of discharge ;

(b) by the Court of Wards assuming superintendence of the person of the ward ;

(c) by the ward ceasing to be a minor ;

(d) in the case of a female ward, by her marriage to a husband who is not unfit to be guardian of her person or, if the guardian was appointed or declared by the Court, by her marriage to husband who is not, in the opinion of the Court, so unfit ; or

(e) in the case of a ward whose father was unfit to be guardian of the person of the ward by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court.

 

(2) The powers of a guardian of the property cease :-

(a) by his death, removal or discharge ;

(b) by the Court of Wards assuming superintendence of the property of the ward ; or

(c) by the ward ceasing to be a minor.

 

(3) When for any cause the powers of a guardian cease the Court may require him or, if he is dead, his representative to deliver as it directs any property in his possession or control belonging to the ward of any accounts in his possession or control relating to any past or present property of the ward.

 

When he has delivered the property or accounts as required by the Court, the Court may declare him to be discharged from his liabilities save as fraud which may subsequently be discovered.

APPOINTMENT OF SUCCESSOR TO GUARDIAN DEAD, DISCHARGED OR REMOVED.U/SEC: 42

When a guardian appointed or declared by the Court is discharged or, under the law to which the ward is subject ceases to be entitled to act, or when any such guardian or a guardian appointed by will or other instrument is removed or dies, the Court, of its own motion or on application under Chapter II, may if, the ward is still a minor, appoint or declare another guardian of his person or property, or both, as the case may be. Your browser does not support inline frames or is currently configured not to display inline frames.

CAN A GUARDIAN APPOINTED BY WILL OR OTHER INSTRUMENTS PLEAD EXEMPTION TO IT?

 

CHILD CUSTODY IN CASE OF DIVORCE

Children are focus of attention for any couple being their joint responsibility to take care of their needs, responsibilities, medical and emotional desires and care. In case of divorce the responsibility is split as per best abilities of each parent.

 

In the Holy Quran (2:233) children’s future after divorce is specifically emphasized with the principle of “mutual consent and counsel” focusing on co-parenting relationship.

 

As father being the legal guardian, has got the responsibility to look after the material needs, while mother preferably got the role of physical care in order to be their emotional guardian of children thus balancing multitude levels of children’s need. All schools of thought have a unanimous agreement that mother should be awarded physical custody of young children after divorce as she comply with the prerequisites to be a female custodian. She may take custody wages for upbringing the child from its father. If, however, the father retains custody after divorce, he will hold all the rights of guardianship since he is the "legal and natural guardian" of his minor children under the Majority Act (IX of 1875).

 

There is some difference of opinion for custody in case of a boy or a girl in different schools of thought.

Shafai maintains that a ward may use his/her discretion on reaching the age of puberty to choose any parent as custodian.

Hanbalis uphold that on reaching age of 7, a child may decide with whom he wants to live with.

The Malikis sustains puberty, while for girls, till she get married.

While Hanafi School assert that for boys the age varies from 7-9 yrs, while for female, they opine that when she reaches age of puberty mother’s custody ends i.e. between 9-11 yrs.

 

Conditions of custody: In order to guarantee child's welfare, there are certain conditions to get

custody of child related to residence and Islamic upbringing. The court will decide if these conditions

are fulfilled properly or they make appoint another suitable guardian, if necessary. The father will take

care of all financial needs of the child, who may be residing with their mother but he has the right to

have access to his children.

 

School of Law Transfer Trigger Next Eligibl custodian

After divorce, mother is responsible for custody of child, till the boy attains puberty or the girls get married. In case mother died, the responsibility is shifted to grandmother, then to maternal aunt and then to other mother's maternal relations. If none of them is

If none of them is there, the right passes to agnates, i.e. ones related on or descended from the father's or male side.

 

Child Custody and Religion

After separation between parents, having different faiths, an important matter of concern arouse regarding the which religion their children ensue. This question has been emphasized and variant solutions using different standards according to cases have established different rules.

 

The Legal Standards Applied in Religious Custody Cases

In religious custody cases the determining factors for winning custody include:

 (1) Parent’s needs;

(2) the child’s needs;

(3) the child’s interaction with parents, siblings and ones closely related who may affect his emotional stability and peace of mind;

(4) the child’s adaptation in given environment; and,

(5) the mental and physical health of all individuals involved.

 

Mostly while deciding the cases of child custody, courts follow any of these three legal standards:

I. Actual or substantial harm. A parent right to have custody will be suspended only if his/her may be a cause of actual or substantial harm to the child.

II. Risk of harm. If the court thinks that religious practices of the parent may harm the child in future, it may confine parent rights.

III. No harm required. The custodial parent's right to influence the children's religious upbringing of her is considered exclusive. If the custodial parent objects to the noncustodial parent's religious activities, the court will defer to the custodial parent's wishes.