Mst. AMNA vs IIND ADDITIONAL DISTRICT JUDGE, HYDERABAD AND Other
This petition for leave to appeal was filed against a judgment of the Sindh High Court, which dismissed the petitioner's constitutional petition challenging lower court decisions in proceedings under the Guardians and Wards Act. The petitioner had originally sought custody of two minor children. However, the High Court held that the petition had been rendered infructuous because both children had attained majority during the pendency of the proceedings. The petitioner argued that the children had not reached majority and that the High Court should have decided the jurisdictional question involved in the lower appellate court's judgment. The Supreme Court held that the petitioner could not challenge the finding on age since it was based on her own admissions made in the petition. Furthermore, the Supreme Court affirmed that where a petition becomes infructuous due to minors reaching majority, deciding pure legal questions would be an exercise in futility. Consequently, the petition was dismissed in limine.
- Does a custody petition under the Guardians and Wards Act become infructuous once the minors attain majority?
- Can a party challenge a finding of fact regarding a minor's age that was based on their own admissions in the pleadings?
- Should a court adjudicate legal issues raised in a constitutional petition if the underlying relief sought has become infructuous?
- Section 10, Guardians and Wards Act 1890
- Section 25, Guardians and Wards Act 1890
ORDER
1. ABDUL KADIR SHAIKH, J.-This is a petition for special leave to appeal from the judgment of a learned Single Judge of Sind High Court dated 14th February, 1982 dismissing Constitution Petition filed by the petitioner by which she sought to challenge the judgment of the Second Additional District Judge, Hyderabad.
2. The proceedings arose out of an application filed by the petitioner under section 10 read with section 25 of the Guardians and Wards Act for the custody of minors, Mst. Zahida and Abdul Aziz.
3. The Second Senior Civil Judge, Hyderabad who dealt with the case dismissed petitioner's application, and appeal filed by her was also dismissed by the Second Additional District Judge, Hyderabad. Petitioner then challenged these judgments in a constitution petition in Sind High Court. The learned Single Judge in the High Court who dealt with the case noticed the fact that during the course of the proceedings, both the minors had attained majority, and took the view that the constitutional petition had been rendered infructuous. The relevant portion of the judgment passed by the learned Judge reads "Now, it is admitted fact that both the girl and the boy have attained majority and even if order passed in appeal by the 2nd Additional District Judge, respondent 1, is set aside and the case is remanded still the original application has become infructuous, for now no appoint. Meat of guardian can be made as both the girl and boy are major."
4. Mr. Faizanul Haq learned Advocate-on-Record for the petitioner firstly challenged the finding of the learned Judge in the High Court that the two minors had attained the age of majority. He further submitted that the main question for consideration in the Constitution Petition in the High Court was whether the learned Additional District Judge had correctly dismissed petitioner's appeal on the ground of lack of jurisdiction and the petition had not become infructuous.
5. It is hardly open to the petitioner to raise the first point, for, it was the admitted position of the parties before the High Court, as would be noticed from the portion of the judgment reproduced earlier, that both the minors had attained majority. In this behalf, learned Judge in the High Court also noticed the fact, which again may be reproduced in his own words, that "according to the statement made in paragraph 1 of the petition, Nazir, the father of the two children, had died in the year 1973 at Mirpurkhas, and at that time the ages of the two children were 12 years and 8-9 years respectively". No fault can be found with the learned Judge for having based his conclusion as to the age of the minors on petitioner's own statement. The first plea raised by the learned counsel has, therefore, no substance ; it is indeed, a totally frivolous one.
6. The second point raised by the learned counsel is equally baseless, for, the learned Judge in the High Court has rightly held that since the Constitution Petition had been rendered infructuous, the decision on the legal point raised in the case would be an exercise in futility.
7. For these reasons there is no merit in this petition and it is dismissed in limine.