Guardians and Wards Act 1890

According to the Muhammadan Law (Shariat law), the father being the natural guardian of minor has
preferential right of custody (PLJ 2005 S.C 33). There is no specific verse in the Holy Quran on the right
of custody of the mother. Allah says: the mothers shall suckle their offsping for two whole years, if the
father desires to complete the term.

By this, we seek to get an idea that even under Islamic law mother has no right over the custody of the
minor. Courts have construed that two-year suckling period as a right of 'Hizanat' under Guardians and
Wards Act 1890, which father can desire not to complete. However, under 1890 Act, the right of Hizanat
cannot be taken from the mother as it is for the best interest of the minor. The argument arises and in
many practical situations it has been seen that mother lost her right of Hizanat after contracting second
marriage because under Islamic law the second father becomes na mehram for the daughter. This issue
arises only for daughters and not son. Now usually the court, assessing the facts of each case decides
whether is it in the child's best interest to remain in the mothers custody even after marriage or not,
which in a way is a good thing as this lets the judges asses each case on its merits but then again this
much discretion does lead to quiet uncertainty as in recent case of Supreme Court, mother did not lose
her right of Hizanat after contracting second marriage. (Shahista Naz v M. Naeem Ahmed 2004 SCMR
990 Supreme Court) and recently in 2017, the courts have decided the Custody of minor in presence of
real mother could never be handed over to paternal grandmother, second marriage of mother or father
could not be the sole fact to decide the fate of custody of minor, rather it's the welfare of the minor
which would prevail over all considerations (Mst. Hifsa Naseer v ADJ Gujar Khan 2017 PLD Lahore).

Moreover, these situations also arise after the Hizanat period is completed, at that point the question
arises who is the guardian of the minor. Under Pakistani law, the completion of right of Hizanat is
different for different sects (usually 7 years for a boy and for a girl, until she obtains puberty (sunni law),
after the child is 2 years old under shia law) and after that father is the legal guardian of the minor.
However, practically judges decide the cases of suo moto and on this basis most of the cases are
decided in favor of the mother that child's welfare is the prime consideration and the best interest of
the children is to live with their mother. The law is the same from that time to today (Mst. Zohra
Begum v Sh. Latif Ahmed Munawar PLD 1965 (W.P.) Lah. 965) (Muhammad Ashraf v Uzma Qamar
2016 YLR 1433 Lahore High Court) (M. Afzal v Parveen Bibi 2017 MLD 1116 Azad Kashmir). If the father
does not fulfill his rights and obligations properly then the courts grant the right of guardianship to
mother. In one of the recent case the father re-married and never paid any expenses to the minor or for
their maintenance therefore court granted the right to mother (Tahir Zaib v Ghaffar Ahmed 2017 CLC 96
Supreme court Azad Kashmir) Most of the cases on which father loses the right of guardianship is on the
failure to maintain the child (Mst. Rasheedan Bibi v Additional District Judge 2012 CLC 784 Lahore)
However, this is not the case with the mother. Mother does not lose the right of guardianship if she has
insufficinet means to support her child (NLR 1985 Civil 110) or if she is merely unable to maintain her
children (Khushi Muhammad v Mst. Muhammad-un-Nisa 1961 PLD 768 Lahore High Court), because by
giving the right to the mother courts look for the best interest of children.
However, all the above cases where father lost his right of guardianship are decided based of the fact of
failure to maintain his children. Basically, it is the father who has the right to maintain his children even
if he lost the guardianship but this is not the case. In most of the cases it has been seen if the custody is
with the mother, so is the maintenance. However, if the mother has insufficient means and behavior of
father is not good even though he is rich, then what happens is another important question to be
answered by the law as due to such gaps the future of the minor will always be at a risk. In very few
cases the courts did hold father responsible to give the maintenance for his children though their
custody is with their mother (Mst. Marium Tariq v SHO of police station Defence 2015 PLD 382 Karachi).

Section 11 of 1890 Act talks about the procedure of making an application, which the courts need to
follow when handing over the guardianship of the minor. The issue arises is that courts do not follow
that procedure like in the recent 2017 case, the guardianship was given to the parental grandfather
without issuing any notice to the mother, even courts did not publish any notice in the newspaper or via
media (2017 MLD 343). By this courts are working very inefficiently and if the courts will not follow their
procedure how can they expect anything from people.

Also, there are quite a lot of administrative issues pertaining to this Act as well. Cases in Pakistan usually
last for almost about 10 years regarding the child's custody and guardianship issue, which reflects how
the court process unduly delays the whole matter. Imagine a custody case of a 10-year-old boy being
delayed to such an extent that now that 10-year-old boy is 20. This is against due process system and
severely signifies how this administrative issue needs to be addressed quickly.

Seems that the Act emphasizes a lot on the duties of the guardian and the character they should posses
but it seems to ignore the basic needs of the ward. Nowhere in the act it states that a preference will be
given to the ward in deciding if they want to be with the guardian, all it emphasizes on is how the
guardian should be, what they should do and what they shouldn't, but this seems to ignore the level of
understanding of the child's psychology and emotional vulnerability which in long term will have certain
implications on the child. There should be a section where the court should be allowed to ask the minor
if they want to remain in the custody of their mother during the hizanat period or not and once that
period is over (usually 7 years for a boy and for a girl, until she obtains puberty (sunni law), after the
child is 2 years old under shia law), would they want to be handed over to their guardian, which in most
cases is usually the father and if not him then the grandfather. The implication here is that when the
child is with their mother during the hizanat period, they develop a strong emotional bond with the
mother and then to remove the child from their custody would certainly affect their emotional well
being and mental state by being handed over to the father, who would at the moment seem quiet
foreign to the child, especially if the father did not visit the child during the hizanat period. This point is
further advocated by the case of M. Shafa v Mst. Hasina 2016 CLC 339 Gilgit Baltistan where parties
belonged to Shia sect. The minor son was born after father's death and the paternal grandfather applied
for custody of the minor who was with the mother at the time. It was held that the custody is only going
to be with the mother till the period of hizanat and then the custody will go to the grandfather. Now
imagine what the child would go through when he will be handed over to his grandfather.
It is undoubtedly a true fact that a child has a deep emotional, unspoken connection with the mother, so
to remove the child from their mother’s guardianship after the hizanat period is over and to hand them
over to the father would put a child through an emotional trauma.

Then again, we are not turning a blind eye towards the fact that sometimes a child has a deeper
connection or bond with the father and a mother can be unfit to be the custodian, so handling over the
child to a mother (who the kids are not close to) would also be quite unfair to them. So, keeping all this
in mind, what point we are trying to illustrate is, that the wishes of the minor should be listened to when
deciding the case. From most of the case laws we do see that judges use their wide discretion on the
matter to see what is utmost best for the child and then decide custody and guardianship, but it would
be otherwise more beneficial if this point can be codified, i.e judges should first ask who the child wants
to be with, taking into account their age and level of understanding and maturity, and then consider the
basis of the factual evidence of both the parties (custodian and the guardian) provided, their capability
and the circumstances surrounding them and then use their discretion to appoint the person best suited
for the ward.

Another thing brought to our attention is that s.25 of the Act stated that if the ward runs away from the
guardian the court can order for his/her arrest and to be brought back to the guardian, this therefore
entails a question as to whether is not asked by the child why he/she ran away, because usually the child
would only do so if he or she is unhappy or discontent, which brings us to another point that the court
only checks up on the guardian or keep a check on the guardian when it comes to guardianship of
property and not so much when it comes to guardianship of ward. There should be a provision
that entitles the court with the right to have the ward presented in the court of law and that ward
should be asked if they are content or not and how are they adjusting in their new life with the
guardian. This provision becomes specifically more important if a guardian is one appointed by the court
and not the father.

Recommendations:
The courts are uncertain, when the issue arises for the right of Hizanat and should come up with a
provision that the mother does not lose her right of Hizanat at least for initial 2 years time period as the
suckling of the mother is beneficial both for the mother and the baby and after the completion of the 2
year period, courts should come up with a decision which is certain for everyone and the other cases
based on the same facts can be decided by the doctrine of stare decisis.

Having the parental jurisdiction towards the courts, judges decide cases based on the facts of the case
and for the welfare of the minors. Courts should lay down on what grounds father will lose his right of
legal guardianship and that right will be given to mother. Like the 10 points mentioned for the ground of
Khula under 1939 Act, courts can come up with something like that. There is no need to lay down each
and every situation under which the father will lose his right but at least some grounds should be
mentioned so that judges do not get very wide powers which will lead to uncertainty in the legal system.
The provision should be added for the right of maintenance for the children and that right should be
given to the father unless he does not have any means of financial support. Under shariat law because
he is the one who has the legal guardianship hence, he should be the one supporting his children no
matter the guardianship is given to the mother.

The provision should be added to eliminate the unlimited time given to judges in order to come up with
their decision, instead certain timeframe should be given to judges to conclude their case. However, if
some uncontrollable and unexpected situation arises then judges can extend their time period in the
closure of the case.