Can Foreign Nationals Obtain Guardianship for Minors from Guardian Courts of Pakistan?
Introduction:
When it comes to obtaining guardianship for minors with foreign nationality in Pakistan, understanding the legal framework is crucial. This article explores the provisions of the Punjab Family Courts Act, 1964, and the Guardians and Wards Act, 1890, shedding light on the jurisdiction and requirements for foreign nationals seeking guardianship certification in Pakistan.
Jurisdiction of Family Courts:
The Punjab Family Courts Act, 1964, grants exclusive jurisdiction to Family Courts for matters listed in the Schedule, including “Custody of Children” and “Guardianship.” Notably, Section 25 designates a Family Court as a “District Court” for purposes of the Guardians and Wards Act, 1890.
Jurisdiction under the Guardians and Wards Act, 1890:
The Guardians and Wards Act, 1890, defines terms like ‘minor,’ ‘guardian,’ and ‘ward.’ According to Section 2(5)(ii), the District Court has jurisdiction where the minor ordinarily resides. The Act emphasizes the ordinary residence of the ward at the time.
Section 6 of the Act protects the power to appoint a guardian for a minor, regardless of their nationality. The key consideration is whether the minor is ordinarily residing in Pakistan at the time.
Sections 9 and 10 outline the procedure for applying for guardianship, specifying that applications must be made to the District Court where the minor ordinarily resides.
Legal Precedents:
Case law, such as the 2009 Lahore High Court case (Malik GUL RAIZ AWAN vs. Mst. ASMA GUL RAIZ), highlights that the court looks at whether the minor “ordinarily resides” within the local jurisdiction. If the minor has been shifted to a place with a positive intention, like for education, it may be considered their ordinary residence.
Additionally, the Supreme Court’s ruling in Muhammad Khalid Karim v. Saadia Yaqub underscores that the Family Court’s territorial jurisdiction is determined by the Family Courts Act, 1964, not solely by the Guardians and Wards Act, 1890.
Overriding Effect of Family Courts Act:
The West Pakistan Family Courts Act, 1964, takes precedence over the Guardians and Wards Act. Part-1 of the schedule includes guardianship matters, emphasizing that the jurisdiction is regulated under the Act of 1964.
Challenging Jurisdiction:
In cases like SCHERAZADE JAMALI vs. HISHAM GILLANI (2018), where a mother alleged that the ward was a foreign national, the court emphasized that if a parent chooses to live in Pakistan with the minor, the courts of Pakistan have jurisdiction until it is established that the residence is temporary.
Establishing Ordinary Residence:
To prove that a minor is ordinarily residing in Pakistan, evidence such as school enrollment or documentation showing the minor’s residence for a reasonable time may be crucial.
Hence, there is no bar for foreign national to apply for guardianship of minor from Pakistan. The only requirement is that the minor must be ordinarily residing in Pakistan for the court to entertain and issue guardianship certificate.
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