E. C. RATTI Versus ARTHUR DENNIS

AGHA ALI HYDER, J.‑--- This appeal from the order of a learned Single Judge dated 17‑10‑1967, dismissing in limine the appeal filed by the appellants, whereby he affirmed the order passed by the Guardian Judge, Quetta arises in the following circumstances

1. The respondent No. 1 was married to the present respondent No. 2 9n 1959. There were two children from the said union, being Rubina Susanna Dennis and Lubna Gunila Dennis. Mrs. Mable Arthur Dennis, that is the mother of the minors, left for Saudi Arabia in August 1963, to take up employment as a midwife, leaving the minors with the respondent No. 1. It appears that the minors remained with their father at Quetta up to 31‑12‑1966, where they were having their schooling. The present appellant No. 1, that is the maternal grandfather of the minors, had on that date taken them with him to Hyderabad for a short sojourn, giving an express undertaking for the return of the children within 10 days. However, it proved to be a ruse as his intentions were altogether different. The respondent No. 1, therefore, filed an application before the Guardian Judge at Quetta, under section 25 of the Guardians and Wards Act. There was also an application under section 12 of the aforesaid Act. The learned Guardian Judge, on the basis of the affidavits filed by the parties, allowed the latter application and issued warrant under section 100 of the Code of Criminal Procedure for the delivery of the minors into the interim custody of the respondent No. 1. The appellants and the respondent No. 2, preferred an appeal against this order. The two contentions raised were that no interim order could be passed under section 25 of the Guardians and Wards Act, and that for the temporary custody of the minors, remedy could be sought only under the provisions of the Indian Divorce Act, 1869. The learned Single Judge, however, overruled these contentions and, as mentioned earlier, dismissed the appeal in limine.

2. Mr. Azizullah Memon, learned counsel for the appellants, has raised two contentions before us. The first contention is that the Guardian Judge bad no jurisdiction to proceed with the application as the minors were not ordinarily residing at Quetta; and secondly, that the order for the interim custody of the minors could not be passed in the course of the proceedings under section 25 of the Act. It appears that the jurisdiction of the Court was also challenged in the appeal under section 47 of the Act, though not pressed. It will, therefore, be in the fitness of things to examine the same.

3. The case of the respondent No. 1, as to be found from the applica?tion and the affidavit in support of the same, was that the minors had all along lived with him, when they were taken away by the appellant No. 1 to Hyderabad on 31st December 1966. There was a provisional certificate produced from St. Gabriel School at Quetta to show that they were schooling there, till they left Quetta. The objections and the affidavit filed by the appellant No. 1 did not controvert the averments in regard to their schooling here. All that was mentioned therein, was that the minors were living at Shahdadpur and would not go outside Pakistan. The counter?-affidavit filed by the appellant No. 3, Socil Charles, also had nothing materially different to say. Paragraph 7 of the counter‑affidavit was to the effect that "no prejudice has been caused to the applicant as the children are continuing their schooling".

4. According to section 9 of the Guardians and Wards Act, an application with respect to the guardianship of a person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. It was held in Mst. Zubaida Begun v. Choudhury Ghulam Rasul (P L D 1959 Lab. 967) : "It is however clear that, because a ward should ordinarily reside at the place where the guardian resides, the initial presumption should be that the ward is ordinarily residing at the place where the guardian, is but the presumption is rebuttable and may in a suitable case be held to have been rebutted. I need hardly add that whether or not the initial presumption has been rebutted would depend on the facts and circumstances of each case and it is not possible nor perhaps permissible, to lay down under what circumstances the above‑mentioned initial presumption is to be taken to have been rebutted." The same view was taken in Syed Wadal Shah and another v. Syed Ghulam Nabi Shah (P L D 1965 Kar. 85 ) and Fahimuddin Khokar v. Mst. Zaibun Nisa (P L D 1968 Kar. 774). There is nothing to show from the record that the minors had lived with their maternal grandparents prior to 31st December 1966. The fact that they had been taken away to Hyderabad on the 31st December 1966, not been challenged. The fact also remains that the application under section 25 of the Act had been filed in the Court of the Guardian Judge on 4‑3‑1967 when the stay of the minors had been extended by some seven weeks. There was no unreasonable delay when the respondent No. 1 sought his remedy from the Court of the Guardian Judge. A mere casual residence extending for a period of 2 months when there was a promise to send them back after 10 days only could not manifestly divert jurisdiction of the Guardian Judge at Quetta, to proceed with the application. I am, therefore of the opinion that the contention is without substance.

5. In support of the other contention, Mr. Azizullah Memon has relied upon Inder Singh v. Kartar Kaur (A I R 1929 Lah. 487 ) and Mst. Imtiaz Begum v. Shaikh Azmatullah (P L D 1959 Lab. 750). In the former case, the learned Single Judge made the following observations :‑---

"I am of the opinion that section 12 by reason of the wordings used as well as by reason of its location in the statute, only applies during the pendency of the guardianship proceedings, and therefore it does not apply in the present case."

However, it is to be noted that the learned Single Judge had refused to interfere with the action taken by the Guardian Judge under section 45 of the Guardians and Wards Act. In Mst. Imtiaz Begum v. Shaikh Azmafullah, referred to earlier, A. R. Changez, J., had also held that in the scheme of the Act section 12 applied only when an application for guardianship was pending in the Court and not otherwise. Support was sought for arriving at that conclusion from the case of Inder Singh v. Karior Kaur, referred to earlier. The case of Inder Singh v. Kartar Kaur was examined in Mst. Nazir Begum v. Ghulcm Qadir and another (A I R 1938 Lab. 313 ) and overruled. Reference was made in the judgment, which was delivered by Din Muhammad, J., to the case of Diwan Chand v. Ghulam Hussain (13 P R 897) and Utma Kaur v. Bhagwanta Kaur (I L R 37 All. 515 ). A similar view was taken in the case of Mst. Khalida Shafat Khanum v. K H: Mahmood Sadiq (P L D 1965 Lab. 388 ). In Neamat Ullah Qureshi and another v. Mst. Bilquis Sitars (P L D 1973 lah, 442) while dealing with this section, it was observed that "there is nothing in this section restricting it to a case where an application for appointment of guardian is pending merely because this section is in Chapter II of the Act which relates to Appointment and Declaration of Guardians, it cannot be asserted that it must be confined to a case which has been started with an application under section 10 of the Guardians and Wards Act, as there are no words limiting its applicability only to cases falling under Chaper II. The subsequent words used in section 12 are wide enough to cover any proceeding under the Guardians and Wards Act where application for temporary custody or interim protection of person and property of a minor is considered necessary by the Guardian Judge for the advancement of the welfare of the minor". Sadasiva Ayyar, Judge., in the case of Mohideen Ibrahim Nachi v. I. Mahomed Ibrahim Sahib (I L R 39 Mid. 608) observed; "While I feel doubtful (with the greatest respect) as regards the applicability of section 12, I have after anxious consideration arrived at the opinion that though some straining of the language of section 25 has to be resorted to the clear intention of the Legislature will be carried out by the interpretation placed by the Allahabad High Court on that section. I do not think it at all likely that the Legislature intended to omit to provide for the grant of a power to the District Court to entertain an application by a guardian for the custody of his ward for the first time even where the District Court had itself appointed him as such guardian, in case where he had never before been in his custody, while the Act has been anxious to enact that orders for temporary custody of the ward could be made even before the appointment of the guardian". Reference was made to the case of Utma Kaur v. Bhagwanta Kaur, referred to earlier. In the same case, Napier, J., who wrote a separate judgment added "We have however to consider the object of the section read with the preceding section. We could not extend the powers but we can, I think, hold that the large rights given by the section include lesser rights not specifically provided for. The object of sections 24 and 25 is to declare the right of the guardian of the person of a minor to the continuous custody of his person, and to provide a machinery for enforcing it."

6. It is an admitted position that the respondent No. 2, that is the mother of the minors, has remained in Saudi Arabia since 1963. Otherwise too, the respondent No. 1 is the natural guardian of the minors, and an application on his part for the appointment of the guardian of the minors would, to my mind, be incompetent. The urgency of the application was not considered by the learned Guardian Judge, but it is evident from the fact that the minors were getting their schooling at Quetta which bad been disrupted because of their prolonged stay at Hyderabad or at Shahdadpur, wherever they might have been. In the absence of the mother, the welfare of the minors also lay in their stay with the respondent No. 1, who was employed and working with an Executive Engineer. There is no indication that the appellants have got better means of living than the respondent No. 1. As per affidavit on the record, the respondent No, 1 had female family members also, to look after them. During the pendency of the instant appeal, an affidavit has however been filed by the appellant No. I to the effect that the respon?dent No. 1, bad embraced Islam and taken the name of Shaikh Abdur Rahman, and that in November 1971, he had married a Muslim lady from whom a child had been born. The allegations have not been repudiat?ed. The conversion of the respondent No. I to Islam, in the circumstances of the case, would not be in the way of the respondent No. 1. It is nobody's case that the aunt, sister and the other family members of the respon?dent No. 1 had also changed their religion. The minors, living with their father, will have the opportunity to familiarize themselves with the beliefs and religious practices of their father and decide for themselves ultimately, whether they will find their peace of mind and the contentment of their hearts in the beliefs and faith of their father or mother.

7. In the result, I would dismiss the appeal, but with no orders as to costs, as the respondent No. 1 has remained ex parte.

MUSHTAQ AM KAZI, J .‑I agree.

K. B. A. ???????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.