BENCH TO THE BRINK: JUDICIAL MISCONDUCT & THE LEGAL VOID OF SECTION 12 OF GUARDIAN & WARDS ACT 1925, PAKISTAN FAMILY COURTS

Abstract

This article critically examines the structural and procedural deficiencies embedded in Pakistan’s family court system, with a particular focus on the colonial-era Guardian and Wards Act, 1890. Central to this analysis is Section 12 of the Act, which allows for interim custody orders without granting a statutory right of appeal—an omission that creates a legal vacuum in urgent child welfare cases. This absence of appellate scrutiny enables rampant judicial discretion and fosters an environment conducive to favoritism and procedural abuse. Drawing from a real-life case (the “Montgomery Case”), the article exposes how corrupted evidence, judicial bias, and administrative misconduct can converge to produce outcomes that violate due process and undermine the welfare of children. Existing oversight mechanisms, such as the High Court’s Member Inspection Team, are shown to be largely ineffective, issuing mere explanatory notices without undertaking meaningful disciplinary action. This article further explores how Section 12 is in direct violation of Articles 10-A and 25 of Pakistan’s Constitution—guaranteeing the right to a fair trial and equality before the law. Comparisons are made with legal systems in India, the United Kingdom, and the United States, where interim custody orders are subject to appeal or expedited review, demonstrating Pakistan’s legal obsolescence. The article proposes legislative reform through a newly drafted Section 12-A, establishing a statutory right of appeal for interim custody decisions, and recommends the creation of an independent judicial appointment commission, enhanced training in child psychology, and a strengthened judicial oversight board. These reforms aim to harmonize Pakistan’s domestic laws with international human rights standards while restoring public trust in the judiciary. The findings build upon previous scholarly work exposing systemic flaws in Pakistan’s judicial and institutional architecture, including analyses of recruitment corruption (Siddiqui, 2019), misuse of public authority (Siddiqui, 2022), and procedural rigidity (Siddiqui, 2018; 2023), thereby contributing to the growing body of policy-oriented legal critique in South Asia