CUSTODY LAW IN PAKISTAN
CUSTODY OF MINOR
GUARDIAN AND WARD
KINDS OF GUARDIAN
INTRODUCTION:
In Muslim
Law, as in almost every system of law, the father is the natural guardian of
the person and property of his minor child. The mother and other female
relatives of the minor have, however, been given certain rights of custody
known as Hizanat.
Under the Hanafi Law, the mother is not entitled to the custody of a male child until he attains the age of seven years and of a female child until puberty. During the period that the child is in the custody of the mother or other female relatives, the father’s supervision of the child continues, as the burden of providing maintenance rests exclusively on the father. In other words, the father remains in constructive and legal custody of the child even though its physical or actual custody rests with the mother or other female relatives.
GUARDIAN
A “Guardian” is defined as any person who has the care of the person of a minor and in this sense, even a mother, who has only custody of the child is its guardian.
WARD
“Ward” means
a minor for whose person or property or both there is the guardian.
KINDS OF GUARDIAN
1. NATURAL GUARDIAN
On the death of the father of a minor mother becomes natural as well as legal
guardian of the minor.
2. De facto guardian
De facto guardian has no power to transfer any right or interest of
immovable property of the minor.
The following persons are entitled in the order mentioned below to be the
guardian of the property of a minor:
i.
The
father
ii.
The executor appointed by the father’s will;
iii.
The
father’s father
iv.
The executor appointed by the will of the father’s father
De facto guardian is
merely a custodian of the person and property of the minor and has no power to
transfer any right or interest in the immovable property of the minor.
3. Testamentary guardians
4. Certificated guardian
PERSONS WHO CAN APPLY FOR APPOINTMENT OF
GUARDIAN
1. Person who wishes to be appointed or
a person claiming to be the guardian of the minor.
2. Any relative or friend of the minor
3. The collector of the district or another local area within which the minor
ordinarily resides or which he has property or
4. The collector has the authority
concerning the class to which the minor belongs.
For the appointment of
guardian Age, Sex, Religion, Capacity, kinship, wishes of a minor, personal law
of the minor, wishes of the deceased parents of the minor, and character of the guardian to
be considered
WHO CAN BE THE GUARDIAN OF A PERSON
Under Hanafi law in the case of a son below seven years of age and of a
daughter below the age of puberty following persons are entitled to the custody
1. Mother
2. Mother’s mother how high -so-ever
3. Father’s mother how high-so-ever
4. Full sister
5. Uterine mother
6. Consanguine sister full sister’s
daughter
7. Uterine sister’s daughters
8. Maternal aunts
9. Paternal aunts
10.
Paternal
aunts of mother and father
In absence of them
following female paternal relation shall have entitlement
1. Father
2. Paternal grandfather
3. Full brother
4. Consanguine brother
5. Full brother’s son
6. Consanguine brother’s son
7. Full paternal uncle
8. Consanguine paternal uncle
9. Full paternal uncle’s son
10.
Consanguine
paternal son
In the absence of them
following relatives shall have entitlement:
i.
Uterine
brother
ii.
Uterine
brother’s son
iii.
Father’s
uterine brother
iv.
Maternal
uncle
v.
Mother’s
uterine brother