The brief facts giving rise to this Constitutional petition are that the petitioner, Mst. Misbah Rubeena, was married to respondent No.1, Ali Quli Amin-ud-Din, at Lahore on 30th May, 1999 and after some time became pregnant which was statedly resented by respondent No.1, therefore, the petitioner returned to Lahore and a male child was born on 9-6-2000 in the house of her parents. On 20-6- 2000 respondent No.1 filed a suit for restitution of conjugal rights before the learned Judge Family Court at Peshawar. The petitioner filed an application under Order 7, rule 11, C.P.C. For rejection of the plaint on account of lack of jurisdiction since the minor was admittedly born at Lahore. The Family Court at Peshawar returned the plaint to respondent No. 1 for filing the same before the Court of competent jurisdiction.
2. In the meanwhile, on 28-7-2000 the petitioner filed a suit for dissolution of marriage which was decreed ex parte in her favour on 20-12-2000. Respondent No. 1 filed a suit for restitution of conjugal rights as well as an application under section 25 of the Guardians and Wards Act before respondent No.2, learned Guardian Judge, Lahore on 26-5-2001. He also filed an application under section 12 of the said Act for interim custody of the minor which was dismissed by respondent No.2 on 4-9-2001 with the observation that since the minor was only 15 months old and had been in the custody of his mother since birth, there was no ground of emergent nature justifying giving interim custody of the minor to respondent No. 1. However, respondent No.2 observed that since respondent No.1 is the real father of the minor, he should be allowed to meet the minor from 9-00 to 11-00 a.m. On 1st and 3rd Monday of each month in the Court of respondent No.2. However, to allay the apprehensions of the petitioner that respondent No.1 would kidnap the minor respondent No.2 directed respondent No.1 to furnish surety bond in the amount of Rs.10 lacs to ensure that he would return the minor after every meeting.
3. The petitioner filed an appeal against the aforesaid order before the learned District Judge, Lahore which was dismissed by respondent No.3, learned Additional District Judge, Lahore on 27-11- 2001 with the observations that since respondent No.1 was the real father of the minor, he has a right to visit the child who is with the mother, while it was also in the welfare of the minor that he should get love and affection of both his parents. Being aggrieved with the above order the petitioner has filed the present writ petition.
4. Learned counsel for the petitioner has argued that the order of respondent No.3 is illegal and respondent No.3 has committed grave jurisdictional error since the application under section 25 of the Guardians and Wards Act can be filed only in the circumstances where the minor has been removed from the custody of a guardian of his person and since admittedly the minor had been born in Lahore and had never been in the custody of respondent No. 1 application under section 25 was not maintainable but respondent No.2 entertained the application despite the objection of the petitioner's counsel, and passed the impugned direction for meeting with the minor, which is even otherwise not in the welfare of the minor, since the minor is an infant and his production twice a month in the Court of respondent No.2 would expose him to an alien atmosphere, and would also cause emotional harm, and the application itself is an abuse of the process of the Court and has been filed by respondent No. 1 merely to harass the petitioner, and according to the Injunctions of Holy Qura'an as given in Verse 233 of Chapter, 3 the mother is not to be bothered for the sake of the child. Learned counsel has relied on the following judgments in support of his arguments:-- Mst. Hameed Mai v. Irshad Hussain PLD 2002 SC 267 Nawab Abdur Rehman's Sherwani and 7 others v. Mir Abdul Ghias Nausherwani PLD 1985 Quetta 121 As well as various references to the practice of Hazrat Abu Bakar (r.a.) according to which he sent Hazrat Umar's son with the maternal grandmother till he reached the age of 7 years. It is argued that every order passed under the Guardians and Wards Act has to be passed keeping in view the ultimate criterion which is the welfare of the minor and where an order is not in the welfare of the minor it is liable to be set aside. Regarding the illegality of the order with- respect to the jurisdiction, learned counsel has relied on the case cited as Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore, Abdul Rehman's and Mst. Aimna Bibi PLD 1964 SC 260.
Learned counsel for the petitioner has concluded his arguments on the note that the petitioner being mother of the minor is not to be harassed or put to inconvenience through frivolous proceedings and, therefore, the impugned order be declared as having been passed without lawful authority.
5. Learned counsel for respondent No. 1 has contended that all the arguments raised by the learned counsel for the petitioner are regarding the principles of 'Hizanat' and not on ' Wilayat According to him a guardian a natural guardian or may appointed through a Court or through a deed executed by a natural guardian and de jure guardian would always be the father and that de facto guardian of the person of the minor would be the mother who has given birth to the minor and she may file an application under section 7 or section 10 if she wishes to be appointed a guardian of the minor, but as regards the custody of the minor natural guardian who is the father, section 25 appropriate provision of law under which a father may apply for guardianship of the person of the minor; and application under section 12 may also be filed by him regarding the interim custody. He has further argued that in the initial reply to the application under section 12 of the Guardians and Wards Act, the learned counsel for the petitioner had never taken the plea of jurisdictional error and this ground which has been agitated before the High Court is entirely misconceived; that the ' Hizanat' or the de facto custody of the minor with the mother is subject to the supervision and control of the father, and it is irrelevant whether he has actual custody, and since de jure custody is also presumed to be with the father, provisions of section 25 are attracted on the basis of constructive custody.
6. On merits, learned respondent No.1 has argued that the attitude of the petitioner towards respondent No.1 was always hostile, and despite the fact that after tile birth of the minor respondent No.1 has made several attempts to see the child and to reconcile with the petitioner, personally as well as through the intercession of elders, and through Jirga as well as by filing suit in the Court for restitution of conjugal rights, that there should be no estrangement between the parties, or between the father and the son, the petitioner had always rebuffed all overtures made by respondent No.1, and had even proposed schedule petitioner on 4-9-2001 for meeting with the minor, which had not been given consideration by the petitioner. Learned counsel for respondent No. 1 has also objected this petition merits dismissal in limine has been filed mala fide and in violation of the undertaking given by the petitioner before the learned Guardian Judge on 3-12- 2001. He has adverted to the order of the learned Guardian Judge dated 3-12-2000 in which it has been observed that the Court had issued warrants under section 100, Cr.P.C. On failure of the petitioner to produce the minor in the Court, but that order had been suspended by the lower Appellate Court on the appeal of the petitioner,, and after the appeal was dismissed, the petitioner was again directed to produce the minor in the Court on 3-12-2001. Learned counsel for the petitioner gave a statement that the petitioner has gone out of Lahore, therefore, the minor would be produced in the Court on the next date of hearing and on this undertaking the Court had directed the petitioner to produce the minor on 14-12-2001, but before the said date, the petitioner filed the present writ petition and obtained stay order from this in clear contravention of her own undertaking, given before the Guardian Judge on 3-12-2001, and since the petitioner has not approached this Court with clean hands, the petition merits dismissal. Learned counsel for the respondent has relied on the following cases in support of his arguments, that being father, the order for respondent No. 1 to meet the minor is based on proper appreciation of facts and law:-- Zainab Bibi v. Feroze-ud-Din PLD 1954 Lahore 704.
Muhammad Bashir v. Mst. Ghulam Fatima PLD 1953 Lahore 73.
Muhammad Sadiq v. Mrs. Sadiq Safoora PLD 1963 (W.P.) Lahore 534.
Janki Misri v. Beni Singh and others AIR 1935 All. 853.
Walayat Ali v. Mst. Khalida Bibi and others 1992 CLC 812.
7. I have heard the learned counsel for the parties and have also gone through the case-law cited by them in support of their respective arguments. Learned counsel for the petitioner has vehemently argued that, application of respondent No.1 under section 25 was not maintainable since the said section comes into play only in the case where a Ward leaves or is removed from the custody of a guardian of his person, and that in the present case, the minor having been in the custody of his mother since birth, provisions of section 25 were not attracted, and the application was liable to be dismissed on that score alone. Learned counsel has relied on the case reported as Mst. Imtiaz Begum v, Sheikh Azmat Ullah PLD 1959 Lahore 750.
8. Undoubtedly a plain reading of section 25(i) shows that this section is attracted only when a ward is removed from the custody of a guardian of his person. This view has been followed in the latest judgment cited as Mst. Rani v. Bilal Ahmad and 2 others 2000 MLD 1967. However, this matter is best agitated before the learned Guardian Judge before whom the application under section 25 is pending adjudication. Meanwhile, it is pertinent to note that the Court has the power to treat proceedings of one kind as proceedings of another kind. Reference can be made with advantage to the cases cited as Mst. Amina Begum and others v. Mehar Ghulam Dastigir PLD 1978 SC 220 and Ali Ahmed v. Muhammad Yakoob Almani, Deputy Superintendent of Police, Qasimabad, Hyderabad and 5 others PLD 1999 Kar. 134 wherein it has been held that a Court of law is competent to convert one proceeding into another provided such cause remains within its jurisdiction. The Guardian Court exercises parental jurisdiction and when seized with a matter concerning custody of the minor it can pass any order it considers appropriate keeping in view welfare of the minor and the circumstances of the case. Courts are to administer justice and not to non-suit litigants on technical bars.
9. The order which has been assailed before this Court has been passed under section 12 of the Guardians and Wards Act, which empowers the Guardian Court to make interlocutory orders for production of the minor and interim protection of person and property. Subsection (1) provides that the Court may direct that the person having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.
10. Vide impugned order dated 4-9-2001 the learned Guardian Judge has dismissed the application- of the respondent for interim custody of the minor but has passed an order that since respondent No.1 is real father of the minor, he has the right to see and meet his minor son, and subject to the respondents submitting surety bond of Rs.10 lacs in the Court to guarantee that he would not remove the minor from the custody of the present petitioner, the petitioner has been directed to produce the minor in the Court for meeting with the petitioner on first and third Monday of each month from about 9-00 to 11-00 a.m. The appeal of the petitioner was dismissed by respondent No.3 vide order dated 27-11-2001, with the observation that the Guardian Judge has discretion to make such an interim order as facts of the case may justify, keeping in view the paramount consideration i.e. Welfare of the minor and provide a time schedule for taking the minor to his father for a fixed period on certain days and since respondent has furnished the surety bond in compliance of the direction of the Guardian Judge and he is an educated and law-abiding citizen the order of respondent No.2 is an appropriate and valid order.
11. It has been held in the case cited as Allah Yar Khan v. Mst. Nasim Akhtar and another 1985 CLC 1277 that the provisions of section 12 must be interpreted liberally and beneficially for passing such order as exigencies of the case may demand, and the apprehension of the learned counsel for the petitioner that the implementation of the order of the learned Guardian Judge would have adverse affect on the health, security and emotional stability of the minor are not well-- founded. The reliance placed by the petitioner's counsel on the practice and precedents of Hazrat Abu Bakar (r.a.) referred to permanent custody and not to visitation rights, and that question is yet open for decision by the learned Guardian Judge. In the meantime, the father of the minor has a right to see his minor son at appropriate intervals in order that the minor may be familiar with his father and also to satisfy the father that the minor is in good health. Respondent No.2 has directed the petitioner to produce the minor twice a month in the Court for two hours at a time. Since the petitioner apprehends that respondent No.1 may remove the minor from her custody the execution of the surety bond by respondent No.1 is an adequate guarantee that he will not remove, the minor, and the meeting in the premises of the Court of the Guardian Judge is the most secure place for this purpose. If the petitioner considers the environment unsuitable for the health of the minor she may propose some more suitable venue which may be considered by the learned Guardian Judge if he is approached with such a proposal. As regards the intervals on which the meetings are to take place, it has been held, in the case cited as Muhammad Iqbal v. Mst., Tanveer Asmat and others 2001 CLC 133 that giving the minor into the custody of his father for eight hours a day each month was not a reasonable order and the order of the learned Guardian Judge to the effect that father of the minor may be allowed to meet with him on each and every date of hearing for a period of four hours under the supervision of Naib Nazir of the Court, was restored.
12. In the present case, the learned Guardian Judge has passed an order which is innocuous and reasonable. The minor is about two years old and if he meets his father for two hours on the first and third Monday of every month, it would familiarize him with his father and would not cause any inconvenience to the petitioner. This petition is accordingly dismissed, without any order as to costs.