Guardianship Certificates in Pakistan are a legal relationship in which an individual is given the authority and responsibility to care for and make decisions on behalf of a minor or an incapacitated person. In Pakistan, guardianship laws are primarily governed by the Guardians and Wards Act, of 1890. This law outlines the legal framework for appointing guardians and ensuring the well-being of children who do not have the direct care of their biological parents.
One of the key questions that arise in guardianship matters is whether guardianship can be shared by two individuals. This issue is significant because, in certain situations, joint guardianship may be beneficial for the child, ensuring their emotional, financial, and social well-being. This essay explores the possibility of shared guardianship in Pakistan, the legal provisions surrounding it, and the challenges that may arise.
Legal Framework for Guardianship in Pakistan
In Pakistan, guardianship laws are primarily based on the Guardians and Wards Act, 1890, which applies to all citizens, regardless of their religion. Additionally, for Muslims, Islamic principles of guardianship (Wilayah and Hizanat) influence court decisions. The law recognizes the need for guardianship in cases where a child’s parents are deceased, absent, or unable to provide care.
Types of Guardianship in Pakistan:
Natural Guardianship:
The father is considered the natural guardian of a child under Islamic law.
After the father’s death, guardianship may pass to the grandfather or other male relatives.
Legal Guardianship:
The court can appoint a legal guardian if a minor has no capable parent.
This is common in cases where both parents are deceased or unfit to care for the child.
Testamentary Guardianship:
A parent can appoint a guardian for their child through a will.
This ensures that the child is cared for according to the parent's wishes.
Court-Appointed Guardianship:
If no legal guardian is available, the court appoints a suitable guardian.
The best interests of the child remain the primary concern in these cases.
Can Guardianship Be Shared?
Under Pakistani law, guardianship is typically granted to a single individual. However, there are circumstances where shared guardianship may be considered:
1. Joint Guardianship by Parents
In many cases, when both parents are alive and capable, they effectively share responsibility for the child’s upbringing.
However, under Islamic law, the father remains the primary legal guardian, while the mother is typically granted custody (Hizanat).
The law does not explicitly provide for joint legal guardianship, but in practical terms, both parents often make important decisions together.
2. Shared Guardianship by Relatives
If both parents are deceased, the court may appoint more than one guardian, typically among close relatives.
For example, a grandparent and an uncle may be appointed co-guardians if the court deems it in the best interest of the child.
In such cases, the responsibilities of guardianship may be divided, with one guardian handling financial matters and the other taking care of day-to-day caregiving.
3. Guardianship in Case of Remarriage
If a widow remarries, her new husband does not automatically become the guardian of her children from the previous marriage.
However, in some cases, a stepfather may share guardianship responsibilities with the biological family.
4. Guardianship in Special Cases
Multiple individuals or institutions may share responsibility in cases of adoption, foster care, or legal guardianship for children in orphanages.
The court may appoint an individual guardian while an organization provides additional support and oversight.
Challenges of Shared Guardianship
While shared guardianship may seem beneficial, it presents several legal and practical challenges:
1. Legal Ambiguity
The Guardians and Wards Act, 1890 does not explicitly recognize joint guardianship, leading to legal uncertainties.
Courts typically prefer to appoint a single guardian to avoid conflicts over decision-making.
2. Potential Disputes
If two individuals share guardianship, disagreements over the child’s education, healthcare, or financial matters may arise.
Courts aim to minimize disputes by granting guardianship to a single individual who can make final decisions.
3. Islamic Principles of Guardianship
Islamic law generally assigns the role of guardian to the father or paternal relatives, making shared guardianship less common.
If the mother or maternal relatives seek guardianship, they must prove that it is in the child’s best interest.
4. Bureaucratic Hurdles
Having two legal guardians can complicate administrative matters, such as passport applications, school admissions, and medical decisions.
Government institutions may require a single guardian to be listed for official documentation.
Steps Toward Recognizing Shared Guardianship
Given the changing social dynamics in Pakistan, there is a growing need to recognize joint guardianship in certain cases. Possible legal reforms and solutions include:
Legal Amendments:
Guardianship Certificates in Lahore Updating the Guardians and Wards Act, 1890 to explicitly allow joint guardianship in specific circumstances.
Providing clear guidelines on how responsibilities can be shared.
Court Precedents:
Courts should consider cases where shared guardianship benefits the child, setting legal precedents for future cases.
Parental Agreements:
Parents or guardians should be allowed to draft legal agreements outlining shared responsibilities.
This can help prevent disputes and provide a structured approach to joint guardianship.
Institutional Support:
Government agencies and family courts should provide mediation services to help guardians agree on their roles.
Conclusion
While Pakistani law does not explicitly recognize shared guardianship, there are cases where courts allow two individuals to share responsibility for a child. Parents, relatives, and legal guardians may play joint roles in raising a child, but the law usually assigns final decision-making authority to one person. The esteemed team of expert lawyers at Khadija Law Associates excels in providing exceptional legal services to clients dealing with family disputes. Given the complexities of modern family structures, there is a need for legal reforms to accommodate shared guardianship in a way that serves the best interests of the child. Courts, lawmakers, and legal practitioners must work together to develop a system that balances the needs of children with the practicalities of guardianship in Pakistan.
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