' The petitioner is aggrieved by the order dated 4-1-1999, passed by the learned Incharge District Judge, Karachi, South (Mr.Sabir Chippa) whereby in Family Appeal No,Nil of 1998 he directed, "the parties to appear in person alongwith minor".
2. Briefly stated, the petitioner and the respondent were husband and wife and out of the wedlock three issues namely Ms. Sehrish Tahir, Ms. Sumbul Tahir and Master Muhammad Bilal were born.
The parties were residing at Islamabad where the minors were also getting education. Due to strained relations between the parties, the marriage ended in divorce at Islamabad on 2-7-1997.
The petitioner filed petition under sections 25 and 12 of Guardian and Wards Act 1890 hereinafter referred to as the Guardions and Wards Act, 1890 for the custody of the minors at Islamabad. The learned Guardian Judge at Islamabad issued notice to the respondent and in the presence of both the parties on 10-7-1997 a consent order was passed regarding the custody of the minors. English translation of the said order reads as under:-- "Parties are present alongwith files. Minors Miss. Sahrish Tahir, Miss. Sumbul Tahir and Bilal Chaudhry were produced. Heard the parties and minors. Written statement of application under section 25 and objection on application under section 12 Guardians Wards Act, were not filed by the respondent and request for adjournment.
' Till the disposal of the application under section 12 Guardians and Wards Act, the parties are agreed that minor Bilal Choudhry will remain with the respondent (Mother) and other two minor babies will remain with the petitioner. However, without the permission of the Court the parties shall not take the minors outside the jurisdiction. Minor Bilal Choudhry was handed over to the respondent in presence of the Court. Whereas, the minor babies are with the petitioner.
' Case adjourned to 8-9-1997 for written statement."
3. It is alleged that the respondent No,3 disobeyed the above order and removed minor Bilal Choudhry from the jurisdiction of Islamabad Court and also filed Guardians and Wards Application No, 420 of 1997 on 28-5-1997 at Karachi. After bringing the minor boy at Karachi, allegedly she has not produced him before the learned Guardian Judge at Islamabad. Therefore, search warrant under section 100, Cr.P.C. Was issued and the respondent No,3 was directed to produce minor but without any success. The petitioner has produced copies of memo. Of application, service of notice, consent order and warrant under section 100, Cr.P.C. For production of minor Bilal Choudhry as annexures P.4 to P.6. The petitioner also alleged that the respondent No,3 with mala fide intention filed Guardians and Wards Application No,420 of 1997, for custody of the minors by concealment of facts to the extent that she gave false address of the petitioner at Karachi. However, when the petitioner came to know about filing of Guardians and Wards appliation at Karachi, he filed his counter affidavit to the application under section 12 of Guardians and Wards Act. It would be relevant to reproduce the following paras from the counter-affidavit: "4. That I have fired petition under section 25 of Guardians and Wards Act against the present plaintiff for the custody of Miss. Sahrish Tahir, Miss. Sumbul Tahir and Muhammad Bilal Choudhry alongwith interlocutory application. It is submitted that on 10-7-1997 in presence of the parties minors were produced before the Court and an order on application under section 12 Guardians and Wards Act was passed both the parties signed the concerned order by virtue of the order, the minors namely Miss. Sehrish Tahir and Miss. Sumbul Tahir remained in my custody and the custody of minor Muhammad Bilal Choudhry remained with the plaintiff but it was very clear in that order that the parties shall not remove the custody of the minors from the jurisdiction of the Hon'ble Court of Guardian Judge, Islamabad. Photostat copy of consent order, dated 10-7-1997 is filed herewith and marked as Anneuxre D-1.
5. That the plaintiff is in habit of committing contempt of Court and as per her gross violation for compliance with the order before Guardian Court at Islamabad, Contempt application has been moved and before that Court and in this connection the learned Gaurdian Court Islamabad has issued warrant under section 100, Cr.P.C. And the plaintiff intentionally avoiding to comply with the direction/warrant of the learned Guardian Court of Islamabad.
6. That the plaintiff has suppressed the facts, otherwise, it was her sole, legal and moral responsibility to submit this fact before this Hon'ble Court which she had not, therefore, I submit that suppression of this Court proceeding and consent order from this Hon'ble Court also amounts to Contempt of Court even before this Hon'ble Court, therefore, the plaintiff may be summoned for prosecution under contempt of Court."
4. The petitioner also filed application for rejection of the plaint which was rejected by the learned Guardian Judge on 12-11-1998 at Karachi, but application under section 12 of the Guardians and Wards Act is still pending. It is further alleged that suddenly the respondent No,3 moved application behind the back of the petitioner before the learned Guardian Court seeking order for arrangement of meeting with minors. On 24-4-1998 the learned Gurdian Court issued notice to the petitioner at Karachi, but it appears notice could not be served as the petitioner is resident of Islamabad.
However, on 30-11-1998 the learned counsel Judge passed the following orders:--- "Heard.
' Learned counsel for the applicant. The counsel for the applicant requested for production of daughters before the Court on next date of hearing for meeting with them. In the interest of justice I order to the respondent to produce the daughters in Court on next date of hearing each and every date of hearing at 1.00 p.m. For two hours meeting with the applicant. The applicant is directed to pay Rs,500 to the respondent as conveyance allowance for the meeting till final disposal of present case. Put off on ' 7-12-1998 for filing objection on the present application."
5. A plain reading of the above order indicates that it was passed without hearing the learned counsel for the petitioner. It was challenged in appeal i,e, Family Appeal No,Nil of 1999 and the learned Incharge District Judge passed the following order: "Parties be called to appear in person, alongwith minor. Hg.
6. Now the petitioner has prayed that the impugned order, dated 4-1-1999 and 30-11-1998 may be set aside and the Guardians and Wards Suit No, 420 of 1997, may be dismissed.
7. I heard Mr. M. Suhail H.K. Rana the learned counsel for the applicant, Mr.Akhtar A. Channar, learned counsel for the respondent No,3 Mr. S.M. Gharib Nawaz Daccawala, Advocate also filed his Vakalatnama on behalf of respondent No,3 but the arguments were advanced by Mr.Channar.
8. From the perusal of record it appears that the marriage between the petitioner and the respondent No,3 ended in divorce. Admittedly in Family Suit No, Nil the learned Guardian Judge at Islamabad passed the order giving temporary custody of minors as mentioned above. When I specifically inquired from the learned counsel for the respondent No,3 as to whether permission was obtained from the learned Guardian Judge Islamabad, for removing minor Muhammad Bilal Choudhry from the jurisdiction of that Court, he frankly replied in negative. He also admitted that search warrants under section 100, Cr.P.C. Which were issued from time to time by the learned Guardian Judge Islamabad. Could not be executed and still the minor is with the respondent No,3 at Karachi. It is quite amazing that the respondent No,3 filed Guardian and Ward Suit at Karachi by suppression of facts and also gave address for service on the petitioner at Karachi, although he is permanently residing at Islamabad and two minor daughters are also living with him. The fact that two minor babies are still residing at Islamabad is also confirmed by the averments made in the affidavit of the respondent No, 3 which she had filed on 18-11-1998 in support of application under section 12(2) Guardians and Wards Act. In paras. Nos.2, 3 and 4 she stated as follows: "1 That my application under order 12(2) of Guardians and Wards Act is pending throughout but could not be disposed off, therefore, an ccompanying application for meeting of the minors till the disposal of the application for termporary custody of the minors.
3. That about more than a period of year have passed I am not allowed to see and meet my minor daughters.
4. That I am ready to sustain/bear the expenses incurred upon in bringing the minors in Court. That I am ready to send ticket of Air Lines in Advance." (emphasis supplied).
9. This clearly shows that the respondent No,3 by abusing the process of the Court and concealment of facts tried to obtain favorable orders from the learned Guardian Judge at Karachi.
The learned appellate Court also passed the order for production of the minors without application of judicial mind. Article 199 of the Constitution costs an obligation on the High Court to act in aid of law. Constitutional jurisdiction is intended to foster justice and strike down orders passed in contravention of the expressed provision of law. Therefore, looking into the facts and circumstances of the case. I am of the view about that the impugned orders are legally unsustainable and Guardians and Wards Suit No, 420 of 1997 as well as the appeal which was preferred against the order, dated 30-11-1997 are liable to be dismissed. As was rightly submitted by the learned counsel for the petitioner, the respondent No,3 should surrender the minor boy before the learned Guardian Judge at Islamabad and may seek further remedy according to law instead of dragging the petitioner and the minors in Court by initiating parallel proceedings at Karachi. With these observations this petition is allowed as prayed.