' Claim of the respondent Mst. Nasim Akhtar under sections 12 and 25 of the Guardians and Wards Act, regarding her minor son Muhammad Farooq Sabir, born on 27-6-1982, is pending with the learned Guardian Judge, Faisalabad. Therein her contention is that on 20-8-1983 the petitioner had turned her out of his house, after snatching the minor. Petitioner's counter-version thereto is that she abandoned the minor at his house on 4-5-1983 and herself left with her brother for her parental house which, as is clear from the record, is also in Faisalabad City. In his reply, he also asserted that since during the first week of May, 1983 his own mother took the minor away to Karachi, therefore, the learned Guardian Judge at Faisalabad did not have the jurisdiction to try the petition moved subsequent thereto, in September, 1983. However, while considering the petition for grant of interim custody, the learned Guardian Judge came to the conclusion that in view of the tender age of the minor, the mother is entitled to the custody of the minor whereas the conduct of the father was aimed at depriving her of the opportunities even of seeing the minor. Conse quently, on 17-5-1984, he ordered the petitioner to produce the minor in his Court on 7-6-1984. This order is challenged in the present writ petition.
2. Learned counsel has simply repeated the petitioner's assertion regarding the minor's alleged removal to Karachi by his grandmother (petitioner's own mother) and has contended that thus the learned Guardian Judge at Faisalabad does not have the jurisdiction because when he took cognizance of the case the minor was not living at Faisal abad. In the same strain he has also contended that the minor's grand mother having not been impleaded as a party to the case, the learned Guardian Judge cannot exercise any control over the minor.
3. I do not find any substance in either of the above contentions.
There is nothing to support the preposterous assertion made by the petitioner-father that the minor has been taken to Karachi, so much so that there is no plausible explanation given in this behalf and muchless have any attending circumstances been even alluded to. For the present, on the record there is only a bald assertion of the petitioner-father and even if this assertion is accepted as correct then, it follows that the petitioner's mother could not but be acting as his agent and it is inconceivable that she may remove the infant without the instructions of the petitioner, who cannot be deemed to have thereby been deprived of his control and custody of the minor and, if the removal of the minor may ultimately be proved to have in fact been made against the wishes of the petitioner-father then the grandmother will have committed the offence of kidnapping. I am not prepared to accept that the petitioner may have no control over his own mother and still she may have removed the child. If his mother may be in his control for the purposes of removal of the minor then it is unthinkable as to why he may not be able to secure his return from her. Probably the petitioner has not realized the dangers with which his treacherous plea is fraught. His assertion regarding the removal of the child to Karachi is, ex fade, a mere concoction aimed at keeping the mother away from her suckling child. It is the petitioner's own case in the written statement filed on 14-4-1984 that the child was left at his house on 4-5-1983 and there-against the respondent-mother's case is that the minor had been snatched away by the petitioner and thus there is no dissension between them that at the relevant time the minor came into the custody of the petitioner, and therefore, his assertion regarding the minor's subsequent removal from his house, if the same may at all be true; whether with or without his consent, is only in consequential and does not deprive the learned Guardian Judge, Faisalabad of the jurisdiction in the matter.
4. In Mst. Niaz Bibi v. Fazal Illahi and another PLD 1953 Lah. 442 it was held:- "It is to be remembered that Muhammadan Law gives the mother a right to custody. If the child be removed from the custody of the mother, even if the person who takes away the child be the father, who is the guardian himself, section 25 is applicable. Any other interpretation leaves the mother entirely without a remedy so far as the Guardians and Wards Act is concerned. A removal from custody would take place even if the mother voluntarily left and was prevented from taking the children with her, just as it would occur if she was turned out of the house and the children remained where they were. The application under section 25 is maintainable.
Moreover in Mst. Ulfat Bibi v. Jafati AIR 1927 All. 581 it was! held that custody referred to in section 25 includes both constructive as well as actual custody. This judgment was cited with approval by a Division Bench of our own Court in Mst. Nazir Begum v. Ghulam Qadir Khan and others AIR 1938 Lah.
313 wherein it was held that so long as the custody of a minor is not acutally made over to the guardian, the proceedings do not terminate and the applicability of section 12 is not barred. In this authority a contention similar to the one raised in the present case was repelled with the following observations:- "To place a restricted meaning on the words 'for the time being ordinarily resides', in section 4(5)
(b)(ii) so as to interpret them to mean where the minor actually is at the time of the application, would be tantamount to rendering nugatory all the provisions of the Guardians and Wards Act and to making the law helpless against the machination of the recalcitrant persons who do not propose to part with the minor in favour of the appointed guardian. This is especially so in the Punjab where the British Indian States are so closely situated that any person would be able to flout the authority of the highest tribunal of the land by merely walking with the minor into a neighbouring State. Further, if a minor is not present at the time of the order appointing the guardian and is not physically handed over to the guardian at the time of his appointment there would be no provision of law to enable the Court to do so afterwards."
' It is noteworthy that in this reported case an application under sections 12 and 25 of the Act for custody of the minor, moved by Mst. Nazir Begum, before the Court at Multan, where the minor ordinarily resided, having been rejected upto the appeal stage in the High Court by a learned Single Judge on the plea that since the minor was for the time being residing in a State, therefore, the Court at Multan had no jurisdiction, came to be accepted by their Lordships of the Division Bench and therein they observed as under:- "The minor was still under the control of the respondents who could recall her at any time they liked. The minor's residence in the State was incidental and temporary only and the permanent residence was at Multan wherefrom she was removed by the respondents with the reprehensible object of evading the law and nullifying the orders of the British Courts. The Court at Multan, therefore, had the jurisdiction to entertain the application."
5. In view of the above-quoted law, the forenoted contentions of the learned counsel are without substance and hence repelled.
6. On my inquiry, learned counsel has stated that the order dated, 17-5-1984 passed by the learned Guardian Judge has not been obeyed so far because, as he has put it, the petitioner has no control over his mother. The main stay of the petitioner's contention, namely, that the child has been removed away to Karachi by his own mother, has been found untenable in both the law and fact.
Petitionet's plea is only inconsequential for the purposes of these proceedings and the learned Guardian Judge, Faisalabad has the authority to enforce his orders against the petitioner-father so as to cause the child to be expeditiously made over to the respondent-mother.
7. In view of his own conduct in failing to carry out the lawful order passed by the learned Guardian Judge, the petitioner has disentitled himself to the exercise in his favour of the discretionary jurisdiction of this Court.
8. For all the foregoing reasons, this writ petition has no merit and is dismissed in limine.