MUHAMMAD ANWAR KHAN Versus YASMIN ZAFAR
This petition for leave to appeal arose from a dispute over the temporary custody of two minor daughters. The respondent mother had applied for temporary custody under Section 12 of the Guardian and Wards Act 1890, which was dismissed by the Guardian Judge. Her appeal under Section 14 of the West Pakistan Family Courts Act 1964 was subsequently dismissed by the District Judge on the ground of incompetency. The respondent successfully challenged this dismissal via a constitutional petition in the Lahore High Court, which set aside the District Judge's order and remanded the appeal for a decision on the merits. Although the District Judge subsequently decided the appeal on remand, the petitioner sought an authoritative pronouncement on the legal question. The Supreme Court of Pakistan granted leave to appeal to determine whether an interlocutory order for temporary custody passed under Section 12 of the Guardian and Wards Act 1890 constitutes a 'decision' within the meaning of Section 14 of the West Pakistan Family Courts Act 1964, thereby making an appeal competent.
- Whether an order passed by a Family Court or Guardian Judge under Section 12 of the Guardian and Wards Act 1890 amounts to a decision within the meaning of Section 14 of the West Pakistan Family Courts Act 1964?
- Whether an appeal lies against an order passed under Section 12 of the Guardian and Wards Act 1890 before the District Judge under Section 14 of the West Pakistan Family Courts Act 1964?
- Section 12, Guardian and Wards Act 1890
- Section 14, West Pakistan Family Courts Act 1964
ORDER
S.A. NUSRAT, J.‑‑ The dispute in this petition relates to the custody of two minor daughters, namely, Adila and Rubins, then aged about 8 and 7 years respectively, born out of the wedlock o1 the contesting parties.
2. The respondent instituted proceedings under the Guardian and Wards Act for the custody of her said .two daughters and applied for their temporary custody by moving an application under section 12 of the Act. The application was dismissed by the learned Guardian Judge. The respondent preferred an appeal under section 14 of the Family Courts Act challenging the said order. The appeal was dismissed by the learned District Judge on the ground that the appeal from the order of the Guardian Judge, passed under section 12 of the Act, was not competent under section 14 of the Family Courts Act. The respondent thereupon filed a Constitutional Petition in the Lahore High Court challenging the order of the learned District Judge. The Constitutional Petition was allowed as per impugned judgment by the learned High Court and the order of the District Judge was set aside with the direction that respondent's appeal be disposed of on merits.
3. The respondent, to whom notice was issued, is represented by her learned counsel and has produced copy of a judgment, dated 16‑2‑1987 passed by the District Judge showing that in terms of the remand order the respondent's appeal was duly heard and the order of the Guardian Judge, dated 27‑7‑1985 was set aside directing that the custody of the minors shall be handed over to the respondent after they had taken the academic year examination in the Sahiwal school. The learned counsel for the petitioner, however, insisted that the question raised in this petition is one of law and an authoritative pronouncement by this Court was necessary to resolve the controversy.
4. In the circumstances, we would grant leave to appeal to examine the question whether an order passed by a Family Court/Guardian Judge under section 12 of the Guardian and Wards Act amounts to a decision within the meaning of section 14 of the Family Courts Act 1964 and an appeal there from will be competent.
Security Rs.2,000. The appeal will be made ready on the present record with liberty to the parties to file any further documents, if so required.
S.Q./M‑213/S Leave granted.
Cited by 7 cases
- Makhdoom Shahab-Ud-Din vs Judge Family Court, Islamabad (WEST) and another 2024 YLR 2854
- Lashkar Ali vs Mst. Azizan Khatoon 2023 SHC 443
- Muhammad Ameen vs Mst. ShaziaSaleem, etc 2021 IHC 140
- Mst. Isbah Rashid vs Additional District Judge, Islamabad-West and 2 2021 [M] C L R 1424, 2021 CLC 1089
- Amjad Ali vs Mst. Shaheen Bibi and others 2020 MLD 2011
- Zahida Tahira vs Javed Iqbal etc 2019 YLR 785, 2019 LHC 150
- Memoona Ilyas vs Addl. District Judge, etc. 2017 CLC 1747, 2017 LHC 2257