Guardian and Wards Act 1890

  1. S. 17 Custody of minors — The welfare of a minor would be presumed with the person who is entitled to the custody under Muslim Law. The said presumption is rebuttable and if the circumstances are brought on record which tend to show that in fact the welfare of the minor lies with a person other than one who is entitled to have the custody of the minors under Personal Law the Court may refuse the custody to the person who is entitled to it under Muslim Law. The fact that the minors have been previously living with the mother or their preference is in favour of mother do not deprive the appellant from seeking the custody of the minors. Shafiq-ur-Rehman  v.  Mst. Fazeelat Begum & others 1995 SCR 136 (A)
  2. S. 17 of Guardian & Wards Act deals with matters to be considered by the Courts which provides that keeping in view the law to which the minor is subject the guardian shall be appointed with the prime consideration of welfare of minor — Sub-section(2) provides that while considering what will be better for the welfare of the minor, the Court has to have regard of the age, sex and religion of the minor, the character and the capacity of the proposed guardian, his nearness of kin to the minor and the wishes in the case of a deceased parent and any existing or previous relation of the proposed guardian with minor or his property — Sub-section (3) speaks of an independent factor for the Court to consider. Sughran Bibi v. Akhtar Hussain 2006 SCR 301 (D)
  3. Guardian is appointed under section 17 while custody is made under section 25 of the Act — According to the provisions of law the Personal Law to which the minor is subjected should be the guide for appointment of a guardian which is further subject to two limitations: (I) the provision of this section (ii) and welfare of the minor — If consideration of the welfare of the minor or the conclusions arrived as a consequence of the guidance in section itself makes it impossible to follow the guideline of Personal Law the same may be abandoned and steps most conducive to the welfare of minor and consistent with the provisions of section have to be taken — If Personal Law of minor is not inconsistent with either of the provisions of this section or the welfare of the minor then it should be followed. Irshad Begum v. Muhammad Haleem & another 2003 SCR 318 (A)
  4. —Section 17—custody of minor— the Court has to consider the character and capacity of the proposed guardian—serious allegation against mother in FIR— such atmosphere cause negative inference against mother for entitlement of custody of minor—such toxic state of affairs lead to an unpeaceful and healthy atmosphere which adversely affects the well-being of the minor— it is the paramount duty of the Court to make sure that the environment in which the minor is to be brought-up is suitable for his health, religious and moral well-being and does not in any way harm his mental and physical health or his religious and moral values. Waheeda Bashir versus Muhammad Munsif Khan 2021 SCR 586 (C&D)
  5. —section 17(3)—appointment of guardian— welfare and best interest of minor, paramount consideration—opinion and preference of minor, aged 11 years, for appointment of guardian- — scope—mother and father, both contracted second marriage— well-being, welfare and best interests of the minors are of paramount consideration.— Section 17, sub-section (3) of the Guardians and Wards Act, 1890, stipulates that the opinion of a minor may be duly considered if the minor is old enough to express an intelligent preference. —The minor, aged 11, affirmed that he resides with his maternal grandmother and mother in harmonious cohabitation, receiving sufficient care and attention, enrolled in a private school and was being properly maintained by his maternal grandmother and mother. In prudent consideration of the minor’s statement, wherein he clearly expressed satisfaction with his custodial arrangement—Supreme Court held that in prevailing scenario, there was no apparent threat to the welfare of the minor if he continues to reside with his grandmother. Notably, the cohabitation of the minor’s mother and maternal grandmother within the same household further ensures his well-being and familial stability. Further held: Consequently, this Court accords significant importance to the minor’s expressed preference and deems it imperative to maintain the present custodial arrangement in the best interest of the minor’s welfare and happiness. We cannot disregard the opinion of the minor, particularly considering his age (11 years) and capacity to form an intelligent preference. Abdul Ghafoor vs Kiran Mukhtair 2024 SCR 425 (A)
  6. Ss. 17 & 25 — While appointing or declaring the Guardian of a minor or handing over the custody of the minor, the paramount consideration would be the welfare of the minor. Bashir Bibi v. Ghulam Rasool and 2 others 2004 SCR 561 (A) 2003 SCR 318 rel.
  7. —Section 17 and 25—custody of minor/guardianship—minor–7 years of age—father contracted second marriage—mother did not contract second marriage—if custody of minor is handed over to the father, he will keep minor with step mother which would not be better for her bright future— minor also opted to live with mother–held: while appointing/ declaring guardian of a minor or handing over custody of minor, the paramount consideration would be the welfare of the minor. Syed Naveed Hussainshah v. Mst. Naznin Mazhar 2022 SCR 125 (A) 2004 SCR 561, 2006 SCR 301, 2014 SCR 572 & 2016 SCR 487 ref
  8. S. 25 – Allegation of bad character should be proved by the cogent evidence so as to disentitle the wife to have the custody of minor children. M. Yunus  v. Sajida Perveen 1994 SCR 7 (A)
  9. S. 25 – Mere fact that the mother of the minor is not financially sound- would not deprive her of the right to seek the custody of minors — father is responsible to maintain his children. Even if they are in the custody of their mother. Muhammad Yunus  v. Sajida Perveen 1994 SCR 7 (B)
  10. S. 25 — While deciding an application for the custody of minors the paramount and predominant consideration is always the welfare of the minors — Under Muhammadan law, the welfare of the minor is presumed in favour of a person, or a party, who is entitled to the custody of the minor. Javed Iqbal v.  Mst. Kalsoom Bi 1996 SCR 33 (B)  1995 SCR 136, PLD 1988 Kar. 252. relied.
  11. S. 25 — Until a female minor attains the age of puberty, i.e. 14 years, the grandmother has the right of “hizanat” of the minor and not his father — In case of the custody of a minor, the female relations have preference over the male relations under Muslim Law. There is also presumption that the welfare of a minor lies if her custody is given to the person who is entitled under personal law, until it is rebutted by some tangible evidence. Liaqat Ali  v. Mst. Janat Bibi 1996 SCR 37 (A)
  12. S. 25 — The welfare of a minor boy of 7 years or more would be presumed with a person who is entitled to the custody under Muslim Law — The aforesaid presumption is however rebutable — If strong circumstances are brought on record which show that in fact that the welfare of minor lies with a person other than the one who is entitled to have the custody of the minor under Personal Law, the Court may refuse the custody to the person who is entitled to it under Muslim Law. Muhammad Ayub v. Muhammad Nasim Begum and another 1996 SCR 148 (A)
  13. S. 25 — Welfare of the minors would be presumed with the person who is entitled to the custody under Muslim Law but the said presumption is rebuttable and if the circumstances are brought on record which tend to show that in fact the welfare of minors lies with a person other than one who is entitled to have the custody of the minors to the person who is entitled to it under Muslim Law. Muhammad Shabbir v.Mst. Zareena Gohar 1996 SCR 178 (A)
  14. An application for appointment of guardian of person and property could be treated to be one under section 25 of the Guardians and Wards Act for the restoration of the custody of the minors. Zakia Khatoon v. Muhammad Hayat Khan & 5 others 1998 SCR 140 (A)
  15. The mere fact that the order of maintenance is in favour of the minors by the Court would not disentitle the person from the custody if he is entitled to it under personal Law. Appeal accepted — Minors given in the custody of father. Shafiq-ur-Rehman  v. Mst. Fazeelat Begum & others 1995 SCR 136 (B) PLD 1988 Kar. 252, 1989 CLC 604, PLD 1952 Pes. 77, NLR 1990 Civ. 351, PLD 1962 Lah. 142, 1981 SCMR 744, 1974 SCMR 305, PLJ 1983 SC (AJ&K) 66, PLJ 1980 SC(AJ&K) 159, 1978 SCMR 299, PLD 1963 Kar. 888, 1984 CLC 345, 1981 CLC 78 referred and relied.
  16. Age of the minor boy — After attainment of the age of 7 years of the minor boy the presumption of the minor lies in favour of father, unless some strong circumstances are brought on record which disentitle the father from the custody of the minor son. Muhammad Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 (C) PLD 1959 W.P. Lah. 470, 1995 SCR 136, Muhammad Ayub Vs. Naseem Begum (Civil Appeal No. 4 of 1994 decided on March 31, 1996), PLD 1962 Lah. 142, PLD 1952 Pesh. 771, PLD 1988 Kar. 252 relied.
  17. The fact that the minor had all along been living with mother and that the father had contracted second marriage would not raise the presumption that minor will not be brought up or educated properly by the father — When the father is not given the chance to rear up his child and to give him the education, it cannot be said that child would not be brought up or educated in an atmosphere conducive to the welfare of the minor. M. Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 (D)
  18. An agreement which is detrimental to the welfare of a minor will not have a binding effect so as to restore the custody of the minor to a person who is not entitled to it under law. Liaqat Ali v. Mst. Janat Bibi 1996 SCR 37 (B)
  19. A private arrangement or settlement entered into between the parties for the welfare of  the minors is always a relevant consideration for deciding the question of custody of  the minors. Muhammad Shabbir v. Mst. Zareena Gohar 1996 SCR 178 (B)
  20. While deciding the matters of the custody of minors, the paramount consideration which the Courts have to consider is the welfare of the minor — Mere contracting the second marriage does not disentitle the parties to get the custody of the minor, however, it varies case to case as each case has its own peculiar circumstances. Held: It is settled principle of law that no order can be passed against the welfare of the minor which is paramount consideration to be considered by the Court being a custodian of the minors. Hafiz Saleem Akbar v. Uzma Kanwal 2015 SCR  1455 (A) 2015 YLR 917 & PLD 1965 Karachi 65 rel.
  21. The contention of the appellant that due to the weak financial condition of the respondent, she is not in a position to maintain the minor in a good environment and provide him better education — Held: the appellant being real father of the minor is legally and morally bound to maintain him even if the minor resides with his mother. Hafiz Saleem Akbar  v. Uzma Kanwal 2015 SCR 1455 (B) 2004 SCMR 821 rel.
  22. The right of the mother or father for the custody of male or female child under the personal law, the paramount consideration in determining the question of custody of minor is always the welfare of the minor — appellant has showed his much concern regarding better education of the minor — willing to get his admission in a well reputed school and shall also bear all the expenditures in this regard — he already deposited a reasonable amount in the bank account of the minor to meet his educational expenditures and the same has not been denied by the respondent — Held: that mere on the ground that the appellant has contracted second marriage, he cannot be deprived of to meet with his son. Hafiz Saleem Akbar  v. Uzma Kanwal  2015 SCR 1455 (C&E)
  23. The statement of the minor that he is not willing to go with his father and wants to live with his mother —Held: we do not compel him to live with his father — Further held: the custody of the minor is always subject to the welfare of the minor. Hafiz Saleem Akbar  v. Uzma Kanwal  2015 SCR 1455 (D)
  24. Custody of the minors — as matter of right — The claim of the appellant is that his daughter, has attained the 18 years of age and his son above 13 years of age, therefore, he deserves to get the custody of the minors under law — Held:  Although, after attaining the age of majority, the father can claim the custody of the minors, however, it is not mandatory that after getting the requisite age limits, the father can get the custody of the minors as the matter of right — Further held: In the matter of the custody of minors, the welfare of the minors is the paramount consideration. Muhammad Yaqoob v. Yasmeen Tahira & others 2015 SCR 1470 (A)
  25. Custody of the minors — contention of the appellant that in case of female, after attaining 13 years of age, the father can claim her custody — Held: The Court has to look into all the other factors involved in the case while deciding the question of custody. Muhammad Yaqoob v. Yasmeen Tahira & others 2015 SCR 1470 (B)
  26. Custody of the minors — Shariat Court while hearing the appeal, sought the consent of the minors whereupon they categorically refused to go with their father — Held: as the minors are not willing to live with their father, therefore, the consent of the minors cannot be ignored keeping in view their welfare and proper look after by the mother. Muhammad Yaqoob v. Yasmeen Tahira & others 2015 SCR 1470 (C,D&E) Muhammad Kaleem ul Fateh vs. Mst. Samina Kousar (Civil Appeal No. 79 of  2010, decided   on   30. 10. 2013)  rel.
  27. Custody of the minors — determination of question of custody of the minors — To determine the question of custody of the minors, weight must be given to the circumstances to be considered for holding whether the welfare of the minors would lie with the mother or with the father. M. Yaqoob v. Yasmeen Tahira & others 2015 SCR 1470 (F) PLJ 2003 SC 1035 & 1995 SCR 136 rel. 
  28. Statements of the minors that they are not willing to go with their father and want to live with their mother — Held: Court cannot compel them to live with their father as the custody of the minors is always subject to the welfare of the minors. M. Yaqoob v. Yasmeen Tahira 2015 SCR 1470 (G) Uzma Rasheed vs. Mudasar Iqbal(Civil Appeal No.  49  of  2012,  decided  on  13. 5. 2013) rel.
  29. Section 12 — powers of Guardian Judge — direction for production of minor in the court — order for temporary custody — order for protection of person and property of minor — matter subjudice before the Guardian and Wards Court — writ of habeas corpus not in interest of justice in circumstances — Under section 12 of the Guardian and Wards Act, 1890, the Guardian Judge is vested with the powers to issue direction for production of minor in the Court. The Guardian Court is also vested with the powers to make such orders for the temporary custody and protection of the person or property of the minor as it thinks proper. In this state of affairs, it is against the interest of justice to simultaneously continue the proceedings in shape of writ of habeas corpus. It may result into handing down the conflicting judgments which ultimately also will lead to multiplicity of litigation and unduly burdening the parties. Aamara Alam v Fida Gul  2016 SCR 908 (B)
  30. Section 17 — custody of minor — The question of the custody of minor has to be determined on the consideration of welfare and interest of the minor. Tahira Zaib v. Ghaffar Ahmed & 2 others 2016 SCR 818 (A)
  31. Section 43 — Disobedience of order — Guardian Judge — Power to enforce orders — Under the provisions of section 43 of the Guardian and Wards Act, 1890, the Court is vested with the powers to enforce its orders in case of disobedience. These powers may be exercised by the court under the provision of Order XXXIX, Rule.1 and 2 of the Civil Procedure Code. There is also some other statutory provision which empowers the court to impose penalty thus under the scheme of law, the Guardian Judge is fully equipped with the powers to meet all the eventualities arise in during the guardianship proceedings. The Court of Guardian Judge is the proper forum to attend all the question arising in the proceedings and resolve the same according to law with independent judicial mind without taking any interference from the observations made in this order Aamara Alam v Fida Gul &  17 others 2016 SCR 908 (C)
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