Mst. HIRA JAMEEL Versus AHMED ARSALAN NAYYAR
ORDER
AMER RAZA NAQVI, J.--- Through this petition, petitioner has challenged Order dated 23.07.2014 passed by respondent No.2 i.e. Civil and Family Judge-III, Karachi East. Relevant portion of the said order is "For further the parties are directed to conduct meeting before this court on first and third Saturday in view of order of Hon'ble Appellate court until they decide the place of meeting with mutual agreement".
2. The learned counsel for the petitioner submits that this order is in violation of law as at the time when initially the order was passed by the Guardians and Wards Court the duration and frequency of the meeting was less than the one granted by the Appellate Court. The trial Court had passed order dated 07.09.2010, whereby, respondent No.1 was allowed to meet the child on 1st Saturday of each month from 11:00 a.m. till 12:00 noon. This order was challenged before the Appellate Court, and the appeal was disposed of vide Order dated 17.08.2011, passed by Vth Additional Sessions Judge, in Family Appeal No.152/2010 and G and W Application No.190/2010. At the time of disposal of this appeal, the meeting of the child was modified in terms of duration and frequency. Such arrangement is available .at page-49, which is page-3 of the order of appellate Court. Learned counsel for the petitioner submits that thereafter certain applications were made before the Family Judge in its capacity of executing Court. Per learned counsel such executing Court passed an order portion of which was reproduced above, such order was passed on 23.07.2014. Per learned counsel for the petitioner executing Court can execute only its order originally passed and not the order of Appellate Court as according to learned counsel for the petitioner such arrangement was made only for six months and thereafter after lapse of six months such arrangement cannot be enforced. Learned counsel in support of his contention relied upon (PLD 1983 SC(AJ&K) 163). In the said case law, it has been held that executing Court cannot enforce decree in pre-emption suit but what has been granted in the decree. Learned counsel for the petitioner also submits that his grievance is in respect of the notices and warrants issued for compliance of the decree as the same are issued under section 100, Cr.P.C., which power according to learned counsel is not available to the executing Court.
3. Mr. Abdul Qayyum Abbasi, learned counsel for respondent No.1 in response submitted that the order of Appellate Court clearly shows that by consent of the parties the arrangement of meeting was modified, such modification is available at Page-49, which was also referred by learned counsel for the petitioner. Mr. Abbasi further submits that since the minor was not allowed to meet respondent No.1 certain applications were made before the executing Court, who has passed order impugned in this petition. Per learned counsel for the respondent No.1 the executing Court has only tried to enforce the order of the appellate Court and in order to enforce that order the notices were issued to respondent No.1 and such directions were issued in order impugned in this petition.
4. In rebuttal learned counsel for the petitioner submitted that order of the appellate court was not a consent order and he had filed transfer application against the said Judge, such transfer application was dismissed, however, he submitted that no further proceedings were taken by the petitioner against the dismissal of such transfer application.
5. I have heard both the learned counsel and perused the record with their able assistance. The main contention of learned counsel for the petitioner is that the arrangement modified by the appellate Court was only for six months and thereafter the arrangement made by Guardian and Ward Judge is in field now and therefore the executing Court can only enforce the decree passed originally in this matter and not the order of appellate Court. The very language of the appellate Court used in the order makes it clear that this order was not only a consent order but the spirit of the order is that this arrangement will continue till the time parties agree to modify the same, obviously in case if the parties do not reach to any agreement for modification either such arrangement shall continue or Guardians and Wards Court can be approached for any modification in the changed circumstances of the case. The case law relied upon by learned counsel for the petitioner relates to a decree in a pre emption suit, in my humble view custody of a child is to be treated differently as the main purpose of legislation in the Guardian and Ward matter is to see the welfare of the minor, who obviously is a human being and as a minor by the passage of time his needs can be changed in view of change of age and as a result change in its emotional and other needs coupled with his necessities as a growing child would not only require a continuous supervision of both the parents but such needs if parties do not agree amongst themselves are to be monitored by the Guardians and Wards Court as that Court has exclusive jurisdiction to consider such pleas and pass appropriate orders. Even if it is presumed that Guardians and Wards Court has to confine itself to the orders already passed, in that event also in my humble view the order of appellate Court as mentioned earlier was a consent order and also the spirit of the order is that till the parties agree amongst themselves the arrangement made by appellate court will continue. Learned counsel for the petitioner also submitted that this order was not a consent order for the reason that petitioner was pressurized to give consent to that order. In this respect he submits that petitioner filed a transfer application but it is also a fact not disputed by the parties that after dismissal of such transfer application such order was not challenged before any other forum. Now I come to the language of the notices issued to the petitioner and objected to by the counsel for the petitioner. Although there is a reference of section 100, Cr.P.C. in section 25 of Guardians and Wards Act but it is expected that since these are family issues, the Court, unless the language is prescribed in any rule, should use reasonable language while issuing notices to the parties otherwise notices should be issued in accordance with rules and format provided under the applicable rules.
6. In view of above facts and circumstances subject to observation in respect of notices issued to the petitioner, I do not find any illegality in the impugned order and therefore this petition is dismissed in limine.
KMZ/H-32/Sindh Petition dismissed.