This judgment will dispose of Miscellaneous Appeals Nos. 99/1979 and 103/1979, which are directed against one and the same order dated 25-11-1979, passed by the learned VII Additional District Judge, Karachi, in exercise of his Guardianship jurisdiction.
By a short order announced on 13-4-1980, the Appeal No. 99/1979, for the reasons to be recorded later, was partly allowed subject to further findings, directions; and/or modifications of the impugned order. The reasons for passing the said short order and further findings are now recorded here--under.
2. The parties are Sunni Muslims and are governed by Hanafi Law. They were married at Karachi on 21-8-1976, and a son, named Sameer alias Guddoo, was born out of their wedlock on 4-5-1978. As a result of some differences between the spouses, they have been living separately ever since September, 1979. The minor, Sameer, continues to be living under the custody of the appellant, who is residing with her parents.
On 23-9-1979, the respondent filed a Family Suit No. 1763/79, in the Court of the District Judge, Karachi, under section 25 of the West Pakistan Family Courts Act, read with section 25 of the Guardians and Wards Act, 1890, (hereinafter referred to as the Act). Alongwith the suit an application for the interim custody of the minor under section 12 of the Act was also filed. The learned Judge dealing with the suit, passed order thereon for the production of the minor in Court on 24-9-1979 which was duly served on the appellant late in the evening of 23-9-1979. However, she neither appeared on the date of hearing, either personally or through any counsel, nor the minor was produced in the Court. The appellant sent a telegram on the date of hearing asking for adjournment on the ground that she required police escort for the production of the minor because, allegedly, the respondent was likely to abduct the child. The telegram is borne on the record. There is no mention in the Court's order dated 24-9-1979 regarding the receipt of the telegram and it is doubtful if the same could have been pre-emptorily delivered to the learned trial Court during the Court hours. On account of failure on the part of the appellant to produce the minor in Court, the respondent moved an application on 24-9-1979, under section 12 of the Act read with section 100, Cr. P. C., praying that a Search Warrant for the production of the minor may be issued and the Immigration Authorities be also informed so that the minor may not be taken out of Pakistan. The learned Guardianship Judge thereupon passed an order for the issuance of a Search Warrant for the production of the minor in Court on 26-9-1979. Immigration Authorities were also directed to be informed as applied for by the respondent. The Search Warrant was, however, not served in the first instance and time for its execution was extended up to 4-7-1979 on the respondent's application under section 148, C. P. C. The appellant meanwhile had made an application for the transfer of the case to the learned Chief Justice of this Court. Mr. Justice Abdul Hayee Kureshi, the father of the respondent, had also addressed a letter to the learned Chief Justice desiring that the respondent's suit be transferred to the High Court in order to allay any apprehensions which the appellant may have on account of his position as a Senior Puisne Judge of this Court. The said suit alongwith another suit of the respondent, with which the present appeal is not concerned, were ordered to be transferred to this Court by the learned Chief Justice on 1-10- 1979 for trial by a Judge of this Court. The respondent filed another application, being Misc.
Applica--petition No. 379/1979, in this Court on 14-10-1979 which came up for hearing before my learned brother Naimuddin, J., on 16-10-1.979, when an undertaking was given on behalf of the appellant that the minor will not be removed from the jurisdiction of this Court till the next date of hearing. The appellant in her counter affidavit to the said application raised objection that by virtue of section 5 of the Family Courts Act, 1964, all cases regarding the custody of children and guardianship were exclusively triable by the Family Courts and the High Court had no jurisdiction to exercise its original jurisdiction in respect of such cases. The said objection pre--vailed with the learned Judge, who, by his order, dated 22-10-1979, referred back the case to the learned Chief Justice for transfer to the Family Court. As a result, the learned Chief Justice by his order dated 10- 11-1979, directed for the transfer of the case by name to Mr. Zaheer Ahmed Khan, Additional District Judge, imposing a condition that the suit shall not be transferred anywhere else, even if the said learned Judge was transferred, without due notice to the High Court. It was further directed that the case should be proceeded with expeditiously. In the background of the above facts, the suit in question came to be dealt with by the Learned Additional District Judge, Karachi, who after hearing the parties, passed the impugned order on the respondent's application under section 12 of the Act, which contains the following directions :- "(1) That the minor shall continue to remain in the custody of the defendant until he attains the age of 7 years.
(2) That the order in clause (1) above can be varied if circumstances change by reason of divorce or re-marriage of any party.
(3) That the defendant shall not take the minor out of the jurisdiction of this Court without prior permission of this Court, granted after notice to the plaintiff.
(4) That the defendant shall send' the minor to the residence of the plaintiff on each Friday, Monday and Wednesday from 4-00 p. m. To 9-00 p. m.
(5) That the plaintiff shall take or cause to be taken and leave or cause to be left the minor on each day and time mentioned in clause (4) above from the place of residence of the defendant to his residence and back."
3. The impugned order has been challenged by both the parties in the two cross-appeals which are being dealt with together. The order under appeal has been challenged on several grounds by the appellant with the prayer that the impugned order be set aside and the respondent's application under section 12 of the Act be dismissed. Therespondent has also applied for setting aside and/or modifying the impugned order and for the acceptance of his two applications made under section 12 of the Act, as prayed for.
4. The appellant has filed several documents and photographs alongwith the appeal, which, however, are not relevant for the consideration of this appeal particularly because the same were also not taken into consideration by the learned Guardianship Judge as no evidence had been recorded and the suit had not proceeded beyond the filing of affidavits and counter-affidavits by the parties.
5. Mr. Zia Qureshi, learned counsel for the appellant, contended that the impugned order was passed outside the purview of section 12 of the Act and was, therefore, without jurisdiction.
According to him, no order under the said section could be passed except in the case of urgency, which was not borne out from the facts on the record. It was further urged that even other--wise the order imposing the condition of the taking of the minor to the residence of the respondent on each Friday, Monday and Saturday was impracticable and was not in the interest of the welfare of the minor. Lastly, it was stated that the minor was of a tender age and as such the appellant had the absolute right of Hizanat for his custody until he had attained the age of 7 years.
6. Mr. Zia Qureshi referred to Muhammad Sadiq Butt v. Mst. Khalid Parveen (1) in support of his contention that the party seelcing an order under subsection PLD 1967 Kar. 645of section 12 of the Act had to show certain element of urgency,which, the respondent had failed to establish in the Court below. He next referred to Imtiaz Begun v. Azmat Ullah (1) in which it was held that sec-- petition 12 only aimed at making an ad interim arrangement for the temporary custody of the minor during the pendency of the Guardianship Application. It did not empower the Court to order the production of a minor for the purpose of giving access to any person entitled to visit and see the child. It was contended that the judgment of the Supreme Court in Bahimullah Choudhury v.
Mrs. Sayeda Halali Begum and others (2) was not correctly appreciated by the learned Guardianship Judge. The main question for consideration before the Supreme Court in that case was as to whether the right of Hizanat by a Muslim mother was liable to forfeiture if she had removed the minors of tender age without the consent of their father to such a place from their usual place of residence as would prevent him from exercis--ing necessary supervision or control over her and the children. On considera--petition of the facts of that case, it was held that the right of custody of the minors was not forfeited by the mother by reason of her removing them from the ordinary place of residence of the appellant and that it was even otherwise not within section 25 of the Act in the welfare of the minors to deliver them into the custody of the appellant while they were of tender age. The facts of the said case were correctly noticed by the learned Additional District Judge by referring to para. 32 of the report at Page 318. The learned Guardi--anship Judge in that case had given a direction that the opposite side was to allow the father to have free access to the minors and to let them be with him by allowing either to visit the boys in the house of the contesting res--pondents, wherever the boys remained, or call the boys daily for a short period to his own residence or elsewhere within the jurisdiction of his Court so as to enable the father to exercise effective supervision and control over the boys. In that regard the order of the trial Court was maintained by the Supreme Court and no exception was taken to such arrangement. In my opinion, the judgment was correctly followed by the learned Additional District Judge and applied to the facts of the present case.
It may be mentioned here that it was not disputed on behalf of the respondent that the appellant did not have the right of Hizanat for the custody of the minor. What, however, has been urged in the suit is that, for certain reasons stated in the plaint, the appellant has lost her right of Hizanat and the minor is fable to be delivered into the custody of the respondent. Mr. Zia Kureshi also made reference to Mirza Mohomed Yousuf v. Razia Sultana (3). In that case it was held that danger to life or health of the minor during the continuance of the custody of the minor with any of the parties must be proved by the party claiming temporary custody of the minor. It was further observed that an order passed by the Guardianship Judge under section 12 without adverting to the danger and health of the minor was invalid and liable to be set aside. This Judgment is distinguishable on facts, because the order challenged therein had been passed disposing of the application under section 12 of the Act giving interim custody of the minor to her mother. In the case before me, however, the interim custody of the minor has not been given to the respondent and all that has been done is to provide the latter an opportunity of meeting his son for the total of 15 hours on three week days.
7. Mr. Rehanul Hassan Faruqi, learned counsel for the appellant, in opposing the appeal filed by Yasmin Kureshi, and in support of the appeal filed by the respondent Raja Kureshi, contended that in so far as the question of urgency was concerned, the respondent had made out more than a prima facie case. He firstly referred to the fact that in spite of the service of notice for the production of the minor before the Guardianship Judge. Theappellant had failed to do so on 24-9- 1979 which had compelled the respondent to move an application for issuing a search warrant for the production of the minor. He next referred to the telegram dated 27-9-1979, sent by the father of the appellant to the respondent, informing him that his daughter had left his house on 24th September, 1979 having learnt from reliance sources that a search warrant for the arrest and production of the infant son had been issued. In the said telegram the appellant's father had stated that no com--munication should be addressed on his address because his daughter cannot receive the same or be served on his residential address as she was staying elsewhere. This telegram, according to the learned counsel; was positive proof of the fact that the appellant was capable of removing the minor to some place from where he may not be recovered. On these premises it was urged that the application of the respondent for interim custody of the minor should have been granted by the learned Guardianship Judge ; and in any case, more stringent conditions should have been imposed in order to prevent the danger of the child being removed from the jurisdiction of the Guardian--ship Judge.
(1) PLD 1957 Lab. 750(2) 1974 SCMR 305
(3) PLD 1974 Lab. 125 Mr. Rehanul Hassan Faruqi referred to A.I Akbar v. Kaniz Maryam (1) to contend that the right of a Muhammadan mother to the custody of the minor is subject to the control of the father, and if she takes away the minor against the wishes of the father to a place where the father cannot exercise supervision and control, she acts without authority and her taking away the minor amounts to removal of the minor from the custody of the father. The custody of the mother is to be regarded as a kind of subordinate custody and the control of the father also is a custody within the meaning of the Guardians and Wards Act. To the same effect is the judgment in the case of Muhammad Bashir v, Ghulam Fatima (2), where too, it was held 'that the father should be deemed, in law, to be in constructive custody of the minor. The learned counsel further referred to Nematullah v. Balqis Sitara (3) in which it was held that in the absence of any provision to the contrary it was open to the Guardianship Judge to pass any order interim or final, which promotes the welfare of the minor.
In Muhammad Jamil v. Rahila Nosheen (4) it was held that the bringing of the minor in an atmosphere giving rise to growing up of hatred in minor's mind against his parents, may be father or mother, was not in the welfare of the minor. The learned counsel also relied on the ruling, earlier referred to and relied upon by the learned counsel for the appellant in the case of Rahimullah Choudhry, in support of his contention that a mother could be deprived of the custody of the child of tender age if the paramount consideration of his welfare so demands. At page 315 of the report it was observed by the Supreme Court in that case, that if the mother removes the minor against the wishes of the father to a place where the father cannot exercise supervision and control, she forfeits her right to the custody of the minor. Mr. Rehanul Hassan Faruqui contended that, according to the facts of the instant case also, the appellant had forfeited her right of Hizanat and the respondent was, therefore, entitled to the custody of his minor son.
(1) PLD 1956 Lab. 484 (2) PLD 1953 Lab. 73
(3) PLD 1973 Lab. 442(4) PLD 1975 Lah. 687
(5) PLD 1957 Lab. 750 Mr. Rehanul Hassan Faruqui pointed out that the view expressed in Imtiaz Begurn's case, relied upon by the learned Counsel for the appellant with regard to the interpretation of section 12 of the Act, was dissented from by another Judge of the Lahore High Court in Nematullah's case. In the latter case it was held that the interpretation of section 12 of the Act given in Imtiaz Begum's case was very narrow. In Imtiaz Begum's case the learned Guardianship Judge had directed that the minors should remain for two days in a month at Lahore with their mother and the peti--tioner, namely, Nematullah and others, should make arrangement to hand over their custody on every Saturday of the month at 9 a. m., and the minors could be returned to the petitioners on Monday morning after staying with their mother for Saturday and Sunday. This direction of the learned Guardianship Judge was upheld and it was held that in fact it was a case of temporary custody for two days in a month, but even if the case did not fall under section 12, the order could have been passed under the Court's jurisdic--petition to pass any order necessary for the welfare of the minor. By a Division Bench of' the Lahore High Court, comprising Addison and Din Muhammad, JJ. In Mst. Nazir Begum v. Ghulam Kadir AIR 1938 Lah. 313 it. Was held that as long as the custody was not made over to the Guardian, the proceeding did not terminate and the applicability of section 12 of the Act is not barred, though the certificate of Guardianship may have been issued. In the said case the objection raised on behalf of the respondents was that section 12 of the Act comes into play when the proceedings are pending and had no application after the final order appointing a Guardian had been made. This contention was overruled and it was held that section 12 did not only apply to inter--locutory orders but was available so long as the custody was not made over to the Guardian as the proceedings did not terminate with the issuance of the Guardianship Certificate. It would thus appear that the scope of section 12 of the Act was held to be wide enough, and so was the view taken in Nematullah's case, referred to above. I am in respectful agreement with the view expressed in the above-mentioned two judgments. In my humble opinion section 12 of the Act should be interpreted liberally and beneficially for passing such orders by the Guardianship Judge as the exigencies of the case may demand. Such an interpretation is necessary because the Guardian--ship Judge must have ample discretion to pass interim orders as the facts of the case may justify, keeping, of course, in view the welfare of the minor. Admittedly, in the instant case the relations between the spouses are much too strained and the innocent minor, who is no longer of the suckling age, muss, not suffer as a result of bickerings obtaining between his parents and the child should not be deprived of the affection of his parents. The ties of blood are much too strong and should not be allowed to be broken on account of any insensible decision taken by the parents of the child who cannot understand anything but the benign language of the parental and maternal affection.
8. For the foregoing reasons, I would, therefore, hold that the learned Guardianship Judge had acted wisely by providing a time Schedule for taking the minor to his father for a fixed period on three days in a week. How--ever, I am not inclined to maintain the order as it is because, according to me, the time schedule of 5 hours duration in three days in a week for taking the minor to the house of the father is rather long which also requires adjustment considering the weather conditions during the summer and the winter months. It is for the said reason that, as per my short order dated 13-4-1980, I hadmodified the impugned order of the learned Additional District Judge as follows :-
(1) That during the months of summer in Karachi from Ist April to 31st October, the minor will be taken to the residence of the respondent on each Friday, Monday and Wednesday from 5 to 9 p. m. ;
(2) That during the winter months the minor will be taken to the re--sidence of the respondent on each Friday Monday and Wednesday from 4 to 8 p. m.
Apart from the above-mentioned modification in the impugned order, the conditions Nos. 1 and 2 are also liatrle to be set aside, which I hereby do, because such conditions should have been better reserved until the final disposal of the respondent's suit. The other two conditions Nos. 3 and 5 are upheld and will remain undisturbed.
This order should be read alongwith the short order passed earlier on 13-4-1980.
9. Insofar as the respondant's Miscellaneous Appeal No. 103 of 1979 is concerned, I am not inclined to accept the same because, in my opinion, the order of the learned Guardianship Judge, as modified by me now, is not opposed to the welfare of the minor, takes care of the interest of the parties and will adequately meet the ends of justice.
There is already a direction for the early disposal of the suit given by the learned Chief Justice of this Court; which the learned Additional District Judge is directed to strictly comply with.
10. As a result of the above discussion Miscellaneous Appeal No. 99 of 1979 filed by Mrs. Yasmin Kureshi is partially accepted, as indicated above, and Miscellaneous Appeal No. 103 of 1979 filed by the respondent Raja Kureshi is dismissed, and the parties are left to bear them own costs.