KHUSHI MUHAMMAD Versus ARSHAD BIBI

ORDER

1. JAVID IQBAL, J.‑ ‑This petition for leave to appeal has been filed by Khushi Muhammad petitioner and is directed against judgment of the Lahore High Court, Lahore dated 10 November, 1986.

2. The background is that Mst. Arshad Bibi respondent moved an application for custody of her two minor daughters and a boy. The application was allowed but since the order was passed by the Guardian Judge ex parte, the present petitioner, her husband, filed an application for setting aside the ex parte decree. On that the ex parte decree was set aside. Thereafter the petitioner filed another application for the restitution or redelivery of the children to him. This application ,was allowed by the Guardian Judge. The appeal of the respondent having been dismissed by the Additional District Judge, she filed a revision petition in the Lahore High Court, Lahore. But as the revision petition was incompetent in the circumstances, it was dismissed and instead she filed writ petition challenging the legality of the orders passed by the Courts below. Her case before the Lahore High Court was that when the children had been given to the respondent they should not have been redelivered to the petitioner even if the ex parte decree had been set aside. Her case further was that since the matter was pending before the Guardian Judge, the children should remain with her until the final decision of the case. Learned Single Judge of the Lahore High Court, Lahore allowed the writ petition of the respondent for the reason that the matter of the custody of the children was already pending before the Guardian Judge and it would not be in the interest of the children to shuttle them between one party or the other until the final decision of the case respecting custody of the children by the Guardian Judge under section 25 of the Guardians and Wards Act.

3. Before us learned counsel for the petitioner attempted to argue that the custody of the children had been obtained by the respondent through an ex parte decree and that when the ex parte decree had been set aside then the children should have also been redelivered to the petitioner and that on this point the orders of the Courts below were legal and proper and should have not been interfered with in the writ jurisdiction. It was also submitted by the learned counsel for the petitioner that the respondent did not appear before the Guardian Judge and as a result the application of the respondent under section 25 for the custody of the children had been dismissed and that at present, according to his instructions the matter was not pending before the Guardian Judge. On the other hand learned counsel for the respondent pointed out that they had moved an application for the restoration of the aforesaid petition which would be restored and that therefore the matter of the custody of the children was still pending before the Guardian Judge. Learned counsel for the parties tried their best to work out a solution in respect of the dispute about the custody of the children between the parties but their attempts did not succeed. Be that as it may since the question of the custody of the children under section 25 is still to be decided and is pending before the Guardian Judge, we are of the view that the judgment of the learned Single Judge of the Lahore High Court, Lahore to the effect that in the circumstances no useful purpose would be served in shuttling the children between one party or the other, is fair and proper and calls for no interference. In that view of the matter this petition is dismissed.

4. M.I./M‑50/S ??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.