The petitioner, Mst. Uzma Vahid, has moved this Constitutional petition praying therein that the impugned order dated 21-12-1988 passed by the learned Guardian Judge, Lahore, may be declared without lawful authority and of no legal consequence.
2. Briefly, the facts are that the respondent No.2 Muhammad Javaid Umrao and the petitioner Mst.
Uzma Vahid are the father and mother respectively of two female minors namely Nadia Umrao born on 17-11-1981 and Nida Umrao born on 22-10-1984. The respondent-husband has already divorced the petitioner, his wife. The petitioner filed an application under section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) and she also filed an application under section 12 of the Act before the learned. Guardian Judge, Lahore. It may be noted that another application under sections 7 and 9 of the Act was instituted by the respondent No. 2 in the learned District Court of Abbottabad. The grievance of the petitioner was that the respondent No 2 removed the two minors from the marital home and hizanat on 15-6-1987. She, therefore, sought the restoration of the custody of the minors to her. The learned Guardian Judge issued the necessary process to the respondent for his appearance in court to contest the petition referred to above: However, the respondent did not appear because he could not be served with notice. In these circumstances, despite the pendency of the two applications under sections 12 and 25 of the Act, the petitioner filed a Criminal Miscellaneous No. 595/H-1987 in this court under section 491 Cr.
P.C. Wherein it was complained that. The respondent was wilfully obstructing the process of the Guardian Court by not complying with its orders to produce the minors to be dealt with in accordance with law. The contention was that the refusal of the respondent to produce the minors in Court will tantamount to illegal and improper custody. The learned High Court after hearing the parties vide the order dated 30-3-1988 proceeded to hold that the petitioner was entitled to the custody of the minors till they attain the age of puberty. It was also observed that the respondent shall be at liberty to meet the minors. Dissatisfied with the judgment of the High Court, the respondent challenged the same by filing a petition for Special Leave to Appeal before the Hon'ble Supreme Court of Pakistan which was converted into an appeal No. 37/R-88 and accordingly their Lordships were pleased to allow the appeal with some modification therein on 16-7-1988. It was held by the Hon'ble Judges that section 491 Cr. P.C. Is ordinarily not available for declaring a guardian or for determining for all times the question of custody of the minor. Thus the Judgment of the High Court to the extent to which the same oversteps the confines of section 491 Cr.P.C. Was set aside. It was specifically directed that the custody on regular basis must depend on adjudication of questions of fact primarily having basis in the welfare of the minors and minors alone. After the judgment referred to above, the learned Guardian Judge Lahore passed the impugned interlocutory order on 21-12-1988, giving the interim custody of the monors to the father for a limited period. As observed earlier, this order of the trial Court has been called in question, by the petitioner by filing this writ petition. The learned trial Court observed that the petitioner was unnecessarily prolonging the. Matter inasmuch as the issues in the- case could not be framed. The learned Judge proceeded to say that the interim custody may be given to the father so as to enable him to see the minors. Thus, in the interest of justice, temporary custody was allowed to the respondent with a direction that the minors shall be given to the respondent from 26-12-1988 to 3- 1-1989 and that the minors shall be returned to the petitioner at her residence by the respondent on 3-1-1989 at his own expense.
3. A notice in the petition was issued to the respondent on 24-12-1988 and in the meantime status quo order was passed subject to notice. On 28-12-1988, some arguments were addressed by the learned counsel of the parties. The case of the petitioner was that in view of the judgment of the Hon'ble Supreme Court, the interim order could not be passed by the trial Court whereas it was forcefully contended by the learned counsel for the respondent that the interim custody for a limited time can be allowed to the respondent keeping in view the welfare of the minor under section 12 of the Act and that there is "no prohibition" having been imposed by the Honourable Supreme Court in the case. I have read the judgment of the Honourable Supreme Court again and again to reach some conclusion. The case was hotly contested by both the parties. In order to find out the correct ratio of the judgment, I decided to summon the learned Advocate-Genera Punjab on 28-12-1988 to appear in the case and to throw some light on the controversy. Copies of both the writ petitions were directed to be given to the learned Law Officer so as to enable him to prepare the case. On 31-12-1988 and 2-1-1989, I heard the detailed arguments addressed by Dr. A. Basit, Miss Hina Jillani and Malik Maqbool Elahi, Advocate-General, Punjab.
4. The learned counsel for the petitioner submitted that the order of the trial Court dated 21-12-1988 may be set aside in view of the observation made by the Honourable Supreme Court in this very case. It is next contended by the learned counsel that the background of the case will justify the apprehension on the part of the petitioner that if the interim custody is given to the respondent, he will definitely run away with the minors and that this shall adversely affect the welfare of the minors.d1t is next argued that the respondent has remarried with a lady who is pursuing herself the guardian case. In this behalf the learned counsel has drawn my attention to paras 4 and 5 of her writ petition. The learned counsel further submitted that if at all the interim custody is given to the petitioners, then he may be directed to give an adequate security for the return of the minors to the petitioner. In this connection the learned counsel suggested that respondent should give security on the basis of his House No. 70, Abid Majeed Road, Street No. 3, Lahore Cantt. And he should be bound down that in case the respondent does not return the minors on the date fixed, his property mentioned above may be attached and sold out and the sale proceeds may be deposited in the name of the minors. It was submitted by the learned counsel that the learned trial Court has expressed its opinion on the merits of the case and as such the case should be transferred to some other competent Court for decision on merits as early as possible. The learned counsel lastly argued that she has no objection to the grant of temporary custody to the respondent provided the impugned order is set aside and a fresh order is passed by the High Court in the exercise of its parental jurisdiction. The respondent No. I readily accepted the offer of the learned counsel for the petitioner and stated that he was ready to give a security to the entire satisfaction of this Court as against the property as suggested by the learned counsel for the petitioner. The respondent also undertook to arrange for a good teacher to teach the minors during the period, they will remain with him. However, his learned counsel submitted that he will not agree with the learned counsel on the suggestion that the order of the Guardian Judge dated 21-12-1988 may be set aside and in this behalf, he expressed apprehension that his main case on merits might be affected. It may be noted that all this discussion took place between the learned counsel for the parties in good spirit of reconciliation between them regarding the interim custody. The learned Advocate-General submitted that the controversy can be resolved by substituting the order of the learned trial Court by passing a fresh order in the exercise of High Court's parental jurisdiction. However, ultimately, this suggestion of the learned counsel for the petitioner could not materialize because of its outright rejection by the learned counsel for the respondent No.2.
5. I have heard the learned counsel for the parties at considerable length on more than one date. In my considered view, this is in the welfare of the minors if their custody is given to the father for a few days. It is conceded by the learned counsel for the petitioner that the two minors remained with the father for sufficient period and that both the minors during the period naturally became friendly and very much familiar with their father. The minors are of tender age. They might be missing their father intensely. Undoubtedly, the father's attitude, earlier in the production of minors in Court was objectionable. A specific question was put to the learned Advocate-General as to whether the judgment of the Hon'ble Supreme Court forbids the re-opening of the question of grant of interim custody under section 12 of the Act. The learned Law Officer has read the judgment with the Court and he argued that in his opinion, there is no such bar placed in the judgment for passing an interim order, in other words, he supported the view point of the learned counsel for the respondent that the grant of interim custody as envisaged by the provisions contained under section 12 of the Act has been left open to the judgment of the Courts below by the Hon'ble Supreme Court. He states that his view is supported by the close reading of the operative part of the judgment. I have given -my, anxious thoughts to each and every word of the judgment of the Hon'ble Supreme Court and I am convinced that the learned Supreme Court has left open the question of interim custody of the minores under section 12 of the Act to be determined by the trial Court. Respectfully, the operative part of the judgment is quoted below for clear under--standing of the spirit of the same:- "However, as pointed out section 491 Cr. P.C. Is ordinarily not available for declaring a guardian or for determining for all time the question of custody of the minor. Therefore, the judgment of the High Court in so far as it directs that the minors should remain with the respondent till they attain puberty oversteps the confines of section 491 Cr.P.C. And deserves to be set aside. We convert this petition of which respondent had notice, into an appeal and accept it to this extent. 1t is so ordered.
However, the question of final custody shall be decided in the proceedings under the Guardians and Wards Act initiated by the respondent in the Family Court at Lahore and if she does not prosecute it then alone in the proceedings initiated at Abbottabad and if neither proceedings are prosecuted to a conclusion, the order of the High Court with regard to the present custody shall remain intact without the qualification that it will last till puberty. The entitlement to custody of minors on regular basis must depend on adjudication of question of fact primarily having basis in the welfare of the minors and minors alone. To this extent alone the appeal is allowed with no order as to costs."
From the above, it is manifest that the provisions of section 491 Cr. P.C. Shall not at all be available for the declaration of a guardian or for determination for all time that question of custody of a minor. This clearly means that the question of; custody shall alone be determinable by the Guardian Court under the provisions of the Guardians and Wards Act. It may also be noted that in the earlier part of the judgment, a mention of section 12 of the Act has also been made by the honourable Judges. If it was at all the intention of the Hon'ble Supreme Court that the interim custody should remain with the mother till the final disposal of the Guardian petition, this could have been said so by the learned Judges. This has not been done. The background of the case is unfortunate inasmuch as the respondent has divorced the petitioner and that the respondent has been taking the minors with him from place to place. In this view of the matter, in my considered assessm ent, the Hon'ble Supreme Court observed that the High, Court rightly restored the custody of the minors to the mother so that the learned Guardian Judge who has taken cognizance to the the petitions under sections 25 and 12 of the Act may be able to decide the custody of the minors in accordance with law keeping in view the welfare of the minors on the basis of evidence. It is certainly in the welfare of the minors to allow them to live with their own father with whom they are friendly and familiar. It has also been brought to my notice that the petitioner has also remarried a stranger. However, no concrete proof has been given by the respondent in that behalf. This question can be determined at the appropriate stage of final disposal of the main petition after recording evidence. The learned counsel for the petitioner also raised objection that the presence of step-mother in the house might affect the welfare of the minor. In this connection, it is sufficient to observe, that the grandfather and grandmother of the minors also be present in the same house and as such I do not think that the stepmother at all will be able to act adverse to the well-being of the minors. It has been brought to my notice that so far she has not given birth to any child.
6. The upshot of the above discussion is that prima facie there is legal justification for the grant of interim custody to the father from 3-1-1989 to 13-1--1989 as already directed by means of my short order dated 2-1-1989, provided the respondent provides a sufficient security on the basis of his house No. 70 Abid Majeed Road, Street No. 3, Lahore Cantt. And in case the respondent fails to follow the order, then the house mentioned above shall be confiscated in favour of the two minors.
Further, the father of the respondent No. 2 Maj. Gen. (Retd.) Umrao Khan shall also stand as a surety in the sum of Rs. 5,00,000 (Rupees five lacs) for the respondent for his due performance and compliance of the order of the court. Direction is also issued to the respondent No.2 to make effective arrangements for providing tutorship for the minors for the period, they will remain with him. It was agreed by both the learned counsel that the case may be withdrawn from the learned trial Court and may be entrusted to Mr. Karamat A.I, learned Guardian Judge-II, Lahore who on the receipt of the petition shall dispose of the same within next four months without fail. He shall also submit the compliance report of the order as well. A sum of (Rs. 10,000 Rupees ten thousand) shall be paid as fee by the respondent No. 2 to Mr. Maqbool Elahi Malik, Advocate-General, Punjab.
Nothing said above, shall be deemed to affect the merits of the case. With these observations, the petition shall stand disposed of. There shall be no order as to costs.
M.Y.H./U-30/L revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.