Mst. HAFEEZA BAROHI vs GUARDIAN JUDGE/FAMILY JUDGE and another
This constitutional petition arose from a custody dispute where the petitioner (mother) sought temporary custody of her minor son, currently residing with the respondent (father) in Denmark, pending the final adjudication of a custody petition under the Guardians and Wards Act, 1890. The Family Judge rejected the petitioner's interim application for custody. The petitioner challenged this interlocutory order via a writ petition. The High Court dismissed the petition in limine on two primary grounds. First, the Court held that the impugned order was appealable under Section 14 of the West Pakistan Family Courts Act, 1964, which overrides the Guardians and Wards Act, 1890, regarding the maintainability of appeals. Consequently, the petitioner had an adequate alternative remedy before the District Judge. Second, the Court affirmed that writ jurisdiction cannot be invoked to challenge interlocutory orders of a temporary nature while the main case remains pending. The judgment reinforces the principle that constitutional jurisdiction is not a substitute for statutory appellate remedies and is generally unavailable for interim procedural orders.
- Is an order passed under Section 12 of the Guardians and Wards Act 1890 appealable under the West Pakistan Family Courts Act 1964?
- Does the non-obstante clause in Section 14 of the West Pakistan Family Courts Act 1964 override the provisions of the Guardians and Wards Act 1890 regarding the right of appeal?
- Can a writ petition be maintained against an interlocutory order passed by a Family Court when the main custody case is still pending?
- Section 25, Guardians and Wards Act 1890
- Section 12, Guardians and Wards Act 1890
- Section 47, Guardians and Wards Act 1890
- Section 14, West Pakistan Family Courts Act 1964
ORDER
' The facts leading to the present petition are that petitioner, Mst. Hafeeza Barohi was married to Qazi Hamayun, respondent No.2 in 1974. Out of this wedlock, two sons were born. The relations between the parties become strained and respondent No.2 left the house of the petitioner, taking with him his son Imdad All Qazi in the year 1982. Presently the respondent is posted in Denmark, in the Embassy of Pakistan. The petitioner filed a petition under section 25 of the Guardians and Wards Act, praying for the custody of her son Imdad Ali Qazi on 9-3-1986. During the pendency of the petition another application under section 12 of the Guardians and Wards Act was filed praying for the restoration of the temporary custody of her son till the final decision of the case. The application was heard by Family Judge, Islamabad who rejected the same. Feeling aggrieved, the petitioner has filed the present writ petition.
2. The contention of the learned counsel is that the petitioner being the mother of the minor, is entitled to his temporary custody. It is further submitted that it is in the welfare of the minor to live with the mother and his younger brother who admittedly is living with the petitioner. Lastly it has been contended that the trial Judge erred by not directing the respondent to produce the minor for meeting the petitioner specially when she is prepared to pay his one way fair from Denmark to Pakistan.
3. According to the petitioner the minor was taken away by his father in the year 1982 and since then he is living with him. Application under section 12 of the Guardians and Wards Act was filed about 4 years thereafter, wherein no urgency was pointed out. Respondent No.2 had filed reply to the application according to which the minor is living with the father and studying in a school in Denmark.
4. The learned counsel submits that as the impugned order is not appealable, therefore, no appeal could be filed. Further contends that section 12 of the Guardians and Wards Act is not appealable by virtue of section 47 of the same Act. As the matter essentially falls within the purview of West Pakistan Family Courts Act 1964, therefore, by virtue of section 14 of the said Act, it does become appealable. The opening words of section 14 of the Family Courts Act 1964 read "Notwithstanding anything provided in any other law for the time being in force". The effect of these words is to exclude any provision of the Guardians and Wards Act which may be in conflict with section 14.
Reliance is placed on Mst. Zaibun Nisa v. Muhammad Mozammil PLD 1972 Kar.
410. The same question also came before the Supreme Court wherein their Lordships have in Sakhawat Ali and another v. Mst. Shui Khelay PLD 1981 SC 454 held that section 14 does provide appeal which would lie to the District Judge. Therefore, this petition is not maintainable as alternate remedy is available.
' Even otherwise also the present petition has been filed challenging an interlocutory order. The main case under section 25 of the Guardians and Wards Act with regard to the custody of the minor is still pending, therefore, this Court would not interfere in writ jurisdiction. As has been held in Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and 5 others PLD 1973 Lahore 495 writ petition would not lie to impugn or impeach order of interim nature.
' For the reasons discussed above, I find no force in this petition which is dismissed in limine.
Cited by 5 cases
- Mst Sadia vs Ubaid Afridi and others 2024 PHC 66
- Mst. Shabeena Younas vs Addl. District Judge, Lahore, etc 2022 LHC 8087
- Mst. Shabeena Younas vs Additional District Judge, Lahore and 3 others 2023 PLD Lahore 453
- MUHAMMAD SHAHEED KHAN vs PIYA DHARANI and another 2015 MLD 147
- Muhammad Shaheed Khan vs Piya Dharani & Others