Re-evaluating the Guardianship of Minors Framework in Pakistan: Legal Reforms, Gender Equity and Policy Implications

Abstract

The study holistically examines gender equity and the best interests of the child by critically assessing the guardianship framework in Pakistan and its policy implications. The research is significant in highlighting the consequences of social injustice and gender prejudice within the three-tier interrelated subsystems in the guardianship framework that cannot be analysed in isolation from one another. Rather than growing into a coherent and just society, it has developed into an increasingly complex one. Therefore, through the lens of the Systems Theory, this study identifies the gaps within the existing framework. The Guardians and Wards Act, 1890, rooted in Colonial-era tradition, has outlived its functionality and no longer corresponds with the contemporary realities of the Muslim families or the broader cultural evolutions in Pakistan. The legal framework designates the father as the only natural guardian. Even when the father is deceased, absent, or negligent, the real mother cannot act as a guardian of the person of her child. Gender-biased policies and prevailing legal practices in guardianship matters continually reinforce this patriarchal ideology. The research aims to draw the urgent attention of policymakers to the need for gender-sensitive and child-centric reforms within family statutes, particularly guardianship laws. It addresses two central questions: why a mother must obtain a decree from the Guardian Court to act as a guardian of her own child in cases where the father is deceased, absent, or unfit; and how inequitable legal and substantive procedures preserve the theory of the child’s welfare in a patriarchal society. A qualitative analysis and deductive approach are adopted to examine judicial inclinations and policy implications as reflected in the lived experiences of mothers, legal representatives in the Guardian Courts, and the relevant judicial precedents. Further, a comparison with the PSLs of Muslim-majority countries reveals that although Pakistan enjoys the redemptive freedom of judicial discretion, it appears to be the least responsive to shifts in the modern family setup. The results of the study demonstrate that judicial attitudes are influenced by patriarchal customs, the misuse of litigation, and inconsistent professional guidance. The thesis concludes by offering reforms and recommendations, accompanied by a broader discourse on the guardianship framework in Pakistan, illustrating how institutional inequities obstruct the realization of the best interest of the child and the right of a mother to act as a guardian of her own child.