MUHAMMAD JAMIL Versus RAHILA NOSHIN

The facts of the case are that the appellant filed an application under section 25 of the Guardians and Wards Act for restoration of the custody of Muhammad Shafiq, his minor son. aged about 4J years at present. It is admitted that at the time when the application was filed he was living with his mother, the respondent in the case. The application as put in by the appellant was resisted by the respondent, who pleaded that it was not in the welfare of the minor to hand over his custody to the appellant.

As many as four issues were framed on the basis of the pleadings of the parties, out of which issue No. 3, with regard to the welfare of the minor, is relevant here. This issue has been found against the appellant and as such the application has been dismissed. He has now come up to the High Court and has challenged the validity of the impugned order.

2. It may be observed at the outset that as far the custody of the minor is concerned, it should remain with the respondent, who is the real mother of the child. The question to be examined, however, is that if the appellant is not allowed to meet the child at some intervals then will it not cause estrangement, may be permanent, between the father and the child. If it happens like that, then whether it will be in the welfare of the minor. The likelihood of growing of hatred and animosity between the father and the son in due course of time, if no opportunity is provided to them to meet each other even if the custody remains with the respondent cannot be riled out. It is certainly not in the welfare of the minor that he should be brought, up in such an atmosphere where hatred should grow in his mind against his own parents, may be his father or mother. The respondent, who is present in the Court, has refused even to talk to the appellant not to speak' of meeting him for reconciliation purposes. She has also made certain: serious allegations against him, reference to which may not be relevant for the decision of the point involved in the present case. Her conduct however shows that she is not prepared to live with the appellant in any case present. The estrangement between the appellant and the respondent existing at ,' is bound to adversely affect the mind of the child against his father if he is1 not allowed to occasionally see him and show his paternal love for him.

3. It has been argued, though not vehemently with reference to Nemat Ullah Qureshi and another v. Mst. Belqis Sitara (P L D 1973 Lah.442), that under section 12 of the Guardians and Wards Act only an order in regard to temporary custody of a minor can be passed and that can be attracted to a case where an application for appointment of guardian under section 10 of the Act is pending.

It has been held in the said case by my learned brother Aftab Hussain, J., that there is nothing in section 12 of the Act restricting its application to a case where an application for appointment of a guardian under section 10 of the Act 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 of the Act. It has also been held that subsequent words used in section 12 of the Act 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. It has also been held that even if by process of some reasoning it may be said that section 12 of the Act is not applicable to the 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. It has been further observed that by virtue of section 141 of the Code of Civil Procedure the enabling provisions of the C. P. C. will apply to the proceedings before the Guardian: Judge and section 151 of the Code 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. It has been held that in the absence of any provision to the contrary, it is open to the Guardian Judge to pass any order, interim or final, which may promote the welfare of the minor.

4. In the case referred to above, the learned Guardian Judge had passed an order directing the petitioner therein that the two minors Farrukh Samih and Fawad Samih should remain for two days in a month with their mother at Lahore. This order was made during the proceedings pending under section 25 of the Act. The validity of the said order was challenged before the High Court on the ground that order for temporary custody could not be passed in the proceedings pending under section 25 of the Guardians and Wards Act, as section 12 of the Act, pertaining to temporary custody, could only be attacted to the proceedings under section 10 of the Act, for appointment of guardian of the minor.

In the present case a final order has been passed under section 25 of the Act and custody of the minor has been handed over to the respondent, the real mother of the child. The question which needs consideration is ; as to whether the Court in such cases can exercise a parental jurisdiction as if it were in loco paraentis to the minor. It is established law in such cases that it is only the welfare of the minor which is to be seen and any order under the relevant provision of law, whether it is section 10 or 25 of the Act, has to be passed in relation thereto. If in the given circumstances of a case the custody of the minor is to be handed over to the mother or vice vers and it is otherwise apprehended that on account of estrangement between the parties there is likelihood of growing of hatred in the mind of the child against his father or the mother. If he is allowed to remain with either o them permanently will it not be in the welfare of the minor to pass such a order whereby temporary custody of the child can be given to any one of the parties at some intervals in order to ward off the possibility of growing of any such hatred or animosity. I have carefully examined the wording of the provision as contained in section 12 of the Act. The relevant provision is contained in subsection (1), which 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 the property of the minor as it thinks proper. There is nothing to limit the jurisdiction of the Court to pass any order in relation to temporary custody of the minor, whether during the proceedings under section 10 or 25 of the Act or while passing final order in the said proceedings. I do not see any reason as to why a Court cannot direct the mother or the father, in whose custody the child is given, to hand over his temporary custody to the other party if the welfare of the minor so warrants, there is no limitation on the jurisdiction of the Court to pass, such an order, otherwise complications can arise and the same can lead to serious consequences as discussed above.

I, therefore, concur with the view taken by my learned brother Aftab Hussain, J., in the case cited above, and hold that an order for temporary custody can be passed in the welfare of the minor during the proceedings under section 10 or 25 of the Act or while passing final order in the said proceedings.

5. The learned Guardian Judge in the present case has given the custody of the minor to the respondent without adverting to the aspect of the case as discussed above. His order, therefore, needs modification. I therefore, direct that the custody of the child will remain with the respondent, but the appellant will be allowed to see him and be with him, for at least three hours on 2nd and last Sunday of every month, from 9-00 a.m to 12-00 noon. The respondent would make arrangement for making the child available the said days and time at the residence of her uncle Ch. Muhammad Bashir, 69-A, Sargodha Road, Lyallpur for the said purpose.' It is conceded by the respondent and her counsel that the appellant can see his child alongwith his parents i.e., the grandfather and grandmother of the child, and nobody else.

6. The result is that the appeal is accepted, without any order as to costs, in the terms as indicated above and the impugned order passed by the teamed Guardian Judge modified accordingly.

S. A. H. ??????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.