WHETHER COURTS IN PAKISTAN ALLOW GUARDIANSHIP FOR MINOR HAVING FOREIGN NATIONALITY?

WHETHER COURTS IN PAKISTAN ALLOW GUARDIANSHIP FOR MINOR HAVING FOREIGN NATIONALITY?

WHETHER COURTS IN PAKISTAN ALLOW GUARDIANSHIP FOR MINOR HAVING FOREIGN NATIONALITY?

In order to answer this question, it is important to first understand different provisions entailed in Punjab Family Court Act, 1964 (herein after referred to as Act, 1964) and the Guardians and Wards Act, 1890 (herein after referred to as the “Guardians and Wards Act” or “Act 1890”) which describe the scope of law and jurisdiction of the Family Court and Guardian Court.

JURISDICTION OF FAMILY COURT

Section 5 of the Punjab Family Courts Act, 1964, provides that “Family Courts” shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule. Items 5 and 6 of the Schedule are “Custody of Children” and “Guardianship“. The Schedule is reproduced below for assistance:

SCHEDULE [SEE SECTION 5]

[PART I]

  • Dissolution of marriage [including Khula].
  • Dower.
  • Maintenance.
  • Restitution of conjugal rights.
  • Custody of children [and the visitation rights of parents to meet them]
  • Guardianship
  • Jactitation of marriage 
  • Dowry 
  • The personal property and belongings of a wife and a child living with his mother.
  • Any other matter arising out of the Nikahnama.

Furthermore, Section 25 of this very Act, 1964, further provides that a Family Court shall be deemed to be a “District Court” for the purposes of Act, 1890, as the “Court” under the Guardians and Wards Act is the “District Court”.

Section 4-A(1) of the Guardians and Wards Act, 1890, confers power on the High Court to empower any officer exercising original Civil Jurisdiction subordinate to a District Court or authorize any Judge or any District Court to empower any such officer subordinate to him to dispose of any proceeding under this Act transferred to such officer under the provisions of this section. Accordingly to Rules framed by the Honorable Lahore High Court, all the work under the Guardians and Wards Act has been entrusted to the Family Courts presided over by 1st Class Civil Judges to be specially nominated for each district as permanent record, accounts and special registers are required to be maintained. All the Senior Civil Judges in the Punjab have been empowered to dispose of the proceedings under the Guardians and Wards Act, 1890. All the proceedings under the Guardians and Wards Act are, therefore, to be transferred or entrusted to the Senior Civil Judges for disposal.

JURISDICTION UNDER THE GUARDIAN AND WARD ACT 1890

In Order to understand the object, scope and purpose of the Guardians and Wards Act, 1890, it is important to traverse through different objective provision as entailed in the law. The relevant terms are as follow:

4. Definitions. In this Act, unless there is something repugnant in the subject or context:-

  • ‘minor‘ means a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his Majority;
  • ‘guardian‘ means a person having the care of the person of a minor or his property, or of both his person and property;
  • ‘ward‘ means a minor for whose person or property, or both, there is a guardian;

Term “Court” is defined in Section 2 (5) as follow:

(5) ‘the Court’ means:-

  • the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian’; or
  • where a guardian has been appointed or declared in pursuance of any such application:-
    • the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or
    • in any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or
  • in respect of any proceeding transferred under Section 4-A, the Court of the officer to whom such proceeding has been transferred.

According to Section 2(5)(ii) of the Act, 1890, the District Court shall have jurisdiction where minor for the time being ordinarily reside and no other parameter or requisite has been given which requires satisfaction before which the jurisdiction of the court can be assumed.

In order to substantiate this argument, reliance is also placed upon Section 6 of the Act, 1890, which states as follow:

6. Saving of power to appoint in other cases. In the case of a minor who is not a European British subject, nothing in this Act shall be construed to take away or derogate from any power to appoint a guardian of his person or property, or both, which is valid by the law to which the minor is subject.

The above section make it clear that the Guardian Court has jurisdiction in relation to any ward whether he/she is Pakistani National or a foreign subject (no matter if he/she is European British Subject or otherwise). The Court merely has to see whether the ward in question is ORDINARILY RESIDENT OF PAKISTAN FOR TIME BEING or not.

This argument is further strengthened when supra provisions are read together with Section 9 and 10 of the Act, 1890. Same are detailed herein below for easy reference:

9. Court having jurisdiction to entertain application.

  • If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
  • If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
  • If an application with respect to guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.

10. Form of application.

  • If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure 1908 (Act V of 1908) for the signing and verification of a plaint, and stating, so far as can be ascertained-
    • the name, sex, religion, date of birth and ordinary residence of the minor;
    • where the minor is a female, whether she is married, and, if so, the name and age of her husband;
    • the nature, situation and approximate value of the property, if any, of the minor;
    • the name and residence of the person having the custody or possession of the person or property of the minor;
    • …

Question of jurisdiction of the Guardian Court has been discussed is several cases brought before the Higher Courts of Pakistan. It was observed that while determining the jurisdiction, the Guardian Court merely has to see whether the subject Ward locally reside within jurisdiction of such court for the time being or not. In case cited as 2009 M L D 1274 [Lahore] titled Malik GUL RAIZ AWAN Versus Mst. ASMA GUL RAIZ and others, Honorable Lahore High Court on the expression “Ordinary Residence” was pleased to observe as follow:

  • The expression “ordinarily resides” may signify a casual dwelling at a’ place, where mother may bring the children with a positive intention to provide them education. It may not be permanent dwelling place either, but it is definitely not a temporary dwelling as well. If the mother, as in this case is evident from the record, shifted the minors to Lahore for providing them better chance of education and subsequently also acted upon such intention and got the children admitted in the prestigious educational institutions, the circumstances would lead to the only conclusion that the minors had been shifted to Lahore, which has to be construed as the place, where they “ordinarily reside”.
  • In view of the above, the contentions raised in the petition are not tenable. The learned Guardian Judge Lahore rightly assumed jurisdiction in the matter. The application filed by the petitioner under Order VII Rule 11, C.P.C. was rightly, dismissed by the learned Guardian Judge. Similarly, the dismissal of appeal was also in accordance with the law.

It has been held by the Honourable Supreme Court in Muhammad Khalid Karim v. Saadia Yaqub (PLD 2012 SC 66) that with regards to guardianship matters, the territorial jurisdiction of the Family Court is governed by Rule 6 of the Family Courts Rules, 1965 and not by the provisions of the Guardians and Wards Act, 1890. The relevant extract of that pronouncement is as follows:

“11. Be that as it may, from the ratio of all the law cited above, the legal position, which emerge is as under:–

    • Under section 5 of the Act 1964, the Family Court has the exclusive jurisdiction to entertain, hear and adjudicate (emphasis supplied) all the matters which fall within the first schedule to the Act; this admittedly includes the custody and guardianship matter.
    • For the purposes of determining the ‘territorial jurisdiction’ of the Family Court, it is Act 1964, and the rules framed thereunder which shall be taken into account and not the provision of the Guardians and Wards Act 1980, even as per force of section 25 of the Act 1964.
    • According to Rule 6(a) of the Family Courts Rules, 1965, there are three factual eventualities which are relevant for the purposes of the determination of the ‘territorial jurisdiction’ of the Family Court; firstly, where the cause of action wholly or in part has arisen, meaning thereby, in the custody or guardianship disputes if the minors were with the mother and they have been illegally and improperly removed and taken away that from the place where they were living with her (or vice versa for father as well), the cause of action shall be said to have arisen at such place, otherwise the cause of action shall be deemed to have arisen where the minors are residing; secondly, under Rule 6(b) where the parties reside or last resided; thirdly as per proviso to Rule 6, in a suit for dissolution of marriage or dower where the wife ordinarily resided. And in view of the addition of proviso to section 7(2) of the Act 1964, which was introduced on 1-10-2002 if in a suit for the dissolution of marriage join other causes of action mentioned in the said proviso, such suit shall also fall in the last category, otherwise not.”

Section 5 of the West Pakistan Family Courts Act, 1964 deals with the jurisdiction subject to the provisions of Muslim Family Law Ordinance, 1964. The family Courts were entrusted with exclusive jurisdiction to entertain, hear and adjudicate the matters specified in part-1 of the schedule. Part-1 of the schedule in pursuance of Section 5 of the West Pakistan Family Courts Act, 1964 includes the subject of guardianship at serial No.6. Thus the provisions of West Pakistan Family Courts Act, 1964 have overriding effect over Guardian & Wards Act. The jurisdiction is thus regulated under Act of 1964 and the rules framed there-under. Rule 6 as framed under West Pakistan Family Courts Act, 1964 deals with the jurisdiction to try a suit within the local limits of which;

  • The cause of action wholly or in part has arisen
  • Where the parties reside or last resided together.

In subject clause (b) the word “parties” include “party”. A limited meaning to the word “parties” cannot be given, as the later part of this sub-clause serves that purpose in a case where they (both) last resided together. So in case, if any of the party reside within the local limits of a Court or together resided has the jurisdiction. This is in addition to a jurisdiction where the cause of action wholly or in part has arisen. Even otherwise the advantage of Section 9 of the Guardian & Wards Act cannot be extended for the benefit of petitioner/mother as she has already surrendered to the jurisdiction by admitting and accepting that the minor is ordinarily residing within the local limits of the Court where she was/is residing which entertained the application under section 25 of the Guardian & Wards Act.

In judgment cited as 2018 PLD 377 Sindh titled SCHERAZADE JAMALI Vs. HISHAM GILLANI, mother alleged that minor is foreign national and his ordinary place of residence is abroad and therefore the Guardian Court of Pakistan has no jurisdiction to try matter in relation to such minor. It was held that minor has excess to education any place in the world. If one parent chose to live in Pakistan with minor than until established that such place of residence of minor is temporary, the courts of Pakistan will have jurisdiction to entertain such matter. It was observed as under:

—-S. 9—Jurisdiction of Guardian Court (Trial Court)—Acquiescence to the jurisdiction of Court—Scope—Plea of mother that Guardian Court (Trial Court) had no territorial jurisdiction as the ward was not ordinarily residing within the jurisdiction of the Court; that ward was a foreign national by birth and before coming to Pakistan was permanently and ordinarily residing in another foreign country, hence, the jurisdiction of Trial Court did not extend over the ward as he was only in Pakistan for a visit and shall not be subjected to the laws of Pakistan—Validity—When the father surrendered to the jurisdiction of the Trial Court by moving an application for permanent custody of ward, it was promptly responded and replied by filing written statement and jurisdiction was conceded by the mother—Perusal of written statement showed that the mother who was now attempting to challenge the jurisdiction, had actually acquiesced to the jurisdiction of Trial Court—In the written statement the mother stated that the child was residing in city “K” in Pakistan, and that she did not forcefully remove the ward—Once the mother had acquiesced to the jurisdiction, she could not approbate and reprobate at the same time.

It is this clear that while exercising jurisdiction under the Guardians and Wards Act, 1890, court merely has to see whether the minor is for time being ordinarily residing in territorial jurisdiction of court in terms of Rule 6 of the Family Court Rules, 1964 read within Section 2(5)(b)(11), Section 6, Section 9 and Section 10 of the Guardians and Wards, Act 1890.

How to establish whether minor is temporarily resident or ordinarily resident in Pakistan?

There are several ways, depending on facts of each case, it can be established that minor is ordinarily residing in territorial jurisdiction of court. It can be done either by providing proof that such minor is school going in Pakistan or where minor is of tender age, his/her parent will have to prove through documentary evidence that minor is living in Pakistan for reasonable time and will continue to do so as his/her parent(s) will have to stay here for business, occupation or due to employment etc. 

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