' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed to call in question an order of the learned Guardian Judge, dated 27-7-1985 rejecting the petitioner's application under section 12 of the Guardians and Wards Act for the temporary custody of her minor children and the judgment of the learned District Judge, Lahore, dated 10-4-1986 whereby the petitioner's appeal against the order of the Guardian Judge has been dismissed as not competent.
2. Facts necessary for the disposal of this petition, briefly stated are that the petitioner and respondent No,1 were married in 1974 and out of the wedlock, three daughters were born. Adila the eldest daughter is aged 8 years, second daughter Robina is 7 years old and the youngest daughter Saira is in the mother's lap being only 11 years and there is thus no dispute about her custody. It appears that the parties have lived together for couple of years but of late they have become estranged from each other. This gave rise to a dispute between them about the custody of their minor children. Petitioner who is the mother of the minors instituted proceedings under the Guardians and Wards Act for the custody of her two daughters, Adila and Robina. She alleged in her petition that she was residing with her parents alongwith her children when on 14-6-1985, respondent No,1 herein took away the two minor daughters Adila and Robina. Alongwith the main petition, petitioner also moved an application under section 12 of the Guardians and Wards Act seeking the temporary custody of her two minor daughters. The learned Guardian Judge dismissed the petitioner's application for temporary custody by a detailed order, dated 27-7-1985. Learned Guardian Judge on consideration of the material placed before him found that the respondent had admitted his minor daughters first in Government Girls Primary School Chak No, 137-9-L and then in Municipal Junior Model School, Sahiwal where they were studying since 15-5-1985. It was, therefore, held by the learned Guardian Judge that as the minors were living with the respondent before the application was filed by their mother, their welfare lay in their temporary custody to remain with the respondent "who being their father can easily take care of the minors and can better look after their education because he is also in the Education Department posted as Lecturer and a qualified person." Respondent was, however, directed to produce the minors in Court once in a month for their meeting with the petitioner.
3. Petitioner preferred an appeal under section 14 of the Family Courts Act to challenge the aforementioned order of the learned Guardian Judge. The appeal, as stated above, has been dismissed as incompetent by the learned District Judge vide the impugned order holding that the order of the Guardian Judge passed under section 12 of the Guardians and Wards Act was an interlocutory order and not a 'decision' within the meaning of section 14 of the Family Courts Act and as such was not appealable under the said provision.
4. Feeling aggrieved, petitioner has now approached this Court in Constitutional jurisdiction. It may be stated that although in the writ petition, validity of the order of the learned Guardian Judge has also been called in question, learned counsel for the petitioner during arguments has not taken any exception thereto and he confined his submissions only to challenge the order of the learned District Judge and the view taken therein regarding the incompetency of the appeal under section 14 of the Family Courts Act against an order about the temporary custody passed under section 12 of the Guardians and, Wards Act. It may be pointed out that neither party disputed the proposition that in the proceedings under the Guardians and Wards Act, right of appeal is regulated by section 14 of the Family Courts Act and not by section 47 of the Guardians and Wards Act application whereof stands excluded by virtue of sections 5 and 14 of the Family Courts Act. This proposition, in fact, was settled by their Lordships of the Supreme Court in Sakhawat Ali's case PLD 1981 SC 454 and the pronouncement has since been re-affirmed in the case of Ehsan-ur-Rahman v. Najma Parveen PLD 1986 SC 14. Thus, the only question which the learned counsel for the parties have debated and which requires examination in this case is as to whether or not appeal under section 14 of the Family Courts Act lies against an order of the Guardian Judge/Family Court passed under section 12 of the Guardians and Wards Act. Learned counsel for the petitioner, of course, took the stand that the appeal was competent and his argument was that appeal under section 14 of the Family Courts Act lies not only against a decree passed but also against 'a decision given' by the Family Court and that the order dismissing the petitioner's application under section 12 of the Guardians and Wards Act was 'a decision' within the meaning of section 14 and, therefore, appealable under that provision. In support of his contention, learned counsel relied upon (i) PLD 1972 Kar. 410 (FB), (ii) PLD 1975 Kar. 448, (iii) 1982 CLC 441, (iv) 1982 CLC 799, (v) 1983 CLC 353, (vi)
1995 CLC 792 and (vii) 1986 CLC 442. In all these cases, it has been consistently held that an order of the Family Court relating to the temporary custody of the minors passed under section 12 of the Guardians and Wards Act is appealable under section 14 of the Family Courts Act.
' Learned counsel appearing for respondent No,1, on the other hand, contended that the order of the Family Judge in the matter of temporary custody of the minors being interlocutory in nature was not covered by the word 'decision' and was, therefore, not appealable under section 14 of the Family Courts Act. He submitted that the word 'decision' in section 14 could not be given so wide a meaning as to cover an interlocutory order passed under section 12 of the Guardians and Wards Act. Learned counsel was unable to cite any direct authority on the point in issue. He, however, sought to draw support for his submissions from the following cases:-
(i) "Syed Muhammad Raza Shah v. Sayeda Selma Gilani and another" PLD 1976 Lah. 1015,
(ii) "Syed Maqsood Ali v. Mst. Soofia Noushaba and 2 others" 1986 CLC 620 and
(iii) "Mian Manzar Bashir and others v. M.A. Asghar & Co." PLD 1978 SC 185.
5. I have examined the cases cited by the learned counsel for the respondent. They proceed on their own facts and in none of them, the precise question under examination in the instant case namely the appealability of an order of the Family Court passed under section 12 of the Guardians and Wards Act was directly in issue. In the case of "Muhammad Raza Shah", order of the Family Court appeal ability whereof was under challenge was passed in the suits for dissolution of marriage, recovery of dower and maintenance refusing permission to the plaintiff to place on record and prove a 'Kabin Nama'. That order was held to be not 'a decision' within the meaning of section 14 of the Family Courts Act and, therefore, not appealable. It may be noted that in interpreting the word 'decision', learned Judge, inter alia, took note of subsection (2) of section 14 which made some decrees unappealable and final and observed "it will create an anomaly if it is held that on the one hand the matters falling under subsection (2) of section 14 are not appealable and on the other hand all the interlocutory orders which may culminate in decrees governed by subsection (2) should be held to be open to appeal." It may be pertinently observed that the reasoning based on subsection (2) of section 14 which whittled down the right of appeal in some decrees passed in the suits for dissolution of marriage, dower and maintenance was quite relevant in the cited case as the order of the Family Court under examination therein was passed in the suits for the dissolution of marriage, recovery of dower and maintenance but that reasoning cannot be applied to an order under section 12 of the Guardians and Wards Act as the decree passed in the matter of guardianship and custody of minors is not mentioned in section 14(2).
' Second case cited by the learned counsel for the respondent viz. 1986 CLC 620 is also of no help to him. In that case, order of the Family Court attaching the salary of the judgment-debtor in execution of the decree for maintenance fell for interpretation. It was held that it could not be termed as 'a decision' within the meaning of section 14 as it was an order of routine nature and the Court passing it was not required to determine any issue as it had only to see "whether there was a decree and whether the judgment-debtor had failed to pay the decretal amount or any part thereof." Similarly, in the third case of "Mian Manzar Bashir", the order which came under examination was passed in rent proceedings whereby an ex parte order of ejectment was set aside. Their Lordships observed that such an order being not definitive as it only reopened the proceedings from the stage of being declared ex parte was only interlocutory and not appealable.
Now an order passed under section 12 of the Guardians and Wards Act cannot be said to be a routine order as the Court even when deciding the question of temporary custody is required in law to address itself to the all-important consideration of welfare of the minors. Order regulating the temporary custody of the minors by its very nature and its impact can also not be equated with an order setting aside an ex parte order of eviction which only reopens the proceedings.
6. Question may now be examined whether order of the Family Court/Guardian Judge passed under section 12 of the Guardians and Wards Act was 'a decision' within the meaning of section 14 of the Family Courts Act. The word 'decision' has not been defined in the Act. Recourse may, therefore, legitimately be had to its Dictionary meaning. According to the Shorter Oxford English Dictionary (Volume 1), the word 'decision' means (1) The action of deciding (a contest, question, etc.); settlement, determination; a conclusion, judgment; esp. One formally pronounced in a Court of law. (2) .The making up of one's mind; a resolution. According to the Black's Law Dictionary (Third Edition), the word 'decision' inter alia, means a finding, as by a Court, upon either a question of law or fact arising in a case. It is further stated therein "The term is broad enough to cover both final judgments and interlocutory orders. Stout v. Stout .68 Ind. App.
278." According to the Wharton's Law Lexicon (Fourteenth Edition) 'decision' means a judgment and "judgment" is defined as judicial determination; decision of a Court. It is also stated that species of judgments are either:- (a) Interlocutory, or (b) Final. Interlocutory is stated as "given in the course of a cause, upon some plea, proceeding, or default, which is only intermediate and does not finally determine or complete the action." Final is described as "putting an end to the action by an award of redress to one party or discharge of the other, as the'case may be".
7. It may be noted that the word 'decision' according to its Dictionary meaning has a broad connotation and is comprehensive enough to cover not only final judgments but even interlocutory orders. I would, however, like to make it clear that the word 'decision' in section 14 of the Family Courts Act is not to be construed in its wide generality because in that case, every interim order passed by the Family Court would be open to appeal which obviously was not the legislative intent.
At the same time, I am unable to accept the interpretation of the learned counsel for the respondent that appeal under section 14 lies only against such a decision of the Family Court which finally determines the proceedings before it. If that were the intention of the legislature, it could well have used the expression 'a final decision' instead of 'a decision' in section 14. To my mind, the reasonable approach is that appeal lies against such interlocutory orders which are covered by some provisions of the Family Courts Act. Now an order under section 12 of the Guardians and Wards Act by virtue of provisions of section 25 of the Family Courts Act is by reference an order under the Family Courts Act. Such an order should, therefore, be held to be appealable. Reference may be made to a Full Bench case of this Court reported as "Muhammad Amin v. Jamshed Ali PLD 1963 Lah. 523 wherein while interpreting the words "an order" occurring in section 15(1)(b) of the Rent Restriction Ordinance as its stood at the relevant time, it was held that only such orders are appealable as are passed by the Rent Controller under some provisions of the Rent Restriction Ordinance. This view was favourably commented upon by their Lordships of the Supreme Court in the case of "Kandawala & Co. v. Rashiuddin" 1969 SCMR 721 in the following words:- "The High Court has in a Full Bench case reported as Muhammad Amin v. Jamshed All held that 'an order' in the section means any order which is covered by some provisions in the Rent Restriction Ordinance. This appears prima facie to be a reasonable qualification to add to 'an order'."
8. In view of the foregoing discussion, I am of the view that the order of the learned Family Court/Guardian Judge passed under section 12 of the Guardians and Wards Act dismissing the 'petitioner's application for the temporary custody of her minor children was 'a decision' within the meaning of section 14 of the Family Courts Act and, therefore, appeal against it was competent.
Learned District Judge proceeded on incorrect view of law in dismissing the petitioner's appeal as incompetent. Impugned order of the learned District Judge is, therefore, set aside with the result that the appeal before him shall be deemed to be pending which he shall dispose of on merits as early as possible. With these observations, writ petition is allowed but with no order as to costs.