How Has Guardianship Law Evolved In Pakistan Over Time?
Guardianship Law In Pakistan has undergone significant evolution since the country’s inception in 1947. This evolution reflects a broader shift from rigid colonial-era legislation and traditional interpretations of Islamic jurisprudence to a more child-centric and welfare-oriented legal framework. The transformation has occurred through legislative continuity, judicial interpretation, and changing societal values, particularly concerning the rights of women and children.
1. Colonial Foundations: The Guardians and Wards Act, 1890
The foundation of guardianship law in Pakistan lies in the Guardians and Wards Act, 1890, a British colonial statute that still serves as the core legal instrument in guardianship matters. This Act established a uniform system for appointing and supervising guardians for minors, regardless of religious background. It gave courts the authority to appoint guardians based on the “welfare of the minor,” a principle that has continued to guide guardianship cases to this day.
However, the Act did not override personal religious laws. For Muslims, Islamic jurisprudence was and continues to be applied alongside the Act, particularly in matters of custody, inheritance, and the rights of mothers and fathers.
2. Post-Independence Continuity and Islamic Influence
After gaining independence, Pakistan retained the Guardians and Wards Act without significant legislative amendments. However, Pakistani courts increasingly infused guardianship law with Islamic principles. Islamic law draws a distinction between hizanat (custody) and wilayat (guardianship), often granting custody to the mother and guardianship (especially over property) to the father or male relatives.
In the early decades after independence, this dual system remained largely patriarchal. Courts were inclined to favor male guardianship and adhered to traditional interpretations that limited the legal authority of mothers, especially over a child’s property.
3. Emergence of the “Welfare of the Minor” Principle
One of the most important developments in the evolution of Guardianship Law In Pakistan is the growing emphasis on the “welfare of the minor” as the paramount consideration. This principle, initially embedded in Section 17 of the Guardians and Wards Act, has been greatly expanded through judicial interpretation.
Courts began to assert that the welfare of the child could override traditional preferences for paternal guardianship. For instance, in various High Court and Supreme Court decisions, custody and even guardianship of property have been granted to mothers or maternal grandparents when the father was absent, abusive, or financially incapable.
This marked a gradual but critical shift away from rigid gender roles toward a more equitable, welfare-focused guardianship system.
4. Progressive Judicial Trends
Over the years, the judiciary in Pakistan has adopted a more progressive stance in guardianship cases. Courts have broadened the definition of what constitutes “welfare,” considering emotional well-being, education, environment, and moral upbringing—not just financial security or lineage.
Judicial decisions have also:
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Recognized the capacity of women (especially mothers) to be legal guardians of their children’s property.
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Expanded the role of the minor’s preference in guardianship decisions, especially for children above the age of 7 or 9.
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Held absentee or negligent fathers as unfit for guardianship, regardless of their natural rights under Islamic law.
5. Societal Change and Modernization
Evolving societal norms in Pakistan—such as the increased participation of women in the workforce, rising divorce rates, and greater public awareness of child rights—have influenced the application of guardianship law.
Family courts, established under the Family Courts Act, 1964, have played a crucial role in addressing guardianship issues more expeditiously and sensitively. The presence of female judges and child welfare committees in family court settings has also contributed to more balanced and child-focused outcomes.
Conclusion
The evolution of guardianship law in Pakistan by Hamza & Hamza Law Associates reflects a dynamic interplay between colonial legal heritage, Islamic jurisprudence, and modern judicial activism. While the Guardians and Wards Act, 1890 remains the primary statutory instrument, the interpretation and application of the law have changed significantly over time. Today, the welfare of the minor stands as the guiding principle in all guardianship matters, demonstrating Pakistan’s gradual yet meaningful shift toward a more child-centric and equitable legal system.
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