Guardianship in Pakistan
Guardianship in Pakistan refers to the person who is appointed to act as a trustee to another person (their “ward”) and receives a Guardian certificate from the court. In many cases (Such as child custody, inheritance, etc.), an individual is appointed to act on behalf of their ward to protect their interests and make decisions on their behalf.
In this article we will cover the basics of who requires an appointed Guardian, and how can an individual be appointed Guardianship in Pakistan. How to apply for a Guardianship Certificate, and what to mention when applying for a certificate of Guardian (a Guardian Certificate) will also be discussed, with citations and case laws.
What is Guardianship in Pakistan?
In some cases, an individual may not be able to present themselves in court or are unable to make decisions about their future, or how to deal with their assets. The Majority act 1875 Section 3 considers a child who is under 18 years of age or an individual (of any age) who suffers from any form of mental imbalance or is specially-abled.
In these circumstances, a guardian would have to be appointed through the court. A court will look into several factors before appointing a guardian (Which we look into later on) and once the court is satisfied, they will issue a Guardianship certificate, allowing the appointed Guardian to act on behalf of their ward.
During Guardianship Proceedings court exercises parental jurisdiction under section 25 [Guardian and Wards Act]. Technicalities of pleadings or strict formalities need not be enforced.
PLD 1972 Pesh 1
Custody vs Guardian in Pakistan
In family cases in Pakistan, there is a lot of confusion with Child Guardianship and Child Custody. When parents enter litigation, they need to be aware of the stark differences between the two. Guardianship is the ability to act and decide on matters relating to the child (who becomes the ward of their Guardian), whilst custody relates only to where the child would physically stay.
Certificate of Guardianship – Father as a guardian of person and property of minors – Scope – No bar or restriction was placed on the father/natural guardian against obtaining a guardian certificate from the court, however the circumstances and bona fides of father in obtaining such declaration/certificate needed to be examined, keeping in view the peculiar facts of the case
2018 SCMR 427
Ward of Guardian
The right of guardianship belongs to the father, and the mother can get guardianship of the minor if the father is deemed to be unfit (for example, if he is not paying his court-ordered child support/child maintenance) or is deemed to be unfit otherwise. In instances where the father is deemed unfit or is deceased, then the mother can apply for a Guardian Certificate.
Even where the custody of the minor was with the mother, the guardianship of the father did not extinguish and he should have access to his children and he remained financially responsible for their maintenance and education even though they may be under the care of their (divorced) mother.
PLD 2015 Kar. 382
Applying for a Guardian Certificate in Pakistan
Anyone who wishes to become a guardian (by being desirous and with their consent) must apply for a Guardianship certificate through a Family court or Guardian Court. The individual must first seek permission from the court (in the jurisdiction of the ward) by filing a Guardian petition in a Guardian or Family Court.
Guardian Court is empowered to pass order for temporary custody and protection of person and property of minors as it deems fit and proper. Application of temporary custody could be made in pending proceedings under subsections 10 and 25 of Guardian and Wards act. Court would have power to pass interlocutory order for temporary custody of minor, subject to final decision in main case.
1986 MLD 1491
What to mention when applying for a Guardianship Certificate
In your application, you must include:-
- Name of the Minor/Ward
- Parents name
- Age of the minor/ward (at the time of filing the guardianship petition) with their Date of Birth
- Sex (Gender)
- Residence of the minor/ward
- Religion of the minor/ward
- In the event of the ward being a married female, the name of the husband (along with reasons why the husband cannot be the guardian)
- List of assets and property of the minor/ward (with values)
- Name of current custodian of the minor/ward
- Details of nearest relatives
- Name of proposed Guardian applying for Guardianship
- Any previous Guardianship petition or Guardian petition
- Qualifications of the applying for Guardianship
- Whether the applying Guardian is seeking Guardianship for the minor/ward, or their property, or both
- Grounds to issue Guardian certificate to the individual seeking Guardianship
What is “welfare of minor”?
When a court receives an application for an appointment to be made guardian of a “ward” (particularly a minor) the court needs to establish the better interest and welfare of the minor. Naturally, a child is a considerable responsibility by all accounts, and the decision to appoint an individual to look after their affairs (until they become 21) cannot be taken lightly.
The term “welfare of the minor” refers to how the minor will be brought up and raised, based upon the opportunities available to the child whilst they are growing up. These can be financial, moral, and educational.
Welfare of minor included his material, intellectual, moral and spiritual well being. Court was duty bound to take care of the ward’s welfare and should ensure that the litigating parents were not settling their own score or satisfying their vanity.
PLD 2018 Kar. 377
How we can assist you with your Guardian Certificate or Guardianship matters
Our Family Lawyers in Pakistan are well versed in Guardianship Laws and the many processes of obtaining a Guardian certificate. If you are currently facing this kind of issue, please feel free to reach out to us via WhatsApp on 0308 551 0031. If you are contacting us from outside of Pakistan you can contact us on 0092 308 551 0031.