Obtaining Guardianship Certificate in Pakistan

Here, we will try to provide a guide on guardianship in Pakistan, covering important topics such as different types of guardianships and the process for obtaining a guardianship certificate. Whether you seek to understand your rights as a guardian or need guidance on applying for guardianship, this article offers valuable insights.

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Understanding Guardianship in Pakistan

In Pakistan, guardianship refers to the responsibility of taking care of a ward’s person, property, or both. Courts consider the welfare of the minor when appointing a guardian, considering factors like age, sex, religion, and the relationship between the guardian and the minor.

Who Is a Guardian Under Guardianship Law in Pakistan?

The definition of “guardian” under THE GUARDIANS AND WARDS ACT, 1890 is;

“guardian” means a person having the care of the person of a minor or of his property, or of both his person and property”

Types of Guardians in Pakistan.

There are two types of Guardians;

De facto Guardian:

A de facto guardian is not legally appointed or recognized by the court as a guardian but has voluntarily taken responsibility for the care and property of a minor. This can be observed in the judgment reported in 2015. PLD 46 also defined it as A “de facto guardian” is someone who, without being a legal or court-appointed guardian, voluntarily takes charge of a minor’s person and property.

Limits of a De Facto Guardian:

The Supreme Court has ruled that a de facto guardian has no legal authority to transfer a minor’s rights or interests in immovable property. Whereas, the judgment reported in 2009 PLD 751 SUPREME COURT limits it by holding that A de facto guardian who is neither legal nor court-appointed has no authority to transfer any right or interest in a minor’s immovable property. Only persons entitled as guardians of the minor’s property have such power.

Natural Guardian:

A natural guardian is a person legally entitled to care for a minor. Under Muslim law, the natural guardian is typically the father, but in his absence or incapacity to act as a guardian, the mother is the natural guardian. Natural guardianship is based on a parental relationship.

Who Is a Ward (minor) Under the Guardian and Ward Act, 1890?

Under the Guardian and Ward Act, 1890: “ward” means a minor for whose person or property, or both, there is a guardian.”
According to D.F. MULLA’s Principles of Muhammadan Law, Section 235, a minor is a person who has not reached the age of eighteen.
Under the Majority Act of 1875, every other person domiciled in Pakistan shall be deemed to have attained his majority when he has completed his age of eighteen; below eighteen is a minor.

Kinds of Guardianships Certificate in Pakistan

There are two kinds of Guardianships recognised under Pakistani law of guardianship:

Guardian of a person:

The guardian of a person is responsible for the care, upbringing, and welfare of a minor, including decisions related to education, health, and daily living.

Guardian of property:

On the other hand, the guardian of property manages the minor’s assets, finances, and property, ensuring they are preserved and used in the minor’s best interest.

Or both:

The same guardian can be appointed for both as well.

Family Laws in Pakistan Related to Guardianship

Following are the main enactments that deal with guardianship matters and the issuance of guardian certificates.

The Guardian and Ward Act, 1890

Key provisions are as under;

Section 4: Defines the guardian as a person responsible for a minor and/or their property.

Section 7: The court can appoint a guardian for a person, property, or both.

Section 8: Deals with the persons who can apply to the court for their appointed as a guardian.

Section 17: Tells the factors needed to be considered while appointing a guardian, such as the minor’s welfare, age, religion, and guardian’s capacity.

Section 25: Claiming custody of the minor in the minor’s best interests.

Section 27: Duties and obligations of a guardian.

Section 29: limitations on the powers of a guardian, such as a guardian cannot sell or transfer the minor’s property without court approval or against his interests.

Section 39: Deals with how and when a guardian can be removed, such as if the guardian misuses their authority or acts against the minor’s welfare.

The Family Courts Act, 1964

Exclusive Jurisdiction (Section 5, Schedule Part I): In addition to Guardianship Courts, Family courts have exclusive jurisdiction over matters related to guardianship.

Guardianship Under Muslim Law

As per the Principles of Mahomedan Law by D.F. Mulla, the guardianship of a minor’s person and property must be handled carefully, keeping in view the welfare of the minor. It defines a minor as anyone under the age of 18 (Section 235). The Court may appoint or declare someone to manage the minor’s personal care, property, or both (Section 236).

When appointing a guardian, the Court must consider the minor’s welfare as a paramount consideration, considering factors like the child’s age, sex, and the suitability of the proposed guardian. It also considers the wishes of any deceased parent and the relationship between the guardian and the minor (Section 237). Additionally, if the minor is old enough to express his clear preference, the Court may also consider the child’s wishes as long as they align with his best interest.

Difference Between Guardianship and Custody

There are clear distinctions between guardianship and custody as per the legal authority, responsibility, duration, appointment, and financial control. The following chart below will explain these distinctions in more detail;

Guardianship	Custody
Guardianship grants legal authority over the ward’s personal or property affairs or both.	At the same time, custody focuses on the obligation to care for the minor and make decisions about his daily needs, such as education and health.
A guardian manages the ward’s welfare and property.	whereas a person with custody is primarily responsible for the child’s upbringing and day-to-day care without property management authority.
Guardianship typically lasts until the minor reaches the age of majority (18 years) or is revoked by the court.	Custody can be temporary or permanent but is more often related to family disputes like divorce or separation.
Guardianship is usually court-appointed or legally recognised.	Custody may be automatically granted to a parent or decided through family courts during divorce or separation proceedings.
A guardian may control the minor’s finances and property	A person with custody has no rights over the minor’s property unless they are also the legal guardian.

Essential Conditions for A Valid Divorce

Before delving into the divorce procedure in Pakistan, it is essential to highlight the general conditions required for a valid Talaq:

Capacity: Every Muslim husband who is sane and has attained the age of puberty is legally competent to pronounce Talaq. On the other hand, a minor or a person of unsound mind cannot do so. Provided that it is pronounced during a lucid interval (in cases of insanity).
Free Consent: The husband’s consent to divorce must be free from coercion, undue influence, or intoxication, except for the Hanafi law where an Issuing Divorce in the State of Intoxication (voluntary intoxication) is considered valid.
Formalities: According to the rules of Islamic Divorce, a divorce can be oral or written. No specific wording is required as long as the intention to dissolve the marriage is clear. However, Shia law mandates that the Talaq be pronounced orally and in the presence of two witnesses.
Express Words: The words of Talaq must indicate the husband’s intention to end the marriage. In case of ambiguity, it must be proven that the husband intended to dissolve the marriage.

How to Obtain a Guardianship Certificate in Pakistan

Below is the guide to obtaining a guardianship certificate from the Guardian Court or Family Court.

Steps before issuance of Guardianship Certificate

(FILING) Filing an application before the Guardian Court of the relevant jurisdiction, i.e., where minors are residing or ordinarily used to reside.

Or.

Filing a suit for a guardianship certificate before the Family Court of jurisdiction. Both courts have the jurisdiction to adjudicate and issue guardianship certificates in Pakistan.

(SUMMONING) In cases where a suit for guardianship is filed, the defendant is summoned, and in cases of guardian petitions, respondents are summoned and called upon to the court to submit their reply if they want to.
(REPLY) If the defendant or respondent, after receiving the summons, wants to contest the matter, then the court gives them the same opportunity and asks them to file their reply. If, even after receiving, they do not come to court on the date fixed, then the court will proceed ex-parte against them, i.e., a one-sided proceeding.
(PRE-TRIAL RECONCILIATION) If a suit for the issuance of a guardian certificate is submitted in a Family Court. In that case, the court, after receiving a reply or proceeding ex-parte, fixes the case for pre-trial reconciliation and gives the parties a chance to reconcile the matter.
(EVIDENCE) After submission of a reply or proceeding ex-parte, the court fixes the case for evidence and asks both parties to submit their affidavits and oral and documentary evidence.
(JUDGEMENT AND DECREE) After closing evidence, the court hears final arguments from the parties. After the hearing, the court passes its judgment and decree. The court may ask for surety bonds or personal surety, as the case may be.
(ISSUANCE OF GUARDIANSHIP CERTIFICATE) After submitting the surety bond or tendering personal surety as per the court order in judgment, the court, after its satisfaction, issues a guardianship certificate.

Documents Required

Documents that are essential to file a case of guardianship certificate, whether from a Family Court or Guardian Court, are as under;

Identity documents such as CNIC for Pakistani or Passport in case of Overseas Pakistani or Foreign nationals.
Proof of relation with the child, such as a birth certificate for the child.
Proof of marriage if the father or mother wishes to be a guardian.
Special Power of Attorney if the case is being filed through an agent or attorney. This happens when the person who wishes to be a guardian resides outside Pakistan.
Any other document that can prove that the welfare of the minor is with him.

Documents Required for Divorce in Pakistan

To file divorce in Pakistan following documents are required;

Valid ID: such as CNIC for Pakistani nationals and Passport or foreign ID in the case of Overseas Pakistani or foreign nationals.

Nikah Nama: proof of marriage, i.e., Nikahnama or Marriage Registration Certificate.

Divorce deed format: A properly written divorce deed printed or written on a Stamp paper.

Guardian Certificate Sample in Pakistan

Here is a sample of a guardianship certificate for reference purposes only. Please note that this is not an official document issued by the court. It is provided solely to give you an idea of what the certificate may look like. Click here to view.

Permission to Take Child Abroad

After obtaining the guardianship certificate, if the guardian wishes to take the ward/minor abroad for any reason, such as studies, tours, Umrah, casual visits, or holidays, they can submit an application for permission to take the minor abroad to the same court that issued the guardianship certificate. After completing certain formalities, the court may grant permission if deemed appropriate.

The permission can either be time-limited or without any time limit, depending on the circumstances of the case and the request made by the applicant. The court may also require an additional surety bond as a condition for granting permission.

Guardianship of An Adopted Child

The adoptive parents must obtain a guardianship certificate from the Family Court or Guardian Court. Here you can read more about Child Adoption in Pakistan.

How to Get Guardianship Without Going to Court

If a person is not available in Pakistan, or even if they are in Pakistan but unable to attend court for valid reasons, they can apply for a guardianship certificate without going to court through a special power of attorney (learn more about Special power of attorney). The person wishing to be appointed as guardian can designate someone as their agent or attorney via a special power of attorney. If the power of attorney is executed abroad, it must be attested by the relevant embassy or consulate. It must be on stamp paper of the proper value if it is local. Evidence can be recorded via the e-court system using Skype video calls. This is how a person can obtain a guardianship certificate without attending court in person.

Divorce Law in Pakistan During Pregnancy

If the wife is pregnant when the talaq is pronounced, then the talaq will not become effective until 90 days have passed or the pregnancy ends, whichever is later.

How LEX Can Assist You

M/s Legally-Ethically-Expertly (LEX), a leading law firm with experienced lawyers, provides this article’s information for public awareness through our website, lex.com.pk. We strive to provide valuable insights to the general public but do not regard this content as legal advice. However, for personalized guidance or assistance with legal matters, we encourage our valued readers to contact our expert family lawyers in Pakistan by calling or WhatsApp at +92-310-8888539 or emailing info@lex.com.pk. We are here to assist with tailored solutions.

Frequently Asked Legal Questions

Q1: Can I get a guardianship certificate without going to court?

Yes, you can if you file it through a special power attorney.

Q2: What is a de facto guardian in Pakistan?

Who is not legally appointed or recognised by the court but has voluntarily taken responsibility of minor.

Q3: Who is considered a natural guardian under Muslim law?

Father and mother, in the absence of both paternal and maternal grandparents.

Q4: Can I take a minor abroad with a guardianship certificate?

Yes, you can. But you will also need permission from the court along with the certificate.

Q5: What documents are needed to apply for guardianship in Pakistan?

CNIC or Passport, Birth Certificate, Marriage registration certificate and Special power of attorney (if applicable).

Q6: How do I apply for a guardian certificate if I'm outside Pakistan?

You can apply through a special power of attorney duly attested by a consulate or embassy. Evidence will be recorded via the e-court system.

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While we strive to provide accurate information, please note that the details in this article may contain human errors and are not meant to serve as legal opinion or advice. This content is purely for informational purposes. If you have a specific legal query or need further clarification, we warmly invite our valued readers to reach out to us by calling or WhatsApp at +92-310-8888539, or email at info@lex.com.pk. We are here to assist with tailored solutions.