Child Custody and Guardianship Lawyers in Pakistan
Our Child Custody and Guardianship Lawyers have tried here to answer some of your basic questions relating to this subject. Child Custody Rules/Laws Child custody is a burning issue for every divorce in Pakistan, which makes both parents know about child custody laws.
Each parent seeks every kind of legal provision to gain custody of their child even though being a single parent is tough. Child welfare is the key factor taken into consideration by the court while deciding a child custody and guardianship matter in Pakistan.
What is the Difference Between Child Custody and Child Guardianship?
There is a very clear legal difference between Child Custody and Child Guardianship though both sound similar. These terms are usually used when it is a need to describe a legal relationship between a child and an adult. These are determined by the Family and Guardianship courts that who is the Child’s custodian and who is a Guardian. Custody can only be provided to a biological parent of a child while Guardianship is given to any non-biological parent with the right to care for a minor.
What is the meaning of “Ward” in the Guardians and Wards Act 1890?
When an adult is not able to care for itself then a Guardian Judge may appoint another Adult his/her “Ward”. It can be due to several reasons such as an unmarried girl, incapacitation, or a disability.
Who Can Be Given Custody Of A Child?
In Pakistan, the concept of “Welfare of the minor” is the paramount consideration in the court in such matters. Well, what is and how to describe “Welfare of the minor” as it a very broad term and different people may come up with different definitions. However, not fixed but there are certain rules that are counted when talking about it in the Guardian Courts. These rules are the age of the minor, financial and social backgrounds of the parents. The moral conduct of parents in general etc.
The distinction between custody and guardianship and the respective rights
To understand the obligations of a custodian and a guardian under the Guardians and Wards Act 1890, it is important to understand the Distinction between custody and guardianship and the respective rights, especially where one parent has custody of the child and the other is the guardian. The term ‘custody’ is not defined in the Guardians and Wards Act 1890.
The term ‘guardian’ has been defined in section 4(2) of the Act and seems to include the concept of custody unless a guardian court awards custody of a child exclusively to a party/parent who is not the guardian of the minor. It was held in Mst. Atia Waris vs. Sultan Ahmed Khan [PLD 1959 Lahore 205] that custody means actual custody and not constructive custody. However, custody was defined as actual or constructive possession for purposes of protection in Jumna Khan vs. Mst. Gull Ferosha [PLD 1972 Peshawar 1]. And in [PLD 1988 Karachi 252] custody was referred to as the right to the upbringing of a minor child by the mother or someone legally entitled to it. It was held in Bushra Asghar v. Dr. Rehmat Ali and 3 others [2012 MLD 1755] that guardianship entails the concept of taking care of the minor even in situations when the guardian does not have “domain over the corpus of [the] child”.
The concept of welfare of child
Another most discussed point during the child custody and guardianship case is “welfare of the child/minor”. It is viewed differently in a claim for child custody and from a different perspective in claim for guardianship.
The welfare of a minor in a claim for custody
A Guardian court is the right forum where a whole set of factors are to be considered to determine wherein a child’s welfare lies. The outcome can differ in different cases based on the facts discussed in the guardian court.
The welfare of minor in a claim for Guardianship
When a claim is submitted for guardianship in the competent court, the law itself assumes, when Sections 7, 17, 19, and 41 are read together, that the welfare of the child is best served when his/her natural father remains the guardian, unless he is found unfit to be the guardian.
What happens in the event of separation of the parents?
Traditionally, our child custody and guardianship lawyers see in the majority of custody cases that in the event of separation of the parents, custody of the suckling child is handed over to the mother. Whereas the father is bestowed with the responsibility of the minor to act as guardian for the person and property of the minor. [see PLD 2009 SC 751].
However, this everyday rule is not carved in stone. According to the Spirit of the Guardians and Wards act 1890, “welfare of the minor” still remains the paramount consideration hence can be a different outcome in the court.
Does an Agreement for custody of a minor out of court have any legal value in Pakistan?
In Pakistan, an agreement for the custody of a minor outside of court does not necessarily have legal value, as the validity of such agreements may depend on the circumstances under which they were made. The Constitution of Pakistan, 1973 and the Guardian and Wards Act, 1890 provide the framework for determining custody of minors in the country.
According to the provisions of the Constitution of Pakistan, if an agreement for custody of a minor appears to be unconscionable on its face, there is a rebuttable presumption that it was entered into under coercion or undue influence, and therefore has no value in the eyes of the law.
See the below judgments and legal references:
PLJ 2023 Lahore (Note) 30
Constitution of Pakistan, 1973
Any agreement, though disputed by petitioner, even if executed with regard to handing over custody of minor, has no value in eyes of law and cannot be relied upon–If an agreement is entered into by a female which appears unconscionable on face of it, there is a rebuttable presumption that agreement was entered into by coercion and undue influence–A Guardian Court is final arbitrator to adjudicate upon question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain custody–Petition allowed.
[Para ] A, B & C
1995 PCr.LJ 307, 1997 MLD 1562 & PLD 1970 Karachi 619 ref.
Guardian and Wards Act, 1890 (VIII of 1890)
S. 4(2)–Guardian–Means a person providing de facto or de jure care of person or property of a minor–Such a person may or may not have custody of a minor.
[Para ] E
Guardian and Wards Act, 1890 (VIII of 1890)
Ss. 4(2), 9(i) & 25–Guardianship and custody–Under Sections 4(2), (S), 9(i) and 25 of Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms.
[Para ] D
Constitution of Pakistan, 1973
Art. 199–Parental jurisdiction–High Court, in exercise of its jurisdiction under Article 199 of Constitution has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to welfare of minor and to ensure that no harm or damage comes to her physically or emotionally by reason of breakdown of family tie between parents.
[Para ] F
2018 SCMR 427 & 2018 SCMR 1991.
