RECONCEPTUALIZING THE WELFARE OF THE MINOR GRANDPARENTS IN CUSTODY JURISPRUDENCE WITHIN PAKISTAN’S JOINT FAMILY SYSTEM

Abstract

The child’s welfare is a matter of conscience and can never be determined solely by legislation. Judges in Pakistan’s guardian courts hear the same tale every day. Both the mother and the father oppose asserting their exclusive right to the child’s love. One fears the other’s influence; both distrust the other side grandparents. The hearing becomes a duel, not a dialogue. But in the midst of all this chatter, the child’s actual well-being frequently suffers in silence.

This essay aims to break that silence. Guardians and Wards Act of 1890’s definition of “welfare of the minor” is revisited, and the question of whether our courts have sufficiently examined the family circle is raised. Their role cannot be dismissed as a sentimental in a society like Pakistan’s, where the joint family is still very much alive and grandparents frequently provide for, educate, and support the younger generation. They are an integral part of custody and are not intruders. Despite its age, their love is still relevant today.

First, let’s talk about philosophy. Plato once envisioned a republic in which justice would be untarnished by blood, love might be universal, and children would know no parents and parents no children (Plato, trans. 2007). Aristotle disagreed. According to him, for love to be genuine, it must be unique. He reasoned that the child needed faces it could identify. The contemporary family court is situated between these two visions. Although the judge must prevent possessive love, they cannot put an end to love per se. Grandparents are frequently the key to this balance. When marriages end and new ones start, they provide continuity. They serve as a reminder to child that love is stronger than adult arguments.

The paper makes the case that the court cannot rely only on parental affidavits or accusations, citing case law from Pakistan, India, the United Kingdom, and Canada. It must politely but firmly enquire about grandparents’ capacity, willingness and presence (Gaurav Nagpal v. Children Act 1989; Sumedha Nagpal, 2009; Children’s Law Reform Act, 2020). Seeing a grandparent with the child can reveal more than a hundred pages of entreaties. My own court’s experiences have demonstrated that a brief meeting of this kind can reveal the child’s heart’s resting place and the potential for peace to return.

The “Welfare Principle” needs to take root in our own soil, according to the study’s findings. The court that disregards grandparents in Pakistan’s joint family system is actually ignoring reality. The elderly people who silently stand in the back of the courtroom and still have the ability to keep the family together must not be ignored by the law.