Guardianship is a legal arrangement that ensures the protection and welfare of minors and individuals unable to care for themselves. In Pakistan, guardianship of disabled children carries added importance due to the special needs and long-term dependency involved.
This article explains the legal framework, criteria, and procedures for the guardianship of mentally or physically disabled children under the Guardians and Wards Act, 1890, along with relevant Pakistani case law and family court practices.
What is Guardianship?
Guardianship is a legal responsibility granted by the court to an individual (guardian) to take care of a minor or a person of unsound mind, including decisions related to:
- Education
- Healthcare
- Residence
- Property management
Under Pakistani law, this also includes disabled children who may need lifelong support.
Relevant Law: Guardians and Wards Act, 1890
The Guardians and Wards Act, 1890 is the primary law governing guardianship in Pakistan. It applies to:
- All minors (under 18 years)
- Orphans
- Persons with mental or physical disabilities who cannot care for themselves
Section 4(2) of the Act defines a guardian as:
“A person having the care of the person of a minor or of his property or both.”
Although the Act does not explicitly mention disabled children, Pakistani courts interpret it liberally to include guardianship for special needs children.
Who is a Disabled Child Under the Law?
A disabled child may be:
- Mentally impaired (e.g., autism, intellectual disability, schizophrenia)
- Physically handicapped (e.g., cerebral palsy, paralysis)
- Suffering from chronic medical or genetic conditions that impair independence
Such children, even after turning 18, may be legally considered “wards in need of protection” if proven medically and legally.
Types of Guardianship Recognized
| Type | Responsibility Area |
|---|---|
| Guardian of Person | Health, education, well-being |
| Guardian of Property | Managing moveable/immovable assets |
| General Guardian | Both person and property |
Courts often appoint natural guardians (parents) or close relatives, but in some cases, non-relatives or NGOs may apply.
How to Apply for Guardianship of a Disabled Child
Step-by-Step Procedure:
- Prepare a Guardianship Petition
File under Section 7 & 10 of the Guardians and Wards Act, 1890 before the Family or Guardian Judge. - Include Essential Documents
- Birth certificate of child
- CNIC of petitioner
- Medical certificates proving disability
- Photographs
- Details of property (if any)
- State the Grounds for Guardianship
Highlight:
- Nature of disability
- Need for care and supervision
- Petitioner’s capability and relation to the child
- Notice to Respondents (if applicable)
If another parent or relative may contest, court issues notice. - Court Inquiry
Court may appoint a guardian ad litem, seek a medical board report, or request a home inspection. - Court Order
If satisfied, court passes a declaration of guardianship under Section 7 of the Act.
Legal Protection for Guardians of Disabled Children
Once declared a legal guardian, the person is:
- Authorized to make decisions regarding the child’s health, education, and property
- Protected from legal complications in hospitals, schools, or property matters
- Able to represent the child in court or government matters
Relevant Judgments and Statutes from Pakistani Courts
- BABY RAMMA KHAN Versus MUHAMMAD KHURRAM KHAN, 2016 CLC 69: This case emphasizes the minor’s welfare in custody disputes and ensures the Guardian and Wards Court makes the final decision, considering the minor’s desires and overall well-being.
- Mst. ASLAM KHATOON Versus MUHAMMAD MUNIR and others, 2000 MLD 1216: This judgment reinforces the principle that the welfare of the minor is the paramount consideration in custody disputes under the Guardians and Wards Act.
- Ghulam Nabi v. Additional District Judge and Another, 1983 CLC 2382: This case reinforces the principle of judicial precedent and clarifies the proper appellate forum for orders under Section 25 of the Guardians and Wards Act, promoting consistency in legal proceedings.
- TASSADAQ NAWAZ Versus MASOOD IQBAL USMANI, PLD 2018 Lahore 830: This judgment clarifies the appellate jurisdiction in guardianship matters, affirming that orders passed under the Guardians and Wards Act are appealable under the Family Courts Act to the District Court.
- Section 15, The Sindh Empowerment of Persons with Disabilities Act 2018: Outlines the right to home and family, ensuring that persons with disabilities, especially children, are not separated from their families unless it is in their best interest as determined by a court.
- Section 17, The Balochistan Persons with Disabilities Act 2017: Ensures that persons with disabilities have unhindered access to the justice system, including courts of law and law enforcement agencies.
- Section 3, The Sindh Empowerment of Persons with Disabilities Act 2018: Guarantees equality and non-discrimination for persons with disabilities, ensuring their right to education, skills training, and rehabilitation services without discrimination.
- Section 32, The Sindh Mental Health Act, 2013: empowers the court to appoint a suitable guardian for a mentally disordered person incapable of taking care of themselves, ensuring their welfare and maintenance.
- Section 8, The Sindh Empowerment of Persons with Disabilities Act 2018: Focuses on protecting persons with disabilities from exploitation, violence, and abuse, ensuring immediate action and appropriate measures under the law to curb such acts.
- Section 14, THE PUNJAB EMPOWERMENT OF PERSONS WITH DISABILITIES ACT 2022: Asserts the right to home and family for persons with disabilities, preventing separation from their families unless required by a court in their best interest, and promotes suitable living arrangements.
What Happens After the Child Turns 18?
Usually, guardianship under this Act ends when the child reaches majority (18 years). However, in the case of disabled children:
- Courts may extend guardianship beyond 18 years, treating the person as a ward in need of lifelong care
- Medical certificates and psychiatric evaluations are usually required to justify such orders
Important Considerations
| Consideration | Explanation |
|---|---|
| Best Interest of the Child | Paramount in court’s decision (Section 17) |
| Mental and Physical Capability | Guardian must be mentally sound and stable |
| Conflict of Interest | Court avoids appointing guardians with conflict |
| Financial Resources | Guardians must show ability to support the child |
Sample Prayer in Petition
“It is respectfully prayed that this Hon’ble Court may be pleased to appoint the petitioner as the guardian of the person and property of the disabled minor [Name], under Sections 7 & 10 of the Guardians and Wards Act, 1890, in the best interest of the ward.”
Conclusion
Guardianship of disabled children in Pakistan is a critical legal safeguard that ensures their lifelong protection and well-being. Through the Guardians and Wards Act, 1890, parents or caretakers can legally manage the lives of their dependent children even into adulthood. The law recognizes the special needs of disabled individuals and allows compassionate, responsible guardianship for their welfare.