GURADIAN AND WARD ACT

You
1. The marriage between Sarwar and Rashida was performed on 5.12.2006. The minor Amina,
was born on 31.1.2008. The mother along with minor left the matrimonial home on 9.9.2017.
The father files a petition before the Guardian Court for the custody of minor. During the
pendency of the main case the father also files application for the interim custody of the minor.
Write an order on the application for interim custody of the minor. (CJ 2017)
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[Your Name] [Your Designation] [Date]

[Address of the Guardian Court]

In the Guardian Court

Case No: [Insert Case Number] Petitioner: [Insert Father's Name] Respondent: [Insert
Mother's Name]

Order on Application for Interim Custody of the Minor

This matter came before this Honorable Court on [Date], on an application filed by the
petitioner, [Father's Name], seeking interim custody of the minor, Amina, during the pendency
of the main case for the permanent custody of the said minor.

After careful consideration of the facts presented, the submissions of both parties, and the best
interests of the minor, the following order is issued:

1. Temporary Custody: The Court hereby grants temporary interim custody of the minor, Amina,
to the petitioner, [Father's Name], during the pendency of the main case for the permanent
custody.
2. Visitation Rights: The respondent, [Mother's Name], shall be entitled to reasonable visitation
rights. The specific visitation schedule and arrangements shall be determined by mutual
agreement between the parties or, in the event of a disagreement, as may be further ordered by
this Court.
3. Child Support: The petitioner is directed to continue providing financial support for the well-
being and upbringing of the minor, Amina, during the period of interim custody. The
respondent may seek adjustments or modifications through appropriate legal channels if
required.
4. Education and Medical Care: The petitioner shall ensure that the minor's educational and
medical needs are adequately addressed during the period of interim custody. Both parties are
encouraged to communicate and cooperate in making decisions concerning the minor's welfare.
5. Periodic Review: This interim custody order is subject to periodic review by the Guardian Court,
and adjustments may be made based on changes in circumstances or if it is deemed necessary
for the welfare of the minor.
6. Next Hearing: The next hearing for the main case for permanent custody is scheduled for
[Date]. Both parties are instructed to cooperate with the Court's directives and adhere to any
further orders issued in the main case.

This order is hereby issued on [Date].

[Judge's Signature] [Judge's Name] [Designation] [Guardian Court]

You
according to guardian and ward act 1890, Are the alienations valid in the following instances: (1)
A Muhammedan mother appointed guardian by the Court sells house belonging to her ward,
with the Court's sanction. (CJ 2019) (ii) A Muhammedan mother, the de facto guardian of her
minor son, sells Immovable property belonging to her ward in order to pay off a pre-existing
mortgage of the property. Give reasons for your opinion.
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The Guardian and Wards Act, 1890, provides a framework for the appointment of guardians for
minor children and regulates the rights and powers of guardians. The Act is applicable to
children of all religions, and in the instances you've provided, where the parties involved are
identified as Muhammedan (Muslim), the general principles of the Act would apply.

Let's examine the validity of the alienations (sales) in the given instances:

(1) A Muhammedan mother appointed guardian by the Court sells a

house belonging to her ward, with the Court's sanction:

Opinion: The alienation is likely to be valid.

Reasons:

1. Court Sanction:
 The fact that the sale is conducted with the Court's sanction adds a significant layer of
legal approval. When the Court grants permission for such transactions, it ensures that
the sale is in the best interests of the minor and is conducted in a lawful manner.
2. Guardian's Authority:
  The appointment of the mother as the guardian by the Court gives her the legal
authority to act on behalf of the minor. As long as the sale is in the best interests of the
minor, the Court's approval would likely validate the transaction.

(ii) A Muhammedan mother, the de facto guardian of her minor son,

sells immovable property belonging to her ward to pay off a pre-
existing mortgage of the property:

Opinion: The alienation may be valid, but it depends on various factors.

Reasons:

1. De Facto Guardian:
 The mother, being the de facto guardian, has certain powers, but these powers are not
as extensive as those of a guardian appointed by the Court. The validity of the sale would
depend on whether her actions are deemed to be in the best interests of the minor.
2. Necessity and Benefit to the Minor:
 If the sale is necessary to pay off a pre-existing mortgage and is beneficial for the
minor's welfare, it may be considered valid. The principle of necessity is often crucial in
determining the validity of alienations by guardians.
3. Court Approval (if applicable):
 If the Court has previously sanctioned the sale or if the de facto guardian seeks Court
approval before the sale, it would add legitimacy to the transaction.

In both instances, the key consideration is whether the alienation is in the best interests of the
minor. The Guardian and Wards Act, 1890, emphasizes the welfare of the minor as a paramount
consideration in matters concerning guardianship and alienation of the minor's property. If the
actions of the guardian, whether appointed by the Court or acting de facto, align with the best
interests of the minor, the alienations are more likely to be considered valid. However, seeking
Court approval and ensuring that the sale is necessary and beneficial for the minor's welfare
would strengthen the legal validity of the transactions.

You
Marriage between A and B was dissolved through a suit for Dissolution of Marriage filed by A
against B. A retains custody of the minor daughter born out of the wedlock. After six months, A
marries D. B on attaining knowledge of the said fact files at guardian petition for obtaining
custody of his minor daughter. During the proceedings, B proves before the court that A has
contracted marriage with a person not related to the minor( second husband relation with
daughter fall in the prohibited degree ). (Note: B has not contracted his second marriage). Talk
through and discuss the fate of this guardian petition of B under the relevant law.
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The situation you've described involves the dissolution of marriage between A and B, with A
retaining custody of the minor daughter born out of the wedlock. Subsequently, A enters into a
second marriage with D. B, upon learning about A's second marriage, files a guardian petition
seeking custody of his minor daughter. During the proceedings, B provides evidence that A's
second husband is not related to the minor daughter and that the relationship falls within the
prohibited degree.

In such a scenario, it's important to consider the relevant legal provisions, and here are some
points to discuss:

1. Guardianship and Custody:

 In matters of guardianship and custody, the court's primary consideration is the welfare of the
child.

2. Prohibited Degree of Relationship:

 The term "prohibited degree of relationship" typically refers to relationships that are considered
incestuous or unlawful. Laws vary across jurisdictions, but generally, marriages within certain
degrees of consanguinity are prohibited.

3. Impact of A's Second Marriage:

 A's second marriage may be a factor considered by the court in assessing the overall situation,
especially if the relationship is deemed to fall within the prohibited degree.

4. Welfare of the Child:

 Courts prioritize the best interests and welfare of the child in custody matters. The fact that A
has entered into a second marriage may not necessarily be detrimental to her ability to provide
a stable and nurturing environment for the child.

5. Legal Implications of Prohibited Degree:

 If the court determines that A's second marriage falls within a prohibited degree of relationship
with the minor daughter, it may have legal implications. In some jurisdictions, such a relationship
may be considered void, potentially impacting the custody arrangement.

6. Impact on B's Guardian Petition:

 The success of B's guardian petition may depend on various factors, including the laws of the
jurisdiction, the evidence presented, and the court's determination of what is in the best
interests of the minor.

7. Possibility of Custody Modification:

 If the court finds that A's second marriage is contrary to the welfare of the child, it may consider
modifying the custody arrangement to ensure the child's best interests are served. This could
include granting custody to B or another suitable guardian.

8. Legal Representation:

 Both parties involved (A and B) should seek legal representation to present their cases
effectively and navigate the legal complexities associated with custody matters.

Conclusion:

The outcome of B's guardian petition depends on various factors, including the jurisdiction's
laws, the court's assessment of the best interests of the child, and the specific circumstances of
the case. Legal advice from a family law attorney familiar with the relevant jurisdiction's laws is
crucial for both parties to understand their rights and responsibilities in the context of custody
and guardianship.

You
Whether subsequent marriage of the mother of the minor daughter would result in mother's per
se disqualification to claim custody on the premise that subsequent husband, being stranger to
the daughter, does not fall within the prohibited degree of relationship. Do you support or
oppose the grant of custody to the mother. Support your respective opinion(s) in the context of
the guidelines prescribed under section 17 of the Guardian & Wards Act 1890 and judicial
pronouncements by the constitutional courts on the subject.
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The question of whether the subsequent marriage of the mother would result in her per se
disqualification to claim custody of the minor daughter involves legal and factual considerations.
The Guardian and Wards Act, 1890, governs matters related to guardianship and custody of
minors in Pakistan. Section 17 of the Act provides guidance on the factors that a court should
consider when determining the welfare of the minor. Additionally, judicial pronouncements by
constitutional courts may provide further guidance.

Opposing Grant of Custody to the Mother:

1. Prohibited Degree of Relationship:

  If the subsequent husband of the mother is considered a stranger to the minor daughter
and does not fall within the prohibited degree of relationship, this may be a factor
considered by the court.
2. Section 17 of the Guardian & Wards Act, 1890:
 Section 17 of the Guardian & Wards Act, 1890, emphasizes the welfare of the minor as
the paramount consideration. If the subsequent marriage and the relationship with the
stepfather are deemed detrimental to the minor's welfare, the court may consider this in
the custody decision.

Supporting Grant of Custody to the Mother:

1. Welfare of the Minor:

 The primary consideration under Section 17 is the welfare of the minor. The court will
assess whether the mother is capable of providing a stable, nurturing, and wholesome
environment for the child, taking into account the entire family structure.
2. Presumption in Favor of the Mother:
 Many legal systems, including those influenced by Islamic law, have a presumption in
favor of granting custody to the mother, especially for minor daughters of tender age,
unless there are compelling reasons to the contrary.
3. Judicial Pronouncements:
 Judicial pronouncements in family law matters often emphasize the best interests and
welfare of the child as the guiding principle. Courts may consider factors such as the
mother's ability to provide emotional support, financial stability, and a conducive
environment for the child's overall development.
4. Consideration of All Relevant Factors:
 Courts generally consider a range of factors, including the mother's remarriage, in the
context of the child's well-being. The mere fact of a subsequent marriage may not per se
disqualify the mother; instead, the court may assess the impact of the remarriage on the
child's welfare.

Conclusion:

The decision on custody is highly fact-specific and depends on the unique circumstances of
each case. While the subsequent marriage of the mother may be a factor for consideration, it is
not necessarily a per se disqualification. The court must weigh all relevant factors, guided by the
principles outlined in Section 17 of the Guardian & Wards Act, 1890, and any applicable judicial
pronouncements. The overriding consideration should be the best interests and welfare of the
minor, and decisions should be made in a manner that promotes the child's overall well-being.

You
A marries B and has two children therefrom. A and B acquired foreign nationality and children also
acquired foreign nationality. A later divorced B. A along the children flew to Lahore to meet her
 parents. A is settled in Lahore after divorcing B, A approached the guardian judge and seeks custody
of the minors on the premise that children are ordinarily residing within the territorial jurisdiction of
the Guardian Judge. And to substantiate the factum of ordinary residency of the minors, A provided
airline tickets and pleaded entry endorsement at the Lahore Airport. House of the parents of B is
within the territorial jurisdiction of the Guardian Court. B objects to the jurisdiction of the Guardian
Judge at Lahore, claiming that children are not residing with the jurisdiction of the Court. Give
judgment qua the objections to the maintainability of petition.
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The determination of jurisdiction in family law matters, particularly in child custody cases, involves
assessing the residence of the children. In this scenario, where A is seeking custody of the minors
from the Guardian Judge in Lahore, and B objects to the jurisdiction, the judgment would depend on
the specific circumstances and the legal provisions of the jurisdiction.

1. Airline Tickets and Entry Endorsement:

 The fact that A provided airline tickets and entry endorsements at Lahore Airport suggests
that A and the children were physically present in Lahore. This could be considered evidence
of their temporary residence within the jurisdiction.
2. Ordinary Residency:
 While the children may have acquired foreign nationality, the concept of ordinary residency
is not solely determined by nationality but involves the habitual residence or place of regular
abode. If A can establish that Lahore is the ordinary residence of the children, it strengthens
the claim for jurisdiction.
3. Guardian Judge's Territorial Jurisdiction:
 The Guardian Judge's jurisdiction is typically based on the ordinary residence of the minors. If
the children are found to be ordinarily residing in Lahore, the Guardian Judge in Lahore
would likely have jurisdiction over matters related to their custody.
4. Objection by B:
 B's objection to the jurisdiction would need to be supported by evidence that the children
are not residing within the territorial jurisdiction of the Guardian Judge in Lahore. The mere
objection itself may not be sufficient without factual backing.
5. House of B's Parents:
 The location of B's parents' house within the jurisdiction of the Guardian Court might be
relevant, but the key consideration is the actual residence of the minors.

Judgment on Jurisdiction:

 If A successfully demonstrates that the children are ordinarily residing in Lahore, the Guardian Judge
in Lahore likely has jurisdiction over the custody matter.
 B's objection would need to be supported by concrete evidence that the children's ordinary
residence is outside the jurisdiction of the Guardian Court in Lahore.

Ultimately, the judgment would hinge on the specific facts presented, and the Guardian Judge would
need to carefully assess the evidence and legal arguments before determining the maintainability of
 the custody petition in Lahore. Legal advice should be sought to navigate the complexities of family
law and jurisdiction in this context.

You
Whether subsequent marriage of the mother of the minor daughter would result in mothers per se
disqualification to claim custody on the premise that subsequent husband, being stranger to the
daughter, does not fall within the prohibited degree of relationship. Do you support or oppose the
grant of custody to the mother. Support your respective opinion(s) in the context of the guidelines
prescribed under section 17 of the Guardian & Wards Act 1890 and judicial pronouncements by the
constitutional courts on the subject.
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In determining custody matters, the primary consideration is the welfare and best interests of the
child. The subsequent marriage of the mother alone does not per se disqualify her from claiming
custody. The Guardian and Wards Act 1890 in Section 17, along with judicial pronouncements,
emphasizes the paramount consideration of the child's welfare. Therefore, I don't support an outright
disqualification solely based on the mother's subsequent marriage.

Support for Granting Custody to the Mother:

1. Guardian and Wards Act 1890, Section 17:

 Section 17 of the Guardian and Wards Act focuses on the welfare of the minor. It considers
various factors, including the age, sex, and religion of the minor, as well as the character and
capacity of the proposed guardian. The subsequent marriage of the mother is not expressly
mentioned as a disqualifying factor.
2. Best Interests of the Child:
 Courts generally prioritize the best interests of the child in custody decisions. If the mother's
subsequent marriage is not detrimental to the child's welfare and the stepfather is a
responsible and caring individual, it may not be a valid reason to disqualify the mother.
3. Constitutional Courts' Pronouncements:
 Judicial decisions often affirm the importance of the child's welfare and consider each case
on its merits. There may be instances where the mother's remarriage is deemed beneficial for
the child's overall development and well-being.

Opposition to Disqualification Based on Subsequent Marriage:

1. Welfare as the Paramount Consideration:

 The Guardian and Wards Act explicitly places the welfare of the minor as the paramount
consideration. If the mother's remarriage contributes positively to the child's welfare, it
should be weighed in the overall assessment.
2. Absence of Explicit Disqualification:
 The Act does not specifically disqualify a mother based on subsequent marriage. The focus
remains on the child's welfare and the capacity of the proposed guardian, which includes
assessing the impact of any changes in the mother's circumstances.
3. Individual Case Assessment:
 Each case is unique, and the circumstances surrounding the mother's remarriage need to be
considered in the specific context of the child's well-being.

In conclusion, while the subsequent marriage of the mother is a factor to be considered, it should
not result in an automatic disqualification. The courts, following the guidelines of Section 17 of the
Guardian and Wards Act and considering the best interests of the child, should assess the impact of
the mother's remarriage on the child's welfare before making a custody determination.