ZUBAIDA KHANUM Versus SHAH NAWAB
This civil revision is directed against order, dated .30th July 1978, passed by the Guardian Judge, Bahawalpur, under section 14 of the Guardians and Wards Act, 1890.
2. The impugned order was made by the learned Guardian Judge in an application filed by the petitioner, Mst. Zubeda Khanum, against the respondent, Shah Nawab, for her appointment 'as guardian of the persons of two of their minor children. The minors are presently, in, the custody of the petitioner, who is their mother.
3. While resisting the application the respondent, who is father of minors, disclosed that he had also moved an application under section 25 of the Guardians and Wards Act, hereinafter referred to as the Act, to secure the custody of the minors and the same was pending before the Guardian Judge, Hyderabad.
4. It was also admitted by the petitioner that the respondent had filed the aforesaid application at Hyderabad. Thereupon; the learned Guardian Judge, Bahawalpur, made the following order :-
"In these circumstances I am of the view that both these petitions are to be stayed under section 14(1) of the Guardians and Wards Act. Hence the proceedings of this case are stayed till necessary order is passed by the Provincial Government as to which of the two Courts should try this petition. Necessary reference under section 14 (3) of the Guardians and Wards Act. shall also be sent to the Provincial Government for necessary order. In the meanwhile the file shall be consigned to the record room after necessary completion."
Feeling aggrieved by the above order, the petitioner has come. up in revision to this Court.
5. Learned counsel for the petitioner contended [that the learned Guardian Judge could pass the order assailed herein only, if the application filed by the respondent had also been for appointment of declaration as guardian of the minors, but since it was not an application for that purpose but for the return of their custody the learned Guardian Judge had erred in proceeding under section 14 of the Act.
6. On the contrary, learned counsel for the respondent urged that since the question involved in the two applications were substantially the same, the impugned order vas not open to any legitimate exception.
7. Section 14 of the Act reads as follows :--
"Simultaneous proceedings in different Courts.-(1) If proceeding for the appointment or declaration of a guardian of a minor are akin in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Courts, stay the proceedings before itself.
(2) If the Courts are both on all subordinate to the same High Court they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had.
(3) In any other case in which proceedings are stayed under sub section (1) the Court shall report the case to, and be guided by such orders as they may receive from their respective Provincial Govern ments."
8. It can easily be gathered from the provisions of section 14 that they are intended to apply to only one category of proceedings, namely, proceedings for the appointment or declaration of a guardian of minor and not to all sorts of proceedings in regard to the minor. Thus, a Court can stay simultaneous proceedings relating to a minor only if both or all are of the aforesaid category.
9. As for the attempt made by the learned counsel for the respondent to equate proceedings for securing the custody of a minor with those for the appointment or declaration of his guardian, it is true that, more often than not the said two types of proceedings involve issues of common nature but for this reason they cannot be categorised together. While enacting the provisions of section 14 of the Act, the framers of the law were at pains to restrict its operation to a particular category of proceedings and not to particular matters involved in any category of proceedings. Therefore, for the purpose of the application of section 14, proceedings for the custody of a minor cannot be bracketed with proceedings for the appointment or declaration of his guardian.
10. In the present case, the proceedings initiated by the petitioner before the Guardian Judge, Bahawalpur, being for her appointment as guardian of the minors were certainly of the category contemplated by section 14 of the Act but the proceedings instituted by the respondent in the Court of the Guardian Judge, Hyderabad, being for return of the minors to his custody, were not of that category. Thus, the condition precedent for invoking the provisions of section 14, namely, the pendency of simultaneous proceedings for the appointment or declaration of guardian was not satisfied. In the circumstances, the learned Guardian Judge, Bahawalpur, committed an illegality in making the impugned order under section 14 of the Act.
11. I therefore, accept the revision petition, set aside the order assailed herein and direct the learned Guardian Judge, Bahawalpur, to get back the record of tire petitioner's case from the record room and proceed to decide it in accordance with laws.
12. In view of the peculiar nature of the point convassed in this case, the parties are left to bear their own costs.
Revision accepted.