4. Definitions

In this Act, unless there is something repugnant in the subject or context:--
(1) "minor" means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his Majority;
(2) "guardian" means a person having the care of the person of a minor or his property, or of both his person and property;
(3) "ward" means a minor for whose person or property, or both, there is a guardian;
(4) "District Court" has the meaning assigned to that expression in the Code of Civil `Procedure 1908 (Act V of 1908) and includes a High Court in the exercise of its ordinary original civil jurisdiction.
(5) "the Court" means--
(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or
(b) where a guardian has been appointed or declared in pursuance of any such application:-
(i) the Court which, or the Court of the officer who, appointed or declared the guarding or is under this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or
(c) in respect of any proceeding transferred under section 4-A, the Court of the officer to whom such proceeding has been transferred.
(6) "Collector" means the Chief officer incharge of the revenue administration of a district, and includes any officer whom the Provincial Government, by notification in the official Gazette, may by name or in virtue of his office, appoint to be Collector in any local area, or with respect to any class of persons, for all or any of purposes of this Act.
(7) "European British subject" [Omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981, S. 3 Sch. 2.];
(8) "Prescribed" mans prescribed by rules made by the High Court under this Act

7. Power of the Court to make order as to guardianship

(1) Where the Court is satisfied that it is for the welfare of a minor that order should be made:--
(a) appointing a guardian of his person or property, or both; or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument, or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared to aforesaid have ceased under the provisions of this Act.

8. Persons entitled to apply for order

An order shall not be made under the last foregoing section except on the application of:--
(a) the person desirous of being, or claiming to be, the guardian of the minor; or
(b) any relative or friend of the minor; or
(c) the Collector of the District or other local area within which the minor ordinarily resides or in which he has property; or
(d) the Collector having authority with respect to the class to which the minor belongs.

9. Court having jurisdiction to entertain application.

(1) If the application is with respect to the guardianship of the person of the minor, if shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
(2) If the application is with respect to the guardianship of the property of the minor, it maybe made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction to a place where he has property.
(3) If an application with respect to guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

11. Procedure on admission of application

(1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for hearing:
a) to be served in the manner directed in the 1[Code of Civil Procedure 1908] (Act V of 1908), on--
(i) the parents of the minor if they are residing in Pakistan;
(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;
(iii) the person proposal in the application or letter to be appointed Or declared guardian, unless that person is himself the applicant; and
(iv) any other person to whom, in the opinion of the Court, special notice of the application should be given; and
(b) to be pasted on some conspicuous part of the Court-house and of the resident of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.
(2) The Provincial Government may, by general or special order, require that, when any part of the property described in a petition under section 10, sub-section (1), is land of which a Court of Wards could assume the superintendence, the Court shall also cause a notice as aforesaid to be served on the Collector in whose District the minor ordinarily resides, and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems it.
(3) No charge shall be made by the Court or the Collector for the service or publication of any notice served or published under sub-section (2).

Legal Amendments

1. Subs. by Act XXVII of 1981, S. 3 & Sch.2.

12. Power to make interlocutory order for production of minor and interim protection of person and property

(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.
(3) Nothing in this section shall authorize:--
(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any; or
(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.

13. Hearing of evidence before making of order

On the day fixed for the hearing of the application, or as soon afterwards as may be, the Court shall hear such evidence as may be adduced in support of or in opposition to the application.

Court Decisions

Scope—Order passed by Guardian Court in respect of custody of minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same, may not serve as such—It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order, and pass an appropriate order at-any subsequent stage to safeguard the interest and welfare of the minor—Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of jurisdiction for Guardian Court for all time to come. PLD 2001 Kar. 371

15. Appointment or declaration of several guardians

(1) If the law to which the minor is subject admits of this having two of more joint guardians of his person or property, or both, the Court may, if it thinks fit, appoint or declare them.
(2)1[Omitted ]
(3) 2[Omitted]
(4) Separate guardians may be appointed or declared of the person and of the property of a minor.
(5) If a minor has several properties, the Court may, if it thinks fit, appoint or declare separate guardian for any one or more of the properties.

Legal Amendments

1. Sub S.2 omitted by the Federal Laws (Revision and Declaration) Ordinance; XXVII of 1981.
2. Sub S.3 omitted by the Federal Laws (Revision and Declaration) Ordinance; XXVII of 1981.

16. Appointment or declaration of guardian for property beyond jurisdiction of the Court

If the Court appoints or declares a guardian for any property situate beyond the local limits of its jurisdiction, the Court having jurisdiction in the place where the property is situate shall, on production of a certified copy of the order appointing or declaring the guardian, accept him as duly appointed or declared and give effect to the order.

17. Matters to be considered by the Court in appointing guardian

(1) In appointing or declaring the guarding of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the court may consider that preference.
(4) 1[Omitted].
(5) The Court shall not appoint or declare any person to be a guardian against this will.

Legal Amendments

1. Sub-section (4) omitted by the Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981

Court Decisions

Principle of preference of either parents. Whether splitting -up brothers and sisters desirable. Courts below have taken into consideration admitted fact that all three brothers are studying in Lawrence College Ghora Gali, Murree and are Studying in College Hostel. They are, therefore, enjoying company of each other which will promote their brotherly feelings interse and elder can look after youngsters. Provision of S. 17 of Guardian and Wards Act was followed by both Courts below which are perfectly in accordance with spirit of law. Welfare of minors lay in their remaining in same institution. P.L.J.1996 Lah. 577 = 1996 CLC 1603.
Whether mother has preferential right of Hizanat. Mother of minors, having contracted second marriage with person not related to minors within prohibited degrees has lost her right of Hizanat. Petition dismissed. P.L.J.1998 Lah. 146 = 1998 CLC 846.
Children's capability of making intelligent preference about which of the parents they choose to live with. Minor's opinion was never obtained by District Judge while deciding question of their custody. Children being present in Court, High Court obtained their opinion and they were intelligent enough to express their opinion as they have been studying in good schools. Minors, stated that they. would prefer to live with their mother. Petitioner mother would not be disentitled and disqualified to retain custody of minors on the ground that she has contracted second marriage with a person who was not related to minors and is stranger. Courts would preserve to the mother custody of children if interest and welfare of minor so demanded. Impugned order of District Judge whereby he had declared father (respondent) to be the guardian of person and property of minors was set aside. Order of Guardian Judge was modified to the extent that -father (respondent) was allowed to see his children once in a month provided their educational programme was not disturbed. Minor Children can stay with father once in a month preferably on week ends and also stay for full day on their birth day and for two days on every Eid. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.
Welfare of minors. Whether in exercise of Constitutional Jurisdiction, interference in findings of facts, can be made by High Court. Principal of law discussed by Hon-able S.C. in case of Mst. Mehmooda Begum vs. TaJ Din can be invoked, wherein it has been laid down that findings of facts recorded by Tribunal of special Jurisdiction in respect of matters, exclusively within its competence, normally is not to be interfered unless, there has been serious mis-reading or mis-appreciation of evidence on part of Tribunal or there had been failure on its part to take into consideration material facts or to apply statutory law or any principle or rule of law. Both courts below have passed impugned Judgments without taking into consideration intelligent preference of minors, evidence on record, that petitioner can look after welfare of minors better than respondent No. 1, who being male member and of advance age, would not be in a position to look after female minor girls. P.L.J.1998 Qta. 137 = 1998 MLD 1697.
Trial Court had declared mother of minors to be the guardian of their person and property. District Judge, however, declared minor's father to be the guardian of person and property of minors and directed that custody of minors be handed over to him. Validity. Petitioner (mother) had annexed detailed list of cases which .had been registered against respondent and in which he has been convicted also. No rebuttal was placed on record from respondent's side that he was not involved, convicted and as not under trial in cases detailed in the list. Respondent did not mention in Court his income or his source of income. Neither any document regarding ownership of property was produced nor any other document showing that he had been deriving any income from said property was produced nor any proof that he was working anywhere was produced before Court. Petitioner, however, has placed on record certified copies of certificates from various educational institutions that she had been serving in those schools as a teacher and that at present she was teaching Fauji Foundation School. Petitioner had also placed on record certificate of tuition fee of minor children being paid by petitioner as also certificate showing balance of specified amount in her account in Habib Bank Ltd.. In addition to salary she has been giving tuition to students and earning hand some amount. Minor children have been admitted in best available schools, they are getting proper education and being looked after properly. Respondent in his statement before Court had -admitted that petitioner was graduate and has been serving in FauJi Foundation School and that Children were also studying in that school. Welfare of children being of fundamental importance, preference should be given to their welfare. Respondent although is natural guardian of minors yet his right was subordinate to welfare of minors. Evidence on record would suggest that minors were being well-educated and looked after by petitioner mother who had been supporting them since their birth while respondent had not spent a penny on them. Nothing on record was brought to indicate that petitioner was a woman of bad character. On the contrary she was graduate and teacher in a school of good standard and leading respectable life, welfare of minors, therefore, lies with petitioner (mother) and she was, thus, entitled to their custody. P.L.J.2000 Pesh. 175 = PLD 200 Q Pesh. 23.
Minor children. Custody, District Judge observed that minors having attained age of 7 years respondent (father) was entitled to their custody. District Judge has failed to consider that fundamental criteria for deciding application for appointment of guardian and restoration of custody, is welfare of minors and personal law is subordinate to it. Custody of minors allowed to appellant (mother) P.L.J.1994 AJK 33 = PLD 1994 AJ&K 1 = NLR 1994 Civil 331.
Custody of minor girls. Minors remaining in custody of their step-mother after death of their real mother with whom their father contracted second marriage. After death of their father, their paternal uncle applied for their custody which was granted. Petitioner's appeal was dismissed. Constitutional petition. Welfare of minors. By now it is well settled that while disposing of applications under section 17 and 25 of Guardian and Wards Act, supreme consideration should be welfare of minors, coupled with their own wishes* Petitioner is undoubtedly step mother of female minors, but they are living with her for last more than 8 years, when their real mother expired away. All minors were examined thrice by trial and appellate court, who on every occasion, insisted to stay with their step-mother, instead of preferring to live with their real uncle (Respondent) It is noteworthy that in his statement, he has given his age to be of 90 years. Moreover, minors have develop intimacy with petitioner (step mother) and even otherwise, being female minors, it is necessary that they should stay with female instead of male. Findings of Courts below are not based on correct application of law, as well as appreciation of evidence on record. P.L.J.1998 Qta. 137 = 1998 MLD 1697.
Dispute relating to custody of minors. Respondent has no woman in his house who can look after children if given to his custody. Respondent claimed that he has a sister in his house who could look after children. Sister of Respondent could not be a substitute of mother and she could not provide love and affection to children which mother can, as lap of mother is God's own cradle for children. Mother was, thus, entitled to custody other minor children. P.L.J.2000 Pesh. 175 = PLD 2000 Pesh. 23.