Proxy Marriage in Pakistan

Navigating the guardianship process in Pakistan, especially for minors of foreign nationality, requires a clear understanding of relevant legal frameworks. This article outlines the Punjab Family Courts Act of 1964 and the Guardians and Wards Act of 1890, which establish the jurisdiction and criteria for foreign nationals seeking guardianship in Pakistan.

Family Courts' Jurisdiction in Guardianship Cases

Under the Punjab Family Courts Act, 1964, exclusive authority is given to Family Courts for issues listed in the Act's Schedule, such as “Custody of Children” and “Guardianship.” This authority is reinforced by Section 25, which designates Family Courts as “District Courts” specifically for the purposes of the Guardians and Wards Act, 1890.

Jurisdiction under the Guardians and Wards Act, 1890

The Guardians and Wards Act, 1890, provides essential definitions and guidelines, including the terms ‘minor,’ ‘guardian,’ and ‘ward.’ According to Section 2(5)(ii), jurisdiction is determined by the minor’s usual place of residence. Importantly, Section 6 clarifies that a guardian can be appointed for any minor ordinarily residing in Pakistan, regardless of nationality. Sections 9 and 10 of the Act further specify that guardianship applications must be filed in the District Court where the minor resides.

Insights from Case Law

Legal precedents, such as the 2009 Lahore High Court ruling (Malik Gul Raiz Awan v. Mst. Asma Gul Raiz), stress the significance of “ordinary residence” within the court’s jurisdiction. If a minor is relocated for reasons such as education, it may establish their ordinary residence. Additionally, the Supreme Court case of Muhammad Khalid Karim v. Saadia Yaqub clarified that the Family Courts Act, 1964, holds primary authority on jurisdiction, superseding the Guardians and Wards Act where applicable.

The Dominance of the Family Courts Act

The West Pakistan Family Courts Act, 1964, has overriding jurisdiction in guardianship matters listed in its Schedule, such as guardianship, underscoring the Family Courts' authority over these cases.

Jurisdiction Challenges

In specific cases, like the 2018 ruling in Scherazade Jamali v. Hisham Gillani, the court addressed challenges related to the minor’s nationality. The court determined that if a parent decides to reside in Pakistan with the minor, then Pakistani courts retain jurisdiction until proven that the residence is temporary.

Proving Ordinary Residence

To establish that a minor is “ordinarily residing” in Pakistan, the court may require proof such as school enrollment or other documentation demonstrating a stable, ongoing presence in Pakistan. In summary, foreign nationals are eligible to apply for guardianship of a minor in Pakistan as long as the minor resides ordinarily within the country. If you have any questions or require guidance on guardianship matters, please feel free to consult with our expert family lawyers.