MOHAMMAD ABDUR RAHMAN, J. The Petitioner has maintained these two Petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in respect of the custody of the Minor A who is his son. The Petitions that have been maintained are as under:
(i) In C.P. No. S- 922 of 2019 the Petitioner impugns an Order dated 7 May 2019 that was passed by the IIIrd Additional District Judge Karachi (South) on an Application under Section 5 of the Limitation Act,1908 in Family Appeal No. 77 of 2018 whereby the IIIrd Additional District Judge Karachi (South) had refused to condone a delay of 33 days in filing an Appeal under Section 14 of the Family Courts Act, 1964 against an order dated 24 May 2018 that had been passed by the Family Judge Karachi (South) dismissing Guardian & Wards Application No. 199 of 2017 that had been maintained by the Petitioner under Section 25 of the Guardians and Wards Act, 1890 seeking the custody of the Minor A.
(ii) In C.P. No. S-923 of 2019 the Petitioner has impugned a Judgement dated 8 May 2019 that was passed by the IIIrd Additional District Judge Karachi (South) in Family Appeal No. 145 of 2018 whereby the IIIrd Additional District Judge Karachi (South) dismissed an appeal under Section 14 of the Muslim Family Courts Act, 1964 as against an Order dated 9 January 2018 that had been passed by the XIXth Civil and Family Judge Karachi (South) granting Guardian & Wards Application No. 1142 of 2016 that had been maintained by the Respondent No. 2 and the Respondent No. 3 under Section 25 of the Guardians and Wards Act, 1890 seeking both the custody and the guardianship of the Minor A.
2. The Petitioner was married to the Respondent No. 4 on 18 November 2010 and from which wedlock the Minor A was born on 28 May 2014. The marriage was not a happy one and which eventually led to the Respondent No. 4 leaving the matrimonial home in Islamabad and returning to Karachi while she was pregnant with Minor A. The Petitioners knowledge of the pregnancy is in dispute inasmuch as the Petitioner alleges that he was not aware as to the pregnancy and which he states was actively concealed from him. The Respondent No. 4 disputes this fact and states that the Petitioner was aware of the pregnancy and of the birth of the Minor A but always avoided to take any responsibility for the Minor A.
3. The Respondent No. 4 contends that she suffers from a genetic condition which compromised her ability to raise the Minor A. This fact coupled with the Petitioners lack of responsibility towards the Minor A led the Respondent No. 4 to approach her relatives i.e. the Respondent No. 2 and the Respondent No. 3 to adopt the Minor A and which responsibility they have been undertaking in affect since his birth. Apparently, the Minor A is not aware as to the fact that the Respondent No. 2 and the Respondent No. 3 are not his real parents or that the Petitioner is his real father. It has also come on record that the Minor A health is compromised and who is under regular medical treatment.
A. Guardian & Wards Application No. 1142 of 2016 and Guardian & Wards Application No. 199 of 2017
4. The Petitioner and the Respondent No. 2 and the Respondent No. 3 filed cross applications seeking the guardianship of the Minor A as under:
(i) The Respondent No. 2 and the Respondent No. 3 maintained Guardian & Wards Application No. 1142 of 2016 before the XIXth Civil and Family Judge Karachi (South) who was on 9 January 2018 pleased to grant that Application in favour of the Respondent No. 3 appointing her as the Guardians of the Minor A and tacitly declaring the Petitioner as unfit to be the guardian of the Minor;
(ii) The Petitioner instituted Guardian & Wards Application No. 199 of 2017 before the Family Judge Karachi (South) which inter alia, on account of him not adducing evidence, was dismissed on 24 May 2018 holding therein that custody and guardianship of the Minor A should be retained with the Respondent No. 2 and the Respondent No. 3.
B. Family Appeal No. 77 of 2018 and Family Appeal No. 145 of 2018
5. The Petitioner maintained appeals under Section 14 of the Family Courts Act, 1964 impugning both the order dated 9 January 2018 passed in Guardian & Wards Application No. 1142 of 2016 by the XIXth Civil and Family Judge Karachi (South) granting the guardianship of the Minor A in favour of the Respondent No. 3 and the Order dated 24 May 2018 passed by the Family Judge Karachi (South) in Guardian & Wards Application No. 199 of 2017 dismissing his application for the custody of the Minor A. The proceedings in the appeals are as under:
(i) Family Appeal No. 77 of 2018.
6. Th Petitioner in this Appeal impugned the Order dated 24 May 2018 passed by the Family Judge Karachi (South) in Guardian & Wards Application No. 199 of 2017 dismissing the Petitioners application for the custody of the Minor A. It seems that the Petitioner had failed to obtain a certified copy of the Order dated 24 May 2018 passed by the Family Judge Karachi (South) in Guardian & Wards Application No. 199 of 2017 within time and had filed the appeal after a purported delay of 33 days. The Petitioner thereafter maintained an Application under Section 5 of the Limitation Act, 1908 stating that while he filed for a certified copy of the Order dated 24 May 2018 passed by the Family Judge Karachi (South) in Guardian & Wards Application No. 199 of 2017 on 30 May 2018 instead of pressing that application, he maintained a second application on 12 July 2018 and received a copy of that order on 20 July 2018. He contends that while the certified copy on the basis of the second application would clearly be after the period of thirty days granted for the filing of an appeal if both the applications are considered together then time must have been considered to have stopped on 30 May 2018 and restarted on 20 July 2018, hence the Appeal being presented on 28 July 2018 was in time.
7. The argument did not find favour with the IIIrd Additional District Judge Karachi (South) who was pleased to hold that the delay caused was unjustified and dismissed the Application under Section 5 of the Limitation Act, 1908 and the Appeal.
(ii) Family Appeal No. 145 of 2018.
8. The Petitioner initially instituted CP No. S-374 of 2019 before this Court which was converted into an Appeal and sent to the IIIrd Additional District Judge Karachi (South) for adjudication. The IIIrd Additional District Judge Karachi (South) after considering the evidence noted that the Petitioner had in effect abandoned the Minor A at the time of his birth and who have thereafter been solely raised by the Respondent No. 2 and the Respondent No. 3 and that it was only after a period of four years from the date of the birth of the Minor A birth that the Petitioner had shown some concern for the Minor A. The IIIrd Additional District Judge Karachi (South) on the basis of the evidence adduced had come to the conclusion that the Respondent No. 2 and the Respondent No. 3 having been the primary care givers of the Minor A literally from the date of his birth it would be in the interests of the welfare of the Minor A for the Respondent No.3 to be appointed as his Guardian and consequentially dismissed Family Appeal No. 145 of 2018.
C. C.P No.S-922 of 2023 and C.P No.S-923 of 2023
(i) Arguments of the Petitioner
9. Mr. Muhammad Altaf entered appearance on behalf of the Petitioner and contented that the Petitioner was the natural guardian of the Minor A and therefore was entitled to be appointed the Guardian and to secure his custody. He stated that the Petitioners right to adduce evidence on the part of the Petitioner had been denied and as such the matter could not be adjudicated on merits.
He requested that the orders in each of these matters should be set aside and remanded to the Family Judge to allow him to adduce evidence in these matters. He did not rely on any case law in support of his contentions.
(ii) Arguments of the Respondent No. 2 and the Respondent No. 3
10. Mr. Arshad Tayebaly represented the Respondent No. 2 and the Respondent No. 3 and has contended that the Minor A has been raised by the Respondent No. 2 and the Respondent No. 3 practically from the date of his birth. He states that the mother of the Minor A i.e. the Respondent No. 4 is herself medically compromised and as the Petitioner has also refused to support the Minor A, she had little or no choice but to hand over the custody of the Minor A to the Respondent No. 2 and the Respondent No. 3. He further contended that on account of the medical needs of the Minor A, his removal from the custody of the Respondent No. 2 and the Respondent No. 3 an the guardianship of the Respondent No. 3 would be disastrous. He relied on a decision reported as Zahoor Ahmad vs. Mst. Rukhsana Kausar[1] to advance the proposition that where a father was not available it is open for the court to hand over custody of the minor to a third party. He also relied on the decision reported as Mst. Rasheedan Bibi vs. Additional District Judge and 2 others[2] that the fathers status as the natural guardian would not prevent the court from awarding custody as against the standard as to what is in the welfare of the minor.
11. I have heard the Counsel for the Petitioner and the Counsel for the Respondent and have perused the record.
(iii) C.P No.S-922 of 2023
12. The Petitioner maintains this Petition impugning an Order dated 7 May 2019 that was passed by the IIIrd Additional District Judge Karachi (South) on an Application under Section 5 of the Limitation Act,1908 in Family Appeal No. 77 of 2018 and whereby the IIIrd Additional District Judge Karachi (South) had refused to condone a delay of 33 days in filing an Appeal under Section 14 of the Family Courts Act, 1964 against an order dated 24 May 2018 that had been passed by the Family Judge Karachi (South) dismissing Guardian & Wards Application No. 199 of 2017 being the Petitioners application under Section 25 of the Guardians and Wards Act, 1890 seeking both the custody and the guardianship of the Minor A.
13. While Section 17 of the Family Courts Act, 1964 excludes the application of the Qanun e Shahadat Order, 1984 and also, with the exception Section 10 and 11, excludes the application of the provisions of the Code of Civil Procedure, 1908 to proceedings under the Family Court Act, 1964, it is however to be noted that the provisions of the Limitation Act, 1908 have not been excluded by any provision of Family Courts Act, 1964. As is now well settled, in respect of the application of the Limitation Act, 1908 to "special" and "local" laws Sub-section (2) of Section 29 of the Limitation Act, 1908 prescribes that: "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law: a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply."
It is beyond doubt that the Family Courts Act, 1964 is a "special" law dealing with matters specified in the Schedule of that Act. In this regard the time period and the criteria against which such time periods are to calculated as provided in the Schedule to the Limitation Act, 1908 have been held to be applicable to the institution of a suits[3] under part I of the Schedule to the Family Courts Act, 1964.
14. However, the Supreme Court of Pakistan while interpreting the provisions of Sub-Section (2) of Section 29 have held that in respect of a "special" or "local" law the provisions of Section 5 of the Limitation Act, 1908 on account of clauses (a) and (b) of Sub-Section (2) of Section 29 of the Limitation Act, 1908 would not apply to such "special" or "local" statutes.
15. It was held while interpreting the provisions of clause (a) and (b) of Sub-Section (2) of Section 29 of the Limitation Act, 1908 to the West Pakistan Urban Rent Restriction Ordinance, 1959 in Ali Muhammad and another vs. Fazal Hussain and others[4] that:[5] "... Section 5 stands excluded by virtue of section 29(2) of the Limitation Act, which permits the application of only, sections 4, 9 to 18 and 22 in such situations. The same view has also been taken by us in Abdul Ghaffar and others v. Mst. Mumtaz (PLD1982 SC 88). The High Court, therefore, rightly dismissed the applications for condonation of delay invoking the provisions of section 5 of the Limitation Act."
It would logically follow while applying clause (b) Sub-Section (2) of Section 29 of the Limitation Act, 1908 to matters listed in the Schedule to the Family Courts Act, 1964 that the provisions of Section 5 of the Limitation Act, 1908 would be excluded all together and an application for condonation of delay under that section would not be maintainable at al to any matter filed thereunder.[6]
16. It would seem that with this in mind, as in respect of Appeals, some relief has been granted for the indolent inasmuch as the proviso to the Sub-Rule (1) of Rule 22 of the Family Courts Rules,1965 permit the appellate court to extend the time period provided in Sub-Rule (1) of Rule 22 of the Family Court Rules 1965 for "sufficient cause". When compared there is clear similarity in the criteria for condoning delay in the filing of an appeal under Sub-Rule (1) of Rule 22 of the Family Court Rules, 1965 as compared to Section 5 of the Limitation Act, 1908: The Limitation Act, 1908 The Family Court Rules 1965
5. Extension of period in certain cases. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.___ The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.22. (1) An appeal under section 14 shall be preferred within thirty days of the passing of the decree or decision, excluding the time requisite for obtaining copies ,thereof; Provided that the appellate Court appellant or may, for sufficient cause, extend the said period A comparison of these sections was made and explained by the Supreme Court of Pakistan in Mst.
Nadira Shahzad vs. Mubashir Ahmad[7] wherein it was held that: "...
5. A comparison of the above two provisions indicates that in pith and substance, the effect is the same. In both the cases an appellant or an applicant has to show sufficient cause. The term sufficient cause has received judicial interpretation from the superior Courts. It is to be presumed that the draftsman while framing Rule 22 was aware of the meaning of the above term "sufficient cause" assigned by the Superior Courts while interpreting the same with reference to the various provisions of statutes/ rules, wherein the same has been employed. The employment of the words " when the appellant or applicant satisfies the court" and non-user of the same in above Rule 22 of the Rules does not, in any way, make any distinction as to the interpretation of the above term "sufficient cause." The different phraseology used in the above two provisions cannot be a ground for placing different construction to the above term "sufficient cause", which has received judicial interpretation for over a century from the superior judiciary. We are, therefore of the view that the case-law as to the interpretation of the above term with reference to section 5 of the Act shall be equally application to the construction of Rule 22 of the Rules.
17. To conclude although an application under Section 5 of the Limitation Act, 1908 would "technically" not be applicable to an appeal maintained under Sub-Rule (1) of Rule 22 of the Family Court Rules, 1965 read with Sub-Section (1) of Section 14 of the Family Court Act, 1964; when such an application is placed before an appellate court it should not be dismissed on this technical ground of having been filed under the incorrect provision of law and for all intents and purposes must be treated as an application filed under the proviso to Sub-Rule (1) of the Rule 22 of the Family Court Rules and adjudicated as against the same criteria as would be applied to an application under Section 5 of the Limitation Act, 1908 as held by the Supreme Court of Pakistan i.e. "Sufficient Cause".
18. I have considered the Application under Section 5 of the Limitation Act, 1908 that had been maintained by the Petitioner in Family Appeal No. 77 of 2018 as against the criteria settled in Sub- Rule (1) of Rule 22 of the Family Courts Rules,1965. It is clear that under that rule, the period taken by the Petitioner for obtaining a certified copy of the order dated 24 May 2018 that had been passed by the Family Judge Karachi (South) dismissing Guardian & Wards Application No. 199 of 2017 is to be excluded. In this regard I have perused the record of Guardian & Wards Application No. 199 of 2017 and note that while an application for obtaining a certified copy had been presented on 30 May 2018 but no endorsement has been made on the rear of that application that costs were paid by the Petitioner on that date. The next application for a certified copy that was moved to obtain certified copies was moved on 28 July 2018 and costs were paid on the same date. The record indicates a position which is quite different to the contentions raised in the Application under Section 5 of the Limitation Act, 1908 that was maintained by the Petitioner. Clearly if the Petitioner did not pay the costs on the application for the certified copy of the order dated 24 May 2018 that had been passed by the Family Judge Karachi (South) dismissing Guardian & Wards Application No. 199 of 2017, time will not stop. There being no other justification for the appeal not being presented in time, the application was clearly misconceived and was rightly dismissed by the IIIrd Additional District Judge Karachi (South) and consequentially Family Appeal No. 77 of 2018 and C.P No.S-922 of 2023 must follow. C.P No.S-922 of 2023 is therefore misconceived and is dismissed.
(iv) C.P No.S-923 of 2023
19. The Supreme Court of Pakistan in the decision reported Khan Muhamamd vs. Mst. Surayya Bibi[8] has held that: "... It is well settled by now that prime consideration in such-like cases is the welfare of the minor."
The proposition is now well settled,[9] and the right of the father to be obtain custody of the minor is subject to the criteria of the welfare of the Minor. In the decision of the Supreme Court of Pakistan reported as Nighat Firdous vs. Khadim Hussain[10] the Minor was aged 7 years and had since his birth been living and raised by his maternal aunt. The Father had not maintained an application for custody and only did so after the maternal aunt had maintained an application seeking maintenance. The Supreme Court of Pakistan held that: "...10. It would, thus, be seen that welfare of the minor is the paramount consideration in determining the custody of a minor. The custody of a minor can eb delivered by the Court only in the interest and welfare of the minor and not the interest of the parents. It is true that a Muhammadan father is the lawful guardian of his minor child and is ordinarily entitled to his custody provided it is for the welfare of the minor. The right of the father to claim custody of a minor is not an absolute right, in that, the father may disentitle himself to custody on account of his conduct, depending upon the facts and circumstances of each case. In this case, the respondent-father who sought custody of the minor, neglected the child since his birth. The minor had admittedly been under the case of the appellant since the death of his mother. Thus, visualized the mere fact that the minor had attained the age of seven years, would not ipso facto entitle the respondent-father to the custody of the minor as a right. Furthermore, the respondent filed application for custody of the minor, subsequent to the application made by the appellant claiming maintenance for the minor. The circumstance also cast aspersion on the bona fides of the respondent. We are of the view that the minor, who has been living with the appellant almost since his birth and was looked after properly, his welfare lies with her and not with his father..."
20. The position regarding custody is to be distinguished from the status of a person as a guardian of a Minor. There is no cavil with the proposition that under the Islamic Law of Sharia, the father is the natural guardian of his child.[11] Under Section 19 of the Guardian and Wards Act, 1890 it is clarified that: "...
19. Guardian not to be appointed by the Court in certain cases.
Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person...
(b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor..."
This section has to be read in conjunction with Section 41 of the Guardians and Wards Act, 1890 which read as under: "...
41. Cessation of authority of guardian.
(1) The powers of a guardian of the person cease...
(e) in the case of a ward whose father was unfit to be guardian of the person of the ward, by the father ceasing to be so or, if the father was deemed by the Court to be so unfit, by his ceasing to be so in the opinion of the Court."
When read together it would be clear that a Family Court would not have the power to appoint a guardian during the lifetime of a minors father unless there was a finding that the father was either nota alive or was declared to be "unfit to be a guardian". It is also apparent the Guardian and Wards Act, 1890 provides little or no guidance as to the criteria by which a father is to be assessed as unfit to be a guardian. I have considered various tests that have been used in other jurisdictions to asses this fact and would consider the following test to be an appropriate test for a court to apply to determine as to whether a father would be unfit to continue as a guardian of a minor and correspondingly as against which criteria the Court may remove the father as a guardian: " ... 'Unfit guardian' is one who, by reason of the guardians' fault or habit or conduct toward the minor or other persons, fails to provide such child with proper care, guidance and support."
21. Guardian & Wards Application No. 1142 of 2016 that had been maintained by the Respondent No. 2 and the Respondent No. 3 under Section 25 of the Guardians and Wards Act, 1890 before the XIXth Civil and Family Judge Karachi (South) sought both the custody and the guardianship of the Minor A. By the order dated 9 January 2018 the XIXth Civil and Family Judge Karachi (South) had found that as the Petitioner had:
(i) abandoned the Minor at birth,
(ii) failed to appear in court and instead had chosen to appoint an attorney to appear on his behalf;
(iii) failed to take any interest in the Minors A physical well being; and
(iv) failed to make any financial provision for the benefit of the Minor. he was in effect unfit to be the Guardian of the Minor A and had instead appointed the Respondent No. 3 to perform this role. I must admit that I would have a very difficult time disagreeing with the findings as recorded in the order dated 9 January 2018 passed by the XIXth Civil and Family Judge Karachi (South) in Guardian & Wards Application No. 1142 of 2016. To my mind, whatever the relationship may have been with the mother of the Minor A, the father abandoning the Minor A at the time of his birth coupled with the complete lack of involvement, either financially or emotionally, with a child who clearly has special needs would lead me to agree with the tacit findings as recorded in the order dated 9 January 2018 passed by the XIXth Civil and Family Judge Karachi (South) in Guardian & Wards Application No. 1142 of 2016 that the Petitioner was an unfit person to be a Guardian of the Minor and that such role was best assumed by the Respondent No.
3. That having been said I am clear that there is no illegality or infirmity in the Judgement dated 8 May 2019 that was passed in Family Appeal No. 145 of 2018 by the IIIrd Additional District Judge Karachi (South) or in the order dated 9 January 2018 that had been passed by the XIXth Civil and Family Judge Karachi (South) granting Guardian & Wards Application No. 1142 of 2016 and consequentially C.P No.S-923 of 2023 must also fail.
22. For the foregoing reasons, there being no illegality or infirmity in either the Order dated 7 May 2019 passed by the IIIrd Additional District Judge Karachi (South) in Family Appeal No. 77 of 2018 or in the order dated 24 May 2018 passed by the Family Judge Karachi (South) in Guardian & Wards Application No. 199 of 2017 and there neither being any illegality or infirmity in the Judgement dated 8 May 2019 passed by the IIIrd Additional District Judge Karachi (South) in Family Appeal No. 145 of 2018 nor in the order dated 9 January 2018 passed by the XIXth Civil and Family Judge Karachi (South) in Guardian & Wards Application No. 1142 of 2016 both C.P. No. S-292 of 2019 and C.P. No. S- 293 of 2019 are misconceived and dismissed along with all listed applications, with no order as to costs.
2. 2012 CLC 784
3. See Muhammad Aslam vs. Zainab Bibi 1990 CLC 934; Jameela Begum vs. Additional District Judge 2005 MLD 376; Anar Mamana vs. Misal Gul PLD 2005 Pesh 194; Rasheed Ahmed vs. Shamshad Begum 2007 CLC 656;
5. Ibid at pg. 1240 [6]See Masserat Bibi vs. Muhammad Bashir 1996 MLD 692; Muhammad Maqsood vs. Kousar Nisar 2000 YLR 2698; Muhamamd Arshad Khan vs. Muhammad Kaleem Khan PLD 2007 SC AJK 14.
9. See Mehmood Akhtar vs. District Judge, Attock 2004 SCM 1839; Mst. Shahista Naz vs. Muhammad Naeem Ahmed 2004 SCMR 990; Mst Khalida Parvenn vs. Muhammad Sultan Mehmood PLD 2004 SC 1; Badruddin Roshan vs. Mst Razia Sultana 2002 SCMR 371; Firdous Iqbal vs. Shifaat Ali 2000 SCMR 838; Zahoor Ahmed vs. Rukhsana Kausar 2000 SCMR 707; Rubia Jilani vs. Zahoor Akhtar Raja 1999 SCMR 1834; Nighat Firdous vs. Khadim Hussain 1998 SCMR 1593; Zafar Iqbal vs. Rehmat Jan 1994 SCMR 339;
10. 1998 SCMR 1593
11. See Nasir Raza vs. Additional District Judge, Jhelum 2018 SCMR 590