Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:05:33 PM
1. The Guardiansí & Wardsí Act (VIII of 1890) Sections 1 to 51.
1. The Guardiansí & Wardsí Act, 1890 by Mian Ghulam Hussain.
Right of female relations in default of mother: If mother becomes fail to take care of her children, such as boy for seven years and in case of girl upto the age of puberty, custody belongs to the following female relatives in the following order:
1. Motherís mother (How high-so-ever Ė (HHS) (”√B√).
2. Fatherís mother (How high-so-ever Ė (HHS) (‘eAe).
3. Full sister.
4. Uterine sister.
5. Consanguine sister.
6. Full sisterís daughter (”V√BťI).
7. Uterine sisterís daughter.
8. Consanguine sisterís daughter.
9. Maternal aunt, in like order as sister.
10. Paternal aunt, also in order as sisters.
Power of Court to appoint guardian (Omjājm): Court has following powers for the appointment of guardian. It is upto the satisfaction of Court. Court has following powers:
1. Appointment of guardian: Court may appoint guardian for minor or property or both.
This law vests powers to Court to appoint a guardian for the person or property of a minor or to declare a person to be the guardian of person and property of a minor. Guardian cannot be appointed for any special purpose such as marriage.
Welfare of minor is taken into consideration while exercising such power. The Court must be satisfied that it is for the welfare of the minor. This has been pointed out as the guiding factor for the purpose of appointment of guardian.
2. Court may declare any person as guardian of minor: Whom Court thinks fit to carry on his obligations may appoint as guardian.
3. Discretionary powers of Court: Court may remove any guardian not appointed by Will or other instrument or appointed or declared as guardian by Court of original jurisdiction.
Competency for application for guardianship: Following persons may apply for appointment of guardian:
1. Desirous: A person so desirous to be guardian of the minor is competent to apply for the appointment as guardian.
2. Friend: Any relative or friend competent to protect the interest of minor can apply for guardianship.
3. Collector: Collector may also be appointed where welfare of minor demands. Collector should be of the district where minor resides or property of minor situates.
4. Collector with respect to class: Where Collector has authority with respect to class to which the minor belongs may be appointed as guardian.
Application for appointment as guardian: Application is made in Court of original jurisdiction. Jurisdiction is subject to the convenience of minor.
1. Guardianship for person: Where the application is made for the appointment of guardian for person, original jurisdiction shall be the place where such minor resides. Place of his residence shall be where he ordinarily resides.
2. Guardianship for property: Original jurisdiction for the purpose of appointment of guardian for the property of minor shall be the place where such property situates.
3. Application in remote Court: Application must be made in the Court of original jurisdiction. Where application is made in the Court having no jurisdiction, Court may return the application to the Court having original jurisdiction.
Where minor temporarily proceeds with his mother for treatment or on recreation tour, shall not be place of ordinarily residence.
Matters to be considered by the Court in appointing guardian: Following are the matters to take into consideration for the appointment of guardian:
1. Welfare: Welfare of minor is chief object while the appointment of guardian.
2. Wishes of the minor: Court may give effect the wishes of minor with whom he desires to live.
3. Age: Court shall regard the age of minor. Under Islamic law majority age for male is eighteen years and seventeen years for female. In another law custody vests to mother of boy till the age of seven years and in case of girl till the age of puberty.
4. Sex: It is also considerable point in the appointment of guardian. Guardianship remains till the age of puberty in case of minor of girl. Females are preferred for the appointment of guardian for minor girl.
5. Religion of minor: It changes the rights of guardianship. Children of Muslim father shall follow the religion of their father. If husband of non-Muslim wife embraces Islam, all the children already born of the marriage shall be brought up in Islam.
6. Character and capacity of proposed guardian: Court has to take into consideration of character and capacity of the person applied for guardianship. It is general assumption that the character effects morality. Capacity of guardian is also determinant factor as he is competent for appointment as guardian. Guardian must be competent to take care of minor and his property for his welfare.
7. Nearness of kin to the minor: Nearness of kin to the minor is also to be considered. Mother is best entitled to the custody of the infants during and after dissolution of wedlock of marriage relationship. Second marriage of mother with stranger after her being divorced does not deprive of her right of guardianship.
It is no more necessary that only closed relatives are only the best guardians of the minor. Sovereign is also best guardian.
8. Wishes of the deceased parents: Where there are two or more than two claimant for guardianship, preference shall go in favour of the person who was wished by deceased. Preference of deceased shall prevail over other options. It is immaterial whether the expression of deceasedís mind is aiding or preventing as appointment. Where person in preference has no capacity as required in law, shall not be appointed as guardian.
9. Relationship with minor: Where minor is girl, mother or other female relatives are preferred. Where minor is boy, father or other male relatives are preferred. Close relatives have first right over remote. This relationship may be of existing or previous. This is relationship of guardian with minor.
10. Intelligence of old minor: Where minor is old enough and can express his preference in appointment of guardian, Court shall give effect of his preference. Court may consider his preference but it is not obligatory on the part of Court for compulsory appointment. Again welfare of minor is supreme object in determination of guardian for person and property.
Removal of guardian: A guardian can be removed when allegations are imposed by an application of any interested person. Court also on its own motion may remove guardian even he is appointed or declared by Court; or appointed by other instruments or Will. Following reasons are taken into consideration at removal of guardian:
1. Abuse of trust: Where the trust is breached, whether in shape of actual breach of trust or gross personal misconduct on his part. It is valid ground for the removal of guardian. If guardian has shown to have caused, encouraged, or procured the seduction or prostitution of his ward under sixteen years of age, Court may remove guardian and may appoint other guardian till the age of majority. A guardian may also be removed who permits ward to contract unfit marriage.
2. Continue failure to perform duties: Next justifiable ground to remove the guardian is his continuance in failure to perform his duties of his trust. If guardian neglects to take care or treats ward badly, Court may either on application or at own motion may remove him to act as guardian. Suspect of becoming ineligible may also cause of his removal.
3. Incapacity to perform duties: A guardian who subsequently becomes person of unsound mind or disables to carry on his duties causes his removal. As and when he becomes incapable to attend his duties, he is removed.
4. Ill-treatment or neglect: Where ill-treatment is occasionally or for his welfare may not cause his removal. But where he treats ward badly or commits negligence necessary for the welfare of ward shall cause his removal.
5. Disregard of Court order: Where guardian commit negligence in compliance of orders of Court or disregard the provisions of law shall be liable of removal.
6. Conviction in offence: Commission of any act or omission culpable of punishment under Pakistan Penal Code (PPC) deprives to act as guardian. It may cause defect of character to both guardian and ward. It is also good ground for his removal.
7. Neglect of ward: Where guardian commits negligence in education or welfare of ward, or in case he took another wife, he is declared unfit to act as guardian.
8. Adverse interest: Guardians who have interests contravenes to the interest of ward, which is adverse to ward or restricts him to perform his duties, he shall be removed.
9. Cessation of residence within local limits: A guardian cannot cease his residence within the local limits of the Courtís jurisdiction. Upon the cessation of his residence of local limits of original jurisdiction, his guardianship extinguishes.
10. Insolvency: Bankruptcy or insolvency is valid ground for the removal of guardian. Insolvency or bankruptcy puts a guardian in inability to continue his obligations towards ward. It is considered to be sufficient for suspending a guardian from his office.
11. Cessation of guardianship: Under the law to which minor is subject, if guardian ceases his guardianship such as death of guardian or ward, he is removed form guardianship.
Discharge of guardian: A guardian is discharged from his duties as guardian in the following ways:
1. Resignation: A guardian either appointed or declared by Court, may put his resignation. This resign is forwarded to Court.
3. Discharge by provincial government: If application is made to Collector and provincial government approves application, Court shall have not option except his discharge.
Cessation of authority of guardian: The authority of guardian leads to an end upon the happening of certain events like:
1. Death: Death of guardian ceases his guardianship.
2. Discharge: When guardian resigns and Court accepts his resignation, he ceases his office.
3. Removal: Where Court removes guardian due to certain reasons under Guardians & Wards Act, his guardianship shall extinct.
4. By Court: When Court thinks fit in favour of welfare of minor, may cease his authority.
5. Majority: When ward attains age of majority or in other words he ceases his minority, office of guardian shall cease to exit.
6. Marriage of female ward: When female ward marries and her husband is competent to be as guardian, previous guardian shall cease his authority over female ward.
7. Unfitness: Where guardian becomes unfit due to any valid reason ceases his authority.
8. Power on property: Power on property as guardian ceases upon death, removal, discharge, Courtís opinion, and attaining age of majority.
9. Delivery of goods: When he delivers goods of ward to him or to another authorized person, his authority becomes ceased.