Can Courts in Pakistan Grant Guardianship for a Minor with Foreign Nationality?

Jurisdiction Over Foreign Nationals

Section 6 clarifies that the court’s authority to appoint a guardian extends to any minor, whether they are a Pakistani national or a foreign subject. The primary requirement is the minor’s ordinary residence in Pakistan, regardless of nationality or origin.

Further Provisions on Guardianship Jurisdiction

Sections 9 and 10 elaborate on jurisdiction for guardianship applications:
Section 9: Guardianship applications concerning a minor’s person should be made to the District Court where the minor ordinarily resides. For property guardianship, applications may be made either to the District Court of the minor’s residence or where the property is located. The court can transfer the application if another court is better suited for a just and convenient resolution.
Section 10: Applications, if not made by a Collector, must be a signed and verified petition per the Code of Civil Procedure, 1908. The application must detail:
o Minor's name, gender, religion, date of birth, and usual place of residence.
o Marital status if the minor is female, and, if applicable, her husband's name and age.
o Nature, location, and approximate value of any property owned by the minor.
o Name and residence of any individual who has custody or possession of the minor or their property.
In summary, the Guardians and Wards Act, 1890 empowers Pakistani courts to grant guardianship for any minor ordinarily residing in Pakistan, irrespective of their nationality.

Jurisdiction of Guardian Courts: Insights from Key Cases in Pakistan

The question of jurisdiction for Guardian Courts in Pakistan has been examined in several rulings by higher courts. A primary consideration for Guardian Courts is to determine whether the minor (ward) currently resides within the court's jurisdiction. The case Malik Gul Raiz Awan v. Mst. Asma Gul Raiz and others (2009 MLD 1274 [Lahore]) provides insights on the interpretation of "ordinary residence." In this case, the Lahore High Court made the following observations:

Ordinary Residence: The term "ordinarily resides" does not imply a permanent residence but refers to a place where there is an intent for more than temporary stay, such as for educational purposes. In this case, the mother’s decision to relocate the minors to Lahore to enroll them in reputable schools reflected her intention for a more stable residence, fulfilling the requirement of "ordinary residence.
Jurisdiction Validation: The Lahore Guardian Judge was right to assume jurisdiction over the case. The petitioner’s attempt to challenge jurisdiction under Order VII Rule 11, C.P.C., was dismissed, and this dismissal was upheld on appeal. Further clarification on the jurisdiction of Family Courts in guardianship cases comes from the Supreme Court's decision in Muhammad Khalid Karim v. Saadia Yaqub (PLD 2012 SC 66). The Supreme Court stated that the territorial jurisdiction of Family Courts in guardianship cases is governed by Rule 6 of the Family Courts Rules, 1965, rather than the Guardians and Wards Act, 1890. The ruling emphasized:
Exclusive Jurisdiction: Under Section 5 of the Punjab Family Courts Act, 1964, Family Courts have exclusive jurisdiction over matters listed in the Act’s first schedule, which includes guardianship and child custody.
Territorial Jurisdiction Factors: Rule 6(a) of the Family Courts Rules, 1965, specifies three scenarios for determining jurisdiction:
1. Where the cause of action arose, such as a custody dispute involving an improper removal of a child.
2. Where the parties reside or last resided together.
3. In cases involving marital dissolution, where the wife ordinarily resides. In essence, the court's focus remains on the minor's ordinary place of residence and the rules established under the Family Courts Act, 1964, to ensure accurate jurisdiction in guardianship cases.

Jurisdiction of Guardian Courts under the West Pakistan Family Courts Act, 1964

Section 5 of the West Pakistan Family Courts Act, 1964, assigns Family Courts exclusive jurisdiction to address and adjudicate on specific matters detailed in Part I of the Schedule, which includes guardianship (Serial No. 6). Consequently, the Family Courts Act takes precedence over the Guardians and Wards Act, 1890, making jurisdictional regulations fall under the 1964 Act and its associated rules.
Rule 6 of the Family Courts Rules, 1964, outlines jurisdictional criteria, allowing a suit to be tried in a court located within the area where:
The cause of action arose, either wholly or partially, or
The parties (or either party) currently reside or last resided together. The term "parties" in clause (b) of Rule 6 also includes "party," granting jurisdiction to the court in cases where only one party resides within its limits. Additionally, Section 9 of the Guardians an