Site icon PAKISTAN LAWYER

Guardian and Wards Act, 1890

Guardian and Wards Act, 1890

(VIII OF 1890)

21st March, 1890

An Act to consolidate and amend

 the law relating to Guardian and Ward

WHEREAS it is expedient to consolidate and amend the law relating to guardian and ward; it is hereby enacted as follows:

1. Title, extent and commencement

(1)        This Act may be called the Guardian and Wards Act, 1890.

1[(2)     It extend to the whole of Pakistan]; and

(3)       It shall come into force on the first day of July, 1890.

Legal Amendment

1.         Subs. by Ordinance XXI of 1960, S. 3 & Sch. (w.e.f. the 14th October, 1955).

2. Repealed

Legal Amendments

1.         S. 2 Rep. by the Repealing Act, 1938 (1 of 1938), S. 2 and Schedule.

3. Saving of jurisdiction of Courts of Wards and Chartered High Courts

This Act shall be read subject to every enactment heretofore or hereafter passed relating to any Court of Wards by any competent Legislature, authority or person in Pakistan, and nothing in this Act shall be construed to affect, or in any way derogate from, the jurisdiction or authority of any Court of Wards, or to take away any power possessed by any High Court.

4. Definitions

In this Act, unless there is something repugnant in the subject or context:–

(1)        “minor” means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his Majority;

(2)        “guardian” means a person having the care of the person of a minor or his property, or of both his person and property;

(3)        “ward” means a minor for whose person or property, or both, there is a guardian;

(4)        “District Court” has the meaning assigned to that expression in the Code of Civil `Procedure 1908 (Act V of 1908) and includes a High Court in the exercise of its ordinary original civil jurisdiction.

(5)       “the Court” means

(a)        the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or

(b)        where a guardian has been appointed or declared in pursuance of any such application:-

(i)         the Court which, or the Court of the officer who, appointed or declared the guarding or is under this Act deemed to have appointed or declared the guardian; or

(ii)        in any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or

(c)        in respect of any proceeding transferred under section 4-A, the Court of the officer to whom such proceeding has been transferred.

(6)        “Collector” means the Chief officer incharge of the revenue administration of a district, and includes any officer whom the Provincial Government, by notification in the official Gazette, may by name or in virtue of his office, appoint to be Collector in any local area, or with respect to any class of persons, for all or any of purposes of this Act.

(7)        “European British subject” [Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981, S. 3 Sch. 2.];

(8)        “Prescribed” mans prescribed by rules made by the High Court under this Act

4A. Power to confer jurisdiction on subordinate judicial offices and to transfer proceedings to such officers

1[(1)        The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a District Court, or authorize the Judge of any District Court to empower any such office subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.

(2)        The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).

(3)        The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under sub-section (1) any proceeding under this Act pending in the Court of any other such officer.

(4)        When any proceedings are transferred under this section in any case in which a guardian has been appointed on declared, the Judge of the District Court may, by order in witting, declare that the Court of the Judge or office to whom they are transferred shall, for all or anyone the purposes of this Act, be deemed to be the Court which appointed or declared the guardian.]

Legal Amendments

1          S. 4-A inst. by the Guardians and Wards (Amendment) Act, IV of 1926.

5. Power of parents to appoint in case of European British, subjects

   1[Omitted ]

Legal Amendments

1.         S. 5 Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981, S. 3 and Sch.

6. Saving of power to appoint in other cases

In the case of a minor who is nor a European British subject, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.

7. Power of the Court to make order as to guardianship

(1)       Where the Court is satisfied that it is for the welfare of a minor that 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.

(2)        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.

(3)        Where a guardian has been appointed by will or other instrument, or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared to aforesaid have ceased under the provisions of this Act.

 8. Persons entitled to apply for order

 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.

9. Court having jurisdiction to entertain application.

(1)        If the application is with respect to the guardianship of the person of the minor, if shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

(2)        If the application is with respect to the guardianship of the property of the minor, it maybe made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction to a place where he has property.

(3)        If an application with respect to guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

10. Form of application

(1)        If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure 1908 (Act V of 1908) for the signing and verification of a plaint, and stating, so far as can be ascertained–

(a)        the name, sex, religion, date of birth and ordinary residence of the minor; .

(b)        where the minor is a female, whether she is married, and, if so, the name and age of her husband;

(c)        the nature, situation and approximate value of the property, if any, of the minor;

(d)       the name and residence of the person having the custody of possession of the person or property of the minor;

(e)        what near relations the minor has, and where they reside;

(f)        whether a guardian of the person or property, or both, of the minor has been appointed by any person entitled or claiming to be scuttled by the law to which the minor is subject to make such an appointment;

(g)        whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property, or both, of the minor, and, if so, when to what Court and with what result;

(h)       whether the application is for the appointment or declaration of a guardian of the person of the minor, on his property, or of both;

(i)         where the application is to appoint a guardian, the qualifications of the proposed guardian;

(j)         where the application is to declare a person to be a guardian, the grounds on which that person claims;

(k)        the causes which have led to the making of the application; and

(l)         such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.

(2)        If the application is made by the Collector, it shall be by letter addressed to the Court and forwarded by post or in such other manner as may be found convenient, and shall state as far as possible the particulars mentioned in sub-section (1). `

(3)        The application must be accompanied by a declaration of the willingness of the proposed guardian to act and the declaration must be signed by him and attested by at least two witnesses

11. Procedure on admission of application

(1)       If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for hearing:

a)         to be served in the manner directed in the 1[Code of Civil Procedure 1908] (Act V of 1908), on–

(i)        the parents of the minor if they are residing in Pakistan;

(ii)       the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;

(iii)       the person proposal in the application or letter to be appointed Or declared guardian, unless that person is himself the applicant; and

(iv)       any other person to whom, in the opinion of the Court, special notice of the application should be given; and

(b)        to be pasted on some conspicuous part of the Court-house and of the resident of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

(2)        The Provincial Government may, by general or special order, require that, when any part of the property described in a petition under section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose District the minor ordinarily resides, and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems it.

(3)        No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2).

Legal Amendments

1.         Subs. by Act XXVII of 1981, S. 3 & Sch.2.

12. Power to make interlocutory order for production of minor and interim protection of person and property

(1)        The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

(2)        If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.

(3)        Nothing in this section shall authorize:–

(a)        the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any; or

(b)        any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.

13. Hearing of evidence before making of order

On the day fixed for the hearing of the application, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.

Court Decisions

Scope—Order passed by Guardian Court in respect of custody of minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same, may not serve as such—It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order, and pass an appropriate order at-any subsequent stage to safeguard the interest and welfare of the minor—Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of jurisdiction for Guardian Court for all time to come. PLD 2001 Kar. 371

14. Simultaneous proceedings in different Courts

(1)        If proceedings for the appointment, or declaration of a guardian of a minor are taken in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Courts, stay the proceedings before itself.

(2)        If the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Curt shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had.

(3)        In any other case in which proceedings are stayed under sub-section (1) the Courts shall report the case to, and be guided by such orders as they may receive from their respective Provincial Governments.

15. Appointment or declaration of several guardians

(1)        If the law to which the minor is subject admits of this having two of more joint guardians of his person or property, or both, the Court may, if it thinks fit, appoint or declare them.

(2)               1[Omitted ]

(3)        2[Omitted]

(4)        Separate guardians may be appointed or declared of the person and of the property of a minor.

(5)        If a minor has several properties, the Court may, if it thinks fit, appoint or declare separate guardian for any one or more of the properties.

Legal Amendments

1.      Sub S.2 omitted by the Federal Laws (Revision and Declaration) Ordinance; XXVII of 1981.

2.      Sub S.3 omitted by the Federal Laws (Revision and Declaration) Ordinance; XXVII of 1981.

16. Appointment or declaration of guardian for property beyond jurisdiction of the Court

If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the Court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian, accept him as duly appointed or declared and give effect to the order.

17. Matters to be considered by the Court in appointing guardian

(1)       In appointing or declaring the guarding 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.

(2)        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.

(3)        If the minor is old enough to form an intelligent preference, the court may consider that preference.

(4)        1[Omitted].

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

Legal Amendments

1.         Sub-section (4) omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981

Court Decisions

Principle of preference of either parents. Whether splitting -up brothers and sisters desirable. Courts below have taken into consideration admitted fact that all three brothers are studying in Lawrence College Ghora Gali, Murree and are Studying in College Hostel. They are, therefore, enjoying company of each other which will promote their brotherly feelings interse and elder can look after youngsters. Provision of S. 17 of Guardian and Wards Act was followed by both Courts below which are perfectly in accordance with spirit of law. Welfare of minors lay in their remaining in same institution.   P.L.J.1996 Lah. 577 = 1996 CLC 1603.

            Whether mother has preferential right of Hizanat. Mother of minors, having contracted second marriage with person not related to minors within prohibited degrees has lost her right of Hizanat. Petition dismissed.  P.L.J.1998 Lah. 146 = 1998 CLC 846.

            Children’s capability of making intelligent preference about which of the parents they choose to live with. Minor’s opinion was never obtained by District Judge while deciding question of their custody. Children being present in Court, High Court obtained their opinion and they were intelligent enough to express their opinion as they have been studying in good schools. Minors, stated that they. would prefer to live with their mother. Petitioner mother would not be disentitled and disqualified to retain custody of minors on the ground that she has contracted second marriage with a person who was not related to minors and is stranger. Courts would preserve to the mother custody of children if interest and welfare of minor so demanded. Impugned order of District Judge whereby he had declared father (respondent) to be the guardian of person and property of minors was set aside. Order of Guardian Judge was modified to the extent that -father (respondent) was allowed to see his children once in a month provided their educational programme was not disturbed. Minor Children can stay with father once in a month preferably on week ends and also stay for full day on their birth day and for two days on every Eid.  P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

            Welfare of minors. Whether in exercise of Constitutional Jurisdiction, interference in findings of facts, can be made by High Court. Principal of law discussed by Hon-able S.C. in case of Mst. Mehmooda Begum vs. TaJ Din can be invoked, wherein it has been laid down that findings of facts recorded by Tribunal of special Jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious mis-reading or mis-appreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. Both courts below have passed impugned Judgments without taking into consideration intelligent preference of minors, evidence on record, that petitioner can look after welfare of minors better than respondent No. 1, who being male member and of advance age, would not be in a position to look after female minor girls.  P.L.J.1998 Qta. 137 = 1998 MLD 1697.

            Trial Court had declared mother of minors to be the guardian of their person and property. District Judge, however, declared minor’s father to be the guardian of person and property of minors and directed that custody of minors be handed over to him. Validity. Petitioner (mother) had annexed detailed list of cases which .had been registered against respondent and in which he has been convicted also. No rebuttal was placed on record from respondent’s side that he was not involved, convicted and as not under trial in cases detailed in the list. Respondent did not mention in Court his income or his source of income. Neither any document regarding ownership of property was produced nor any other document showing that he had been deriving any income from said property was produced nor any proof that he was working anywhere was produced before Court. Petitioner, however, has placed on record certified copies of certificates from various educational institutions that she had been serving in those schools as a teacher and that at present she was teaching Fauji Foundation School. Petitioner had also placed on record certificate of tuition fee of minor children being paid by petitioner as also certificate showing balance of specified amount in her account in Habib Bank Ltd.. In addition to salary she has been giving tuition to students and earning hand some amount. Minor children have been admitted in best available schools, they are getting proper education and being looked after properly. Respondent in his statement before Court had -admitted that petitioner was graduate and has been serving in FauJi Foundation School and that Children were also studying in that school. Welfare of children being of fundamental importance, preference should be given to their welfare. Respondent although is natural guardian of minors yet his right was subordinate to welfare of minors. Evidence on record would suggest that minors were being well-educated and looked after by petitioner mother who had been supporting them since their birth while respondent had not spent a penny on them. Nothing on record was brought to indicate that petitioner was a woman of bad character. On the contrary she was graduate and teacher in a school of good standard and leading respectable life, welfare of minors, therefore, lies with petitioner (mother) and she was, thus, entitled to their custody.  P.L.J.2000 Pesh. 175 = PLD 200 Q Pesh. 23.

            Minor children. Custody, District Judge observed that minors having attained age of 7 years respondent (father) was entitled to their custody. District Judge has failed to consider that fundamental criteria for deciding application for appointment of guardian and restoration of custody, is welfare of minors and personal law is subordinate to it. Custody of minors allowed to appellant (mother)  P.L.J.1994 AJK 33 = PLD 1994 AJ&K 1 = NLR 1994 Civil 331.

Custody of minor girls. Minors remaining in custody of their step-mother after death of their real mother with whom their father contracted second marriage. After death of their father, their paternal uncle applied for their custody which was granted. Petitioner’s appeal was dismissed. Constitutional petition. Welfare of minors. By now it is well settled that while disposing of applications under section 17 and 25 of Guardian and Wards Act, supreme consideration should be welfare of minors, coupled with their own wishes* Petitioner is undoubtedly step mother of female minors, but they are living with her for last more than 8 years, when their real mother expired away. All minors were examined thrice by trial and appellate court, who on every occasion, insisted to stay with their step-mother, instead of preferring to live with their real uncle (Respondent) It is noteworthy that in his statement, he has given his age to be of 90 years. Moreover, minors have develop intimacy with petitioner (step mother) and even otherwise, being female minors, it is necessary that they should stay with female instead of male. Findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record.  P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Dispute relating to custody of minors. Respondent has no woman in his house who can look after children if given to his custody. Respondent claimed that he has a sister in his house who could look after children. Sister of Respondent could not be a substitute of mother and she could not provide love and affection to children which mother can, as lap of mother is God’s own cradle for children. Mother was, thus, entitled to custody other minor children.   P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

18. Appointment or declaration of Collector in virtue of office.

Where a Collector is appointed or, declared by the Court in virtue of his office to be guardian of the person or property, or both, of a minor, the order appointing or declaring him shall be deemed to authorize and require the person for time being holding the office to act as guardian of the minor with respect to his person or property, or both, as the case may be.

19. Guardian not to be appointed by the Court in certain cases.

Nothing in this Chapter shall authorize the Court to appoint or declare a guarding 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.

(a)        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

(b)        of a minor whose father is living and is not, in the opinion of the Court unfit to be guardian of the person of the minor; or

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

20. Fiduciary relation of guardian to ward

(1)       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.

(2)        The fiduciary relation of a guardian to his ward extends to and affects purchases by the guardian of the property of the ward, and by the ward of the property of the guardian, immediately or soon after the ward has ceased to be a minor and generally all transactions between them while the influence of the guardian still lasts or is recent.

21. Capacity of minors to act as guardians

A minor is incompetent to act as guardian of any minor except his own wife or child, or, where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family.

22. Remuneration of guardian

(1)        A guardian appointer 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 so appointed are 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. 

23. Control of Collector as guardian

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.

24. Duties of guardian of the person

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.

25. Title of guardian to custody of ward

(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.

(2)        For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the First Class by section 100 of the Code of Criminal Procedure, 1898 (Act V of 1908).

(3)        The resident of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship.

Court Decisions

Custody of minor -Welfare of minor, a prime consideration and basic criterion – For deciding the question and other issues relating thereto, welfare of minor is the paramount consideration for Guardian Court – Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court has to record a definite finding on the point before passing any order in the matter . PLD 2001 Kar. 371

Essentials. Welfare of minor is paramount consideration in determining custody of minor notwithstanding right of father to get custody after seven years of age of male minor child. Right of father to claim custody of minor son is not an absolute right in that, father may disentitle himself to custody on account of his conduct in the light and circumstances of each case. Evidence on record indicated that father who had sought custody of minor neglected him since separation of spouses inter se and had voluntarily left custody to petitioner/mother. Mother had brought him up and educated him till she had to opt for second marriage. Mother even after her second marriage had not been negligent in the care other minor son, having entrusted that duty to her mother and father, and minor is being properly educated till date in local school. Father had neglected the child during all that period till mother had applied for maintenance of child; it was only thereafter that father applied for custody of minor. Father having married again, his second wife was living in village, where no one would save minor from step-motherly treatment if custody of minor was allowed to remain with father. High Court’ had thus, erred to interfere in concurrent findings of fact that welfare of minor- lay in leaving him to custody of mother and that too in exercise of constitutional Jurisdiction of High Court. Petition for leave to appeal was converted into appeal and while setting aside impugned order of High Court, orders of two Courts below that welfare of minor lies with mother and that she was entitled to retain his custody was restored.  P.L.J.2000 SC 1094 = 2000 SCMR 838.

Guardian of person and property :– Trial Court had declared mother of minors to be the guardian of their person and property. District Judge, however, declared minor’s father to be the guardian of person and property of minors and directed that custody of minors be handed over to him. Petitioner (mother) had annexed detailed list of cases which .had been registered against respondent and in which he has been convicted also. No rebuttal was placed on record from respondent’s side that he was not involved, convicted and as not under trial in cases detailed in the list. Respondent did not mention in Court his income or his source of income. Neither any document regarding ownership of property was produced nor any other document showing that he had been deriving any income from said property was produced nor any proof that he was working anywhere was produced before Court. Petitioner, however, has placed on record certified copies of certificates from various educational institutions that she had been serving in those schools as a teacher and that at present she was teaching FauJi Foundation School. Petitioner had also placed on record certificate of tuition fee of minor children being paid by petitioner as also certificate showing balance of specified amount in her account in Habib Bank Ltd.. In addition to salary she has been giving tuition to students and earning hand some amount. Minor children have been admitted in best available schools, they are getting proper education and being looked after properly. Respondent in his statement before Court had -admitted that petitioner was graduate and has been serving in FauJi Foundation School and that Children were also studying in that school. Welfare of children being of fundamental importance, preference should be given to their welfare. Respondent although is natural guardian of minors yet his right was subordinate to welfare of minors. Evidence on record would suggest that minors were being well-educated and looked after by petitioner mother who had been supporting them since their birth while respondent had not spent a penny on them. Nothing on record was brought to indicate that petitioner was a woman of bad character. On the contrary she was graduate and teacher in a school of good standard and leading respectable life, welfare of minors, therefore, lies with petitioner (mother) and she was, thus, entitled to their custody.  P.L.J.2000 Pesh. 175 = PLD 200 Q Pesh. 23.

Hizanat of minor. It is true that having married a stranger a second time, mother losses hizanat, but it is not true that after loosing such hizanat minor reverts to father. Gurdian Judge still retains discretion to determine welfare of minor. Father after dissolution of marriage is employed in PIA and lives alone. He has no mother or other close relative where his minor daughter could be put up. Father has also married a second time. All children of second husband of minor’s real mother are married, hence, it can be expected that minor daughter will have more and exclusive care of her real mother with whom she is living right from her birth i.e., 7 years. Minor would not be given beneficient treatment by step mother.  P.L.J.1998 Lah. 1635 = PLD 1998 Lah. 67.

Whether personal law will override welfare of child which is question of fact and is of paramount consideration. It is true that father has preferential right under personal Law to get custody of male child after period of Hizanat is over. But, it is also accepted and being persistently followed on basis of numerous findings of superior courts that welfare of minor is always paramount consideration while determining question of custody. Personal Law is not to be allowed blindly or in automatic fashion, but has to be decided objectively. Guardian Judge has to see as to where welfare of child is paramount consideration while deciding about custody of child which deeply concerns character building and his future prospects. Both courts below have rightly determined that welfare of child demands .that be should be left in care and custody of his mother till be reaches age of discretion. Petition dismissed.  P.L.J.1998 Lah. 884 = 1998 MLD 1003.

Respondent has no woman in his house who can look after children if given to his custody. Respondent claimed that he has a sister in his house who could look after children. Sister of Respondent could not be a substitute of mother and she could not provide love and affection to children which mother can, as lap of mother is God’s own cradle for children. Mother was, thus, entitled to custody other minor children.   P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

Children’s capability of making intelligent preference about which of the parents they choose to live with. Minor’s opinion was never obtained by District Judge while deciding question of their custody. Children being present in Court, High Court obtained their opinion and they were intelligent enough to express their opinion as they have been studying in good schools. Minors, stated that they. would prefer to live with their mother. Petitioner mother would not be disentitled and disqualified to retain custody of minors on the ground that she has contracted second marriage with a person who was not related to minors and is stranger. Courts would preserve to the mother custody of children if interest and welfare of minor so demanded. Impugned order of District Judge whereby he had declared father (respondent) to be the guardian of person and property of minors was set aside. Order of Guardian Judge was modified to the extent that -father (respondent) was allowed to see his children once in a month provided their educational programme was not disturbed. Minor Children can stay with father once in a month preferably on week ends and also stay for full day on their birth day and for two days on every Eid.  P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.

Compromise between the parties – Compromise or an agreement between the parties does not absolve Guardian Court from ifs basic responsibility to safeguard and protect the interest and welfare of the minor, PLD 2001 Kar. 371 Duty of Guardian Court to examine subsequent developments – Scope – Compromise, agreement or consent order cannot be lightly upset/rejected by Guardian Court while re-examining question of welfare of minor in the given facts and circumstances of each case – Where earlier order passed by Guardian Court is intended to be modified/altered, the Guardian Court should proceed with, the presumption that the compromise, agreement or the consent order passed in earlier guardianship proceedings was in the best interest and welfare of the minor, and therefore the Court should examine the subsequent developments and allegations which were made basis for seeking modification/change in the earlier order. PLD 2001 Kar. 371

Custody of minor in all cases cannot be effectively settled by private compromise – Court’s powers with regard to custody of minor are in the nature of parental Jurisdiction, and it must act in a way a wise parent would do – Expression ‘welfare’ would be construed in a way so as to include in its compass all the dominant factors essential for determining the actual welfare of the minor – Technicalities of law are not adhered to in such type of cases. PLD 2002 S.C 267 Grandmother agreed to hand over custody of minor to father on her attaining age of seven years – Father thereafter contracted second marriage, who, had an issue from second wife – Father’s application for custody of minor by implementing such compromise was accepted by Guardian judge, which order was upheld by Appellate Court and High Court – S.C granted leave to appeal to consider, whether in such circumstances, irrespective of settlement between the parties. Guardian judge was not bound under law to decide question of custody of minor keeping in view her welfare. PLD 2002 S.C267

Compromise or an agreement between the parties does not absolve Guardian Court from ifs basic responsibility to safeguard and protect the interest and welfare of the minor, PLD 2001 Kar.371 Grandmother agreed to hand over custody of minor to father on her attaining age of seven years—Father thereafter contracted second marriage, who, had an issue from second wife—Father’s application for custody of minor by implementing such compromise was accepted by Guardian Judge, which order was upheld by Appellate Court and High Court—Supreme Court granted leave to appeal to consider, whether in such circumstances, irrespective of settlement between the parties. Guardian Judge was not bound under law to decide question of custody of minor keeping in view her welfare. PLD 2002 S C 267

Custody of minor (female suckling child) Father of minor was away to United States. In such a situation, mother was most suitable and appropriate guardian of female suckling child. Mere fact that father returned to Pakistan with intention to reside here permanently would not nullify impugned order. It shall, however, be open to father to prove during trial of petition under Section 25 01 Guardians and Wards Act, that he intends to’ reside in Pakistan permanently and that welfare of minor would be promoted if her custody is allowed to him. No good ground to interfere with impugned orders.  P.L.J.1998 Lah. 1671 = 1999 MLD 943.

Custody of minor boy. Respondent/father’s application for lodgment of minor on Aitchison College as a boarder under his care and supervision was dismissed by Guardian Judge. Subsequently however, respondent’s application for review/ recall earlier order was accepted by Guardian Judge and he withdrew his earlier order directed that minor be admitted as a boarder in Aitchison College. Order regarding custody of.minor can be charged till the matter was finally determined, welfare of minor being of paramount consideration. Once order of custody had been passed by a Court of Competent Jurisdiction after full deliberation, same could not be review/changed as of right unless and until some material change had taken place i.e., where lady marrie’s a stranger, in that eventuality any change can be made. Minor in response to direction of Court had appeared before Court and had categorically stated that at no cost he would like to go as a boarder tm Aitchison College, that be was getting his education in a good atmosphere from his present school by staying with his mother and maternal grand parents. Minor’s version keeping in view his age of discretion and his intelligence which he had demonstrated in Court could not be brushed aside lightly. In case minor was lodged as a boarder in Aitchison College, he would be deprived of love and affection of his mother as well as maternal grand parents. Above all minor’s younger sister for no fault of her own’ would be deprived of the company of her only brother. Minor having got himself fully adjusted at his present institution, Court would not like to uproot him from there. Orders of lodgment of minor in Aitchison College as a boarder wa3 thus, declared to have been passed without lawful authority having no legal effect.  P.L.J.2000 Lah. 2305.

Minor boy is of more than 7 years of age so presumption of his welfare would obviously lie in favour of appellant, the father. Nothing has brought on record suggestive of fact that appellant ever neglected to take care of his minor son and provide any maintenance to him or his mother and it was only after initiation of maintenance proceedings against appellant that he moved an application for securing custody of minor. S.C.is of the view that mere fact that order of maintenance in favour of minor by court under section 488 Cr.P.C. would not disentitle person from custody if he is entitled to it under personal law.  P.L.J.1996 SC (AJK) 230 = 1996 CLC 1534.

Custody of minor girl. Trial Court and First Appellate Court •granted custody of minor girl to mother. High Court in exercise of its Constitutional Jurisdiction set aside concurrent findings of Courts below and handed over custody to father. Whether in facts and circumstances of case, High Court was Justified in pressing into service its Constitutional Jurisdiction for setting aside concurrent Judgments of two competent Courts leave to appeal is granted. Execution proceedings pursuant to Judgment of High Court are stayed.  P.L.J.1997 SC 1160 = 1997 SCMR 425.

Minors remaining in custody of their step-mother after death of their real mother with whom their father contracted second marriage. After death of their father, their paternal uncle applied for their custody which was granted. Petitioner’s appeal was dismissed. Constitutional petition. Welfare of minors. By now it is well settled that while disposing of applications under section 17 and 25 of Guardian and Wards Act, supreme consideration should be welfare of minors, coupled with their own wishes* Petitioner is undoubtedly step mother of female minors, but they are living with her for last more than 8 years, when their real mother expired away. All minors were examined thrice by trial and appellate court, who on every occasion, insisted to stay with their step-mother, instead of preferring to live with their real uncle (Respondent) It is noteworthy that in his statement, he has given his age to be of 90 years. Moreover, minors have develop intimacy with petitioner (step mother) and even otherwise, being •female minors, it is necessary that they should stay with female instead of male. Findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record.  P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Custody of minor male child. It is to be weighed whether, it is in the welfare of minor to face step mother or remain with his real mother and face step-father. Minor is deeply attached to his real mother and also expressed attachment for his step father. Minor is of age where he can express an intelligent preference and his preference has to be taken into consideration while deciding where welfare of minor lies. It would be harsh and unjust to minor to deprive him of his mother’s company. Judgment of Respondent No. 3 does not suffer from any legal infirmity and accordingly maintained. However, petitioner was allowed to visit minor through Principal of his school once a month.  P.L.J.1996 Lah. 407.

Interference in findings of facts,:– Principal of law discussed by Honable S.C.in case of Mst. Mehmooda Begum vs. TaJ Din can be invoked, wherein it has been laid down that findings of facts recorded by Tribunal of special Jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious mis-reading or mis-appreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. Both courts below have passed impugned Judgments without taking into consideration intelligent preference of minors, evidence on record, that petitioner can look after welfare of minors better than respondent No. 1, who being male member and of advance age, would not be in a position to look after female minor girls.  P.L.J.1998 Qta. 137 = 1998 MLD 1697.

Interim custody of minor – Mother of minor died at the time of her (minor’s) birth – Grandmother of the minor girl obtained her custody from her father through habeas petition –  During proceedings before Guardian judge, matter was compromised and as per term of settlement, custody of minor had to be handed over to father on her attaining age of seven years – Father, later on contracted second marriage and had an issue from second wife – Deceased mother of minor was a serving lady – Share of minor in the amount left by her mother was deposited by father in his own account, which amount was recovered from him through decree of Court after issuing his warrant of arrest – During pendency of another suit for his appointment as guardian of person and property of minor, father made application for implementation of such compromise seeking custody of minor – Guardian judge allowed such application and directed grandmother to hand over custody of minor to her father –  Grandmother remained unsuccessful before Appellate Court and High Court – Held, paramount consideration in such-like cases was welfare of minor – Initially parties had settled the dispute through compromise, but later on due to material change in circumstances, question of welfare of minor had again cropped up in a more serious manner than before – Since birth minor had remained with maternal grandmother and suddenly to ask her to live in different atmosphere would be, if not impossible, at least very difficult for her – S.C allowed the appeal, set aside impugned order and permitted the minor to remain with grandmother till petition pending before Guardian judge was finally decided on merits after recording evidence of the parties. PLD 2002 S.C267

Jurisdiction-District Judge was not a Family Court competent to hear and adjudicate upon matter due to total lack of jurisdiction, therefore, irrespective of fact that impugned order was passed by District Judge, same was appealable under S. 14 of Family Courts Act 1964 and not under S. 47of Guardians and Wards Act 1890-Court of Civil Judge being Family Court would have jurisdiction in relation to guardianship matters and custody of children would be deemed to be principal Court of Civil jurisdiction of .District. PLD 2003 Quetta 44

Minor child. Custody. Whether in presence of step mother minor will be brought up in a congenial atmosphere. This factor per se is no ground for refusing custody of minor to father if, he is otherwise found entitled to it. If some safeguards are provided S.C.is of the opinion that this factor by itself does not-deprive father from obtaining custody of his minor son. In absence of any adverse circumstance S.C.cannot presume that appellant/father will not look after or bring up minor with love and affection or due care. If any time some circumstances seriously prejudicial to interest and welfare of minor are brought on record duly supported by tangible evidence respondent shall be free to move Court of competent Jurisdiction afresh on basis of a new cause of action or grievance. Appellant shall make minor available to live with his mother (respondent) at least two days every week till he attains majority. P.L.J.1996 SC (AJK) 230 = 1996 CLC 1534.

Minor daughter. Custody. Both courts below have merely focused attention primarily to fact that father had contracted second marriage and mother had not, but did not give due with to over-riding legal consideration of welfare of minor. Superiority of claims is relevant but deciding factor is always welfare of minor. Minor was being brought up by her paternal aunt and properly looked-after. Judgments of courts below are without lawful authority and of no legal effect. Petition accepted and custody of minor given to. petitioner (father)  P.L.J.1994 Note 77 at p. 51.

Modification of order passed earlier on compromise by Guardian Court – Mother of the minors was given custody and periodical meetings between the father and the minors were agreed to by the parties – Mother of the minors raised serious and shameful allegations against the father which pertained to the period of meeting with the minors-Guardian Court declined to modify the order passed earlier without making any inquiry into the matter and said decision of the Guardian Court was upheld by the Appellate Court – Plea raised by the father was that the Constitutional petition was not filed with clean hands – Validity – Finding with regard to truthfulness or otherwise of the allegations levelled by the mother of the minors in her guardianship application was not recorded by the Court and unless the same was recorded it could not be held that the mother of the minors had not approached the High Court with clean hands or she was not entitled to equitable relief in the matter – Orders passed by the two Courts below were set aside by the High Court in circumstances, PLD 2001 Kar. 371  PLD 1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref. 1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah.1019; AIR 1930 Lah.250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.

Mother was a prostitute. All Courts below found father to be entitled to •custody of minors. Validity. Mother leaving adultrous life & asking for forgiveness. Whether right of Hizanat lost. Question of law and welfare of child. According, to Hassan Basri, right of mother custody does not stop if welfare of children is to remain in custody of mother. According to Kitab-al-Fiqah, Hizanat is lost when woman is adultrus, but if she has asked forgiveness, she will have right of custody. Both Courts below while non­suiting petitioner on ground that she was prostitute have ignored most material and important aspect of this case that Mst. “R” married “B” and she was constrained to file writ petition against her mother contending that “B” had tried to rescue her from her sinful life, therefore, finding of Courts below are unsustainable. It is also established from evidence that minors were being maintained and educated by their mother and their educational certificate show that they were showing good results in institution. After marriage with “B” and after divorce with “S” and eventually she has married persons”” and according to her statement now she has offered her forgiveness from sinful life to God Almighty and she is never looking back to her past life and leading decent and respectful life, her children are being educated in good Institutions and they are enJoying fatherly love and affection from her husband. Courts below while nonSuiting Mst. “R” was not. Justified as “B” was conscious about after effects of his marriage with Mst. “R”. He being man could have pulled her out of sinful life giving her all protection and decencies of matrimonial life and providing his children healthy atmosphere quite aware from social set up. He is most un-deserving person to be wali of minors and other relatives also stand disqualified to obtain custody of minors. Judgments and decree of both Courts below set aside minors shall remain in custody, direct supervision and control of mother as before.  P.L.J.2000 Lah. 2419 = 2000 MLD 1967.

Paramount consideration. Status of respondent (Father) Father is also better as compared to petitioner-(mother) He is senior officer of Federal Govt. presently serving as Asstt. Collector of Central Excise and Sales Tax, Rawalpindi and he can easily bear expenses of schooling, boarding and lodging of minors at said leading institution of country and their better bringing up as compared to petitioner, who is statedly working as Teacher in some private institution. Transferring custody of minors at this stage will definitely effect their studies and it will.also cause set aback to them if they are shifted from Murree to Lah.Welfare of minors is of paramount importance and lies in keeping all three minors in present institution at Murree where they are studying satisfactorily and getting positions in their respective classes examination/Test. Impugned orders are based on valid reasons calling for no interference in constitutional petition. Findings of both courts below are supported by evidence on record and no illegality has been pointed out in impugned orders. Petition without merit accordingly dismissed.  P.L.J.1996 Lah. 577 = 1996 CLC 1603. Whether living apart of minors in different environments is in their interest. Family is only Juncture where brothers and sisters live together under their parents and enjoy natural harmonious affection and love and share their small secrets of happiness. It is not in their interest to live apart from each other in different environments, under disputes and hatred which usually arise from result of broken homes.   P.L.J.1996 Lah. 571 = 1997 MLD 520.

Modification or alteration of an earlier order – Guardian Court, power of – Scope – Order passed by Guardian Court in respect of custody of minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same, may not serve as such – It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order, and pass an appropriate order at-any subsequent stage to safeguard the interest and welfare of the minor – Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of Jurisdiction for Guardian Court for all time to come. PLD 2001 Kar. 371

Mother of the minors was given custody and periodical meetings between the father and the minors were agreed to by the parties—Mother of the minors raised serious and shameful allegations against the father which pertained to the period of meeting with the minors-Guardian Court declined to modify the order passed earlier without making any inquiry into the matter and said decision of the Guardian Court was upheld by the Appellate Court—Plea raised by the father was that the Constitutional petition was not filed with clean hands—Validity—Finding with regard to truthfulness or otherwise of the allegations levelled by the mother of the minors in her guardianship application was not recorded by the Court and unless the same was recorded it could not be held that the mother of the minors had not approached the High Court with clean hands or she was not entitled to equitable relief in the matter—Orders passed by the two Courts below were set aside by the High Court in circumstances, PLD 2001 Kar. 371 PLD 1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref. 1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah. 1019; AIR 1930 Lah. 250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.

Principles – Paramount consideration by the courts must be given to the welfare of minors. 2004 C L C 228

Scope – Guardian Court, to ensure and safeguard the interest and welfare of the minor, can grant any relief while deciding guardianship application Substance and not the form of application was to be examined even if Court was found lacking the authority to grant relief in strict terms as prayed in the application, Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

Welfare of minor, a prime consideration and basic criterion – For deciding the question and other issues relating thereto, welfare of minor is the paramount consideration for Guardian Court – Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court has to record a definite finding on the point before passing any order in the matter PLD 2001 Kar. 371District Judge observed that minors having attained age of 7 years respondent (father) was entitled to their custody. District Judge has failed to consider that fundamental criteria for deciding application for appointment of guardian and restoration of custody, is welfare of minors and personal law is subordinate to it. Custody of minors allowed to appellant (mother)  P.L.J.1994 AJK 33 = PLD 1994 AJ&K 1 = NLR 1994 Civil 331.There is no substitute for a mother especially when father has re-married and no step mother can give affection and love* which real mother can give to her children. Respondent (mother of children) seems quite determined, resolute and firm in her decision to bring up children even through hard work. She was evenready to forgo her right .of claiming maintenance of minors. She does not intend to marry in future, whereas father has remarried with a stranger lady. Under such a situation scales of Justice tilt in favour of mother. Nature has made a woman most adorable person on globe as “a mother”. Mother and child enJoy natural sense of safety and protection. It is not in the interest and welfare of minors to be separated from each other devoid of love and affection which they enJoy while living together. No infirmity in Judgment of lower Appellate Court.  P.L.J.1996 Lah. 813 = 1997 MLD 520.

Whether District Court was competent to hear appeal against order of Family Court. Application for custody of minor filed u/S. 25 of Guardian and Wards Act, 1890 had been challenged on ground that application having been decided by Family Court in capacity of District Court, appeal against order of Family Court should have been field before High Court and not before District Court. Validity. Provisions of S. 14(1), West Pakistan Family Courts Act, 1964 had overriding effect over provisions of Guardian and Wards Act, 1890. Provisions of S. 47(1)© of Guardian and Ward Act, 1890, no doubt, had provided that appeal against order passed under S. 25 of Guardian and Wards Act, 1890 lay to High Court, but S. 14(l)of West Pakistan Family Courts Act, 1964 which started with words “notwithstanding anything provided in any other law for time being in force”, had provided that Judgment and decree passed in Family Court, would be appealable to District Court if such Judgment and decree were not passed by District Judge or additional District Judge. Application under S. 25 of Guardian and Wards Act, 1890, having been decided by Civil Judge as Family Court not by District Judge or Addl. District Judge as Family Court appeal certainly would lie before District Court under S. 14(l)of Family Courts Act, 1964 which had overriding effect due to non obstante clause over provisions of Guardians and Wards Act, 1890.  P.L.J.1999 Qta. 299 = PLD 1999 Qta. 29.

Whether mother has preferential right of Hizanat. It is admitted fact that there is no, substitute for mother especially when father has re-married and no step mother can give affection and love which real mother can give to her children. Respondent seems quite determined, resolute and firm in her decision to bring up children even through hard work and give them proper education,, care, love and affection and she was ever ready to forego her right of claiming maintenance of minors. Mother and child enjoying natural sense of safety and protection and understanding and this sense which normally prevails between this relationship and keep one day old child quite safe, by side of a mother sound asleep. Custody of mother is taken away only where strong grounds exist otherwise.  P.L.J.1996 Lah. 571 = 1997 MLD 520.

Mother of minors, having contracted second marriage with person not related to minors within prohibited degrees has lost her right of Hizanat. Petition dismissed.  P.L.J.1998 Lah. 146 = 1998 CLC 846.

Poverty of mother :– Mother seems firm and resolute to dedicate all her life to bring up her children and facing hard challenges of life for sake of her children and does not intend to marry in future. On the other hand, father who has remarried with a stranger lady is advocating cause of one of his relative to keep up custody of minors. Mere arguments that mother has no source of income cannot deprive her from custody of minor. Father is under duty of Law to maintain his children and enable them for better education, better future and good.health.  P.L.J.1996 Lah. 571 = 1997 MLD 520.

Writ against interim Order :– During appeal an application to produce additional evidence was filed which was dismissed. Writ against. In a writ petition, no interference is called for, unless it can be shown that order passed by lower Court suffered from some Jurisdictional defect. Evidence brought by parties on record was sufficient enough to enable lower court to decide fate of application. Evidence sought to be produced was admittedly an additional evidence which cannot be produced as a matter of right. Both parties had already executed their rights to produce their respective evidence. If the Court feels in-capacitated for lack of sufficient evidence to enable it to effectually dispose of controversy before it, it can permit any of parties to produce additional evidence, whereas in present case it is petitioner who is insisting to produce additional evidence. Npt being requirement of court,. additional evidence cannot be allowed. Appellate court has committed no illegality by refusing application. P.L.J.1999 Lah. 938.

26. Removal of ward from jurisdiction

(1)        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.

(2)        The leave granted by the Court under sub-section (1) may be special or general, and may be denied by the order granting it.

27. Duties of guardian of property.

A guardian of the property of a ward is bound to deal therewith 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.

28. Power of testamentary guardian.

Where a guarding has been appointed by will or other instrument, his power to mortgage or charge or transfer by sale, gift, exchange or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the Court which made the declaration permits him by an order in writing notwithstanding the restriction, to dispose of any immovable property, specified in the order in a manner permitted by the order.

29. Limitation of powers of guardian of property appointed or declared by the Court.

Where a person other than a Collector, or other than a guardian appointed by will or other instrument, 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.

(a)        Mortgage, or charge or. Transfer by sale, gift, exchange or otherwise any part of the immovable property of his ward; or

(b)        Lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

Court Decisions

Interest of Minor. Rationale behind these sections is that interests of minor should not be Jeopardized. Impugned order has given unlimited power to guardians and has not attached any conditionality stipulated in statute. Impugned order set-aside.  P.L.J.2000 Lah. 1667.

30. Void ability of transfers made in contravention of section 28 or section 29.

A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.

31. Practice with respect to permitting transfers under section 29.

(1)       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.

(2)        The order granting the permission shall recite the necessity or advantage, as the case may be, describe the property with respect to which the act permitted is to be done, and specify such conditions if any, as the Court may see fit to attach to the permission; and it shall be recorded, dated and signed by the Judge of the Court, with his own hand, or, when from any cause he is prevented from recording the order with his own hand, shall be taken down in writing from his dictation and be dated and signed by him.

(3)        The Court may in its discretion attach to the permission the following among other conditions, namely:–

(a)        that a sale shall not be completed without the sanction of the Court;

(b)        that a sale be made to the highest bidder by pubic auction, before the Court or some person specially appointed by the Court for that purpose, at a time and place to be specified by the Court after such proclamation of the intended sale as the Court, subject to any rules made under this not by the High Court, directs;

(c)        that a lease shall not be made in consideration of a premium or shall be made for such term of years and subject to such rents and covenants as the Court directs;

(d)       that the whole or any part of the proceeds of the act permitted shall be paid into the Court by the guardian, to be disbursed therefrom or to be invested by the Court on prescribed securities or to be otherwise, disposed of as the Court directs.

(4)        Before granting permission to a guardian to do an act mentioned in section 29, the Court may cause notice of the application for the permission to be given to any relative or friend of the ward who should in its opinion, receive notice thereof, and shall bear and record the statement of any person who appears in opposition to the application.

32. Variation of powers of guardian of property appointed or declared by the Court.

Where a guardian of property of award has been appointed o: declared by the Court and such guardian is not the Collector, the Court may, from time by order, define, restrict or extend his powers with respect to the property of the ward in such manner and to such extent as it may consider to be for the advantage of the ward and consistent with the law to which the ward is subject.

33. Right of guardian so appointed or declared to apply to the Court for opinion in management of property of ward.

(1)        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.

(2)        If the Court considers the question to be proper for summary disposal, it shall cause a copy of the petition to be served on, and the hearing thereof may be attended by, such of the persons intended in the application as the Court thinks fit.

(3)        The guardian stating in good faith the facts in the petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regard his own responsibility, to have performed his duty as guardian in the subject-matter of the application.

34. Obligations on guardian of property appointed or declared by the Court

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 directors; 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.

35. Suit against guardian where administration-bond was taken.

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 Curt 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.

36. Suit against guardians where administration bond was not taken.

(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)       1[Omitted]

Legal Amendments

1.         Sub-section (2) omitted by the Federal Laws [Revision and Declaration) Ordinance XXVII of 1981, S. 3 & Sch. 2.

37. General liability of guardian and trustee.

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

38. Right of survivorship among joint guardians.

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.

39. Removal of guardian.

The Court may on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, ora 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 guarding appointed by will or other instrument, whether he has been declared under this Act or not shall not be removed–

(a)        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.

40. Discharge of Guardian.

(1)        If a guardian appointed or declared y the Court desires to resign his office, he may apply to the Court to be is charged.

(2)        if the Court finds that there is sufficient reason for the application it shall discharge him and if the guardian making the application is the Collector and the Provincial Government approves of his applying to be discharged, the Court shall in any case discharge him

41. Cessation of authority of guardian.

(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 was 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 cause:–

(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 apy accounts in his possession or control relating to any past or present property of the ward.

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

42. Appointment of successor to guardian dead, discharge or removed.

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.

43. Orders for regulating conduct of proceedings of guardians and enforcement of those orders.

(1)        The Court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the Court.

(2)        Where there are more guardians that one of a ward, and they are unable to agree upon a question affecting his welfare, any of them may apply to the Court for its direction, and the Court may make such order respecting the matter in difference as thinks fit.

(3)        Except where it appears that the object of making an order under sub-section (1) nr sub-section (2) would be defeated by the delay, the Court shall before making the order, direct notice of the application therefore, or of the intention of the Court to make it, as the case may be, to be given in a case under sub-section (2) to the guardian who has not made the application.

(4)        In the case of disobedience to an order made under sub-section (1) or sub-section (2) the order may be enforced in the same manner as an injunction granted under R[Rules 1 and 2 of Order 39 of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908)], in a case under sub­section (1), as if the ward were the plaintiff and the guardian were the defendant, or in a case under sub-section (2), as if the guardian who made the application were the plaintiff and the other guardian were the defendant.

(5)        Except in a case under sub-section (2), nothing in the section shall apply to a Collector who is, as such, a guardian.

44. Penalty for removal of ward from jurisdiction.

If, for the purpose or with the effect of preventing the Court from exercising its authority with respect to a ward, a guardian appointed or declared by the Court removes the ward from the limits of the jurisdiction of the Court in contravention of the provisions of section 6, he shall be liable, by order of the Court to fine not exceeding one thousand rupees, or to imprisonment in the civil jail for a term which may extend to six-months.

45. Penalty for contumacy.

(1)        In the following cases, namely:–

(a)        if a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under section 25, sub-section (1); or

(b)        if a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts in compliance with the requisition under clause (c) of that section, or to pay into the Court the balance due from him on those accounts in compliance with a requisition under clause (d) of that section; or

(c)        if a person who has ceased to be a guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under section 41, sub-section (3), the person, guardian or representative, as the case may be, shall be liable by order of the Court, to fine not exceeding one hundred rupees, and in case of recreancy to further fine not exceeding ten rupees for each day after the first during which default continues, and not exceeding five hundred rupees in the aggregate, and to detention in the civil jail until he undertakes to produce the minor or cause him to be produced, or to compel his return, or to deliver the statement or to exhibit the accounts, or to pay the balance, or to deliver the property or accounts, as the case may be.

(2)        If a person who has been released from detention on giving an undertaking under subsection (1) fails to carry out the undertaking within the time allowed by the Court, the Court may cause him to be arrested and re-committed to the civil jail.

46. Reports by Collectors and Subordinate Courts.

(1)        The Court may calf upon the collector, or upon any Court subordinate to the Court, for a report on any matter arising in any proceeding under this Act and treat the report as evidence. .

(2)        For the purpose of preparing the report the Collector or the Judge of the Subordinate Court, as the case may be, shall make such inquiry as he deems necessary, and may for the purposes of the inquiry exercise any power of compelling the attendance of a witness to give evidence or produce a document which is conferred on a Court by the 9[Code of Civil Procedure, 1908 (Act V of 1908).

47. Orders appealable.

An appeal shall lie to the High Court from an order made by the Court:–

(a)        under section 7, appointing or declaring to appoint or, declare a guardian; or

(b)        under section 9, sub-section (3), returning an application; or

(c)        under section 25, making or refusing to make an order for the return of a ward to the custody and of his guardian; or

(d)       under section 26, refusing leave for the removal of a ward from the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or

(e)        under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or

(f)        under section 32 defining, restricting or extending the powers of a guardian; or

(g)        under section 39 removing a guardian; or

(h)       under section 42, refusing to discharge a guardian; or

(i)         under section 43, regulating the conduct or proceedings of a guardian or settling a, matter in difference between joint guardians, or enforcing the order; or

(j)         under section 44, imposing a penalty;

1[Provided that, where the order from which an appeal is preferred is passed by an officer subordinate to a District Court, the appeal shall lie to the District Court.

Legal Amendments

1.         Proviso added by Ordinance, XI of 1980, S. 2.

Court Decisions

Crucial point is whether District Court was competent to hear appeal against order of Family Court. Application for custody of minor filed u/S. 25 of Guardian and Wards Act, 1890 had been challenged on ground that application having been decided by Family Court in capacity of District Court, appeal against order of Family Court should have been field before High Court and not before District Court. Validity. Provisions of S. 14(1), West Pakistan Family Courts Act, 1964 had overriding effect over provisions of Guardian and Wards Act, 1890. Provisions of S. 47(1)© of Guardian and Ward Act, 1890, no doubt, had provided that appeal against order passed under S. 25 of Guardian and Wards Act, 1890 lay to High Court, but S. 14(l)of West Pakistan Family Courts Act, 1964 which started with words “notwithstanding anything provided in any other law for time being in force”, had provided that Judgment and decree passed in Family Court, would be appealable to District Court if such Judgment and decree were not passed by District Judge or additional District Judge. Application under S. 25 of Guardian and Wards Act, 1890, having been decided by Civil Judge as Family Court not by District Judge or Addl. District Judge as Family Court appeal certainly would lie before District Court under S. 14(l)of Family Courts Act, 1964 which had overriding effect due to non obstante clause over provisions of Guardians and Wards Act, 1890.  P.L.J.1999 Qta. 299 = PLD 1999 Qta. 29.

District Judge was not a Family Court competent to hear and adjudicate upon matter due to total lack of jurisdiction, therefore, irrespective of fact that impugned order was passed by District Judge, same was appealable under S. 14 of Family Courts Act 1964 and not under S. 47of Guardians and Wards Act 1890-Court of Civil Judge being Family Court would have jurisdiction in relation to guardianship matters and custody of children would be deemed to be principal Court of Civil jurisdiction of .   District. PLD 2003 Quetta 44

48. Finality of other orders

Save as provided by the last foregoing section and by section 115 of the Code of Civil Procedure, 1908, (Act V of 1908) an order made under this Act shall be final, and. shall not be liable to be contested by suit or otherwise.

Legal Amendments

1.         Subs. by Ordinance, XXVII of 1981, S. 2 and Sch.

49. Costs.

The costs of any proceeding under this Act, including the costs of maintaining a guardian or other person in the civil jail shall, subject to any rules made by the High Court under this Act, be in the discretion of the Court in which the proceeding is had

50. Power to High Court to make rules.

(1)        In addition to any other power to make rules conferred expressly or impliedly by this Act, the High Court may from time to time make rules consistent with this Act:-

(a)        as to the matters respecting which, and the time at which, reports should be called for from Collectors and subordinate Courts;

(b)        as to the allowances to be granted to, and the security to be required from, guardians, and the cases in which such allowances should be granted;

(c)        as to the procedure to be followed with respect to applications of guardians for permission to do acts referred to in sections 28 and 29;

(d)       as to the circumstances in which such requisitions -as are mentioned in clauses (a), (b), (c) and (d) of section 34 should be made;

(e)        as to the preservation of statements and accounts delivered and exhibited by guardians;

(f)        as to the inspection of those statements and accounts by persons interested;

(ff)       as to the audit of accounts under section 34, the class of persons who should be appointed to audit accounts, and the scales of remuneration to be granted to them;

(g)        as to the custody of money and securities for money belonging to wards;

(h)       as to the securities on which money belonging to wards may be invested;

(i)         as to the education of wards for whom guardians, not being Collectors, heave been appointed or declared 1by the Court; and

(j)         generally, for the guidance of the Courts in carrying out the purposes of this Act.

(2)        Rules under clauses (a) and (i) of sub-section (1) shall not have effect until they have been approved by the Provincial Government, nor shall any rule under this section have effect until it has been published in the official Gazette.

51. Applicability of Act, to guardians already appointed by Court

1 [Omitted]

Legal Amendments

1.         S. 51Omitted by the Federal Laws (Revision & Declaration) Ordinance, XXVII of 1981

52. Amendment of Majority Act

1[Repealed ]

Legal Amendments

1.         S. 52 Repealed by the Repealing Act, 1938 (1 of 1938), section 2 and Schedule.

53. Amendment of Chapter XXXI of the Code of Civil Procedure

1[Repealed ]

Legal Amendments

1.         S. 53 Repealed by the Code of Civil Procedure, (V of 1908), section 156 and Schedule

1[Enactments Repealed]

Legal Amendments

  1. SCHEDULE  Repealed by the Repealing Act, 1938 (1 of 1938), section 2 and Schedule.

Related Case Law

Exit mobile version