Application Of The Principles Of Fair Play, Natural Justice And Due Process, In Guardianship / Child Custody Proceedings

Abstract

In guardianship matters, courts have to exercise quasi-parental jurisdiction and the supreme consideration in such context is welfare of the minor. To achieve such purpose, courts have unfettered powers. Therefore an application under S.12 of Guardians and Wards Act 1890 has been required to be decided on such principles. It has been observed by the honourable Lahore High Court in a judgment titled Umar Farooq Vs Khushbakht Mirza, and cited as 2008 PLD 527 LHC, that contesting parents, especially fathers, have the inherent right to seek visitation to the minor. A father is not only required to participate in the upbringing of minors but should also develop love, bonding and affinity with them. However, for reasons not known to the author, the learned Guardian/ Family Judges while exercising authority under the Guardian and Wards Act 1890 and Family Courts Act 1964, have evolved a template order for disposing off the applications filed under the provisions of Section 12 of the Guardian and Wards Act 1890 by the noncustodial parents, especially fathers, seeking grant of interim custody of the minors till the final decision of the petition. It usually faces dismissal either for being a premature one or on the ground that the same cannot be decided without evaluating evidence from both sides, though as a general practice, almost all the Guardian Courts appreciate the fact that the absence of interaction between the minor and his or her real non-custodial parent will result in estrangement between both the minor and the parent. For this reason, they consider a periodical meeting a necessity, yet they fail to give valid reasoning for subjecting that very meeting between the minor and the non-custodial parent to be conducted within the court premises for two hours, twice a month.