IHSAN UR REHMAN vs Mst. NAJMA PARVEEN
This matter arises from a petition for leave to appeal concerning the custody of minor children between Ihsan-ur-Rehman and Mst. Najma Parveen. The Guardian Judge granted custody to the father, which was upheld on appeal by the Additional District Judge. The mother filed a revision petition before the High Court, which was entertained based on the precedent of Parveen v. Muhammad Ashar, holding that the revision was competent. Although the High Court agreed that the father was entitled to custody, it granted visitation rights to the mother during summer vacations and Eid holidays. The core legal question before the Supreme Court was whether a revision petition against the appellate order of the Additional District Judge was competent in guardianship proceedings, given earlier Supreme Court pronouncements disapproving the relied-upon precedent. The Supreme Court held that the contention regarding the incompetence of the revision prima facie had force based on its prior ruling in Sakhawat Ali and another v. Mst. Shui Khelay, and accordingly granted leave to appeal while suspending the operation of the impugned High Court order.
- Whether a revision petition lies to the High Court against an appellate order passed under the Guardian and Wards Act?
- Does a precedent holding revisions competent survive subsequent disapproval by the Supreme Court?
ORDER
1. NASIM HASAN SHAH, J.--The dispute in this case is with regard to the custody of the minor children of the parties herein.
2. The learned Guardian Judge granted the custody of the children to the father Ihsan-ur-Rehman, the petitioner herein. The appeal of the mother, Mst. Najma Parveen, respondent herein, was dismissed by the learned Additional District Judge vide his order dated 17-3-1983, whereupon she filed a revision before the High Court. The petitioner herein raised an objection before the High Court that no revision lay against the order of the Additional District Judge to the High Court in these proceedings. This contention was rejected on the authority of a decision of the Lahore High Court entitled Parveen v. Muhammad Ashar PLD 1975 Lah. 334. The learned Judge, therefore, proceeded to hear the petition on merits and although he upheld the orders of the Guardian Judge and the learned Additional District Judge that the father was entitled to the custody of the schildren, he, however, proceeded to direct that during the summer vacation and Eid Holidays the custody of the minors should be transferred to the mother (respondent herein). The father feeling aggrieved by- this direction has moved this petition for leave to appeal.
3. Mr. A.W. Butt, in support of this petition, has inter alia, contended that the judgment of the High Court, on which the learned Judge relied for holding that the revision was competent viz. Parveen v.
4. Muhammad Ashar PLD 1975 Lah. 334 had been disapproved by this Court in Sakhawat Ali and another v. Mst. Shui Khelay PLD 1981 SC 454. This submission, prima-facie, appears to be correct.
5. Leave is, accordingly, granted.
6. Security for costs of the respondent shall be furnished in the sum of Rs. 1,000.
7. The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any, and put up for hearing in the month of October, 1984, as this is a family matter.
8. The operation of the impugned order of the High Court shall in the meanwhile, remain suspended.