' This revision petition is directed against order dated 27th February, 1979 passed by the learned Guardian Judge, Lahore on an application filed by the petitioners under section 12 of the Guardians and Wards Act, ISO, for temporary custody of minors Faruq Zahid and Seema Zahid, the son and daughter respectively of petitioner No,
1. Petitioner No, 2 is the grandfather of the minors whilst the respondent is their mother.
2. Briefly stated the facts of the case are that petitioner No, 1 made an application under section 25 of the Guardians and Wards Act, 1890 claiming the custody of the aforesaid two minors on the ground that they have been illegally removed from his custody by the respondent. It was alleged that the minors were under the custody of the petitioner they were living along with their mother i,e, the respondent at Rawalpindi/ Islamabad in the house of petitioner No, 1 and his father petitioner No, 2 ; and that they were being educated in the schools at Islamabad, but suddenly the respondent without permission and without any authority removed them from the custody of the petitioners on 10th September, 1977. It was asserted that the welfare of he minors lay in restoring their custody to the petitioner as they were being properly brought up and educated.
3. The petitioner No, 1 during the pendency of the said proceedings also filed an application dated 7th December, 1978 before the Guardian Judge under section 12 of the Act alleging that the minors have been wrongfully removed from the custody of the petitioner where they were being brought up carefully ; the respondent No, 1 had refused to live with petitioner No, 1 ; that the respondent has lost the right of hizanat in respect of Faruq Zahid, he having crossed the age of 7 years ; that there is every likelihood of the petition under section 25 of the Act being accepted and that the welfare of the minor children lay in restoring the custody to the petitioner during the pendency of the petition.
4. Both the applications mentioned above were amended so as to implead petitioner No, 2 and amended petitions were submitted on 14th February, 1979. These applications were resisted by the respondent and application filed by the petitioners under section 12 of the Act was ultimately rejected by the learned Guardian Judge, Lahore vide his impugned order dated 27th February, 1979.
Hence this revision petition.
5. The learned counsel for the petitioners contended :- ' Firstly, that it has been wrongly held by the Court below that the petitioners must allege urgency in the petition itself in order to obtain interim custody. He submitted that section 12 of Guardians and Wards Act, 1890 in no manner places this embargo. The authority cited in the judgment of the lower Court, it was urged, was not applicable to the facts of the case, as the same proceeded on entirely different facts ; ' Secondly, that if at all urgency is a necessary element to decide an application filed under section 12, then the Court itself should consider the same keeping in view the circumstances of each case regardless of the position that it had not been pleaded in the application. Reliance was placed in this regard upon Mirza Muhammad Yousuf v. Razia Sultana PLD 1974 Note 80 at p.
125.
' Thirdly, that it is the duty of the Court to go into the question of welfare of the minors even for the purposes of interim custody. It was urged that estrangement of the minors from the parental side, was a ground with urgency involved therein and the Court below erred in not adverting to this aspect of the matter as also to the welfare of the minors, in that they would be deprived of better educational facilities if interim custody was not given to the petitioners. Reliance in this regard was placed on Nemat Ullah Qureshi and another v. Mst. Balqis Sitara PLD 1973 Lah. 442 and Haji Muhammad Jamil v. Mst. Rohila Nosheen PLD 1975 Lah.
687.
' Fourthly, that a deeree having been passed in favour of petitioner No, 1 and against the respondent for restitution of conjugal rights and the respondent having not complied with the dictates of the said decree has lost the right of interim custody even. In support of this contention the learned counsel relied on Mst. Mahmood Khatoon v. Syed Zain-ul-Hasnain Rizvi PLD 1958 Kar.
150 ; and ' Lastly, that the mother's custody was never absolute and that even when the minors were physically in her custody, they remained in the overall supervision of the natural and legal guardian who is a father. As soon as the minors are removed by the mother to a place where the legal guardian cannot control the minors, the mother loses the right of interim physical custody even. In this regard the learned counsel relied on Muhammad Sadiq v. Mst. Sadiq Safoora PLD 1963 Lah. 534, Mst. Chiragh Bibi v. Khadim Hussain PLD 1967 Lah. 382 and Jumma Khan v. Mst. Gul Ferosha PLD 1972 Pesh.
1.
6. On the other hand the learned counsel for the respondent submitted that the word "protection" used in section 12 (ibid) is only intended for the life and health of the minors and in case there is no danger to the life and health of the minors, interim custody cannot be taken away from a person in whose physical custody the minors are for the time being. In support of the above contention the learned counsel relied on Mirza Muhammad Yousuf v. Razia Sultana.
7. He further submitted that the impugned order in no manner suffers from any illegality and does not call for interference in the revisional jurisdiction of this Court.
8. The learned counsel for the respondent also contended that giving of minors by way of interim custody at this stage would adversely effect their interests, in that they are in the midst of their educational sessions and if now removed, their education will suffer.
9. I am not inclined to agree with the submission made by the learned counsel for the respondent that while deciding an application under section 12 of the Act, the only thing which falls for consideration is the protection of the person of minor viz protection of his health or life and that no other matter of welfare such as education could be brought under consideration at this stage. The above suggestion of the learned counsel cannot be laid as a principle of law as it is likely to render a Court which under the Guardians and Wards Act exercises a parental jurisdiction from passing appropriate orders of interim custody where the welfare of the minor independent of the life and health is so impelling that removal of temporary custody is imminently called for. I do not find any thing of the nature emanating from the provisions of section 12 (ibid) so as to restrict the powers of the Court. As already observed above, being a jurisdiction of parental nature the Court even while deciding the matter of temporary custody has to keep the overall interest of the minor in its view which inter alia is inclusive of matters like education.
10. On the plane language employed in section 12, the view is readily maintainable that it cannot be given a restricted interpretation. Otherwise also having regard to the object intended to be served by the said section, it is pre-eminently called for that it should bear a liberal construction. In that view of the matter the considerations relevant to be taken into account under the said section cannot be confined to the physical health and safety of the minor or his property and the same can be taken as legitimately relateable to equally valuable interests such as education, keeping good society etc.
11. The review of the case-law on the subject also lends support to my view that no restriction is envisaged or should be laid on the powers of the Court to order the giving of interim custody under section 12 of the Guardians and Wards Act to any person whom the Courts thinks fit to have the custody during the pendency of any proceedings under the Act.
12. In Nemat Ullah Qureshi and another v. Mst. Bilgis Sitara it was observed as under at page 447 of the report :- If it is assumed that the Guardian Judge has no power to pass an order of temporary custody in proceedings under section 25, it will lead to anomalous results and the function of the Guardian Judge to act in loco paraentis and to take care of welfare of the minor will be stultified.
There may be cases in which the Court may feel satisfied that if the custody is not changed during proceedings under section 25 irreparable loss or injury may accrue to the minor, Cases may come before Guardian Judge in which, on account of gross and sometimes deliberate neglect of persons having custody, minors may have started moving society of riff-rail' and bad characters, or may have fallen ill and received no medical attention or in spite of having independent means are not being educated or properly maintained or looked after. Can it be said that the Guardian Judge in spite of being as loco paraentis to the minor will be powerless to pass an order of change of custody."
13. Again in HO Muhammad Jamil v. Rohila Nosheen following PLD 1973 Lah. 442 it was abserved at page 689 as under :- ' There is nothing to limit the jurisdiction of the Court to pass any order in relation to temporary custody of the minor, whether during the proceedings under section 10 or 25 of the Act or while passing final order in the said proceedings. I do not see any reason as to why a Court cannot direct the mother or the father, in whose custody the child is given, to hand over his temporary custody to the other party if the welfare of the minor so warrants, there is no limitation on the jurisdiction of the Court to pass such an order, otherwise complications can arise and the same can lead to serious consequences as discussed above."
14. Even in Mirza Muhammad Yousuf v. Razia Sultana cited on behalf of respondent it was observed that it is the duty of the Guardian Judge to find out as to whether the life or health or interest of the minor is really in immediate danger or jeopardy or not and then he may pass appropriate order under the said provisions. It, therefore, cannot be said that the authority cited by the learned counsel for the respondent in any manner restricts the scope of section 12 of the Act so as to limit the power of the Guardian Court to pass order of interim custody only in cases where the person or property of the minor was in immediate danger.1 Use of the word "interest" in continuation of the words "life or health" clearly shows that the power of the Court to go into all relevant interests of the minor for the purposes of determining the question of interim custody is unfettered.
15. The order of the Court below has proceeded on the assumption that the Authority PLD 1974 Note 80 at p. 125=PLJ 1974 Lah. 125 had laid the law that in a petition that may be moved under section 12 of the Guardians and Wards Act, the urgency must be mentioned. This Authority has been apparently misapplied and misinterpreted by the Court below. In para. 5 of the cited judgment at page 126 [PLJ] it has been observed as under :- "In the present case irrespective of the fact whether any such allegation was made by the respondent in her application or not, it was the duty of the learned Guardian Judge, to hold some inquiry and probe into the matter as to whether the circumstances and conditions so warranted as to hand over the interim custody of the child to the respondent or not."
' In fact the above observation of his Lordship clearly goes contrary to what has been interpreted by the learned Court below. The true import of the observation as reproduced above is that the Guardian Judge, even in the absence of any allegation in the application is required to go into the matter himself and see where lay the interest of the minor for the purpose of interim custody. The rejection of the application in the circumstances by the Court below is apparently not justified and rests upon an erroneous conception as to the scope of section 12 (ibid).
16. I may have accepted the revision and remanded the case to the Court below for decision afresh by going into the merits of the case, but the matter of interim custody of children is not such as should be allowed to be kept in suspense. It affects the mental state of the minors as also their physical health. Apart from this their education also suffers. Keeping in view the above considerations, I am not inclined to remove the minors in the case in hand from the custody of the mother at this stage, as it is likely to adversely affect their education, they being in the midst of their educational term. There is likely to arise complications of environmental maladjustment of the children which again would be detrimental to their education.
17. The contentions raised by the learned counsel for the petitioner as to the entitlement of the petitioner to have interim custody of the minors in view of the age of the minor son having crossed 7 years and on account of refusal of the respondent to live at the place of the petitioner No, 1 despite a decree of restitution of conjugal right are not being dealt with by me here while disposing of this revision as they may be pertinent points for the adjudication of the question of permanent custody of the minors. Any observation made by me on the above points or the other points raised on behalf of the petitioners, of whatever tentative nature those may be, may cause prejudice to the case of either party and it will be desirable to leave those points untouched at this stage.
18. Thus although the trial Court's judgment is based upon faulty reason, the conclusion is nevertheless in conformity with the view I have taken and for this reason I do not feel inclined to exercise my discretionary power under section 115, C. P. C. In favour of the petitioners. Since the interim custody of the minors is not being changed for reasons of likely suffering of the education of the minors and their environmental mal-adjustment during the interim period it is desirable and in the interest of minors that the decision in the main application under section 25 of the Guardians & Wards Act should be given by the Guardian Judge, at a very early date. While dismissing this revision petition I would, therefore, direct that the Guardian Judge, should decide the main case within 2 months from the receipt of the record of the case. There will, however, be no order as to costs.
' Office is directed to des-patch the record of the Court below immediately and the parties are directed to appear before the Guardian Judge, Lahore on 7th January, 1980.