Child Custody and Guardianship Lawyers - Our Services in Pakistani Courts

This is a very usual question that most people ask & they want to know how can they obtain a divorce legally according to the law of Pakistan. There is a difference between the proceedings of divorce for husband & wife. Therefore We have divided both proceedings according to the person who wants to obtain a divorce.

In Pakistani law, child custody refers to the legal responsibility for the care and upbringing of a child, while guardianship refers to the legal authority to make decisions on behalf of a child.

Child custody can be awarded to one or both parents, or to a third party, such as a grandparent or other relative. The parent or party with custody is responsible for the child’s physical care, including providing a home, clothing, and food. They also have the right to make decisions about the child’s education, healthcare, and other matters related to the child’s welfare.

Guardianship, on the other hand, refers to the legal authority to make decisions on behalf of a child. This can include decisions about the child’s education, healthcare, and financial matters. A guardian may be appointed by a court or named in a will or other legal document.

In Pakistani law, the rights and responsibilities of parents and guardians are governed by the Guardians and Wards Act, 1890. This Act sets out the legal framework for the appointment of guardians and the rights and duties of guardians, including their responsibility to act in the best interests of the child.

It is important to note that child custody and guardianship are two separate legal concepts, and they can be held by different parties. For example, a parent may have custody of a child while a guardian is appointed to make decisions on behalf of the child.

Overview of The Guardians and Wards Act, 1890

The principal law governing child custody and guardianship matters in Pakistan is the Guardians and Wards Act, 1890. Enacted during the British era, this statute applies uniformly across Pakistan and provides a comprehensive legal procedure for the appointment, rights, duties, and removal of guardians. The Act is procedural in nature, meaning it lays down the rules for courts to follow in guardianship matters, but it does not prescribe detailed personal laws regarding who has a natural right to custody or guardianship.

Key features of the Act include:

Jurisdiction and authority of Guardian Courts.
Appointment and removal of guardians.
Guardianship of both the person and property of the minor.
Judicial supervision and control over guardians.

Importantly, while the Act governs all persons, regardless of religion, its application must be read in conjunction with personal laws, particularly Islamic law in cases involving Muslim families.

Interplay with Personal Laws

In Pakistan, personal laws play a critical role in child custody and guardianship cases, especially when determining who has the natural right to custody and at what age custody should transfer.

For Muslims:

The mother has the primary right of custody (Hizanat) for young children, especially daughters.
The father remains the natural guardian (Wilayat), especially regarding the child’s property.
The age of custody typically ends at 7 years for boys and puberty for girls, but the courts can deviate from this rule if welfare of the minor requires it.

For non-Muslims (Christians, Hindus, etc.), courts consider their own personal laws, though The Guardians and Wards Act, 1890 still governs the procedure. In practice, the welfare of the minor overrides rigid application of personal law.

Jurisdiction of Guardian Courts

Under Section 4(5) and Section 9 of the Act, the Guardian Court has jurisdiction based on the ordinary residence of the minor. The Family Court designated as a Guardian Court in a particular district has exclusive authority to entertain applications for guardianship or custody.

Guardian Courts have the power to:

Appoint or remove guardians.
Decide on custody disputes.
Grant visitation rights.
Supervise the property of minors.

Appeals from Guardian Court decisions are filed in the District Court or High Court, depending on the nature of the order.

Welfare of the Minor – Paramount Consideration

One of the most important principles under Pakistani law is that “welfare of the minor” is the primary and overriding consideration in all custody and guardianship matters. This principle is explicitly recognized under Section 17 of the Act and has been reaffirmed by the Superior Courts of Pakistan in numerous judgments.

Welfare is determined not only by material factors like financial stability but also by:

Emotional and psychological well-being.
Education and health.
Conduct and character of the parties.
Religious upbringing.
Stability of the home environment.

This principle often allows courts to override natural rights of parents or guardians if those rights conflict with the child’s best interest.

Interaction with Other Laws

While the Guardians and Wards Act, 1890 remains the main law on the subject, other laws also impact custody and guardianship:

Muslim Family Laws Ordinance, 1961: Particularly relevant in divorce-related custody disputes.
Family Courts Act, 1964: Governs the procedure in family matters, including custody cases.
Civil Procedure Code (CPC): Applied where the Act is silent.
Criminal Procedure Code (CrPC): In certain situations, custody disputes may involve criminal law (e.g., abduction of minor).

Modern Judicial Approach

Pakistani courts have gradually moved towards a child-centric approach, focusing less on rigid technicalities and more on practical considerations for the minor’s well-being. Courts now:

Encourage amicable settlements where possible.
Ensure regular visitation rights even for non-custodial parents.
Take minor’s preferences into account, especially if the child is mature enough.

Judgments have also emphasized the non-transferability of custody based solely on age and the need for continuity in the child’s environment.

What are important points to consider in Child Custody Cases in Pakistan?

There are several important points to consider in child custody cases in Pakistan. Here are a few:

The welfare and best interests of the child
The court will always prioritize the welfare and best interests of the child when determining custody. This may include factors such as the child’s age, gender, physical and emotional needs, and any special medical or educational requirements.
The relationship between the child and each parent
The court will consider the child’s relationship with each parent and which parent is more likely to provide a nurturing and supportive environment for the child.
The ability of each parent to care for the child
The court will consider the physical and financial ability of each parent to care for the child, including their employment status, housing situation, and overall financial stability.
The wishes of the child
If the child is old enough, the court may consider their wishes regarding custody. However, the child’s wishes are not the only factor that the court will consider and may not necessarily determine the outcome of the custody case.
Domestic violence
If there is a history of domestic violence or abuse, the court may consider this as a factor in determining custody. The safety and well-being of the child will be of paramount concern in these cases.

Who can be the Guardian of a Child according to Pakistani Laws & When Guardian Courts Grant Custody Rights to a person?

Child guardianship cases in Pakistan are similar to child custody cases in that the welfare and best interests of the child are the primary consideration. Here are a few additional points to consider:

The relationship between the child and the proposed guardian: The court will consider the child’s relationship with the proposed guardian and whether they are able to provide a nurturing and supportive environment for the child.
The ability of the proposed guardian to care for the child/Minor/person: The court will consider the physical and financial ability of the proposed guardian to care for the child, including their employment status, housing situation, and overall financial stability.
The wishes of the child: If the child is old enough, the court may consider their wishes regarding guardianship. However, the child’s wishes are not the only factor that the court will consider and may not necessarily determine the outcome of the guardianship case.
The relationship between the child and their parents: The court will consider the child’s relationship with their parents and whether they are able to provide care and support for the child.
Domestic violence: If there is a history of domestic violence or abuse, the court may consider this as a factor in determining guardianship. The safety and well-being of the child will be of paramount concern in these cases.