Supreme Court lists merits of Guardians and Wards Act 1890

Top court says only intention of law is nothing except welfare of minors

Hasnaat Malik November 30, 2021


The Supreme Court has ruled that the intent of the framers of law relating to the Guardians and Wards Act, 1890, is to secure the interest and welfare of minors.

“The framers of law relating to the Guardians and Wards Act, 1890, legislated it as a special enactment with an intent to secure the interest and welfare of minors living within the jurisdiction while highlighting the degree of preference to establish guardianship,” says seven-page judgment authored by Justice Sayyed Mazahar Ali Akbar Naqvi while rejecting a petition to hand over the custody of three minors to their father from the grandmother on the account of ‘welfare of minor’.

“The sole criterion which depicts the intent of the legislature is nothing except welfare of the minors as grundnorm of the enactment,” it adds. A division bench of the apex court led by Justice Maqbool Baqar heard the matter.

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The minors’ father is working abroad in Saudi Arabia and as such the instant petition was filed through his father on the basis of the power of attorney executed by him.

The petitioner got married with one Mst. Kausar Naseem (since dead) and during their wedlock three children were born. It is claimed by the petitioner (father) that he was enjoying happy matrimonial life but unfortunately on November 6, 2015, his wife sustained burns injuries in an accident and she was admitted to a hospital.

On August 19, 2016, when the wife of the petitioner was still in the hospital, respondent No 2 (maternal grandmother) took away the minor children of the petitioner and as such they are in the custody of respondent No 2 till the filing of the instant petition.

The court noted that as a general principle the degree of preference is confined to relationship depending upon the order of preference due to closeness of blood relationship and other aspects which are essential in upbringing of the minors within four corners of law.

“Any deviation from the general principle, where the blood relationship has to be departed, there should be very strong and compelling reasons to have a contrary view which includes upbringing, education, healthcare, congenial domestic atmosphere, physical and psychological advantages, sect, religion, character and capacity of the claimant to whom if it is assigned to take care of the minors.”

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“In short, while ignoring/bypassing the general principle there must be very strong and exceptional circumstances which could be brought forth with reference to the intent of the legislature regarding the sole purpose of “welfare of minor”.”

As in the instant case, the order said that the ordinary order of preference is under question, keeping in view the facts and circumstances wherein the petitioner being the real father of all the three minors, namely, Muhammad Haseeb Ullah, Iraj Noor and Muhammad Shahmir, all aged about 6 to 9 years, claiming guardianship on the basis of the preferential right, a detailed scrutiny of facts and circumstances are to be adjudged in the spirit of law relating to guardianship.

The background of the instant petition is that the petitioner entered into wedlock with the deceased mother of the minors. He was a cab driver in Saudi Arabia and all the three minor children were born out of the wedlock. On November 6, 2015, the wife of the petitioner was burnt; she remained hospitalised in a critical condition and subsequently died of the said injuries.

In this regard, a case was registered on June 24, 2017, under Section 302/34 PPC was registered at Police Station Sihala, Islamabad against the parents of the petitioner with an allegation that petitioner’s wife was intentionally burnt to death by the parents of the petitioner. The petitioner alleges that his wife was still in the hospital when his minor children were removed from the lawful custody and taken over by the maternal grandfather.

The court observed that the petitioner had not discharged his duties as father in any manner towards the minor children or his deceased wife. “It appears that he was most reluctant to take care of his wife or minor children because they were under the patronage of maternal grandfather and he thought it an opportunity just to skip moral, legal or religious duty bestowed towards him. The provisions of Section 17 of the Guardians and Wards Act, 1890 expressly reflect consideration by the court for appointing guardian. It has been clearly mentioned that welfare of the minor is of paramount consideration with reference to so many other aspects”, says the order.

The court noted that Articles 2 and 2A of the constitution clearly envisage that Islamic social order has to be observed while leading life within the four corners of the law.

“In an Islamic culture, the father has been bestowed with so many responsibilities towards his children. Even the mother of the children can claim compensation of breast feeding from her husband which is well within the tenants of Islamic fiqah. Where this responsibility has been ignored, how a father while forgetting his obligations towards minor children and that too at a belated stage, can claim the guardianship on the basis of bald claims”, says the order.

The order says that as an abundance of caution, we have asked the maternal grandfather about his worth to which he stated that he is the owner of 19 acres of agricultural land which is sufficient to bear the expenses of the minor children and they are already enjoying reasonable living status in the custody of their maternal grandfather.

“Another aspect of this case is that the children are well aware of the fact that their mother died due to unnatural consequences which must be in the back of the mind of the children that it was their father who was involved in that episode. At this stage any adventure by this Court to dislodge the custody and handover the same to the father would be instrumental into impairment of the mental faculty of the minor children which could imprint negative impact on their personality in future and that would squarely be against the dictates of “welfare of the minor” which is an attire of Guardian and Wards Act, 1890”, says the judgment.

The court dismissed the petition. However, the visitation schedule made by the Family Court for the grandparents shall be considered to be made for the petitioner and the same shall be followed, says the order.


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