' ALI BAQAR NAJAFI, J.---The petitioner, through this Constitutional Petition, seeks setting aside the order dated 17-12-2012 passed by the learned Guardian Judge (respondent No,2) and that of the learned District Judge, Lahore (respondent No,3) dated 4-7-2013.
2. Brief facts giving rise to the filing of this writ it petition are that respondent No,1 filed a petition under section 25 of the Guardians and Wards Act, 1890 for the appointment of guardian of petitioners Nos.2 and 3 along with an application under section 12 of the said Act praying for the interim custody before respondent No,2. During the pendency of the proceedings, many applications were filed for interim custody of the petitioners Nos.2 and 3 on the eve of Eid and vacation. However, on 27-10-2011 respondent No, 2, learned Guardian Court settled a schedule of meeting with petitioners Nos.2 and 3 on 2nd and 4th Saturdays of every month from 10 a.m. To 12 p.m. Meanwhile, the case was transferred from Guardian Court No, I to Guardian Court II at Lahore and therefore another application for interim custody of petitioners Nos.2 and 3 was filed on 12-12- 2012 during summer vacation which was contested by the petitioners. Petitioner No,1 also filed an application 23-11-2012 seeking permission to take petitioners Nos.2 and 3 abroad during the summer vacation, which application was also contested by respondent No,l. On 17-12-2012 the Guardian Court (respondent No,2) allowed interim custody of the minors to respondent No,
1. The application of the petitioner to take minors aboard was dismissed. The petitioner then filed two appeals which were decided by respondent No,3 while dismissing the same on 4-7-2013. Hence, this writ petition.
3. Learned counsel for the petitioner submits that since the question of interim custody has attained finality while deciding the application under section 12 of the Guardians and Wards Act, 1890, which order was upheld by the learned Addl. District Judge (respondent No,1) therefore, the said order cannot be reviewed; that interim custody of the minors to the father was declared by the apex Court as not justified. Places reliance on Saima Ahmad v. Tanvir Ahmed and others (2009 SCMR 1062), Tanya Khitwear (Pvt.) Ltd. And others v. First Women Bank Ltd (PLD 2008 Karachi 29), Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others (PLD 20911 Supreme Court 260), Mian Zameer Tufail through Attorney v. Ayesha Bibi and 2 others (2009 CLC 717), Mst. Shagufta Shaheen v. Muhammad Ismail Qureshi and 2 others (PLD 2011 Peshawar 238) and Mst. Farah Waqar v. Dr. Waqar Ahmad Khan (2000 YLR 3046).
4. Conversely, the learned counsel for respondent No,1 submits that writ is not maintainable against the concurrent findings of facts; that the application seeking permission to take the minors abroad filed by the petitioner was dismissed, therefore, the petitioner cannot blow hot and cold in the same breath; that no change in the schedule was made and there is no question of any review; that the order dated 17-12-2012 only permitted respondent No,1 to take the minors from 22-12-2012 at 10 a.m. Till 26-12-2012 at 11 a.m. That too subject to furnishing surety bonds in the sum of Rs,5,00,000 to the satisfaction of the said Court for the safe return of the minors. Hence, this petition may be dismissed.
5. I have heard the learned counsel for the petitioner and perused the record.
6. Admittedly, the petition under section 25 of the Guardians and Wards Act, 1890 is pending in the Court of Guardian Judge (respondent No .2).
7. It is also not denied that a schedule of meeting had already been arranged. The question before this Court is that an a Guardian Court make some necessary changes in the schedule already decided between the parties which had attained finality up to the level of appellate Court to the extent of permitting the custody of the minors to the father for four days during summer subject to the surety bonds. The main reliance of the learned counsel for the petitioner is on Saima Ahmad v.
Tanvir Ahmed and others (2009 SCMR 1062), in which the schedule of meeting arranged by the learned Guardian Court was modified by the learned Addl. District Judge and further modification by the High Court was not appreciated. The relevant extract of Para-4 is reproduced as under:-- "4. We have heard the learned counsel for the parties and examined the available record. Learned Additional District Judge while modifying the order passed by the learned Guardian Judge allowed the respondent to meet his minor daughter on first and third Saturday of every month for a period of two hours, which order was further modified by the learned High Court, in exercise of its constitutional jurisdiction, whereby certain modalities were formulated, inasmuch as, the respondent was required to execute a surety bond in the sum of Rs, One million, the name of the minor was placed in Exit Control List, bailiff was to supervise the meeting and the venue of the meeting was fixed the house of the respondent in Lahore. Having given some thoughts to the arrangement proposed by the learned Judge in Chambers we feel that the said arrangement may lead to numerous complications as it may not be practicable in result to some mishap to the disadvantages of the minor girl, who is now aged nearly six years. The learned Additional District Judge in a straight forward manner provided reasonable and practical visitation rights to the respondent, which should have satisfied him, but the learned Single Judge, we say so with respect, further complicated the matter. The proposed arrangement made in the impugned order was neither just nor equitable and proper, as the agonies of both the parties were in fact multiplied.
We are persuaded to maintain the said order. Under the circumstances, case of Shireen Qasim Khan (ibid) relied upon by the learned counsel for respondent is of no avail to the respondent. We feel that under the circumstances, the arrangement made by the learned Additional District Judge was fair, equitable and was not only in the interest and welfare of the minor, but also reasonably protected the rights of both the parties, therefore, we while converting this petition into appeal are persuaded to set aside the impugned order."
8. However, in the instant case the additional four days during the summer vacation were granted by the learned Guardian Court to respondent No,1 which has been upheld by the learned Addl.
District Judge on 4-7-2013 without even any minor modification. On the question of review of the order relating to schedule of meeting the reliance of the learned counsel for the petitioner on Mst.
Shagufta Shaheen v. Muhammad Isma il Qureshi and 2 others (PLD 2011 Peshawar 238) and Tanya Khitwear (Pvt.) Ltd. And others v. First Women Bank Ltd., (PLD 2008 Karachi 29), wherein the powers to review the order has been made conditional to such provision available in the relevant statute. I am afraid, the said impugned order cannot be said to be an outcome of the review of the earlier order relating to schedule of meeting. The ,judgment cited at bar Mian Zameer Tufail through Attorney v. Ayesha Bibi and 2 others (2009 CLC 717) discourages making the child a rolling stone by various interim orders which was considered as inappropriate for his personality and well being.
Obviously, in this case the interim custody has not been questioned.
9. A schedule of meeting of minor with the father during the summer vacation is a reasonable and just requirement of law through which the father can show his love and affection for the minor.
Obviously, in the backdrop of the type of education the minors receive in our urban society, they cannot develop their emotional attachment with the father if they are not permitted to live with him during the vacation period.
13. In this view of the matter, I do not see any illegality or any constitutional defect in the two orders passed by the learned Courts below, which are hereby upheld, as a result thereof this writ petition is dismissed.