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

To address this question, we must first examine key provisions in the Punjab Family Courts Act, 1964 (referred to as "Act 1964") and the Guardians and Wards Act, 1890 (referred to as "Act 1890"). These laws outline the jurisdiction and authority of Family and Guardian Courts in Pakistan.

Family Court’s Jurisdiction

According to Section 5 of the Punjab Family Courts Act, 1964, Family Courts have exclusive authority over specific matters listed in its Schedule, including the “Custody of Children” and “Guardianship.” Here is a summary of matters under the Family Court’s jurisdiction:

SCHEDULE [Per Section 5, Part I]

Dissolution of marriage, including Khula

Dower

Maintenance

Restitution of conjugal rights

Custody of children and visitation rights

Guardianship

Jactitation of marriage

Dowry

Personal belongings of a wife and child living with the mother

Matters arising from the Nikahnama

Additionally, Section 25 of Act 1964 designates Family Courts as "District Courts" for the purposes of Act 1890, thus giving them authority in guardianship matters as per the Guardians and Wards Act.

Guardianship under the Guardians and Wards Act, 1890

Section 4-A(1) of Act 1890 empowers the High Court to authorize officers exercising original civil jurisdiction, or District Court judges, to delegate guardianship cases to Family Courts. In line with guidelines from the Lahore High Court, cases under the Guardians and Wards Act are assigned to Family Courts, specifically to First Class Civil Judges selected for each district. These courts handle the administration, records, and special registers required by law. Senior Civil Judges throughout Punjab are authorized to oversee guardianship proceedings under Act 1890. Therefore, guardianship matters, including those for minors with foreign nationality, are managed by the designated Family Courts and Senior Civil Judges. In summary, Family Courts in Pakistan, empowered by Act 1964 and Act 1890, have the jurisdiction to grant guardianship for minors of foreign nationality, provided they fulfill the residency requirements.

Jurisdiction Under the Guardians and Wards Act, 1890

To fully understand the objectives, scope, and purpose of the Guardians and Wards Act, 1890, we need to explore its key provisions. The Act defines crucial terms that guide its application, as follows:

Key Definitions

Minor: As per the Act, a minor is defined as someone who, under the Majority Act of 1875, has not yet reached the age of majority.

Guardian: Refers to an individual responsible for the care of a minor’s person, property, or both.

Ward: A minor under the guardianship of a legally appointed guardian. The term "Court" in Section 2(5) includes:

The District Court with jurisdiction to hear applications under this Act for appointing or declaring a guardian.

The court that appointed or declared a guardian, including any officer with legal authority for guardianship matters.

If a case is transferred, the officer receiving the transferred proceeding has jurisdiction. Section 2(5)(ii) specifies that jurisdiction is based on the minor's ordinary place of residence, without additional conditions for the court to assume jurisdiction.

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.