SAFDAR SALEEM SHAHID, J. Through instant writ petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioners have assailed the orders dated 24.3.201 1 and 13.3.2014 passed by the Guardian Judge-1, Lahore and judgment dated 13.6.2014 passed by the Addl. District Judge, Lahore.
2. The petitioners have sought for relief that the ex-parte proceedings conducted against them are based on malafide. The orders are illegal and many irregularities have been committed while passing the orders by the courts below .
3. Brief facts, necessary for the conclusion of the propositions are that the respondent No.3 filed a guardian petition under section 25 of The Guardian & Wards Act seeking custody of the minors, petitioners No.2 & 3. The said petition was ex-parte allowed vide order dated 24.3.201 1. According to the petitioner lady, the petitioners came into the knowledge of the ex-parte decree when bailable warrants of arrest in execution proceedings were issued on 28.2.2014 against the petitioners. It is alleged that neither the petitioner was served during the proceedings of the titled petition nor notice in terms of section 9(6) of the West Pakistan Family Courts Act, 1964, of passing of ex- parte order dated 24.3.201 1 were served to the petitioners. The petitioners filed an application on 5.3.2014 for setting aside aforesaid ex-parte proceedings.
This application was dismissed on 13.3.2014. The petitioners preferred appeal against the aforesaid order which was also dismissed by learned Additional District Judge vide judgment dated 13.6.2014. The petitioners challenges the legality , validity and propriety of the impugned orders dated 24.3.201 1 and 13.3.2014 passed by the learned Guardian Judge-1, Lahore and judgment dated 13.6.2014 passed by learned Additional District Judge, Lahore on the ground that the impugned orders and judgment are based on surmises, conjectures and presumptions not supported by the record of the case. Both the impugned judgments are result of misreading and non-reading of the record and misconstruction of law. The petitioner was never served in person and ex-parte proceedings were initiated against the petitioner on the basis of proclamation in newspaper . No notices were ever received back which was allegedly issued to the petitioners by registered post A/D or courier service. Even no notice was issued to the Chairman Union Council where petitioner resides. The requirement of section 8(3) and section 7(2)(3) of the West Pakistan Family Courts Act, 1964 were not fulfilled. It was alleged that the petitioner was knocked out on the basis of technicalities. The minors were never made a party to the application who were the main subject of the application. It was alleged that in the earlier proceedings, the petitioners have been shown present in the case alongwith the minors whereas the petitioner has never appeared before the court nor has appointed any Attorney/Advocate to contest on her beha lf. The petitioner never filed application under section 12(2) CPC through counsel Muhammad Fayyaz Chughtai, Advocate. There is no signature of the petitioner either on the power of attorney or the affidavit annexed with the application filed on behalf of the petitioner under section 12(2) CPC read with section 151 CPC. The petitioner claims that being mother , she has been caring the minors and minors are very happy in her company . There could be no substitute for the mother . The ex-parte orders by the courts below are in violation of the principles of law laid down by the Superior Courts. The decisions on the application of custody of minors are not final and conclusive in nature and it can always be reviewed/re-determined keeping in view the welfare of the minors and changing circumstances. On the wrong addresses, the notices of the petitioners were sent, if any. Therefore, ex-parte orders and judgments passed by the courts below are illegal and void ab initio, ineffective to the rights of the petitioners. The judgment passed by the Addl. District Judge is also against the basic law, therefore, the same should be set-aside and the learned Guardian Judge, Lahore be directed to decide the guardian application of the respondent No.3 on merits.
4. Learned counsel for the petitioners argued that under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, the impugned orders and judgment of the learned Guardian Judge and the learned Addl. District Judge, Lahore are against the law and are not sustainable in the eye of law. It was argued that respondent No.3 filed application and the address of the petitioners was not correctly mentioned. Whereas the learned courts below have not complied with the requirements of section 7(2)(3) and section 8(3) of the West Pakistan Family Courts Act, 1964. Neither the summons were sent to the correct address nor the required documents were annexed with the summons, registered post A/D or courier service nor on the basis of the report of the said summons, the proclamation in the newspaper could be made. Counsel in this regard referred Mst. Nasreen Vs. Additional District Judge with Power of Guardian Judge, Alipur and others (2007 PLD Lahore 576) that no one should be condemned unheard. The Constitution of Islamic Republic of Pakistan guarantees every citizen for fair trial and guarantees the equal opportunities to all the citizens to plead their view before the courts. It was argued that the petitioners have been condemned unheard and on the basis of the wrong proceedings conducted by the courts, the petitioners have been deprived from their fundamental right of defending their view/right. It was argued that being the mother , the petitioner No.1 is entitled for the custody of the minors as their ages require her association for their better brought up. It was argued that the leaned courts below have not exercised their jurisdiction judiciously . The propositions should be settled on merits and technicalities should be avoided is a golden principle settled by the Superior Courts.
5. Learned counsel for the respondent No.3 on the other hand resisted the arguments and argued that conduct and character of the person is very important especially when the matter of the brought up of the minors is concerned and attached with that person. It was argued that the lady has not only concealed the facts but also had indirectly blamed the courts while denying about the proceedings of the courts which have the presumption of truth. The lady herself appeared in the court, filed the application under section 12(2) CPC read with section 151 CPC. The counsel was appointed. The minors were present in the court and their attendance has been marked by the court.
Even then the lady has denied all those factors. Meaning thereby , she had indirectly accuse the court. Such a lady is not entitled for custody of the minors, who has no belief in the rule of law, who has no respect for the court proceedings and who for her minors benefit had let down the settled principles of law and has violated the social norms of the society . It was argued that the courts below have passed the decree strictly in accordance with law.
The lady has not been condemned unheard. She was heard by the court. She attended the court and then she absconded from the court proceedings without any reason and thereafter even she did not appear before the court for a long time and also deprived the respondent No.3 from his right. Even the respondent No.3 could not see his minor children for many years. The lady has contracted second marriage and the children are living with a stranger .
It was argued the ages of the minors demand and need the support and supervision of some blood relations to look after their rights and daily routine work. A stranger cannot look after such rights. It was argued that it is against the religious teachings as well as the social norms of the society that teenager , grownup female children be given in the custody of a stranger to look after whereas their father is alive and is capable of having their custody . It was argued that respondent No.3 has not contracted second marriage so far. Keeping in view that, his children need his company and supervision. It was argue d that the court adopted all the required procedure. The mandatory provisions of section 7(2)(3) and section 8(3) of the West Pakistan Family Courts Act, 1964 were fully complied with by the court. There is no illegality or irregularity in the impugned orders and judgment passed by both the courts below .
6. Arguments heard. Record perused.
7. It is observed that when a family life is disturbed because of the clash of the husband and wife, normally it leaves a negative impact to the minors, and specially to the female children. The Constitution of Islamic Republic of Pakistan guarantees every citizen for peaceful life and in case of any dispute, the spouses have equal opportunities to avail before the court of law regarding claim of their rights. But it does not mean that if someone abuses the law, should be given a lenien t attitude. This is also very important that a person who believes in the supremacy of law and have a respect for the orders of courts, always finds himself/herself in a better position especially with respect to the response of the others. For a minor personal benefit, one can achieve some success for the time being by deceiving or cheating other persons but it cannot be permanent for him/her . Before discussing the proposition in hand, I would like to quote some versus from the Holy Quran. In the Holy Quran and Sunnah, there is no bar for mother or even the father to hold the custody nor is there any provision which stipulates that the preferential right of custody lies with the father or the mother; or in their absence grand-parents or uncles or cousins would be eligible to claim custody . According to the Muslim Personal Law, the mother has the preferential right of Hizanat (temporary custody of the minor) till the minor attains the age of seven years in the case of males and the age of puberty in case of female minors. Reliance in this regard is placed on the case of Mst. Razia Rehman Vs. Station House Officer and others (PLD 2006 Supreme Court 533). Custody of minor is a very sensitive issue. Guardian Courts are custodian to the rights of the minors. Regarding relation of parents with the children, in case the separation between spouses is ef fected, the role of individual becomes very important.
Therefore, the Courts/Guardian Courts are much concern while deciding the matter of handover the permanent custody of the minors.
8. The rights of the parents for their children and the obligations of the children for their parents have been described in detail in the Holy Quran. Then the individual right of mother and father also have been described in the Holy Quran as well as in the Ahadees. It is for the parents, mother and father , individually to think whether they are abiding by the orders of Allah and they are living within the limits described by the Sharia. Islam has given a complete code of life where the duties, obligations of every relation has been described in detail. Even the minors thinks/acts of the social norms have been described in detail by the Sharia. The Constitution of Islamic Republic of Pakistan guarantees that every law of the land will be in accordance with Quran and Sunnah and there will be no deviation from the Ahkam of Allah and Rasool Muhammad (Peace be upon him). The purpose of the law of Guardian & Wards Act, 1890 is to regulate the rights of the minors who are unfortunately disturbed due to the separation of their parents or due to any other incident like death of their parents or death of any of them. Our social life is based on some customs and traditions of the region. Even in a region where different tribes/casts are residing, every caste/tribe has its own customs. The law respects all the traditions/customs of the individual caste if those are not contrary to the law of land. The Guardian & Wards Act, 1890 also regulates and conscious about the welfare of the minors. Therefore, the principles of the custody of minors have been chalked out through the different provisions of the Statute and these are to be strictly followed because the welfare of the minor is the supreme consideration of the Statute. There is no denial that the relation of fathe r and mother is a touchy matter which is attached the emotions/sentiments based on reality . But this is also a hard fact that the court has to see the welfare of the minor , keeping in view that whether the person to whom the custody is being given, can facilitate the minor with respect to the health, education and other social norms which are required to build up the person of the minor . For that, the court at one level sees the financial status of the claiming person as guardian. At the same time, court also observes that the person is capable of having the guardianship as to make the minor a good citizen in a real sense. Whether the guardian himself follows law? Whether the he/she has respect for the law? Whether he/she understands regarding the good and bad things/norms of the society? Whether he/she have the level of intellect to train the minor to be a good and useful citizen of the society . The character building is not an easy task.
A person who is always thinking about his/her benefit, cannot be a good leader to build the character of the others.
The Superior Courts have chalked out many principles that what sort of the qualities are required to decide the factor that who could be the guardian of the minor . The welfare of the minor is the supreme consideration and keeping in view that aspect, sometimes the natural emotions and attachments are also to be sacrificed. I will quote some important citations where the remarks have been passed by the Superior Courts in this respect. Mrs. Seema Chaudhry and another Vs. Ahsan Ashraf Sheikh and others (PLD 2003 Supreme Court 877), Mst. Rubia Jilani Vs. Zahoor Akhtar Raja and 2 others (1999 SCMR 1834 ), Muhammad Tahir Vs. Mst. Raeesa Fatimah and others (2003 SCMR 1344 ), Sardar Hussain and others Vs. Mst. Parveen umer and others (PLD 2004 Supreme Court 357), Mst. Beena Vs. Raja Muhamamd and others (PLD 2020 Supreme Court 508) and Mst.
Naseem Akhtar Vs. District Judge, Multan and others( 2009 SCMR 1052 ). I will rely on the case of Mst. Ayesha Altaf Vs. Fahad Ali and 2 others (2019 CLC Note 66 Lahore) where it has been held as under:- "Even second marriage of the mother does not disentitle her from the custody of entitlement of ward."
Further reliance is place on the cases of Shabana Naz Vs. Muhammad Saleem (2004 SCMR 343), Mst. Rabia Bibi vs. Abdul Qadir and others (2016 CLC 1460 ) and Javed Hassan Vs. Farkhnda Yasmin and others (2018 CLC 273). Another aspect regarding the proposition in hand is that ex-parte proceedings were initiated against the petitioners. Application under Section 12(2) CPC was dismissed. Limitation was also made a ground to dismiss the appeal of the petitioners, whether all these factors could be taken a ground to hold that welfare of the minors do not attach with the petitioner . Can it be a ground to disallow the application of the petitio ner that welfare of the minors is not attached with her .
9. In this proposition, the ages of the minors are very considerable. In order dated 19.11.2020 of this court it is mentioned that the ages of the minors are about 151/2 and 141/2 years and certai nly they are now over 16 and 15 years of age. This is very considerable point at this stage. As it has been discussed in the earlier paragraphs that the conduct of the lady is considerable which has been discussed by the courts below while passing the judgment & decree in question. But it is also settled principle which has been settled in "Afshan Noreen Vs. Nadeem Abbas Shah" (1997 MLD 197), what is paramount in such like matters that in welfare of the minors and the conduct of the parents is a secondary consideration. Now this is also a settled law that the law has given the way for the appointment of the guardian in view of the intellect preference chosen by the ward itself if the minor is old enough to form an intelligent preference. Then there is a principle that in such like matter , the court may consider that precedent. Section 17 of the Guardian & Wards Act, 1890, says that matters to be considered by the court in appointing the guardian;-
(1) In appointing or declaring the guardian of a minor , the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor .
(2) In considering what will be for the welfare of the minor , the Court shall have regard to the age, sex and religion of the minor , the character and capacity of the proposed guardian and his nearness of kin to the minor , the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property .
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
The other reliance is placed upon "Mst. Tallat Nasira Vs. Mst. Munawar Sultan and 2 others (1985 SCMR 1367 ) where it was held that it is axiomatic that in the matter of appointment of guardian, the welfare of the minor coupled with his own wish, particularly when he can make a reasonable preference on account of his age, is the primary consideration for a court of law for the decision of such cases. Whereas in case "Mst. Ayesha Abdul Maleek Vs. Additional District Judge, Sahiwal and 2 others (2020 YLR 401) it was held that the intelligence preference of the minor , could be the way to reach at the consideration regarding the entitlement of the custody . In "Tariq Mehmood and others Vs. Additional District Judge and others" (2016 MLD 1767 ) it was held that no doubt when a minor reaches the age of discretion, his/her statement can be considered while determining his/her custody but it is not the sin qua non for the court to make it the basis for its decisio n. In case of Tahira Bibi Vs. Muhammad Saeed and another (2009 MLD 33) it was held by the court that it is true that section 17(3) of the Guardian & Wards Act, 1890 authorizes a court to consider an intelligence preference of a minor in the matter of custody . In Barkat Bibi Vs. Zahida Parveen and 2 others (2003 YLR 1105) it was held that any force applied in the matter of custody against their wishes, when they have attained sufficient maturity in exercising their preference would not be consistent with their welfare and rather may have adverse ef fect.
10. The purpose of law is to see the welfare of the minor . Now it can be seen from many angles. The evidence produced by the parties regarding the establishment of their conduct, character , social status, financial status in order to prove that they are capable of being guardian of the ward in order to facilitate them in every walk of life and also with the point of view that they will not only financially facilitate them but will also be helpful in building of their person and character . Now this all can be proved by the parties and can be settled by the court after recording the evidence and after providing opportunities to the parties that who is better one to be appointed as guardian of the wards. In the proposition in hand, although much have been criticized regarding the conduct of the petitioner but this is also settled principle that when things are attached with the emotions, normally the people losses their temperament and even they forget every normal norms of the social values. It is not good for anyone but this is the ground reality and one important aspect of this proposition. As it has been discuss ed in the earlier paragraphs that the Constitution of the Islamic Republic of Pakistan gives guarantee to everyone to be treated equally but every citizen is also under obligation to obey and respect the law. Keeping in view that supreme consideration before this Court is the welfare of the minors which cannot be determined within the jurisdiction of this Constitution petition.
This is purely the prerogative of the Guardian Court to decide the same. So keeping in view all these facts, the ex- parte order dated 24.3.201 1 passed by learned Guardian Judge is set-aside. subject to special cost of Rs.20,000/- (Rupees twenty thousand) and as a result thereof the order subsequently passed by learned Guardian Judge dated 13.3.2014 and judgment dated 13.6.2014 passed by the learned Additional Distric t Judge are set-aside. The case is remanded to the learned Guardian Judge with the direction to decide the matter expeditiously keeping in view the provisions of the Guardian & Wards Act, 1890. The petitioners are also directed to follow the instructions of the court regarding the proceedings of the application.
11. The result of the above discussion is that instant writ petition is allowed in the terms mentioned in the earlier paragraph. There is no order as to costs.