Law Of Appointment Of Guardian Under The Guardian & Wards Act 1890 (Part–I)

Law Of Appointment Of Guardian Under The Guardian & Wards Act 1890 (Part–I)

According to the principles of established Muslim jurisprudence, the father is the natural guardian (wali) of the person and property of a minor child, whereas custody (hidhanat) is a right of the child and not of the parents or any other person claiming for them. The basic consideration is to provide to the child the most natural, most considerate and most compassionate atmosphere to grow up as a better member of the society.

Islamic Concept

Islam holds the institution of family in high esteem and tries to preserve it. Rights and duties of the spouses have been prescribed in a manner that keeps an ideal balance. Law of hidhanat in Sharia has been framed keeping in view the roles of both parents. That is why mothers are given preference while deciding custody of the children born out of the wedlock during child’s initial years (till 7 years). There is a consensus of all Sunni schools of thought on this. Schools of fiqh differ in custody laws for boys and girls after 7 years of age. It has been observed in the recorded cases of classic Islamic era that the judges took into consideration the wishes and welfare of minors while deciding upon their custody. Before we proceed with the detailed study of the subject it is important to distinguish between the terms ‘Custody’ and ‘Guardianship’. Though these terms are used interchangeably, both have different implications in law (Guardian & Wards Act 1890).

In Arabic language, guardianship is termed as wilayat and custody as hidhanat. Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’.

According to Ibn Qayyam, “There are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing.” Ibn Qayyam (1292-1350CE / 691 AH-751 AH) was a Sunni Islamic jurist and commentator of the Quran. His scholarship was focused on hadith and fiqh.

Now if we indulge into an in-depth study of Islamic law, it reveals that there is no verse in the Quran on the custody of minors but the classic Muslim jurists have referred to the verse of fosterage (Ayat al Radha’at) which says that a mother should breastfeed her infants for two whole years. Therefore, through Iqtada al Nass it is inferred that in the years of infancy the right of upbringing and fostering the child remains with the mother.

However, in light of the hadith literature available and the decisions of Prophet Mohammad (peace be upon him) in cases brought before him on child custody, three principles have been laid down while deciding the custody of a child. Firstly, the mother possesses priority right of child custody so long as she does not remarry. Secondly in a situation where both parents profess different religions, custody of the child should go to that parent who follows the religion of Islam and lastly when the child has gone past the years of minority (7 years) he will be given an option to choose between both parents.

According to the principles of established Muslim jurisprudence, the father is considered to be the child’s natural and legal guardian and upon him is the responsibility of nafaqa for his child. Mothers are custodians till a particular age after which the custody either reverts to the father or the child is given an option by the court to choose between either of the parents, though no such age limit is stated in the texts.

In a landmark case titled Imambandi v. Mutsaddi Mal 47 Ind. Cas. 513, the Lordships of the Privy Council in reviewing the provisions and principles of Muhammadan Law remarked, ‘”It is perfectly clear that under Muhammadan Law the mother is entitled only to the custody of the person of the minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or if he be dead, his executor (under Sunni Law) is the legal guardian.” This seems to follow that the mere fact that a female relative is entitled to the custody or care of a minor girl up to a certain age would not result in the father not being the guardian of the child. Mr. Moreover, Ameer Ali in his Treatise on the Muhammadan Law Vol. II, page 587 (3rd Edition) noted that the first and primary natural guardian of a minor is her father and that the supervision of the female minor child by the father continues regardless of the fact that she is under the care of her female relative, as the burden of providing maintenance for the child rests exclusively on the father.

On the other hand, the legislative enactments and court decisions which attempt to define, interpret, or limit Muslim law in Pakistan are termed as Anglo-Muhammadan law. According to Coulson, “Anglo-Muhammadan law is an expression of Islamic law unique not only in form – for it is genuinely applied as a case-law system through a hierarchy of courts which observes the doctrine of binding precedent – but also in substance, inasmuch as it has absorbed English influences, particularly those of equity.” (In. Coulson, A History Of Islamic Law 51, 1964).

During my practice at the bar, I have witnessed that when a marriage fails, either party, male or female uses the child to browbeat the opposite partner into submission. In the emotional battle of the parents, the child is often held hostage by whosoever has physical custody. Pakistan urgently needs legislative and judicial action to prevent either parent from alienating the child from the estranged partner. An interim measure can always be that a parent who deliberately alienates the child from the other will have his or her rights for custody weakened – the underlying assumption always being that it is never healthy for a child to be denied the love and guidance of a biological parent.

Be it as it may, my concern in this article is to draw attention to another emotional landmine: the issue of guardianship. In my opinion, this continues to languish in a neglected corner of our jurisprudence.

The law governing custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor. The term ‘custody’ is not defined in any Pakistani family law, whether general or religious. The term ‘guardian’ is defined by the Guardians and Wards Act 1890 as a person having the care of the person of a minor or of his or her property or of both his or her person and property. Another term used by the law is ‘natural guardian’ who is the person legally presumed to be the guardian of a minor and who is presumed to be authorized to take all decisions on behalf of the minor. The legal difference between custody and guardianship (or natural guardianship) can be illustrated by the following example: under some religious personal laws, for very young children, the mother is preferred to be the custodian, but the father always remains the natural guardian.

The Family Courts Act 1964 and Guardian and Wards Act 1890 regulate the questions of guardianship and custody for all children within the territory of Pakistan, irrespective of their religion. It had been observed in a recent judgment of the honourable Lahore High Court that the provisions of Guardians and Wards Act 1890 could not be read in isolation because the legislature, by design, had brought the disputes relating to guardianship within the purview of the First Schedule of S.5 of the Family Courts Act 1964, and therefore, all the affairs relating to guardianship would exclusively be triable in the Family Court under the Family Courts Act 1964 (2017 CLC 1747).

The Act ibid authorizes the District Courts to appoint guardians of the person or property of a minor when the natural guardian as per the minor’s personal law or the testamentary guardian appointed under a will fails to discharge his or her duties towards the minor.

Guardian & Wards Act 1890 provides a complete procedural code laying down the rights and obligations of guardians, the procedure for their removal and replacement, and remedies for misconduct by them. It is an umbrella legislation that supplements the personal laws governing guardianship issues under every religion.

Under the Guardian and Wards Act 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of a minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law (Sumedha Nagpal v. State of Delhi, (2000) 9 SCC 745).

Difference Between “Guardian” and “Custody of Minor”

Save in accordance with the provisions of Section 19 of the GWA 1890, if the father of the minor is alive, no other guardian can be appointed, unless, in the opinion of the court, the father is not fit for appointment. The father as a natural guardian is primarily entitled to the custody of his minor children unless there are overwhelming circumstances to the contrary.

It is true that there is an appreciable difference between custody and guardianship. For guardianship is a more comprehensive and more valuable right than mere custody. The sole consideration, both in the case of guardianship and custody of the minor, should be the welfare of the minor. The court is bound to take into consideration all the facts and circumstances of the case, bearing in mind that the pivotal factor is the benefit and well-being of the minor. The dominant factor for consideration of the court is the welfare of the child and it has found statutory footing in Section 17(1). The provision emphasizes that the powers of the court are to be exercised for the welfare of the minor. The father can be deprived of such rights only if the facts and circumstances of the case warrant it. Keeping in mind the above salient principles of law, the court has to examine the facts of the case to find out as to whether strong and convincing circumstances have been made out against the father to take away from him the guardianship or deny him the custody of his unmarried minor daughters, maintaining guardianship with him. Reliance is placed on AIR 1986 Mad 99.

Custody and Guardianship are legal arrangements for the care of children. Each is established by the court when, for some reason, the children’s parents cannot care for them.

Custody

Custody is when a person is responsible for the care and well-being of a child and has the legal authority to consent on behalf of the child. Custody can be restored to the parents by the court if a parent proves to be capable to care for the child.

Guardianship

Guardianship is where a person is responsible for the care and well-being of a child and has the legal authority to consent on behalf of a child. Under a guardianship arrangement, the child’s parents maintain their parental rights. However, courts overturn guardianship only if it is convinced that the guardian is no longer capable of caring for the child or maintaining his or her safety.

It has been witnessed many times that our courts fail to draw a distinction between guardianship and custody while adjudicating in a custody litigation. Despite the fact that under sections 4(2), (S), 9(i) and 25 of the  Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor.

Whereas “custody” is defined as an actual or constructive possession for the purpose of protection of the minor. Furthermore, the terms “protection” and “care” are distinguished accordingly. “Protection” denotes preservation whereas “care” denotes responsibility for welfare (1968 PLD 774 KARACHI-HIGH-COURT-SINDH).

Section 7 of the GWA authorizes the court to appoint a guardian for the person or property, or both, of a minor, if it is satisfied that it is necessary for the ‘welfare of the minor’. Section 17 lays down factors to be considered by the court when appointing guardians. Section 17(1) states that courts shall be guided by what the personal law of the minor provides and what, in the circumstances of the case, appears to be for the ‘welfare of the minor’. Section 17(2) clarifies that in determining what the welfare of the minor is, courts shall consider the age, sex and religion of the minor, the character and capacity of the proposed guardian, how closely related the proposed guardian is to the minor, the wishes, if any, of the deceased parents, and any existing or previous relationships of the proposed guardian with the person or property of the minor.

Kinds Of Guardianship

The law recognizes the following types of guardianship:

• Natural or legal guardian
• Testamentary guardian
• Guardian appointed by courts or statutory guardian, and
• De facto guardian.

Natural or Legal Guardian

A natural guardian is a person who has the legal right to control and supervise the activities of a child. A father is recognized as the natural guardian of his child according to all schools of Muslim law. The father’s right to act as a guardian of a minor is an independent right and is given to him under the substantive law of Islam. A natural guardian is also called a de jure or legal guardian.

As stated above, a father is the legal guardian of his child. But in the absence of the father, his executor may also act as a legal guardian. An executor is a person who is appointed by the father or grandparent to act as a guardian of a minor child on their behalf. In the absence of the father or his executor, the paternal grandfather or paternal grandfather’s executor acts as a legal guardian. Thus, the natural guardians of a minor in order of priority are the father, executor of father, paternal grandfather and executor of paternal grandfather.

Under Muslim law, in the absence of any of the above mentioned persons, nobody else is recognized as the natural guardian of a minor (Syed Shah v. Syed Shah, AIR (1971)SC 2184).

Under Shia law, in the absence of the father, only the paternal grandfather may act as a legal guardian. In the presence of the paternal grandfather, the father’s executor has no right to act as the legal guardian of a child.

Testamentary Guardians

A testamentary guardian is a person who is appointed as the guardian of a minor under a will. Only the father, or in his absence the paternal grandfather, has the right to appoint a testamentary guardian. No special formality is required for the appointment of a testamentary guardian, but such a person should obviously be competent to act as a guardian. A female or a non-Muslim may also be appointed as a testamentary guardian.

Under Shia law, a non-Muslim cannot be appointed as a testamentary guardian.

Guardians Appointed by Court

In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the purpose of a minor’s person or property or both. The appointment of a guardian by court is governed by the Guardianship and Wards Act 1890 which is applicable to all, irrespective of religion. Such guardians are also called statutory guardians. It may be noted that no provision has been made under this Act for the guardianship of marriage. The result is that, except the guardian for marriage, the guardian for a Muslim minor’s person or property may be appointed by the court of law. In case of conflict between Muslim personal law and Guardianship and Wards Act, the provisions of the Act shall prevail over the provisions of Muslim personal laws.

De facto Guardians

A de facto guardian is a person who is neither a legal guardian nor a testamentary guardian but has himself or herself assumed the custody and care of a child. According to Tyabji, a de facto guardian means an unauthorized person who, as a matter of fact, has custody of the person of a minor or his or her property. A de facto guardian is a person having no authority for guardianship but under the circumstances has voluntarily taken the responsibility to act as the guardian of a minor (Muslim Law, Ed.IV, p.213; 2015 PLD 46 Karachi High Court Sind).

A mother could be the de facto guardian of the person and property of a minor but she has no power to transfer the property of minors. Alienation of immovable property of a minor is possible only by the person entitled to be appointed as legal guardian of the property after obtaining permission from the court. A de facto guardian is merely a custodian of the person and property of the minor but has no power to transfer any right or interest in the immovable property of a minor. (A mother in the case mentioned above had alienated the property of her minor children and vendees were aware of the fact that they were purchasing the property of minors).

Doctrine of Constructive Guardianship

The doctrine of constructive guardianship has been a part of the law of Guardians and Wards Act in Pakistan for a long time. Such a situation arises when someone assumes to act as a guardian or enters upon an infant’s estate, but has not been regularly appointed as guardian. This may result from a voluntary assumption of duties, a void appointment by a court without jurisdiction, or acts performed by someone who was considered by himself or herself and other parties concerned to be an “accommodation guardian” (2015 PLD 336 Lahore High Court Lahore).

Welfare of the Minor

It has been observed that whenever a question arises before the court pertaining to the custody of a minor child, the matter is to be decided not over consideration of legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child. Reliance is placed on Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr (AIR 1987 SC 3).

The term “welfare” must be read in the largest possible sense, every circumstance must be taken into consideration, and the court must do what under the circumstances a wise parent acting for the true interest of the child would or ought to do.

Family matters are not to be decided strictly on the yardstick of procedural laws nor any other principle aimed at the observance of technicalities. The paramount consideration before the court has to be the welfare and betterment of minors.

In order to secure a minor’s welfare, the court ought to consider the following points:

• With whom will the minor be happy?
• Who is likely to contribute to his or her well-being and look after his or her health and comfort?
• Who is likely to bring up and educate the minor in the manner in which he or she would have been brought up by the parents had they been alive?

In fact, the main question for the court to consider in the case of the unfortunate minor who has lost his or her natural guardian is:

• Who amongst relatives or for the matter friends of the minor can you select?
• Who will supply the closest possible place of the lost parent or parents?

The interest, well-being and happiness of the minor is the paramount consideration (Per Daver, J in Re Vs Gulbai and Lilbai 1907 Bom. 32).

In short, in every case under this section, the fundamental point is the interest and welfare of the minor, whether it relates to the education, religion, trade, calling, need for care and nursing owing to tender age, welfare, health and happiness of the minor, previous associations or attachments developed by the minor, or the moral or other considerations relating to the minor (Mrs. Annie Besant Vs Narayaniah, 1914, 38 Mad, 807).

Nature of Proceedings

The jurisdiction exercised by the High Court with respect to matters relating to the custody of a minor is more parental in nature than anything else. Such disputes can neither be resolved on the basis of any technicality nor any principle of law completely divorced from the realities of the situation. In all matters relating to the custody of minors, a court must perform its legal duty to regulate the custody of a minor in order to ensure his or her well-being and welfare, which is the paramount and dominant consideration (1995 PLD 151 Lahore High Court Lahore).

The Family Court has parental jurisdiction and there is no scope in such jurisdiction for any undue adherence to technicalities. The Family Court being a quasi-judicial forum can follow its own procedure which is not against the principles of fair trial (2017 CLC 1747 Lah).

Cases pertaining to the custody of minors are not ordinary cases like breach and enforcement of other civil rights/obligations or property disputes, etc. These cases have their own dimensions, repercussions and consequences, founded upon human emotions and sentiments. The resolution and adjudication of this special kind of matters, therefore, should be conceived considered and settled in a different perspective and context, which obviously revolves around the welfare of the minor, but at the same time does not overlook or ignore the natural feelings of the parents (2009 CLC 1443).

In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, New Zealand (cited by British Law Commission, Working Paper  No. 96) it was stated that,

“Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents.”

Appointment of Guardian – Paramount Consideration

The first and paramount matter for consideration of the court is the welfare of the child which is not to be measured by money physical comfort only but is to be taken in its widest sense. The moral and religious welfare of the child must be considered along with his or her physical well-being, as well as the ties of affection, though these are not conclusive (Eversely in Domestic Relations, 4^th Edn, P. 638).

Section 17 (1) firmly lays down that the paramount consideration in selecting the guardian is the welfare of the minor but it must be:

• Consistent with the law which the minor is subject to; and
• Subject to the provisions of the subsection (2) to (5) and of S. 19 of the GWA.

Guardianship Cannot Be Delegated

A person having interests that are adverse to the minor cannot be appointed. He or she must hold the property of a minor for the minor’s benefit. The guardian’s position is analogous to that of a trustee. Guardianship cannot be delegated. Reliance is placed on AIR 1955 NUC (Cal.) 813.

Principles Underlying Section 17 GWA

Section 17 of the Guardian and Wards Act 1890 is governed by the principle of the welfare of minor and the welfare must be judged consistently with the law which minor is subject to. Also while determining the welfare of the minor, regard shall be given to, inter alia, the age, sex and religion of the minor and the character and capacity of the proposed guardian. If the minor is old enough to form an intelligent preference, the court may consider this preference. Between parents who are adversely claiming the custody of the minor, the mother is to be preferred instead of a male.

Preferences should be given to the father if the minor is of an age to require education and preparation for work or employment. Reliance is placed on Marina Pushong Vs Derick Noel Pushong, PLD 1975 Lah. 793.

Distinction between Section 7 and Section 17

There is a distinction between Section 7 and Section 17 of the Guardian & Wards Act 1890. Whereas under the former section the personal law of the minor plays an important part, under the latter it does not. When an application is made to the court for the appointment of a guardian, in order to decide whether a guardian should be appointed, the court has to take into consideration the personal law of the minor whatever it may be. Section 7 of the Guardian and Wards Act distinctly says that it is only where the court is satisfied that it is for the welfare of the minor that an order should be made by the minor appointing a guardian for his or her person or property, or both, or declaring a person to be such a guardian that he or she can proceed further in the matter. The trial court should first see whether it was for the welfare of the minor to appoint a guardian at all. If the court thinks, notwithstanding the personal law of the minor, that it was not necessary to appoint a guardian both in respect of person and property, then without proceeding further under Section 17 of the Act, the court shall dismiss the application.

The assumption of jurisdiction to appoint a guardian without first coming to the subjective conclusion, keeping in mind the welfare of the minor, whether it was necessary to do so, was not approved in Rashida Begum Vs Shahab Din PLD 1969 Lah. 1142.

“Appointment as Guardian” and “Declaration as Guardian” – Distinction

An application for the declaration of a person as guardian is distinct from an application for appointment as a guardian. One can be declared a guardian only when one is already a guardian but in the case of the appointment of a guardian, the question that arises is whether amongst all rival claimants for guardianship the applicant is the most suitable for appointment.

The dismissal of an earlier application for a declaration that the applicant was the guardian of the person of a minor would not bar a subsequent application for his or her appointment as a guardian under the principles of  constructive res judicata, because while applying for being declared as guardian, the applicant could not have made an alternative case of being appointed as guardian. Reliance is placed on AIR 1958 Cal. 545.

Guardian’s Appointment – Considerations

Ordinarily, the natural guardians should be appointed as guardians under the Guardian and Wards Act. It is only when they are found to be unfit and their interests are against the interests of the minor or in very exceptional circumstances, or when the minor can be benefitted substantially if somebody else is appointed as the guardian, that a person other than a natural guardian should be appointed as guardian for the person of the minor. Reliance is placed on AIR 1960 All. 285.

The right of parents regarding custody and control of children is not to be exercised in their own interests but in the interest and welfare of the children (2015 PLD 30 Quetta). 

Second Marriage of Father

A father’s remarriage would not disentitle him from getting the custody of a minor daughter. It is held that the mother, according to Islamic law, despite being entitled to the custody of a minor daughter, may become disentitled if she remarries, as her husband would be a person not related to the minor daughter and shall stay within a prohibited degree, thus, the custody of a minor in such case would belong to her biological father. There is nothing on the record to show any exceptional circumstance disentitling a father to the custody of his minor daughter (2014 SCMR 343 SUPREME-COURT).

Conclusion

The concept of guardianship and custody has haunted not only our judicial system since decades, but has also destroyed lives of children at a very tender age. The trend followed by custody and guardianship in Pakistan shows the archaic and patriarchal mindset of the country. The dilemma a child faces while belonging to, residing with and confiding in only one parent affects the child’s welfare and overall growth. The concept of welfare of the child has been taken up as having paramount importance by the courts. It reflects in many judgments of the High Courts and the honourable Supreme Court.

Children involved in child custody litigation are not objects or chattel, nor are they toys for their parents, especially when we are living in a time when not only gender roles but the entire notion of gender itself is being questioned.

With rapid social and economic change, conjugal and familial relationships are becoming more complex and so are the conditions of their dissolution. As these social changes that affect family life escalate, we need to update the laws governing family relationships, during and after marriage. At present, our legal framework for custody is based on the assumption that custody can be vested with either one of the contesting parties and suitability is determined in a comparative manner. But just as the basis for dissolving a marriage has shifted over time, from fault-based divorce to mutual-consent divorce, we need to think about custody differently and provide for a broader framework within which divorcing parents and children can decide what custodial arrangement works best for them.

The judicial attitude towards custody matters has evolved considerably. But despite this development in judicial attitude, we have ignored the idea that under certain favourable circumstances, the best interest of the child could also result from simultaneous association with both the parents. Since there is no inherent contradiction between pursuing the best interest of the child and the concept of shared custody, the law as well as judicial precedents need to provide for this option, provided certain basic conditions are met. Can the law help us in reimagining the best interests of a child? Or will it remain obdurate and fail in its transformative mission?

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated