FCC bolsters safeguards for minors' assets

Constitutional court stresses judicial scrutiny in cases involving children

ISLAMABAD:

The Federal Constitutional Court (FCC) has laid down comprehensive guidelines for all civil and revenue courts dealing with proceedings affecting the person, property or inheritance rights of minors, directing judges to exercise heightened judicial scrutiny and ensure strict compliance with legal safeguards before passing any order that may affect a minor's interests.

A 20-page judgment authored by FCC Chief Justice Aminuddin Khan, while hearing a matter relating to the protection of the interests of minors, noted that the protection afforded to the property rights of minors was not only a constitutional and statutory obligation but also a fundamental command of Islamic jurisprudence.

It observed that the Constitution itself mandated that all laws shall be brought in conformity with the Islamic injunctions, and the courts, while interpreting laws relating to the rights of minors, ought to remain mindful of these foundational principles.

"The Holy Qur'an repeatedly enjoins the faithful to protect the property of minors, particularly orphans, and sternly condemns every form of misappropriation, exploitation or unlawful deprivation," the ruling reads.

A three-member bench, headed by CJ Aminuddin Khan, ruled that courts must, at the earliest stage of proceedings, ascertain whether any party is a minor and ensure strict compliance with all mandatory legal provisions.

"A guardian ad litem shall be appointed strictly in accordance with Order XXXII, Rule 3, CPC, after satisfying the Court that the proposed guardian has no interest adverse to that of the minor."

The judgment states that no compromise, admission, concession, relinquishment or consent affecting the rights or property of a minor shall be accepted unless the court is satisfied, for reasons to be recorded, that it is lawful, demonstrably in the best interests of the minor, and that the requirements of Order XXXII, Rule 7 of the Civil Procedure Code (CPC) have been fully complied with.

The court further held that where a compromise involves the transfer, relinquishment or alienation of a minor's property or inheritance rights, the court must also ensure compliance with the Guardians and Wards Act, 1890, and obtain prior permission from the competent Guardian Court wherever required by law.

"Where a compromise is entered into by or on behalf of an illiterate, parda nasheen or otherwise vulnerable person representing a minor, the Court shall subject the transaction to heightened judicial scrutiny before according its approval."

The FCC also ruled that courts must remain vigilant to ensure that no conflict of interest exists between a guardian and the minor and, where necessary, appoint another suitable guardian in accordance with the law.

"Proceedings affecting the proprietary or inheritance rights of minors shall not be disposed of in undue haste, and every order affecting such rights shall reflect the Court's independent application of mind to the welfare and best interests of the minor."