ISLAMABAD:
The Federal Constitutional Court (FCC) has established comprehensive guidelines for all civil and tax courts dealing with proceedings affecting the personal, property or inheritance rights of minors, ordering judges to exercise increased judicial review and ensure strict compliance with legal guarantees before issuing any decision that may affect the interests of a minor.
A 20-page judgment written by FCC Chief Justice Aminuddin Khan, while hearing a case relating to protection of the interests of minors, noted that the protection afforded to the property rights of minors was not only a constitutional and statutory obligation but also a fundamental commandment of Islamic jurisprudence.
He observed that the Constitution itself required that all laws be brought into conformity with Islamic injunctions and that courts, when interpreting laws relating to the rights of minors, must remain attentive to these fundamental principles.
“The Holy Quran repeatedly enjoins the faithful to protect the property of minors, particularly orphans, and severely condemns any form of misappropriation, exploitation or illegal deprivation,” the judgment states.
A three-member bench headed by Chief Justice Aminuddin Khan ruled that courts must, at the outset of proceedings, ascertain whether a party is a minor and ensure strict compliance with all mandatory legal provisions.
“A guardian ad litem shall be appointed strictly in accordance with Order XXXII, Rule 3, CPC, after satisfying the court that the proposed guardian has no interest adverse to that of the minor.”
The judgment states that no compromise, admission, concession, waiver or consent affecting the rights or property of a minor shall be accepted unless the court is satisfied, for reasons to be recorded, that it is lawful, demonstrably in the best interest of the minor, and that the requirements of Order XXXII, Rule 7 of the Code of Civil Procedure (CPC) have been fully complied with.
The court further held that where a compromise involves the transfer, abandonment or alienation of a minor’s property or inheritance rights, the court must also ensure compliance with the Guardians and Wards Act, 1890 and obtain prior permission from the relevant Guardians’ Court where required by law.
“Where a compromise is entered into by or on behalf of an illiterate, parda nasheen or otherwise vulnerable person representing a minor, the court will subject the transaction to full judicial review before granting its approval.”
The FCC also ruled that courts must remain vigilant to ensure that no conflict of interest exists between a guardian and the minor and, if necessary, appoint another appropriate guardian in accordance with the law.
“Proceedings affecting the property or inheritance rights of minors shall not be disposed of with undue haste, and any order affecting such rights shall reflect the independent application of the mind of the Court to the welfare and best interests of the minor.”
