ALI BAQAR NAJAFI, J.---Through this constitutional petition, the petitioner has challenged the order dated 12.09.2018 passed by learned Guardian Judge-II, Lahore whereby her application for rejection of petition filed by respondent No. 2 under section 5 of the Schedule attached with the Family Courts Act, 1964 read with section 8 of the Guardians and W ards Act, 1890, was dismissed.
2. Brief facts giving rise to file the present writ petition are that respondent No. 2 being the grandmother of the minor , namely , Rahmeen Shoaib born on 15.9.2016 had tiled petition under section 5 of the Schedule attached with the Family Courts Act, 1964 read with section 8 of the Guardians and Wards Act, 1890 on 31.10.2017 for the interim custody and visitation rights of the minor . However , the petitioner , being real mother , on 07.03.2018 filed an application for the rejection of the said petition on the ground of maintainability which was dismissed, hence this direct constitutional petition.
3. The argument advanced by the petitioner is that only the parents can request for the visitation right of the minor as required under section 8 the Guardians and Wards Act, 1890; that parents do not include grandparents of the minor; that under the Schedule (Part-1) and under section 7(2) of the Act ibid, the visitation request is only for the parents to meet their children; that in the presence of the petitioner being biological parent (mother) giving of the interim custody to anyone else would be against the welfare of the minor , particu larly when she remained in the custody of the petitioner since her birth; that the logic that minors can directly inherit under Islamic Law from grandparents is not enough to give even the visitation right/interim custody to them particularly when the father is alive and living in U.K.
3. Conversely , the learned counsel for the respondent argues that the order was rightly passed, hence, seeks dismissal of the writ petition.
4. Arguments heard and file perused.
5. Admittedly , the petitioner and Shoaib Muhammad son of Rasheed Ullah and respondent No.2 got married on 20.12.2015, whereafter minor Rahmeen Shoaib was born on 15.9.2016 but unfortunately soon a divorce was effected between them on 30.10.2016. The intensity of estrangement was so high that FIR No. 582 dated 08.11.2016 under sections 363, 511, 354, 337-A(i), 337-F(i) and 337-L/2 of P.P.C. was got registered on 08.11.2016 at Police Station Model Town, Lahore on the behest of father of the petitioner which was although cancelled on 29.06.2017. Both father and brother of the respondent are U.K. national and to ensure the foreign nationality , the marriage was solemnized. After the birth of the child, the father of the minor came to Pakistan to see the new born child and to reconcile but the efforts failed and, therefore, he returned to U.K. on 02:11.2016 after pronouncing divorce to the petitioner . The above referred divorce was also registered.
6. The respondent No.2 had filed a petition under sections 5 and 8 before the Guardian Court on 31.10.2017 while relying upon case titled "Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others" reported as 2014 SCMR 1365 and case titled "Malik Khizar Hayat Khan Tiwana and Malik Ghulam Muhammad Khan v. Mst. Zainab Begum, Ch. Aziz Ahmad Waraich, District Judge, Lahore and Qazi Muhammad Dastgir , Guardian Judge, Lahore" reported as PLD 1967 SC 402 2nd prayed for interim custody of half of the time by making a schedule. This application was contested by the petitio ner on the ground that it is only the parents who are entitled to the custody , and the grandmother is not covered in the said definition of parents.
However , on 12.09.2018, the said application filed by the respondent was found maintainable on the ground that the word parent used in section 5 of the Schedule is wider in sense and is not restricted to its literal meaning particularly when the grandchild is entitled to inheritance from her. Reliance was placed upon case titled "Mst.
Mahmooda Sultana v. Mst. Jamila Begum" reported as 1988 SCMR 538. The argument advanced by the learned counsel for the petitioner that Family Courts Act, 1964 was promulgated as a Special Act for special class of people i.e. husband and wife and children in case of their custody is correct but the Guardianship Act also caters for the situation where only grandparents are contestants, therefore, it will not stop the Guardian Court to adjudicate upon such matters. The reliance is placed upon case titled 'Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others" reported as 2011 SCMR 1361 is therefore misplaced. The other reliance upon case titled "Mst. Abeera Khan v. Adnan Jamil and another" reported as 2019 CLC 1478 an case titled "Mst.
Maryam Masood v. Mughisuddin Mirza and 2 others" reported as 2009 CLC 1443 are also irrelevant as in the said case, the controversy was between the father and the mother , and not the grandparents.
7. In the original West Pakistan Family Courts Act, 1964, Schedule made under section 5 thereof, prescribed "custody of the children" in clause 5, However, through an amendment made on 01.10.2002 after "custody of - the children" following words were added through amending Ordinance of Family Cour t (Amendment) Ordinance, 2002 (LV of 2002):-- "and the visitation rights of parents to meet them". The main thrust of the learned counsel for the petitioner was on the interpretatio n of the word parents, wherein according to him it does not include grandparents. He has referred to the various definitions of the word parent from different dictionaries. Notably , they E include the adoptive parents, a concept not recognized in Islam. Keeping in view the fact that neither the real father of the minor has came forward with any definite plea nor the effort was made to implead him as a party , his tacit approval can be presumed. The proceedings pending before the Guardian Court are for the visitation right of the minors only, therefore, the application filed by the grandmother is competent. Even otherwise, the maintainability of such application does not guarantee that it would be allowed. However , it would be a matter of concern to read and appreciate the evidence which the respective parties would like to produce to support their respective claim. Notably , the impugned order is just an interlocutory order holding that application for interim custody/visitation right filed by the grandmother could proceed. It is not even an order deciding the application filed by the respondent, therefore, the-writ petition was not maintainable since an appeal lies against the final order .
9. At this stage, it is noted therefore much appreciated that both sides are fully loaded with the solid arguments in their favour , but at this stage giving any observation would prejudice their case before the Guardian Court where the question whether in the facts of the case, the grandmother can have the interim custody/visitation rights is pending. It is, therefore, observed that the application of the respondent will be decided expeditiously and preferably within six months but in accordance with evidence and the law. This writ petition is therefore, dismissed as not maintainable.