Summary of Guardian & Wards Act 1890 & Family Courts Act 1964
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Guardians and Wards Act, 1890
The law pertaining to the guardianship and regulating the custody of children in Pakistan is known as the Guardians and Wards Act, 1890. The primary consideration in guardian courts whilst granting custody of minors to either parent or sometimes to grandparents or other relatives is the welfare of the minor. The said law is the main mode of attaining custody of children. In a guardian / custody proceeding pending adjudication in a family/ guardian court there are three parties to the said proceedings, the Custodial Parent, the Non-Custodial Parent and the Minor.
The Act is divided into four chapters.
The first Chapter (sections 1- 4 A) deals with certain preliminary matters, such as title, extent and commencement, savings, definitions, powers to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.
Chapter 2 (sections 5- 19) deals with the appointment and declaration of guardians. A large number of questions have arisen with reference to certain provisions contained in this Chapter, particularly, sections 7, 17 & 19. Section 5 which dealt with guardianship by will or other instrument in the case of European British subjects has been repealed. The power to appoint a guardian in other cases is saved by section 6 now which applies to all persons.
Section 7 is the operative provision in the Chapter, with the power of the Court to appoint the guardian of the person or property or both.
Sections 8-16 mostly deal with procedural or other minor matters.
Section 17 is of great importance. It pertains to the matters to be considered by the courts in appointing a guardian.
Section 18 provides that a collector, if appointed or declared a guardian, is so appointed by the virtue of his office to be the guardian of the person or property or both.
Section 19 prohibits the appointment of a guardian in certain cases. Although negative in form, this section has given rise to a number of problems in interpretation and to the question of the inter relationship between section 17 & section 19.
Sections 20-23 deals with matters of a general character, such as the fiduciary relationship of guardian to his ward, the capacity of minors to act as guardians, the enumeration of guardians and control of the Collector when he is appointed as a Guardian.
Guardian of the person is dealt in sections 24-26, of which the most important is section 25 dealing with the restoration of the custody of the Ward to the Guardian. This is the section most frequently resorted to in practice, and as expected, case law on this section is prolific.
Guardianship of the property is the subject matter of sections 27-37.
With sections 38-42, the Act again reverts to matters of general character, namely, rights of supervisor ship amongst joint guardians, removal of guardian, discharge of a guardian, cessation of authority of the guardian and appointment of a successor to a guardian who is dead, discharged or removed.
These operative provisions of the Act are supplemented by Chapter 4 (sections 43-51), which are primarily concerned with matters in the nature of enforcement, appeal, cost, rules and other topics of miscellaneous or residuary Chapter.
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Family Courts Act 1964
The (sections 1- 6) deals with certain preliminary matters, such as title, extent and commencement, savings, definitions and establishment of family courts, qualification of family judges, jurisdiction, place of sittings.
(Section 7-12) are the operative provisions in the Chapter. They deal with the procedure of institution of a Suit, intimation to defendants, written reply, pre-trial reconciliation, conclusion of trial etc.
(Section 12-A) is of great importance. It provides that Cases are to be disposed of within a specified period of 6 months.
Sections 13-16 deal with matters of enforcement of Decrees, Appeals, Powers of Family Courts to summon witnesses and contempt of Family Courts.
Section 17, 17-A & 17-B deals with exclusion of provisions of evidence act and code of civil procedure, suit for maintenance and power of Court to issue commission.
Sections 18-21-A deal with appearance through agents, Court fee, powers of family court as Judicial Magistrate, affectivity of Provisions of Muslim Family Laws Ordinance 1961, and Interim Order during Pendency of Suit.
With sections 21B-25, the Act again reverts to the matters of general character, namely, intimation to Arbitration Council, Bar on the issue of injunctions by Family Courts, Validity of marriages registered under the Muslim Family Law Ordinance 1961, not to be questioned by Family Courts, intimation to Union Councils regarding cases not registered under Muslim Family Law Ordinance, 1961 and Family Court deemed to be a District Court for the purposes of Guardian & Wards Act 1890.
Sections 25A-26 mostly deals with transfer of cases, stay proceedings by High Court and District Courts and Power to make Rules.
The Act is further supplemented by 2 Schedules, which are primarily concerned with matters in the nature of Jurisdiction and offences and aid abetment thereof under section 337A (i), 337F (i),341, 342, 343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of l860)]
Visitation Rights are introduced in Family Courts Act 1964 through Family Courts (Amendment) Ordinance 2002 (LV 2002)
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The writer is an advocate practising at the Lahore High Court and specializing in child custody and family jurisprudence. He can be reached at?+92-3008411403.