ISLAMABAD:
The Federal Constitutional Court (FCC) has established comprehensive guidelines for all civil and tax courts dealing with proceedings affecting the person, property or inheritance rights of minors, directing judges to exercise greater judicial scrutiny and ensure strict compliance with legal safeguards before approving any order that may affect the interests of a minor.
A 20-page judgment written by FCC Chief Justice Aminuddin Khan, while examining a matter relating to the protection of 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 mandate of Islamic jurisprudence.
He noted that the Constitution itself requires that all laws conform to Islamic precepts, and courts, when interpreting laws relating to the rights of minors, must take these fundamental principles into account.
“The Holy Quran repeatedly exhorts the faithful to protect the property of minors, particularly orphans, and severely condemns all forms of misappropriation, exploitation or illegal deprivation,” the ruling reads.
A three-member bench, headed by CJ Aminuddin Khan, ruled that courts must, at the earliest stage of the proceedings, determine whether any of the parties 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 convincing the Court that the proposed guardian has no interest adverse to that of the minor.”
The judgment states that no undertaking, 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 an undertaking involves the transfer, renunciation or alienation of the property or inheritance rights of a minor, the court must also ensure compliance with the Guardians and Wards Act, 1890 and obtain prior permission from the competent court of guardians whenever required by law.
“Where a compromise is reached by or on behalf of an illiterate, parda nasheen or a vulnerable person representing a minor, the Court will subject the transaction to greater judicial scrutiny 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, when necessary, appoint another suitable guardian in accordance with the law.
“Proceedings affecting the property or inheritance rights of minors will not be resolved in undue haste, and each order affecting such rights will reflect the independent application of the Court’s mind to the welfare and best interests of the minor.”
