Appointment of guardian

2025 CLC 145 PESHAWAR-HIGH-COURT Judicial Precedent

Ss.7 & 17Appointment of guardianCustody of minorDuty of courtWelfare of minorPrimary consideration

Custody of minor was obtained by mother after the death of her husband from her in-laws after hectic efforts by way of approaching competent court of law and with the help of police

Application of mother for appointment of guardian of the minor accepted by the Guardian Court was remanded to Guardian Court upon preferring appeal by the father of her deceased husband for decision afresh after impleading the father of her husband

Validity

Application for appointment of guardian is regulated by S.7 of the Guardians and Wards Act, 1890 (Act)

Mother and father both are natural guardians

Section 17, clauses (1), (2) and (3) of the Act imposes a duty upon the Court while appointing a guardian to make the appointment consistent with the law to which the minor is subject

Central idea is the welfare of the minor

Welfare means his wordly, moral and spiritual well-being

In the presence of mother, the welfare of minors does not lie elsewhere

Minors feel psychologically more secure in the company of the mother rather than anyone else

Amount of love and care which a child receives from the mother cannot be expected from any other relative, including the grandfather or uncle

Welfare of the minor would be provided by the mother with more devotion and there is no other better institution than a lap of a living mother and there cannot be a better tutor than a mother

Right from birth, the minors were living with their mother and such period was spread over years

Uprooting the minors from their given and familiar surroundings, although permissible, yet could not be done as there nothing on record to suggest that the minors would be given beneficent treatment by their grandfather

Petitioner being mother of the minors might spare lot of time for them

Mother who always had a better understanding with her children, and with whom the children enjoyed intimacy, had legal right to be the guardian of the minors

Mother was neither leading an immoral life nor was a lady of ill-repute, rather she was an educated lady and had been leading family life after death of her husband and there was no allegation whatsoever against her moral character

Judgment of the appellate court remanding the matter to Family Court for deciding the matter afresh after impleading grandfather of the minor as respondent was unwarranted

Constitutional petition was allowed, in circumstances.

2016 PLD 381 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 32, 33(1), 34 & 35Appointment of guardianManagement of property of mentally disordered personResponsibility of Manager

Purpose and object of appointment of 'Guardian' and 'Manager' under Sindh Mental Health Act, 2013 were not synonym to each other as was evident from S.32 & S.33(1) of the Act

'Guardian' should be appointed where person (mentally disordered) was incapable of taking care of himself while 'manager' should be appointed where person (mentally disordered) was incapable of managing his property

Language of S.35 gave an impression that `guardian' and 'manager' should be two different 'suitable persons'

Sindh Mental Health Act, 2013, now here, specifically restricted appointment of single person or a relative as 'guardian' and 'manager' i.e. to look after the person (mentally disordered) and also to manage property of such person but subject to only one condition that 'it should be for the benefit of mentally disordered person"

According to S.34, it was the 'manager' and not `guardian' who was responsible for care, cost of treatment and maintenance of mentally disordered person and of such members of family who were dependent on him.

2016 PLD 381 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 32, 33 & 34Mentally disordered personAppointment of guardianScope

Court of protection was required to process with any application while keeping in view that court was ultimate guardian of property of mentally disordered person as the status of a person not capable to manage his affairs and property, was not more than a 'child'

Similar caution must be shown by "court of protection" while dealing with any such application.

2016 PLD 381 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 32, 33 & 34Mentally disordered personAppointment of guardianScope

Order authorizing a person to 'look after matters of mentally disordered person by acting as his guardian' should not dress such person with power and authority so specifically meant to be exercised by 'Manager'.

2010 YLR 599 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 17(3) & 25Constitution of Pakistan (1973), Art.199Constitutional petitionAppointment of guardianWishes of the minor

Minor had shown her reservation towards her real mother because minor had been neglected by her and there had been no interaction between the mother and minor

Mother and maternal side of the family were virtually strangers to the minor

Minor wished to remain with her father and his family where she was studying properly

Both Trial Court and the Appellate Court had failed to exercise the parental jurisdiction vested in them in its true sense as they had not taken into consideration the wishes of the minor in terms of S.17(3) of Guardians and Wards Act, 1890

High Court accepted constitutional petition and dismissed judgment and decree of the subordinate courts below

Constitutional petition was allowed.

2009 PLD 11 ISLAMABAD Judicial Precedent

S. 25Constitution of Pakistan (1973), Art.199Constitutional petitionAppointment of guardian

Petitioner brought a petition under S.25 of Guardians and Wards Act, 1890 with the assertion that she was married to S.M. according to Christian rites and out of that wedlock a . son was born

Guardian application was allowed and minor was handed over to the petitioner in execution proceedings

Afterwards B.B. (another lady) moved an application in the executing proceedings contending that in fact her son was recovered from her through execution proceedings

Executing Court, prima facie, being convinced with the contention of both S.M. and B.B. handed over the minor to them

Petitioner in her application prayed that controversy could be resolved through D.N.A. test of the contesting parties

With the consent of the counsel for the parties, direction was given to the parties to appear before the Trial Court and Trial Court was directed to refer the parties to the Institute for the conduct of D.N.A. test of concerned persons without further loss of time

Trial Court would decide the matter expeditiously in the light of report of D.N.A. Test and all other available evidence after affording opportunity to the parties for leading evidence in support of their respective claims.

2008 CLC 1391 SHARIAT-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 7, 39, 47 & 48Azad Jammu and Kashmir Family Courts Act (XI of 1993), S.21Appointment of guardianRemoval of guardian, application forAppeal to Shariat CourtGuardian Judge appointed respondent as guardian of person and property of minors

Application was moved- for removal of guardian on the ground that respondent had abused her trust and did not take proper care of the minors and it was further alleged that respondent had ill-treated the minors

Guardian Judge dismissed application for removal of guardian

Validity

Provisions of S.39 of Guardians and Wards Act, 1890 had to be followed which prescribed the grounds for removal of the guardian, whereas S.47 of said Act had defined appealable orders

Appeal could be presented to the Shariat Court only against order of removal of guardian under S.47 Clause (g) of Guardians and Wards Act, 1890, but no appeal had been provided by said Act when the court refused to remove a guardian

Guardian Judge having refused to remove the guardian, appeal was not tenable under the Guardians and Wards Act and was liable to be dismissed on that score alone

Even otherwise impugned order having attained finality under S.48 of the Guardians and Wards Act, 1890, could not be contested by the appellants.

1985 SCMR 1926 SUPREME-COURT Judicial Precedent

Art. 185(3)Guardians and Wards Act (VIII of 1890), S. 17-Appointment of guardianMinor girlMother found to be proper person by Courts belowFinding not suffering from any legal defect nor otherwise infirmSuch finding held, not open to interference

Petition for leave to appeal dismissed.

1985 SCMR 1367 SUPREME-COURT Judicial Precedent

Art. 185(3)Guardians and Wards Act (VIII of 1890), Ss. 17(3) & 25Appointment of guardianMatters to be considered inMinors intelligent preferenceMother re-marrying strangerEffect ofBoy of 12/13 desirous to remain with motherAppointment of grand-mother as guardian by Court

Factum of mother's second marriage with stranger prevailing as main consideration with Guardian Judge, but due regard not given to wishes of minor who was capable of making intelligent/ reasonable preference

It being axiomatic that in matter of appointment of guardian, welfare of minor, coupled with his own wish, should be primary consideration for Court, leave to appeal granted to consider question as also to examine whether in case of male child, marriage of his mother with a stranger would be relevant consideration for depriving her of minor's custody.

1981 SCMR 200 SUPREME-COURT Judicial Precedent

S. 25-Appointment of guardian-Welfare of minor-Mother of minor daughter at time of taking divorce voluntarily agreeing to surrender minor to her previous husband, father of minor, after five years-Minor's mother marrying another husband and having a son from him-Custody of minor daughter cannot, in circumstance, be given to her mother, so as to amount to placing minor in custody of mother's new husband not falling within prohibited degree to ward- Order of Courts below giving custody of minor daughter to her father supported by sound reasons and no factual or legal error or violation of any principle of law pointed out-No interference called for with such order.-[Custody of minor].