A guardianship application filed by one parent may be necessary to address a genuine problem affecting a child. It may also seek authority that the other parent disputes. The Family Court must distinguish between the child’s needs, the applicant’s legal entitlement and the competing parents’ grievances.
Neither parenthood nor physical custody automatically determines every guardianship question. The Court must apply the relevant statutory requirements and assess the child’s welfare on the evidence. Recent Sindh High Court decisions demonstrate why custody cases and applications to appoint a guardian must be analysed carefully rather than treated as interchangeable. (caselaw.shc.gov.pk)
1. What Are the Court’s Real Considerations?
The welfare inquiry under section 17 of the Guardians and Wards Act includes the child’s age, sex and religion; the proposed guardian’s character, capacity and relationship with the child; the wishes of a deceased parent; and existing or previous relationships with the child or the child’s property. Where the child can form an intelligent preference, the Court may consider it. (caselaw.shc.gov.pk)
In practical preparation, those factors should be translated into concrete questions. Who actually provides care? How are schooling and medical needs being met? Is the proposed arrangement stable and safe? What responsibilities has each parent performed? What will the requested order change?
The same approach applies to property. A proposed guardian should be ready to explain how the assets will be protected and why any requested authority is necessary. A close family relationship does not make questions about management or conflicting interests irrelevant.
Welfare is not simply a comparison of income
In Gul Sadem Khan v. Mst. Halima and others (PLD 2025 SC 47), the Supreme Court reaffirmed the centrality of welfare in custody proceedings. A father’s status as natural guardian did not confer an absolute entitlement to custody, and a mother’s poverty was not, by itself, a sufficient reason to deprive her of it. (pakistankanoon.com)
Accordingly, the practical inquiry should distinguish an inability to offer greater material comfort from a failure to provide appropriate care. Evidence of the child’s actual needs is more useful than a bare assertion that one household is wealthier.
The child’s preference is relevant, but not conclusive
In Mst. Marvi v. Hakim Ali Birahamani, C.P. No. S-426 of 2024, decided on 22 September 2025, the Sindh High Court criticised reliance on the apparent preferences of very young children who were not capable of forming an intelligent opinion about their welfare. It also rejected the approach of treating the mother’s financial dependence as decisive against her. (caselaw.shc.gov.pk)
There is no sound basis for treating a child’s answer to a single question as a vote that settles the litigation. The child’s maturity and the surrounding circumstances require attention.
2. The Important Restriction Where the Father Is Living
Section 19(b) restricts the appointment or declaration of another guardian of the person where the father is living and is not, in the Court’s opinion, unfit. Its wording must not be indiscriminately extended to every property-guardianship question or treated as a rule automatically awarding physical custody to the father. (law.legumlawfirm.co)
This produces an important distinction: a mother may have custody, yet an application to replace the father’s legal guardianship may raise a further statutory question.
Manahil Imran: The need to establish unfitness
In Manahil Imran and another v. Muhammad Sadiq Khurshid and another, C.P. No. S-1309 of 2024, decided on 7 July 2025, the Sindh High Court upheld revocation of the mother’s guardianship certificate because the necessary evidence and finding of the father’s unfitness were absent.
The decision distinguished the certificate issue from custody. It did not transfer custody to the father, and the visitation arrangement remained unchallenged. The Court also distinguished Gul Sadem Khan as a custody decision rather than a determination of the section 19 appointment question. (caselaw.shc.gov.pk)
Muhammad Bilal Alvi: Welfare, neglect and practical obstruction
A different emphasis appears in Muhammad Bilal Alvi v. Mst. Sumaiya and another, C.P. No. S-1270 of 2024, decided on 6 August 2025.
The Sindh High Court upheld the mother’s certificate, considering her actual care of the child, the father’s admitted non-payment of maintenance and the difficulties surrounding essential documentation. It criticised an isolated reading of section 19(b) and considered that provision alongside sections 7 and 17 and the child’s welfare. (caselaw.shc.gov.pk)
These decisions should not be reduced to opposite slogans that “a mother can never obtain a certificate” or that “custody automatically entitles her to one”. They differ in both their factual foundations and their treatment of section 19. The later date of a single-judge decision should not be presented as proof that it overruled the earlier one.
For litigation preparation, the prudent course is to address both statutory fitness and the concrete welfare need, and to distinguish the precise authority sought from a general demand to exclude the other parent. (caselaw.shc.gov.pk; caselaw.shc.gov.pk)
3. When May the Court Allow the Application?
An appointment may be justified where there is a lawful basis for it, the proposed guardian is suitable and the evidence establishes that the order serves the child’s welfare. The Court must also account for any existing guardianship and applicable statutory restriction. (law.legumlawfirm.co)
In preparing an application, relevant circumstances may include the death of a guardian, a demonstrated failure to perform essential responsibilities, or a specific problem that an appropriately limited order can resolve.
The applicant should explain the proposed solution, not merely the other parent’s shortcomings. For example, identify who will manage appointments and schooling, how the child will maintain appropriate contact with the other parent, and what safeguards are proposed for any assets.
Limited authority may be more appropriate than a demand for complete exclusion. Awais ul Haq illustrates the importance of identifying the actual purposes of a certificate, while treating a separate request to remove the child from the jurisdiction as a matter requiring its own adjudication. (caselaw.shc.gov.pk)
4. When May the Court Refuse Relief?
The statutory foundation has not been established
A petition may be unsuccessful where it seeks appointment in place of a living father but does not establish the necessary basis under section 19(b). Allegations should be proved through relevant evidence, not assumed from the breakdown of the marriage. (caselaw.shc.gov.pk)
The evidence does not justify the authority requested
A general statement that the parents cannot cooperate may leave important questions unanswered. What decision has been obstructed? How has the child been affected? Why is the particular order sought necessary?
As a drafting matter, avoid asking for powers far wider than the difficulty demonstrated. An application concerning one document should explain why a broad change in legal authority is required rather than assume the connection.
The proposed arrangement would expose the child to harm or neglect
In Gul Sadem Khan, the Supreme Court discussed matters such as maltreatment, harmful conduct and deliberate failure to maintain as potentially relevant to custody. It expressly treated such factors as contextual rather than an exhaustive or automatically conclusive list. (pakistankanoon.com)
The corresponding preparation point is to present concrete evidence of the risk and its effect on the child. Equally, the responding parent should have an opportunity to address that evidence. Accusations made only in the language of matrimonial hostility are not a substitute for identifying the actual safeguarding concern.
The application disregards the child’s existing needs
An application should account for the child’s established care, education and emotional needs. The Court’s assessment is not confined to which adult asserts a stronger abstract entitlement. The Sindh High Court’s consideration of continuity and the child’s relationship with each parent in Awais ul Haq illustrates that practical focus. (caselaw.shc.gov.pk)
The requested property transaction fails the separate statutory test
Refusal of permission to sell property is not necessarily refusal of guardianship itself. A guardian may remain suitable while the proposed transaction fails to demonstrate necessity or evident advantage to the child. (law.legumlawfirm.co)
The application should therefore keep appointment, management and disposal clearly separated.
Procedural defects prevent proper adjudication
The petition should disclose previous applications, existing guardianship arrangements and the relevant affected persons. Problems concerning jurisdiction, notice or incomplete disclosure may require correction or an appropriate procedural order; they should not be confused with a final finding that the applicant is an unsuitable parent. (law.legumlawfirm.co)
5. Matters That Should Not Be Treated as Automatic Disqualifications
Remarriage and age-based custody rules require careful treatment. In Gul Sadem Khan, the Supreme Court explained that a mother’s remarriage was not an absolute bar where the child’s welfare justified custody remaining with her. It also reaffirmed that a father’s claim to custody of a son after seven years remains subject to welfare. These are custody principles and should not be used without further analysis to bypass section 19 in an appointment dispute. (pakistankanoon.com)
Likewise, refusing to resume cohabitation should not be treated as a shortcut to deciding parental suitability. In Mst. Marvi, the Sindh High Court examined the mother’s evidence of maltreatment and rejected the approach taken against her because she would not return to the matrimonial home. (caselaw.shc.gov.pk)
The focus should remain on the child’s interests and the evidence relevant to them, rather than using guardianship proceedings to reward or punish a spouse.
6. How Can One Parent Oppose the Other Parent’s Application?
The objection should be raised before the Family Court dealing with the application. Section 13 expressly contemplates evidence in opposition. The response should identify the particular relief disputed, rather than object indiscriminately to everything the other parent seeks. (law.legumlawfirm.co)
A father responding to the mother’s application
Where the application seeks to replace his guardianship of the person, the father should address section 19(b) directly. A useful response would identify his actual performance of parental responsibilities and answer the particular allegations made against him.
Prepare the relevant maintenance records, school and medical correspondence, evidence of involvement and any communications concerning the documents in dispute. Explain any periods of absence or non-payment rather than leaving them unanswered.
The contrast between Manahil Imran and Muhammad Bilal Alvi demonstrates why simply invoking the title of “natural guardian” is not a complete litigation strategy. The evidence and the nature of the requested order matter. (caselaw.shc.gov.pk; caselaw.shc.gov.pk)
A mother responding to the father’s application
The mother should first distinguish a request recognising legal guardianship from any additional request to transfer custody, restrict contact, change schooling or relocate the child.
Her response should explain the child’s current arrangements and the consequences of the proposed change. It should include evidence of actual care and any substantiated safety concerns. A claim of natural guardianship does not, without the welfare assessment, resolve a contested demand for physical custody. (alwakeelo.com)
Oppose the disputed power, not an unrelated practical need
A parent may accept that the other parent should obtain school documents while opposing permanent relocation. Another may support management of a minor’s assets but dispute a proposed sale.
In that situation, ask counsel to separate the issues and propose precise conditions. For a travel dispute, a useful proposal might address the itinerary, duration, return arrangements and contact. For property, it might address valuation, custody of proceeds and accounting. These are practical matters to put before the Court, not powers that should be assumed to follow automatically from a certificate.
7. What Happens After an Order Has Been Made?
Obtain the complete order and a certified copy promptly. The appropriate challenge depends on the nature of the order and the applicable appellate provisions. Constitutional proceedings should not be assumed to provide a second unrestricted factual appeal; the Sindh High Court discussed that limitation in Awais ul Haq. (caselaw.shc.gov.pk)
A guardianship appointment is also subject to continuing statutory responsibilities. Section 39 provides for removal on specified grounds, including abuse of trust, persistent failure of duty, neglect and relevant conflicts of interest. Subsequent misconduct should therefore be addressed through the appropriate proceedings rather than through unilateral removal of the child or disregard of the existing order. (law.legumlawfirm.co)
Conclusion
A guardianship dispute should be prepared around three practical questions: What authority is legally available? What does the child actually need? What evidence supports granting or refusing the particular order?
For an applicant, a focused petition should explain both suitability and the problem the order will solve. For the opposing parent, a focused response should identify the statutory objection, evidential deficiency or harmful consequence, while distinguishing those concerns from practical arrangements that can safely be agreed.
Legum Law Firm represents parents and other eligible applicants in guardianship and custody proceedings in Karachi and elsewhere in Pakistan, including contested certificates, visitation arrangements and applications concerning a minor’s property.
This article provides general information, not advice on a particular dispute. The applicable personal law, provincial framework, existing orders and current judicial authorities should be considered before filing or opposing an application.
