Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Act. The definition of „guardian‟ in section 4(2)............

Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Act. The definition of „guardian‟ in section 4(2) seems to include the concept of custody, unless the same has been exclusively awarded by the court to a party who is not the guardian of a minor. Custody under the Act involves a right to upbringing of a minor. On the other hand, guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child. A father is considered to be a natural guardian of a minor, since even after separation with the mother, and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor. The liability to maintain the minor is not only religious and moral but also is legal. The right of custody of father is subordinate to the fundamental principle i.e. welfare of the minor. Maintenance of child is the duty of father and the mother cannot be deprived of custody due to her inability to maintain the child for lack of resources.

Unless there is something repugnant in the subject or context, section 4 of the Act defines the 'Minor' to mean a person who, under the provisions of the Majority Act, 1875, is to be deemed not to have attained his Majority; the 'Guardian‟ to mean a person having the care of the person of a minor or his property, or of both his person and property and the „Ward‟ to mean a minor for whose person or property or both there is guardian. As evident from its preamble, the FCA 1964 has been enacted for the establishment of Family Courts for expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith. Subject to the Muslim Family Laws Ordinance and the Conciliation Courts Ordinance, 1961, exclusive jurisdiction has been conferred upon the Family Courts to entertain, hear and adjudicate upon matters specified in Part I of the Schedule to the FCA 1964. These subject matters include custody of children and the visitation rights of the parents to meet them as specified in Entry No.5 of Part I of the said Schedule whereas the matters of Guardianship are also stipulated in Entry No.6 thereof.  Section 25 of the FCA 1964 deems the Family Court to be a District Court for the purposes of Guardians and Wards Act, 1890.  Barring a few exceptions specified in sub sections (4) and (5) of section 1 of the FCA 1964, jurisdiction of the Family Court over matters of custody is exclusive and no other Court including the Guardian Judge has any jurisdiction to deal with such matters. 

The main crux of the MHO 2001 essentially relates to psychiatric facility and management of property of the mentally disabled persons and appointment of guardian under the MHO 2001 is in that context. The dispute inter se parents of a minor for his or her custody and/or guardianship is manifestly not a subject matter of the MHO 2001, which falls within the exclusive domain of Family Court even when the minor suffers from any disability. Therefore, the provisions of MHO 2001 do not contradict and repeal the provisions of section 5 read with items No. 5 & 6 of the Schedule to the FCA 1964 to take away jurisdiction of the Family Court in disputes amongst parents regarding guardianship and/or custody of minors who are suffering from any mental disability. 

The overriding effect of the  MHO 2001, as provided in section 60 thereof, is again limited to cases of conflict, which is not the case here since the dispute in the instant case involves custody of the minor  amongst her parents and Wania is not claimed to be in possession of any property.     