Week 13: The Guardian and Wards Act, 1890

The lacunas present in Pakistan’s child custody laws necessitate legislative and judicial intervention. This paper relies on both statutory provisions and judicial precedents to highlight the approach employed to address the issue of custody. The Guardian and Wards Act 1890 governs disputes relating to child custody.  The Act, however, is marked by several deficiencies. These include the Act’s failure to distinguish between custody and guardianship.  Custody and guardianship can be distinguished as following: custody is the bringing up, nursing or fostering of the child and taking care of the child’s emotional and personal affairs on a day to day basis whereas guardianship means the power to effect legal transactions and contracts with responsibility for the legal consequences. Unlike guardianship, in custody, the child must live with the custodian.  In cases regarding custody, the best interests of the minor are given primary consideration. While courts often rely on the Act when adjudicating upon matters pertaining to custody of Children, the Act does not explicitly address the issue of custody. As a result, the courts have often applied provisions pertaining to guardianship to matters of custody too, thereby diluting the distinction between the two. Custody is, therefore, considered a kind of guardianship by Pakistani courts.  A guardian is defined by section 4 of the Act as ‘a person having the care of the person of a minor, or of both his person and property’. Therefore, even within the Act guardianship is considered to include the concept of custody as well. Traditionally, however, custody belongs to the mother whereas guardianship of property and marriage belong to the father.  In Pakistan, there have been cases where guardianship of marriage and property is awarded to the mother if the welfare of the child demands so.   According to the Act, custody is a personal right which can be enforced through judicial proceedings.  The distinction between custody and guardianship is pertinent since the two attract the application of different rules and principles. Furthermore, the qualifications and concomitant duties associated with custody and guardianship also differ.

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