Ms. QURATULAIN ALEEM vs MUHAMMAD REHAN KHAN and anothers

ORDER

1. ' MRS. YASMIN ABBASEY, J.---This constitutional petition has been preferred against the interim order dated 1-12-2005 passed by III Civil/Family Judge, Karachi (Central) on an application under section 12 of Guardian and Wards Act whereby the prayer of petitioner for interim custody of minors was dismissed.

2. ' It is contended by ,learned counsel for petitioner that on 24-1-2005 marriage in between the parties came to an end and on the very date the petitioner left the house of respondent No,1 along with minors, but subsequently by making misstatement of minors were removed by the respondent No,1 on 2-9-2005. In support of her contention that the custody of minors was removed by respondent No,1, a statement of one Saeed Ibrahim, brother-in-law of respondent No,1 recorded on 17-10-2005 has been referred. According to petitioner first she tried to settle the matter amicably. On failure she reported the matter to police on 3-10-2005 and 12-10-2005.

3. ' It is further contended that even if the date of removal i.e, 2-9-2005 is ignored then also respondent No,1 in his written statement had himself admitted that from 12-7-2005 custody of minors is with him. During the course of arguments learned counsel for petitioner has referred certain documents placed by him on record to show that respondent No,1 is a person of questionable character. Therefore, the welfare of minors requires that their custody should be removed from him. School and tuition fee receipts have also been placed by the petitioner to show that the minors were got admitted by her in a school and she at her own was maintaining them.

4. ' Conversely, learned counsel for respondent No,1 has also made reference to photographs placed on record to show that petitioner is a member of show business and would not have sufficient time to look after minors.

5. ' Apart from factual aspects, learned counsel for respondent No,1 has challenged the very maintainability of this petition. By referring section 14 of Family Courts Act, 1964, which reads as under, contention of learned counsel for respondent No,1 is that remedy available to the petitioner was to file appeal before. District Judge instead of this petition:-- "

14. Appeal:---(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable:---

(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status as of a District Judge or an Additional District Judge; and

(b) to the District Court, in any other case.

(2) No appeal shall lie from a decree by a Family Court:---

(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;

(b) for dower or dowry nor exceeding rupees thirty thousand;

(c) for maintenance of rupees one thousand or less per month.

(3) No appeal or revision shall lie against an interim order passed by a Family Court.

(4) The Appellate Court referred to in subsection (1) shall disposes of the appeal within a period of four', months."

6. ' It is pleaded by learned counsel for respondent No,1 that bare reading of above section makes it clear that any decision given or decree passed by a Family Court shall be appealable to District Court if the case falls under subsection (1) of clause (b) of referred section and as the impugned order was passed by the learned Civil and Family Judge, therefore, appeal lies to District Court. In support of his contention he has relied on a number of decisions that the constitution petition against an order under section 12 of Guardians and Ward Act is not maintainable and remedy lies in filing appeal before the District Judge.

7. ' Learned counsel for petitioner has pleaded that all these views taken in the citations as referred by learned counsel for respondent No,1 were given before the amendment taken place in section 14 of Family Courts Act. But after amendment in section 14 of the Act on 1-10-2002, now the legal position has totally changed and presently the only remedy available to an aggrieved person under section 12 of Guardians and Ward Act is to file Constitution petition, because the newly- added subsection (3) debars him to file appeal or revision against an interim order passed by the Family Court. And as an order passed under section 12 of Family Courts Act is an interim order, therefore, it is not an appealable order, therefore, he had no option but to file this Constitution Petition.

8. ' Section 14 of Family Courts Act refers to two categories of orders i.e, "decision given" or "decree passed". By .Using these two 'terms in the section legislature intends two different meanings of them. Normally, decision means the conclusion of Court proceedings, but where two words i.e, "decision given" or "decree passed" are used in a statute requiring a liberal construction the term "decision given" would mean a declaration which is to be followed in subsequent proceedings of a case. Therefore, the term "decision given" does not qualify with any such word as final. Hence, an order under section 12 of Guardians and Ward Act being of introductory nature will fall under the category of "decision given". Same like views were expressed in PLD 1975 Karachi 448 and in 1987 M LD 2563 that:-- "Expression "decision given" in section 14 of West Pakistan Family Courts Act is not qualified by word "final" order by Guardian Judge under section 14 Guardian Ward Act---Appealable to District Court under section 14."

9. ' Even otherwise; while inserting clause (3) in section 14 of Family Courts Act no amendment has been made in clause (1) of it and the term "decision given" or "decree passed" are still without any changing position to an order under section 12 of Guardians and Ward Act made on an interlocutory, application moved to invoke provisional or interlocutory relied, rather than a final judgment and thus the remedy lies in filing appeal before District Judge in case an order is passed by Civil/Family Judge.

10. ' Learned counsel for petitioner has also referred certain authorities in support that Constitution petition against an order passed under section 12 of Guardians and Wards Act is maintainable but in the decision referred the point under discussion about the maintainability of constitution petition against an interlocutory order was not the issue and those petitions were entertained in different circumstances which are not appearing in the matter.

11. ' In view of the foregoing reasons this constitution petition is hereby dismissed in limine without touching the merits of the case to be decided by the Court having jurisdiction in the matter.