JUDGEMENT SHEET

IN THE ISLAMABADHIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

Writ Petition No. 2383/2021

Ahmed Bilal
Vs.
Khurram Javed

PETITIIONER BY: Mr. Muhammad Waqas Ali Malik,

Advocate.

RESPONDENT BY: Raja Yasir Shakeel Janjua and Mr.

Muhammad Aamir Naeem,
Advocates.
Ms. Hadiya Aziz, Advocate (amicus)

DATE OF HEARING: 28.02.2022.

========================================

BABAR SATTAR, J.- One of the most daunting

challenges of parenthood is to reach decisions regarding how

best to raise your children so they grow up to be sane, happy

and conscientious individuals. Even harder is for anyone to

decide wherein lies the best interest of the child of another. That

is what Family Courts are obliged to do while deciding

guardianship applications when parents who brought children

into the world either split up or pass away.

2. The decision regarding the welfare of a child sometimes

seems akin to crystal ball gazing. And this is exactly why it can

neither be left to a pre-determined formula applied as a straight-

jacket nor the whims of a court. It requires the exercise of

solemn judgment by the court in view of relevant considerations

guided by hard facts, scientific research and expert option.

3. While deciding guardianship requests in the 21st

century, we are still working with the roles assigned to genders

W.P No.2383 of 2021 Page |2

in a patriarchal society, in disregard of studies carried out to

determine what impacts the well-being of children during their

early years leading into their youth, and without relying on the

advice of professionals such as child psychologists and

psychiatrists. Judges are not professionals trained in determining

the means for optimally promoting child welfare within broken or

divided families. And yet they are required to do so without any

expert advice being made available to them while making

consequential decisions that have a major impact on shaping the

sense of self and identity of a young person.

4. This case involves the future of a young girl (Meher

Fatima) who lost her mother to epilepsy when she was barely

two years old. At the time when her mother was unwell and

subsequently in hospital, she was at the house of her maternal

grandmother being looked after by her maternal family,

including a maternal uncle and unmarried aunt along with the

grandmother. When her mother passed away at the hospital, her

father and her maternal family were beside her mother.

5. The dispute regarding the child’s guardianship arose

three months after the mother’s demise when her maternal

family (“Respondents”) refused to hand over her physical

custody to her father (“Petitioner”). The petitioner filed a

section 491 application before the Sessions Court to regain

custody. The court ruled that this was not a case of abduction

and the correct course of action for the father would be to

initiate proceedings under the Guardians and Wards Act, 1890

(“Guardians Act”).
W.P No.2383 of 2021 Page |3

6. The father brought an action under the Guardians Act

seeking custody of his daughter. The Respondents contested the

claim and argued that the maternal grandmother and maternal

uncle were more educated and better placed to secure the

welfare of the Petitioner’s daughter. The demise of a loved one

can either bring families (tied by the bond of marriage) together

or draw them apart. In this unfortunate case the latter

happened.

7. The Petitioner claimed that he loved his wife and was by

her side till the very end. He claims that he loves his daughter

and while the child has already lost her mother, she should not

be made to lose her father and be made an orphan while her

father is still alive and ready, willing and able to provide for her

and raise her in a happy home where her paternal family lives.

8. The Respondents claimed that the Petitioner abandoned

his wife when she was sick and that they have raised the

Petitioner’s daughter ever since she was born. They claim that

the petitioner has only passed his intermediate and is engaged in

private business and cannot cater for the educational needs of

his daughter like they can. That the Petitioner married again

almost nine months after his first wife’s demise and lives in a 5-

marla house with his parents and siblings which is not the best

environment to raise his daughter.

9. The Petitioner on the other hand alleges that it was the

Respondents who were attending a family wedding in Lahore,

when his first wife was in hospital and close to her end. He

asserts that the child’s maternal grandmother has a second

W.P No.2383 of 2021 Page |4

husband who works in the Middle East and provides for the

home she lives in but does not own. In contrast, he lives in a

family-owned home. The Petitioner asserts that the maternal

uncle of his daughter has his own wife and kids and cannot love

or look-after his daughter as her biological father can.

10. The learned Family Court found in favour of the

Respondents on the basis that the Petitioner had re-married,

that the Respondents were better educated and had looked after

the Petitioner’s daughter when her mother was sick and in the

hospital, and that the maternal grandmother was to be given

preference in a custody disagreement according to the treatise

written by Dinshah Mulla. The Additional District Court endorsed

the judgment of the learned Judge Family Court.

11. The learned counsel for the petitioner contended that

the Petitioner had neither abandoned her daughter nor was

otherwise unfit to be a guardian. And while he was alive and not

unfit or unwilling to be the guardian of his own daughter, no

other relative could be appointed the guardian or custodian of

the child merely because her mother had passed away. He

submitted that in the absence of any evidence of the Petitioner

being unfit to be his daughter’s guardian, the courts had handed

over custody of his daughter to the maternal grandmother and

maternal uncle in disregard of provisions of the Guardians Act.

12. The learned counsel for the Respondents supported the

impugned judgments. He submitted that the learned Family

Court and the appellate Court had exercised their discretion

W.P No.2383 of 2021 Page |5

judiciously to grant custody of Meher Fatima to the Respondents

as they were better placed to ensure the welfare of the child.

13. The questions that arise for the consideration of this

Court are the following:

(i) Can a relative be declared the guardian of a child

whose father is alive and not unfit or incapable of
being the guardian of such child?

(ii) Can custody of a minor be awarded to a relative,

whose mother is not alive, without declaring such
relative a guardian, when the father is alive and
remains the guardian?

(iii) Is there any evidence in the instant case on the

basis of which it can be concluded that the
Petitioner is unwilling, incapable or unfit of being
the guardian of his daughter?

14. Let us take into account the jurisprudence produced in

relation to consideration for award of guardianship before we

turn to the scheme of the Guardians Act.

I. In Zohra Begum Vs. Maimuna Khatun (PLD 1965

Dacca 290) reliance was placed on Mst. Siddiqunnisa
Bibi Vs. Nizamuddin Khan (AIR 1932 All. 215) where it
was held that while appointing a guardian under section
17 of the Guardian and Wards Act, “the personal law of
the minor concerned is to be taken into consideration,
but that law is not necessarily binding upon the Court,
which must look to the welfare of the minor consistently
with law”. And that, “personal law can be ignored if the
welfare of the minor requires that someone else, even
inconsistently with that law, is the more proper person
to be appointed guardian of the minor." In Zohra
Begum it was held that “the Court, having regard to
the provision of the Mohammedan Law and also the
welfare of the minor, should appoint a guardian and not
W.P No.2383 of 2021 Page |6

blindly merely because a mother has a preferential right

or merely because a mother has lost her preferential
right after having taken a second husband…”

II. Mst. Fahmida Begum Vs. Habib Ahmed (PLD 1968

Lahore 1112.

It was reemphasized that welfare of the minor was the

dominant consideration in appointing guardian under
sections 17 and 25 of the Act sans availability of
Quranic or Traditional Text or Ijma on a point of law, if
there is difference of opinion between A'imma and
Faqihs, a Court may form its own opinion on the point of
law.

III. In Rahimullah Choudhury Versus Helali Begum

(1974 SCMR 305) it was clarified that “Welfare being a
question of fact will, therefore, have to be resolved on
the material placed before the Guardian Judge and not
on the basis of any presumption” and that, “the
question to be decided under section 25 is, however,
not the right of the guardian to obtain the custody of
the ward as that right is given to him by the statute but
the welfare of the ward. A natural or certificated
guardian may turn out to be an undesirable person or
the Court may find it not for the welfare of the minor to
deliver him into the custody of the guardian. It is,
therefore, provided specifically that although the
guardian is entitled to such custody no order will be
made to that effect unless the Court is satisfied that it
will be for the welfare of the ward.“

IV. In Imtiaz Begum Versus Tariq Mahmood (1995

CLC 800) the learned Lahore High Court held that the
“right of Hizanat is to be exercised by the females at
one time and at another time this vests in the males”.
With all due respect, it appears to an outdated view
neither rooted in law nor in any considered concept of
the welfare of minor, but instead in a patriarchal
conception of gender roles to be performed by the two
sexes. In this case the custody of a minor boy was
handed over to the father essentially on the ground that
he was more than seven-years old. “Such ground alone
was sufficient for giving minor boy in custody of father”
W.P No.2383 of 2021 Page |7

it was held by the learned Lahore High Court. With

respect, this Court is not inclined to heed such opinion.
The welfare of a child cannot be determined in some
mathematical fashion based on proxy factors such as
the clock striking a certain hour and a child reaching a
certain age. Welfare of a child cannot hinge on lazy use
of proxy factors without taking into account the sum-
total of the facts and circumstances that would impinge
on the child’s welfare, sanity and happiness.

V. Mst. Nighat Firdous Vs. Khadim Hussain (1998

SCMR 1593)

The august Supreme Court dealt with a case where the

minor’s mother died when he was 15 days old and he
was brought up by his maternal aunt. The question of
guardianship came up when the child reached the age of
seven. It was reiterated that “welfare of the minor is the
paramount consideration in determining the custody of
a minor” and further held that, “the right of the father
to claim custody of a minor is not an absolute right, in
that, the father may disentitle himself to custody on
account of his conduct, depending upon the facts and
circumstances of each case.” In the circumstances of
the case the august Supreme Court found that welfare
of the minor, about 15 years old at the time, lay with
the maternal aunt retaining his custody.

VI. In Mst. Firdous Iqbal Vs. Shifaat Ali (2000 SCMR

838) it was held that “the custody of a minor can,
however, be delivered by the Court only in the interest
of the welfare of the minor and not the so-called right of
one parent or another. It is true that a Muslim father is
the lawful guardian of his minor child and is ordinarily
entitled to his custody provided it is for the welfare of
the minor. It would, thus, be noticed that right of the
father to claim the custody of a minor son is not an
absolute right, in that, the father may disentitle himself
to custody on account of his conduct…” The Court found
that the father had neglected the child since separation
of spouses, and had remarried, and being in army would
not be present in the house where he proposed to lodge
his son. And the minor son would be at the mercy of the
W.P No.2383 of 2021 Page |8

step-mother. It was found that welfare of his child was

in staying with the mother, who had also remarried.

VII. In Khan Muhammad Vs. Mst. Surrayya Bibi (2008

SCMR 480) it was held that the right of father to
custody, being the natural guardian, would be subject to
the child’s welfare.

VIII. In Nasir Raza Vs. Addl. District Judge (2018 SCMR

590) the mother of the children had died and they had
been raised by their maternal grandmother. The
guardian court awarded guardianship to the father. The
High Court reversed the decision. And the apex Court, in
view of the facts and circumstances of the case, held
that the welfare of the children lay in being raised by
the father. And that as the minors had developed an
emotional bond with the grandmother, such bond ought
to be preserved with regular visitation rights for
grandmother.

15. Let us turn to the provisions of the Guardians Act.

Section 4(2) defines the term guardian as “a person having the

care of the person of a minor or his property, or of both his

person and property”. It must be pointed out that anyone having

the care of the person of the minor is defined as a guardian and

the word custody or custodian is not a term defined by the

Guardians Act. The word custody is used in sections 12 and 24 of

the Guardians Act while empowering the court to require a

person having the custody of the person to produce the minor

before the court and for purposes of making temporary custody

arrangement in relation to the minor pending adjudication of a

guardianship claim before the Court. There is no other provision

in the Act which contemplates the award of custody of the minor

on a permanent or semi-permanent basis to a person who is not

otherwise appointed as a guardian of the minor.

W.P No.2383 of 2021 Page |9

16. Section 7 of the Guardians Act empowers the court to

appoint a person as a guardian of the person or property of a

minor. And it provides for the removal of any other person, by

implication, who has not been appointed guardian of the minor

by the court. The paramount consideration for making such

appointment of the guardian is the welfare of the minor.

Pursuant to section 7, the court has the authority to appoint a

person as the guardian of the person of the minor or the

property of the minor or both.

17. Section 15 of the Guardians Act contemplates

appointment of several guardians in relation to a minor at the

same time. Section 15 states the following:

15. Appointment or declaration of several guardians.

(1) If the law to which the minor is subject admits of this
having two or more joint guardians of his person or property,
or both, the Court may, if it thinks fit, appoint or declare
them.

(2) & (3) Omitted by the Federal Laws (Revision and

Declaration) Ordinance, XXVII of 1981.

(4) Separate guardians may be, appointed or declared of the

person and of the property of a minor.

(5) If a minor has several properties, the Court may, if it

thinks fit, appoint or declare a separate guardian for any or
more of the properties.

There is scant jurisprudence in relation to section 15. But the

language clearly conceives of joint guardianship for the person of

the minor as well as multiple guardians for the person and for

the property of the minor, if the situation so requires.

W.P No.2383 of 2021 P a g e | 10

18. Section 19 places limitations upon the powers of the

court to appoint a guardian for the person or the property of the

minor and states the following:

19. Guardian not to be appointed by the Court in

certain cases. Nothing in this Chapter shall authorise the
Court to appoint or declare a guardian of the property of a
minor whose property is under the superintendence of a
Court of Wards or to appoint or declare a guardian of the
person--

(a) of a minor who is a married female and whose husband is

not in the opinion of the Court, unfit to be guardian of her
person, or

(b) of a minor whose father is living and is not in the opinion

of the Court, unfit to be guardian of the person of the minor,
or

(c) of a minor whose property is under the superintendence

of a Court of Wards competent to appoint a guardian of the
person of the minor.

Relevant for our present purposes is subsection (b) of section

19, which will be discussed later in this opinion.

19. Section 25 provides the mechanism to seek the

recovery of the ward who has been removed from the custody of

the guardian and states the following:

25. Title of guardian to custody of ward. (1) If a ward

leaves or is removed from the custody of a guardian of his
person, the Court, if it is of opinion that it will be for the
welfare of the ward to return to the custody of his guardian,
may make an order for his return, and for the purpose of
enforcing the order may cause the ward to be arrested and
to be delivered into the custody of the guardian.

(2) For the purpose of arresting the ward, the Court may
exercise the power conferred on a Magistrate of the First
W.P No.2383 of 2021 P a g e | 11

Class by Section 100 of the Code of Criminal Procedure,

1898 (Act V of 1908).

(3) The residence of a ward against the will of his guardian

with a person who is not his guardian does not of itself
terminate the guardianship.

Section 25(1) provides the mechanism through which a guardian

can seek to re-acquire the custody of the ward and section 25(3)

clarifies that a ward being removed from the custody of the

guardian against the guardian’s will does not result in automatic

termination of guardianship.

20. Other than the Guardians Act also relevant for our

present purposes is Islamabad Capital Territory Child Protection

Act, 2018 (“ICT Child Protection Act”), pursuant to which the

State has undertaken to discharge its obligation to uphold the

life, liberty and dignity of the child guaranteed by Articles 9 and

14 of the Constitution. It vests in the State the power to take

away a child even from the custody of his/her parent where the

child is at the risk of significant harm, abuse or exploitation while

in the care of his or her biological parents. Section 2(m) of the

said Act defines guardian as a person “other than a biological

parent who has parental responsibility for a child, which may

include a guardian appointed under the Guardians and Wards

Act, 1890”. The other relevant provisions of the ICT Child

Protection Act which places restrictions on the exercise of

parental custody and control over a child and vests powers in the

State to assume the custody of the child who is at the risk of

significant harm, abuse or exploitation, includes the following:

W.P No.2383 of 2021 P a g e | 12

4. Restriction on parental custody. - The Court may

restrict the exercise of parental custody and control of a child
when,-

(a) a child is at risk of significant harm and is in need of

care;

(b) a child is subject of a child care plan; or

(c) a child is subject of emergency powers exercised by a

Child Protection Officer under this Act.

5. Child in need of care. ---A child in need of protection

and care shall include a child who-

(a) has been subjected to or is under serious threat of being

subjected to child abuse or child exploitation while in the
care of parents, legal guardian or any other person who has
custody of the child in any manner; or

(b) is unattended, victim of an offence, child, domestic and

such other workers, found begging, imprisoned with the
mother or lives in an immoral environment.

15. Consent of the parents or guardian. ---Subject to

section 16, the Child Protection Officer shall seek the consent
of the parent, legal guardian or current carer of the child, if
any, on the action to be taken and the services to be offered
to the child. Such consent, under child care plan, shall be
recorded in writing in the form of an agreement, as may be
prescribed.

16. Care and placement of a child. ---Notwithstanding the

provision of section 15, where the child care plan specifies
that the child will be at risk of significant harm, abuse or
exploitation if he remains in care of his parent, legal
guardian or other current carer, if any, an application shall
be made immediately to the Court for the care and
placement of the child in an appropriate form of alternative
care.

21. The ICT Child Protection Act provides for an institutional

framework to give effect to provisions of the Act, including Child

Protection Advisory Board headed by a Federal Minister

comprising high officials of the State as well as members of the

W.P No.2383 of 2021 P a g e | 13

civil society. It also provides for establishment of Child Protection

Institutions. And included within the functions of Child Protection

Institutions under section 11 of the ICT Child Protection Act is an

obligation to “assess or based on reports whether a child

requires care under the provisions of this Act”. The Act requires

a Child Protection Officer appointed under the Act to make an

assessment regarding the need of the child to protection and

care. The Act obliges the State to put together child care plans

for children in need of care and protection and identification and

establishment of care-giving institutions which can look after

children whose parents or legal guardians are unable to provide

for their welfare and care or for such unattended children who do

not have parents or guardian. The ICT Child Protection Act

recognizes biological parents as individuals in whose custody the

child ordinarily remains and who are responsible for the child

and consequently biological parents have been excluded from

the definition of “guardian” under the ICT Child Protection Act.

22. The ICT Child Protection Act is a welcome step forward

by the State in assuming the ultimate responsibility for the care

and protection of minor citizens of the State. The provisions of

the ICT Child Protection Act clarify that the State is under an

obligation to protect children in all circumstances, including

where they are suffering abuse at the hands of their own

biological parents. In the ordinary scheme the individuals who

elect to bring a child into this world are ultimately responsible for

the care, nurturing and upbringing of such child. As a rule, the

parents of a child have the best interest of such child at heart

and are best placed to provide for his/her upbringing, welfare

W.P No.2383 of 2021 P a g e | 14

and happiness. In the natural course of things there is nothing to

gainsay that no one can love a child or be concerned with his or

her welfare and upbringing more than his or her parents. There

are, however, exceptions to this rule, in which case the State

can exercise its authority and place the child in the care of

another caregiver declared as his or her guardian pursuant to

provisions of the Guardians Act as contemplated and reinforced

by the ICT Child Protection Act.

23. The parents of a child are his or her natural guardians

and do not need to seek a declaration from a court for such

purpose under the Guardians Act. The laws of Pakistan envisage

that a child is in the custody of his or her parents. The question

regarding the custody and guardianship of a child arises in

situation where the nuclear family unit is under stress or breaks

up due to the separation or divorce of the parents. In such

circumstance a court is obliged to decide who retain primary

custody of the person of the child when both parents are not

living together any longer. The situation where the custody of

the person of a minor is to be shared by his or her biological

parents and the question of guardianship arises in such scenario

is significantly different from a situation where a relative or

another caregiver is seeking custody of a child when one or both

the parents are still alive. It is in this latter scenario the

aforementioned definition of guardian in the ICT Child Protection

Act would have to be read together with provisions of the

Guardians Act to determine circumstances where a person other

than a biological parent of a minor can seek to be declared the

W.P No.2383 of 2021 P a g e | 15

guardian of the child and acquire custody of the person of the

minor.

24. The definition of guardian in the ICT Child Protection Act

as mentioned above excludes natural parents. The provisions of

the ICT Child Protection Act assume that a child will be in the

custody of his or her biological parents. And appointment of a

third person as a guardian is the exceptional arrangement

required to be made where the natural parents are either not

present or unable to look after their child. The distinction drawn

within our jurisprudence between custody and guardianship is in

the context of sharing of custody between the parents of the

child when they are both alive and not living together and not

the sharing of custody of a child by his/her parent with a relative

or third-party caregiver.

25. Section 24 of the Guardians Act identifies duties of the

guardian and states the following:

24. Duties of guardian of the person. A guardian of the

person of a ward is charged with the custody of the ward and
must look to his support, health and education, and such
other matters as the law to which the ward is subject
requires.

In situations where there is a dispute arises between parents as

to who would retain primary custody of the child, the courts

have clarified that even where the custody of a child is primarily

awarded to the mother, the father remains the guardian of the

child and consequently responsible to provide for the

maintenance and education of the child while being afforded

visitation rights. It is only in the context of custody arrangement

to be shared between natural parents of the child that custody

W.P No.2383 of 2021 P a g e | 16

can be granted to the natural mother of the child without finding

that the father is disqualified from being guardian in terms of

section 19(b) of the Guardians Act requiring appointment of

another adult as a guardian of the child. This is so because the

mother being a parent of the child is deemed to have lawful

custody of the person of the child. And where the court finds

that parents of the child are not living together and the welfare

of the child would be served by granting custody over the person

of the child to mother, it can do so without declaring that the

father is no longer a guardian and consequently no longer

responsible to provide for child. In other words, this distinction

between custody and guardianship in custody disputes between

spouses or former spouses in relation to their own children has

been drawn by the courts to protect the interests of the child

and the mother and to ensure that the father still remains

responsible for the maintenance, health and education of the

child. However, in the context of custody of the minor being

awarded to another person who is not biological parent of the

child, the concept of custody and guardianship cannot be

segregated such that the custody is awarded to a third party and

the guardianship remains with the father.

26. Section 15 permits appointment of two or more

guardians for the person or property of a minor. There is scant

jurisprudence regarding the said provision. But the law does

provide for two or more guardians being appointed for the same

person. In an appropriate case this is an area that needs

consideration given changing family structures, especially in

urban areas, where both parents often work and can assume the
W.P No.2383 of 2021 P a g e | 17

responsibility for maintenance, health and education of the child.

There is no reason why a mother who works and is able to

support a child ought not be formally recognized as the guardian

of the child, if the circumstances so requires. In situations

where the mother and father of the child are separated or

divorced, while granting joint guardianship to such parents the

court can enumerate their respective responsibilities in relation

to the child.

27. However, provisions of sections 15 and 24 would

need to be read together with sections 19(b) and 41(1)(e) of the

Guardians Act in the context of grant of custody and declaration

of guardianship in favour of someone who is not the child’s

natural parent. A collective reading of provisions of the

Guardians Act clarifies that in a situation where the father of a

child is alive and not unfit to be the guardian of the person of his

child, no third party can be appointed as guardian of the child.

And in view of the definition of “guardian” read together with

sections 12 and 24 no third party who is not a parent of the child

can be appointed as a guardian of the child while the father is

still alive and fit to be his or her guardian. This is manifest from

the reading of section 41, which in subsection (1)(e) provides

that “the powers of a guardian of the person cease in the case of

a ward whose father was unfit to be guardian of the person of

the ward, by the father ceasing to be so or, if the father was

deemed by the court to be so unfit, by his ceasing to be so in the

opinion of the court.”

28. In view of provisions of section 19(b) read together

with section 41(1)(e), it is patent that where father of a minor is

W.P No.2383 of 2021 P a g e | 18

alive the only consideration in which a third person, who is not

the biological parent of the minor, can be appointed as guardian

is where the father is found by the court to be unfit to be the

guardian of the child or has abandoned his child rendering him

unfit. In such situation, the authority vested in a guardian

appointed by a declaration made by the court will stay intact

only till such time that father remains unfit to be the guardian.

Provisions of the Guardians Act therefore do not contemplate the

appointment of a third party, even where such party is a close

relative of the child, with whom the child shares a bond of love

and affection, to be appointed guardian in addition to or in the

stead of his/her father who is living and not unfit to be the

guardian of the child.

29. It would be misconceived to assume that a contest

for custody and guardianship of a child between the natural

parent of a child and a relative is similar to the contest for the

custody of a child between such child’s natural parents. The best

interest of the child ordinarily lies in him or her being raised in a

happy household with his or her parents discharging their roles

and responsibilities in nurturing the child. In the unfortunate

situation that the bond of marriage breaks up and the parents

otherwise no longer live together, the court is called upon to

determine a custody arrangement between the parents in the

best interest of the child. These cases are completely distinct

from cases where a close relative such as maternal grandmother

or paternal grandmother or paternal aunt seeks guardianship

over a child who is under the guardianship of a living biological

parent. In such situation, in view of provisions of the Guardians

W.P No.2383 of 2021 P a g e | 19

Act read together with provisions of ICT Child Protection Act, a

court must first reach a conclusion that the child is at the risk of

significant harm, abuse or exploitation and that his welfare is not

protected if his or her natural parent retains his/her custody.

While section 19 read together with section 41(1)(e) only

mentions the father, the definition of “guardian” under the ICT

Child Protection Act suggests that same principle would apply

even to the mother as she is also excluded from the definition of

“guardian”. Such reading of the law is supported by scientific

data as well. There is hardly any need to cite research in support

of the proposition that no individual is better placed to love a

child and care for him/her than his or her natural parents.

Taking away the custody of a child from a natural parent (when

the contestant is not a parent) is a truly extraordinary matter

and such claim can only be granted where the court comes to

the conclusion that the welfare of the child lies in being taken

away from the custody of a natural parent. The threshold to be

met by someone who seeks guardianship over somebody else’s

child when such person is alive and willing to look after his or

her child requires the meeting of a fairly high threshold.

30. It is not enough to look at the age or sex of the child

or the educational credentials or financial situation of the third-

party eager to be appointed as a guardian of the child in the

stead of his/her biological parent. For a court to conclude that a

person other than child’s natural parent is best placed to secure

the welfare of the child in the immediate, medium and long

term, the court must be satisfied that a child would be at the risk

of significant harm, abuse or exploitation if he or she remains in

W.P No.2383 of 2021 P a g e | 20

the custody of his or her parents, as stated in section 16 of the

ICT Child Protection Act. Even in such situation the court must

order professional assessment for the needs of the child to be

made by professionals as contemplated in section 11 of the ICT

Child Protection Act. A court cannot pretend to be a child

psychologist or psychiatrist which can undertake such

assessment and then project on a medium or long term basis as

to where the best interest of the child lies and what conditions

would be congenial for the physical and emotional wellbeing of

the child. Unfortunately, the Child Protection Institutions to be

established under the ICT Child Protection Act and are required

to possess the requisite professional resources to make such

assessments have not yet been put in place. The delinquency of

the State in giving effect to provisions of the ICT Child Protection

Act does not however absolve the Government from making

available to Family Courts duly qualified professionals who can

undertake the assessment of the psychological state of a child in

relation to whom a guardian is to be appointed. It is the

obligation of the State to make such resources available to

Family Courts and the Family Courts ought to base their

judgments regarding appointment of guardians while taking into

account such professional assessment and advice.

31. Physiological, emotional and psychological needs of

children evolve over time and are affected by their

circumstances. Where a court is required to make a declaration

to appoint a guardian in the stead of a child’s biological parents,

the court remains under an obligation to evaluate the welfare of

the child and ensure that the guardianship arrangement made by

W.P No.2383 of 2021 P a g e | 21

it continues to serve the welfare of the child over time. In other

words, where a guardian has been appointed by the court, such

arrangement in view of the evolving the physiological, emotional

and psychological needs of the child needs must be revisited in

order for the court to determine whether the guardianship

arrangement needs to be tweaked or altered. In short, other

than situation where a child is in the custody and under the

guardianship of his/her biological parents, guardianship

arrangements are not permanent. In situations where a third-

party guardian is appointed while a natural parent of the child is

still alive, such arrangement can only last till such time that the

parent remains disabled or unfit to serve as a guardian of the

child in view of section 41(1)(e) of the Guardians Act. Even in

other situations where the parents are not alive and a caregiver

or guardian is to be appointed, the intent of the Guardians Act as

well as the ICT Child Protection Act is that it is the court that is

ultimately responsible for the welfare of the minor and under an

obligation to continue to assess that the guardianship

arrangement is serving the welfare and interest of the child.

32. It was clarified by this Court in Mumtaz Bibi Vs.

Qasim and others (W.P No. 4227 of 2021) that the treatise

of Dinshaw Mulla is not a divine text or a statutory source of law

on the basis of which alone legal rights and obligations of parties

can be determined. It is merely a legal treatise or commentary

and the priority to be accorded to aspirants of guardianship over

someone else’s child cannot be based on any priority list

supplied by Dinshaw Mulla. Further, in the 21st Century, it can

no longer be presumed that the obligation to nurture and care

W.P No.2383 of 2021 P a g e | 22

for children vests exclusively in the female gender. A man who

marries to bring progeny into this world is equally responsible for

the care of his children as is the mother of such children.

Providing for the physical, emotional and day-to-day needs of

children is a joint responsibility of their father and mother. And

the responsibility to care for children cannot be outsourced to

female relatives in the family merely because the children’s

mother has passed away. Another person can only be endowed

with such responsibility when the father is found, on tangible

basis, to be incapable, unfit or unwilling to care for his children

after the demise of the mother of the children.

33. Let us now revert to the facts of the case. The

Petitioner is the father of the child in relation to whom

Respondent No.2 being the maternal grandmother of the child

has been declared a guardian. Such declaration could only be

made if the court had come to the conclusion that the welfare of

the child would be undermined if she remained under the

custody and guardianship of the Petitioner as the Petitioner is

unfit to be the guardian of the child. For such determination the

financial status of the father (whether or not he belongs to a

lower economic class), his educational credentials, or the age of

the child are irrelevant considerations. A father cannot be

declared unfit to serve as the guardian of his own child whom he

has brought into the world merely because he is poor or

uneducated or that his relatives or the relatives of his former

spouses are better educated or financial better off or possess

better accommodation. The only relevant consideration is the

bond of love and affection between the parent and the child and
W.P No.2383 of 2021 P a g e | 23

the willingness of the parent to look after the wellbeing of the

child. The only factor disqualifying a parent in a guardianship

contest with a relative is where custody of the minor if it were to

remain with such living parent would put the child at the risk of

significant harm, abuse or exploitation in terms of section 16 of

the ICT Child Protection Act.

34. In a custody contest between spouses, who are

separated, the set of consideration in determining the welfare of

the child is different as has already been explained. The

marriage of a parent with a stranger is one of the factors taken

into account by courts in determining whether the home

provided by such parent, where his or her spouse lives too who

has no blood relationship with the child, provides a congenial

and amiable environment for nurturing the child. To the

contrary, in a situation where there is only one living parent, the

marriage of the living parent with stranger must be seen with a

different lens. The question then is whether the home provided

by the living parent where the child’s step-parent lives too is a

safe space for the child and whether staying in such home places

the child at the risk of harm, abuse or exploitation at the hands

of anyone in the house, including the child’s step-parent. The

mere incident of marriage of a living parent is not a

disqualification unless there is tangible evidence before the court

to reach the conclusion that living in the house places the child

at the risk of harm, abuse or exploitation within the meaning of

section 16 of the ICT Child Protection Act.

35. In the instant case the child has never been placed

in the custody of the Petitioner in the house where he lives along

W.P No.2383 of 2021 P a g e | 24

with his second wife that he contracted marriage with nine

months after the demise of his first wife. There was no evidence

produced before the learned Family Court or the Additional

District Court to suggest that the Petitioner as a father was unfit

to be the guardian of his own daughter or that placing his

daughter in his custody in a house where he lives along with his

second wife would expose the child at the risk of significant

harm, abuse or exploitation.

36. The maternal grandmother of the child has also

married a second time and her husband is working in the Middle

East and provides for his family. The learned Family Court has

taken into account the fact that the maternal uncle of the child is

a teacher and is better qualified to look after the welfare of the

petitioner’s daughter. There was no basis for the Family Court to

conclude that respondent No.1 being the maternal uncle of the

child would give her more love and affection than her own

biological father. No matter how loving an uncle, can it be

expected that he would love a nephew or nice equally or more

than his own children? Or that he will place the educational and

financial needs of a nephew or niece before those of his own

children? Or that he can ensure that his wife also does not

discriminate between her own children and her husband’s niece?

Meher Fatima will grow up. She will have educational needs that

will cost money. She will have other material needs too. She has

a father who is alive and responsible for her. Why deny her the

supervision, love and care of her father, and why deny him the

right, responsibility and privilege of raising his daughter as he

feels right.
W.P No.2383 of 2021 P a g e | 25

37. A perusal of the record reflects that there was

absolutely no basis for the Family Court to conclude that in the

medium to long term the interest of the child would be better

served while staying with her maternal grandmother or maternal

uncle. There was also no expert or professional assessment

before the Family Court to facilitate a determination as to the

long-term emotional and psychological effects on the

petitioner’s daughter if she were to be brought up by her

maternal grandmother and her maternal uncle while her own

father is alive and lives in the same city.

38. The bottom line is that there was no evidence,

material or basis for the Family Court to determine in the

present case that the Petitioner is unfit to act as a guardian for

the person or the property of his own daughter. To appoint

another guardian in his stead while he is alive and well and

eager and willing to act as a guardian of his own daughter, who

unfortunately has already deprived of her natural mother, is in

breach of provisions of section 19(b) read together with section

41(1)(e) of the Guardians Act.

39. This Court had appointed a consultant psychiatrist as

an amicus. The amicus undertook an evaluation of the child in

the presence of the Petitioner as well as of the Respondents. The

recommendation of the psychiatrist was that the Petitioner, as

the biological parent, is a stable and responsible person and

quite capable of caring and providing for his daughter. She also

recommended that the maternal grandmother is the main

attachment figure for the petitioner’s daughter for the past three

years but “suffers from her own emotional needs” and that “her
W.P No.2383 of 2021 P a g e | 26

fear of losing Fatima overshadowed her responsibility towards

her fostering the child’s relationship with her father.” There is no

doubt that respondent No.2 loves the child and sees her own

daughter in her. But the love of a grandmother does not endow

her with a legal right to assume guardianship over a grandchild,

which trumps the right of the father to guardianship and

custody.

40. Given that the petitioner has been found on the basis of

professional assessment of a psychiatrist to be stable and

capable of caring and providing for Meher Fatima, no other

person can be appointed as a guardian while he is alive, willing

and able to act as a guardian towards his own daughter in view

of sections 19(b) and 41(1)(e) of the Guardians Act.

41. This Court is however cognizant of the fact that the

maternal grandmother is the main attachment figure for the

petitioner’s daughter, as has also been noted by the consultant

psychiatrist. To suddenly disrupt such relationship between

Meher Fatima and her grandmother would not be in the welfare

of the child. This Court therefore declares that the Petitioner is

the sole guardian of his own daughter and will retain custody

over his daughter. He will, however, include the Respondents in

the life of his daughter in order to continue to provide for her

emotional and psychological wellbeing of his daughter.

Consequently, the schedule proposed by the learned Family

Court shall be reversed. The time determined by the Family

Court that the child was to be spent with the Petitioner would be

the time that the child would spend with the Respondents. And

the role carved out by the learned Family Court for the
W.P No.2383 of 2021 P a g e | 27

Respondents would be the role that is to be discharged by the

Petitioner. This arrangement will last for a period of six months.

The petitioner will make an appointment with Dr Asma

Humayun, the consultant psychiatrist who was consulted by this

Court in the instant case, and will seek a consultation along with

his daughter and her maternal grandmother in order to enable

the consultant psychiatrist to make a subsequent evaluation of

the emotional, physiological and psychological wellbeing of the

child before the expiry of six month period. The matter will be

fixed before the learned Family Court for hearing on

20.12.2022. The Petitioner will present a sealed report from the

consultant psychiatrist to the learned Family Court who after

taking into account such report will determine whether the

guardianship and custody arrangement for Meher Fatima needs

any interference. In the event that the learned Family Court

finds that the petitioner is still able and willing to provide for the

welfare of his daughter and that she is not at the risk of harm,

abuse or exploitation under the Petitioner’s custody and

guardianship, the learned Family Court may tweak the visitation

arrangements as it deems fit. If its finding is to the contrary, it

may appoint another guardian for Meher Fatima in place of the

Petitioner in view of provisions of the Guardians Act and the ICT

Child Protection Act.

42. The petition is therefore allowed in the aforementioned

terms with the following directions:

1. No third party, caregiver or guardian can be

appointed a guardian in the stead of a

biological parent of the child while the

W.P No.2383 of 2021 P a g e | 28

biological parent is alive and not found unfit by

the Family Court to act as the guardian of his

or her own child.

2. The custody of a child can be granted to the

mother, while the father is alive and remains

the guardian of the child. The Guardians Act,

does not however contemplate granting of

custody to a third party, caregiver or

appointing an additional guardian for the

person of the minor while his/her father is alive

and willing and able to act as a guardian for

the child and exercise custody over the person

of the child.

3. The test for declaring that a third party,

caregiver or guardian must be appointed for

the welfare of the child while one or both of his

or her biological parents are still alive is that

provided under section 16 of the ICT Child

Protection Act i.e. that the child should be at

the risk of significant harm, abuse or

exploitation if he or she were to remain in the

custody of the parent, or in a situation where

the child has been abandoned by the living

parent or parents and is deemed to be an

unattended child as defined in section 2(1)(v)

of the ICT Child Protection Act.

W.P No.2383 of 2021 P a g e | 29

4. Where a Family Court appoints a guardian who

is not the biological parent of the child in place

of his or her biological parent, it is under

continuing obligation to oversee the welfare of

the child and to ensure that the emotional,

physiological and psychological wellbeing of

the child is being catered for in the

guardianship arrangement made by the court.

And such arrangement ought to be reviewed

on an ongoing basis at least once in a year to

ensure that the guardianship decision rendered

by the court continues to serve as a source of

welfare for the child.

5. In reaching a custody and guardianship

decision, the court must rely on professional

assessment regarding the emotional,

physiological and psychological needs of the

child, which assessment the courts concerned

are not trained to make independently. For

such purpose it is the obligation of the State to

ensure that duly qualified experts, including

child psychologists and psychiatrists, are made

available as a resource to the Family Courts to

seek expert opinion while making guardianship

decisions. And it is for the State to compensate

such professionals for the services they render.

6. The Federal Government is under an obligation

to ensure that provisions of ICT Child

W.P No.2383 of 2021 P a g e | 30

Protection Act are given effect and functional

Child Protection Institutions are put in place.

And that services of child psychologists,

psychiatrists and other required professionals

are made available at such Child Protection

Institutions, which resources can also used by

Family Courts while making guardianship

decisions.

7. Till such time that Child Protection Institutions

are rendered functional and services of

experts are made available at such Child

Protection Institutions, the Chief Commissioner

in his capacity as provincial government for

purposes of Islamabad Capital Territory will put

together a penal of duly qualified professional

psychologists and psychiatrists who may be

consulted by Family Courts seized of

guardianship matters and the Chief

Commissioner, ICT, will ensure that such

professionals are compensated for the services

that they provide to Family Courts in assessing

needs of the children subject to guardianship

decisions. The Chief Commissioner shall put

together such penal within a period of sixty

(60) days from the receipt of this judgment

and details of how the services of experts may

be used by Family Courts shall be shared by

the Chief Commissioner, ICT with the Registrar

 W.P No.2383 of 2021 P a g e | 31

of this Court who through the MIT will bring

the same to the attention of the Family Courts.

(BABAR SATTAR)
JUDGE

Announced in the open Court on 16.06.2022.

JUDGE

Saeed.

Approved for reporting.