Mrs. KHURSHID BEGUM Versus ADDITIONAL DISTRICT JUDGE, RAWALPINDI

This writ petition has been filed against the, judgment dated, 16-11-2003 passed by a learned Additional District Judge, Rawalpindi whereby, he has affirmed the order of the learned Guardian Judge, Rawalpindi allowing the application of respondent No. 3 under section 12 of the Guardians and Wards Act directing delivery of interim custody of the minor children to their real mother.

2. Respondent No.3 was married with Mazhar Javed on 8-9-2000. They were blessed with two male babies Artaza Ahmed and Murtaza Ahmed on 28-9-2001. The respondent left the house of her husband due to strained relations in November, 2002. Mazhar Javaid is stated to have committed suicide on 22-12-2002. Acquiring this information respondent No.3 joined the funeral ceremony and started living in house of her late husband alongwith the family members. After some time she was made to leave the house without minors. She took shelter in her parents house at Narowal.'

3. She filed an application for custody of the minors under section 25 of the Guardians and Wards Act also accompanying an application under section 12 of the Act for interim custody. The learned trial Court allowed the interim custody on 21-10-2003 which order was challenged in appeal unsuccessfully. This petition assails the judgments of the learned Courts below.

4. Learned counsel for the petitioner contends that firstly, the welfare of the minors lies with the petitioner, who has sound financial position qua the respondent and, secondly that no urgency has been shown for change of interim custody. He relies on Muhammad Sadiq Butt v. Mst. Khalida Parveen PLD 1967 Kar. 645; Mirza Muhammad Yousaf v, Razia Sultana PLD 1974 Note 80 at p.125; Zulfiqar Ahmad v. Qaiser Sattar and 2 others 1988 CLC 1741 and Mst. Rani Begum v. The Additional District Judge (East Karachi) 1989 C1C 1419.

5. On the other hand, learned counsel for respondent No.3 submitted that the judgments of both the learned Courts below are based on well-settled principles of law, the minors are of tender age and need the company of their mother and interlocutory orders are immune from attack in Constitutional jurisdiction. He relied on Khushi Muhammad v. Mst. Arshad Bibi and others 1988 SCMR 1234.

6. The judgments cited by the learned counsel for the petitioner provide element of urgency as a pre-condition for exercising power under section 12. I intend to reproduce section 12(1) of the Guardians A and Wards Act, 1890:

"12. Power to make interlocutory order for production of minor and interim protection of person and property .--(1) The Court may direct that the person, if any having the custody of 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 production of the person or property of the minor as it thinks proper. "

Bare reading of the section makes it abundantly clear that no bar is placed on the Guardian Judge to exercise his power even in the absence of urgency. He has parental jurisdiction over the minor. No hard and fast rule of universal application can be laid down. The social set-up is on a rapid change. The world has reduced to a global village Section 12, therefore, calls for a liberal interpretation. Interim arrangement for the custody of minors cannot be fettered with a pre-condition of urgency. There may be cases where the minors are being kept away and grow in atmosphere which may bring complete estrangement to the parent or one of them.

7. The overriding and paramount consideration of handing over the interim custody of a minor under section 12 is the welfare of the minor. The Guardian Judge dealing with the application under section 12 of the Act shall take into account the consideration of the age, sex and welfare of the minor.

8. The minors are of tender age requiring love and affection of their real mother who has not re-married. Preference cannot be given to the paternal grandmother qua the real mother.

9. None else can look better the minors than their own mother. There is no substitute and parallel to mother's love and affection in this world. She is a monument of devotion, love and sacrifice. The lap of mother has been held to be a cradle of God.

10. The custody of the minor cannot be allowed to shuttle between the parties. Once the learned Guardian Judge has exercised its jurisdiction in granting the interim custody, the same should be allowed to stay, unless there are compelling circumstances to change.

11. In view of the above, I do not find any good reason to interfere in the orders of both the learned Courts below which are interlocutory in nature.

12. I have been informed by the learned counsel for the parties that the main guardian petition under section 25 of the Act is at the stage of recording of evidence. The respondent mother is resident of Narowal and undertakes long journey to prosecute her case at Islamabad. The main petition therefore deserves decision expeditiously: The learned Guardian Judge seized of the matter is, therefore, directed to decide the main petition within a period of one month from the date of receipt of this order, if necessary by holding day to day proceedings.

13. In view of the above discussion, this Constitutional petition is merit-less and is thus dismissed.

W. A. M. /K-6/L Petition dismissed.