NEMATULLAH Versus BALQIS SITARA

1. This Civil Revision has arisen out of an order passed by the Guardian Judge, Lahore, on 17th June 1971 directing the petitioner that the minors Farrakh Samih and Favvad Samih should remain for two days in a month with their mother at Lahore.

2. The relevant facts are that the petitioners Nos. 1 and 2 are the grand‑father and paternal uncle respectively of the two minors and the respondent is their mother. The father of the minors Mr. Sami Ullah Qureshi died on 18th September 1969 leaving four minor sons, namely, Farrakh Samih aged about 13 , Shebzad Samih aged 11, Fawad Samih aged 9 and Kharam Samih aged 7 . Two minor sons Shebzad Samih and Kharam Samih are already with the respondent while Farrakh Samih and Fawad Samih are living with the petitioner and an application under section 25 of the Guardians and Wards Act for custody filed by the respondent is pending before the Guardian Judge, Lahore, on the allegation that four or five months before the institution of this application petitioner No. 2, came to the house of the respondent and took away these minors. Certain allegations were also levelled against petitioner No. 2 and it was alleged that minors were not getting due care and attention and were being neglected.

3. The petitioners contested this application and have raised objections as to the territorial jurisdiction of the Lahore Court to hear the application on the ground that the ordinary residence of petitioner No. 1. the grand‑father who actually is said to behaving the custody of the minors was at Sahiwal and the respondent had no right of hizanat. It was also alleged that the respondent, after the death of her husband, shifted to Sahiwal from Gujranwala and lived there about eight or nine months along with her four children and then bad come to Lahore and started residing with her sister with her two minor sons. On 1st April 1971, an application for interim custody of the minors was submitted under section 12 of the Guardians and Wards Act. Another application was submitted by the respondent on 5th May 1971 for the same purpose. The learned Guardian Judge passed an order dated the 17th June 1971 and held that in the circumstances of the case it would be appropriate that the respondent should meet her two minor sons who may also have an opportunity of enjoying the company of their two other brothers who are with the respondent. With this end in view, he directed that the two minors should remain for two days in, a month with their mother at Lahore and the petitioners should make arrangement to hand over their custody on every first Saturday of the month at 9 a.m. and the minors would be returned to the petitioners on Monday morning after staying with their mother for Saturday and Sunday.

4. The learned counsel for the petitioners has challenged the legality of this order and raised the following contentions:‑

(1) That section 12 under which the learned Guardian Judge has acted is not applicable to proceedings under section 25 of the Guardians and Wards Act.

(2) Section 12 contemplates of temporary custody while the direction to the person having custody to let the mother have access to the minor is not a case of temporary custody, and for this reason also no order under section 12 could be: passed by the learned Guardian Judge.

5. For the proposition that section 12 was not applicable reliance was placed upon Mumtaz Begum v. Azmatullah (P L D 1959 Lah. 750). In this it was held that section 12 of the Guardians and Wards. Act will apply only when an application for guardianship is pending in the Court and not otherwise and this section only aims at making as ad interim arrangement for the temporary custody of the person during the pendency of the guardianship application; it does not empower the Court to order the produc tion of the minor for the purpose of giving access to any person entitled and sea the child. In Mumtaz Begum's case, reference was made in support of the above proposition to under Singh v. Kartar Kaur (A I R 1929 Lah. 487). This interpretation of section 12 is, I may say with respect, very narrow. Section 12 of the Guardians and Wards Act reads as follows:‑

6. "12(1) The Court may direct that the person, if any, having the custody of a 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.

(2) If the minor is a female who ought not to be compelled to appear in public, the direction under subsection (1) for her production shall require her to be produced in accordance with the customs and manners of the country.

(3) Nothing in this section shall authorize:‑

(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any ; or ,

(b) any person to whom the temporary custody and pro tection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property."

7. 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 Chapter 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. The proposition in Inder Singh v. Kartar Kaur was dissented from in Mst. Nazir Begum v. Ghulam Qadir Khan and others (A I R 1938 Lah. 313). In that case, the appellant Nazir Begum was appointed guardian in earlier proceedings and later on an application was made by her under section 12(1) and section 25 of the Guardians and Werds Act which was dismissed on the ground that Multan Court had no jurisdiction. The appeal against this order also failed before the High Court. In Letters Patent Appeal the order was set aside and the subordinate Judge at Multan was directed to make an order calling upon the respondent to produce the minor in Court in order to deliver her to the appellant. During arguments, the question of applicability of section 12 also cropped up and relying upon the case of Inder Singh v. Kartar Kaur, it was urged that section 12 came into play only when proceedings for appointment of guardian were pending and had no application after the final order appointing the guardian had been made. It was held that so long as the custody of a minor was not actually made over to the guardian the proceedings did not terminate and the case of Inder Singh v. Kartaur Kaur was not approved. Similar view was taken in Wadhawa Singh v. Mst. Malan (13 P R 1897), where it was observed that "it could not be the intention of the Legislature that the Court should have no power to make the minor over to the guardian appointed by it, and there is no reason why the provisions of section 12(1) should not be applicable after as well as before a guardian is appointed. The provisions of section 25(1) evidently contemplate the minor being placed in the custody of the guardian appointed and the proper course for the Court below to adopt was to direct the respondent to produce the minor with a view to his being made over to the petitioner." A view different from the one taken in the case of Mumtaz Begum v. Azmatullah, was taken in Khalida Shajqat Khanum v. Mahmood Sadiq (P L D 1965 Lah. 389), and it was observed that the case cited in A I R 1929 Lah. 487 was overruled by a Division Bench of the Court in Mst. Nazir Begum v. Ghulam Qadir Khan and others and this latter case was not brought to the notice of the Court which decided the case of Mumtaz Begum v. Azmatullah. Similar view was taken in an unreported case Sayed Ahmad Ali v. Ghulam Ullah C. R. No. 52 of 1969, decided on 7th February 1969 by Nasim Hassan Shah, J., although this case was based on the concession made by the learned counsel that Interim order should have been made in a case falling under section 25 of the Guardians and Wards Act:

8. Even if by process of some reasoning it may be said that section 12 is not applicable to proceedings under section 25 of the Act, the guardianship Court cannot be deprived of its inherent parental jurisdiction to pass such order as and when necessary for the advancement of the welfare of the minor and for promoting his interest. By virtue of section 141 of the' Code of Civil Procedure the enabling provisions of the C. P. C. will apply to proceedings before the Guardian Judge and section 151 of the Code of Civil Procedure provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. In the absence of any provision to the contrary, it is, therefore, open to the Guardian Judge, to pass any order, interim or final, which may promote the welfare of the minor. In Zainib Tiwana v. Aziz Ahmad Warafch (P L D 1967 Lah. 977), it was observed that guardianship proceedings are held in exercise of parental jurisdiction which is not a proper branch of law for enforcement of technicalities of pleadings or strict formalities and the guardianship Courts are to keep the welfare of the minors constantly in mind and to act with the object of promoting their interest. This case was approved by the Supreme Court on appeal in case cited as Khizar Hayat Khan Tiwana v. Zainib Begum (P L D 1967 S C 402), where it was observed that "even if the procedure of the Code of Civil Procedure can be said to be attracted to proceedings under the Guardians and Wards Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only "as far as it can be made applicable". This clearly indicates that there can be no blind ‑ or rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco paraentis to the minor. This is not a jurisdiction, therefore, is which there can, by its very nature, be any scope for any undue adherence to the technicalities". If it is assumed that the Guardian Judge has no power to pass an order of temporary custody in proceedings under section 25, it will lead to anamolous results and the function of the Guardian Judge to act in loco paraentis and to take care of the welfare of the minor will be stultified. There may be cases in which the Court may feel satisfied that if the custody is not changed during proceedings under section 25 irreparable loss or injury may accrue to the minor. Cases may come before Guardian Judge in which, on account of gross and sometimes deliberate neglect of persons having custody, minors may have started moving society of tiff‑ruff and bad characters or may have fallen ill and received no medical attention or in spite of having independent means are not being educated or properly maintained or looked after. Can it be said that the Guardian Judge in spite of being as loco paraentis to the minor will be powerless to pass an order of change of custody.

9. The second objection that the order of the learned Guardian Judge was only an order of letting the mother have access to the minor and not of temporary custody is also devoid of any force. It is a case of temporary custody for two days in a month, but even if the case does not fall under section 12, as stated above, the order could be passed under the Court's jurisdiction to pass any order necessary for the welfare of the minor.

10. The objection that the grand‑father has the legal right of custody and, therefore, the present type of order could not be passed, is also without force. It is still to be decided as to whether the mother was entitled to the custody of the minors or not. But even if the proposition is conceded, by this interim measure the grand‑father has not been deprived of any custody except for a period of two days in a month.

11. The question of welfare of the minor has been considered fin his detailed order .by the learned Guardian Judge and the discretion has been rightly and judiciously exercised by him.

12. The provisions of section 115 of the Code of Civil Procedure are therefore, not attracted to the facts of the case. Otherwise also there could be no doubt that the minors should not be deprived of the love and affection of the mother. In my view, it was, in fact, the duty of the petitioners themselves to make proper arrangement for meeting between the mother and the minors and this application under section 12 appears to have been given because the object of the petitioners has been to deprive the minors of their right to see and meet their mother. Before me also some indication was given by the learned counsel for the petitioners that the minors themselves are not willing to go to their mother. This shows that the petitioners are trying to bring up the two minors in a way that they may start either hating their mother or they may have no love and affection for her. In this view of the matter also it was in the best interest of the minors themselves that they should be given opportunity of meeting their mother at least at intervals.

13. The last submission that there was no element of emergency also does not appeal to me as admittedly the mother and the minors have not been given an opportunity of meeting one another for the last several months and there was emergency not only from the point of view of the mother, but also of the children who, probably are being estranged from their mother.

14. The objection that the education of the minors will suffer for two days in a month can be taken care of by petitioners' applying to the learned Guardian Judge that the custody of the minors be returned to them on Sunday evening rather than on Monday morning. In this manner, the minors can attend their school on Monday.

15. The Revision petition has no force and is dismissed, but there will be no order as to costs.

16. S. B. A. Petition dismissed.