JAWAD HASSAN, J.---- The Petitioner has invoked the constitutional jurisdictidn of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution" ) by challenging judgment dated 22.09.2020 passed by the Additional District Judge, Lahore whereby appeal filed by the Respondents against the order dated 31.10.2019 was accepted.
2. Facts of the case are that the Petitioner filed petition under Sections 7 and 25 of the Guardians and Wards Act, 1890 (the "Act") for the permanent custody of minor namely Nael Hassan together with an application under Section 12 of the Act for interim custody . The application under Section 12 of the Act was accepted by the Judge Guardian Court, Lahore vide order dated 31.10.2019 and interim custody of the minor was handed over to the Petitioner while granting right of visitation to the Respondents Nos.3 and 4 viz: "(i) On every 2nd and 4th Saturday morning 10 a.m. to Sunday 4:00 p.m. minor shall remain with the Respondent/mother .
(ii) On birthday of minor , the minor would be handed over to the Respondent/mother at 12:00 p.m. till 4:00 p. m.
(iii) On the occasions of 10th of Moharram Respondent No.1 / mother would be entitled to get the custody of minor at 10:00 a.m. to 4:00 p.m.
(iv) During summer vacations, the custody of the minor shall be handed over to the mother for la 10 days and for last 10 days of summer vacations.
(v) During winter vacations, the Respondent No.1 / mother is also entitled to get the interim custody of minor for 1st 2 days of W inter vacations.
(vi) At the occasion of Eid-ul-Fitr , the mino r shall remain with the Respondent No.1 / mother on second day of Eid- ul-Fiter from 10:00 a.m. to 6:00 p.m.
(vii) On Eid-ul-Adha the minor shall remain with the Respondent No.1 / mother on second day of Eid-ul-Adha from 10:00 a.m. to 6:00 p.m.
(viii) In case of any emergency about health or any other issue of minors, the custodian parent of the minor will inform to non-custodial parent within 03 hours to the emergency .
(ix) It is hereby held that for implementatio n of the above schedule of meeting no need of separate application to be filed in Court, it will issue Robkar for implementation on verbal request of the party concerned, which will be made well in time and the same will be incorporated in interim order .
(x) In case of non-observance of above-mentioned schedule, the Court shall pass any order without considering their settlement. None of the parties will be allowed to take the minor to abroad , but with the permission of the Court. Similarly , none of the patties could permanently shift the minors beyond territorial jurisdiction of this Court.
All the visitation schedule shall be executed through bailiff.
3. The aforesaid order was assailed by the Respondents before Additional District Judge, Lahore through appeal which was accepted vide order dated 22.09.2020 in the following manner: "Keeping in view the fact that minor is now aged about 10 years this Court is of considered view that it is in welfare of the minor that her mother shall look after him and as per record she is not working lady and remains in house for the whole day as compared to the Respon dent who is admittedly an engineer by profession and stays outside from house for the whole day. However , as Respondent is real father , of the minor so he is entitled to meet with the minor in the visitation room of district Court on ever alternate Saturday from 11 a.m. to 1:00 P.M till decision of petition under section 25 of Guardians and W ards Act"
4. Learned counsel for the Petitioner inter alia contended that the impugned judgment is illegal and unlawful; that while passing the impugned judgment, welfare of the minor , has totally been ignored and the Additional District Judge has overlooked the most important aspect that the minor is getting education from a renowned educational institution i.e. Lahore Grammar School and as such reversing the well-reasoned order of Guardian Judge is a nullity in the eye of law .
5. On the other hand, learned counsel for the Respondents supported the impugned judgment and stated that the impugned judgment has been passed after taking into consideration the welfare of the minor and that the Guardian Judge, under Section 12 of the Act, had no jurisdiction to handover interim custody to the Petitioner by giving a schedule of meeting of minor with the Respondents.
6. I have heard the arguments and perused the available record.
7. It is noted that Additional District Judge while modifying the schedule chalked out by the Guardian Judge allowed the Petitioner to meet the minor on every alternate Saturday from 11:00 A.M. to 1:00 P.M. till decision of petition under Section 25 of the Act. Irrespective of the fact whether the, application before the. Guardian Judge is under Section 12 of the Act, for interim custody of the minor or under Section 25 of the Act for permanent custody of the minor , the only consideration " which requires to be adhered by the Guardian Cour t is the welfare of the minor and nothing else. Section 12 of the Act empowers the Courts to IA direct a person to produce a minor before the Court and then the Court can pass order for the temporary custody of the minor . It has to be kept in view that this Order is only regarding temporary custody , which is usually passed at the time when the evidence is not produced before the Court. This order must be passed keeping in view the welfare of the minor , but at the same time complete judgment without recording evidence must be avoided. Order under section 12 of the Act should not become the order passed under Section 25 of the Act determining the rights of the parties in respect of the custody of minor .
Difference between order under section 12 as well as section 25 of the Guardians and Wards Act must be kept in view. Admittedly the parties are the real father and mother of the minor and have rights of supervision of the minor under the Islamic Law. Therefore, on separation of the parents the minor canno t be permanently deprived from the love and affection of either of the parents. The minor has now crossed the age of ten years; therefore, he should have maximum interaction with the parents. In the case in hand, the Guardian Judge has examined its jurisdiction in granting interim custody , the same should be allowed to stay, unless there are compelling circumstances to change his custody . Even otherwise, order , of temporary custody of the minor being interim in nature would be subject to decision of the main case. Same could be varied, altered or rescinded by taking notice of all subsequent events and welfare of minor .
8. Section 12 of the Act provides that Guardian Court can make interlocutory order and grant custody of the minors on interim basis. The language used in the provision clearly implies that the nature of the order C so passed by Guardian Judge is 'interlocutory' and the custody of minor granted under this provision is 'interim' in nature. The term 'interim' has been defined in advanced Law Lexicon 4th Edition, Volume 2, (page 2486) as:-"The word "interim" when used as a noun means "intervening" and when used as an adjec tive, it means "temporary" or D "provisional". Whereas in Black's Law Dictionary , Tenth Edition (page 937), the term 'interim' is defined as:- "Done, made, or occurring for an intervening time; temporary or provisional" .
9. On the other hand, the term 'interlocutory' is defined in Advanced Law Lexicon 4th Edition, Volume 2, (page 2488) as:- "In the meantime.... 'Interlocutory' in law, means, not that which , decides the cause, but that which only settles some intervening matter relating to the cause". In Black's Law Dictionary , Tenth Edition (page 938), Interlocutory has been defined as "interim or temporary; not constituting a final resolution of the whole controversy". Literal interpretation of both the terms clearly suggest that the nature of order passed under Section 12 of the Act is not conclusive but intermediate in nature and temporary in scope , which is always subject to the final determination made by the Court after following the whole process of recording evidence of both the parties and weighting the same on the pivotal touchstone of welfare of minor , which is the sole paramount object of the Court under the Act.
10. The order passed under Section 12 of the Act is always dependent upon the ultimate conclusion drawn by the Court while making a final determination within the contemplation of Section 25 of the Act. In these circumstances, when the final and ultimate determination of the Guardian Court is still awaiting and matter is pending before it for the said purposes, determining the questi on of interim custody of the child within the scope of Section 12 of the Act will amount to conclusively decide a matter , which is intermediate and temporary in nature, but findings made by this Court on such temporary and interim measure, can possibly affect the final outcome of the matter , which is pending and awaiting decision of the Guardian Court. This Court, in its Constitutional jurisdiction, has always shown restraint to interfere in such matters. This Court in "Mohammad Mohsin v. Federal Government and 3 others" (2017 YLR 1229 ), relied on the judgment of Honorable Supreme Court wherein it was held that though High Court is empowered to do complete justice yet it is not for High Court to substitute its own decision for decision of inferior Court. The Guardian Court was directed to decide all pending applications for the parties in accordance with law. It was held - therein:- "As the Hon'ble Supreme' Court of Pakistan in case titled Sardar Hussian and others v. Mst. Parveen Umer and others (PLD 2004 Supreme Court 357) held that the High Court has full power to do justice, but not to substitute its own decision for decision of inferior Courts. Hence, the Guardian Court, who seized of the matter , shall decide all pending applications of the parties and pass appropriate orders in accordance with law ."
11. It evinces from the record that the main guardian petition under Section 25 of the Act is still pending before the Guardian Court which deserves decision expeditiously and this fact has also been verified by learned counsel for the parties. I am afraid that the observation of this Court may not further complicate the case of either of parties therefore, without touching the merits or de-merits of the case, the learned Guardian Judge seized of the matter is directed to decide the main petition under Section 25 of the Act within a period of one month from the date of receipt of this order excluding summer vacations by holding day to day proceedings, if necessary;, under intimation to this Court, through its Deputy Registrar (Judicial). Moreover , the Hon'ble Supreme Court in "Shaukat Masih v.
Mst. Farhat Parkash and 7 others" (2015 SCMR 731) observed that "we find that through the impugned order passed by the High Court a minor girl has been given in the custody of her real mother and even if there are some questions regarding proper exercise of jurisdiction by the High Court in the matter still we would not like the little girl to be made a ball of ping pong and shuttle her custody during the legal battles being fought by those interested in her custody". Since welfare of child is main object of the Act and the ultimate duty of the Guardian Court is to secure the best interest and welfare of the minor , therefore it would not be appropr iate at this stage to make abrupt change in the custody , of minor . for the time being till final determination of Guardia n Court under Section 25 of the Act. Meanwhile, the meeting schedule chalked out by learned Guardian Judge shall be observed.
12. This petition stands disposed of in the above terms.