PLJ 2004
Present: SARDAR MUHAMMAD ASLAM, J. Mrs. KHURSHID BEGUM-Petitioner versus
ADDITIONAL DISTRICT JUDGE,
W.P. No. 3060 of 2003, heard on 15.1.2004. (i) Guardian and Wards Act, 1890 (VIII of 1890)--
—S. 12--Interim Custody of minor child-Jurisdiction of Guardian Judge-
Extent of-Essentials-No bar is placed on Guardian Judge to exercise his
power, even in absence of urgency-Guardian Judge has parental
jurisdiction over minor-No hard, and fast rule of universal application
can be laid down, however, provision of S. 12 of Guardian and wards Act 1890, calls for liberal interpretation—Interim arrangement for custody of
minors cannot be fettered with pre-condition of urgency-Over riding and
paramount consideration of handing over interim custody of minor under
S. 12 of Guardian and Wards Act 1890 is welfare of minor-Guardian
Judge would take into consideration age, sex and welfare of minor while
4 deciding question of custody of minor. [P. 1050] A
(ii) Guardian and Wards Act, 1890XVIII of 1890)--
—S. 12 Interim Custody of minor-Real mother and paternal grandmother
seeking custody of minors-Minors being of tender age require love and
affection of real mother who has not re-married-Preference cannot be
given to paternal grandmother qua real mother who is monument of
devotion, love and sacrifice—Guardian Judge having exercised
jurisdiction, in granting interim'custody, the same should be allowed to
stay unless there were compelling circumstances to change-No
interference was thus, warranted in terim orders of Courts below-
Guardian Judge was, however, directed, to decide main petition
expeditiously. . [Pp.-1050 & 1051] B
PLD 1967
Ch. Muhammad Ashraf Gujjar, Advocate for Petitioner. Raja Imtiaz Ahmad Kiani, Advocate for Respondents. Date of hearing: 15.1.2004.
judgment
This writ petition has been filed against the judgment dated 16.11.2003 passed by a learned Additional District Judge, Rawalpindi, whereby, he has affirmed the order of the learned Guardian Judge, Rawalpindi allowing the application of Respondent No. 3 under Section 12 of the Guardians and Wards Act directing delivery of interim custody of the minor children to their real mother.
2. Respondent No. 3 was married with Mazhar Javid on 8.9.2000.
They were blessed with two male babies Artaza Ahmad and Murtaza Ahmed
on 28.9.2001. The respondent left the house of her husband due to strained
relations in November, 2002. Mazhar Javaid is stated to have committed
suicide on 22.12.2002. Acquiring this information Respondent No. 3 joined
the funeral ceremony and started living in house of her late husband along-
with the family members. After some time she was made to leave'the house
without minors. She took shelter in her parents house at Nafowal.
3. She filed an application for custody of the minors under
Section 25 of the Guardians and Wards Act also accompanying an
application under Section 12 of the Act for interim custody. The learned trial
Court allowed the interim custody on 21.10.2003 which order was" challenged
in appeal unsuccessfully. This writ petition assails the judgments of the
learned Courts below.
4. Learned counsel for the petitioner contends that "firstly, .the
welfare of the minors lies with the petitioner, who has sound financial
position qua the respondent and, secondly that no urgency has been shown
for change of interim custody. He relies on Muhammad Sadiq Butt v. Mst.
Khalida Parveen (PLD 1967 Karachi 645), Mirza Muhammad Yousaf v.
Razia Sultana (PLJ 1974 Lahore 125), Zulfiqar Ahmad v. Qaisar Sattar and
2 others (1988 GLC 1741) and Mst. Rani Begum v. The Additional District
Judge (
5. On the other hand, learned counsel for Respondent No. 3
submitted that the judgments of both the learned Courts below are based on
well settled principles of law, the minors are of tender age and need the'
company of their mother and interlocutory orders are immune from attack
in- Constitutional jurisdiction. He relied on Khushi Muhammad v. Mst.
Arshad -Bibi and others (1988 SCMR 1234).
6. The judgments cited by the learned counsel for -the petitioner
provide element of urgency as a pre-condition for exercising power under
Section 12. I intend to re-produce Section 12(1) of the Guardians and Wards
Act, 1890--
"12. Power to make interlocustory order for production of minor and interim protection of person and property:--
(1) The Court may direct that the person, if any, having the custody of minor shall produce him or cause him to be produced at Such place and time and before such person as it appoints and may make such order for the temporary custody and production of the person or property of the minor as it thinks proper."
Bare reading of the section .makes it abundantly clear that no ba'r is placed on the Guardian Judge to exercise his power, even in the absence of urgency. He has parental jurisdiction over the minor. No hard and fast rule of universal application can be laid down. The social set up is on a rapid change. The world has reduced to a global village Section 12, therefore calls for a liberal interpretation. Interim arrangement for the custody of minors cannot be fettered with a pre-condition of urgency. There may be cases where the minors are being kept away and grow in atmosphere which may bring complete estrangement to the parent or one of them.
7. The over riding and paramount consideration of handing overthe
interim custody of a minor under Section 12 is the welfare of the minor. The
Guardian Judge dealing with the application under Section 12 of the Act
shall take into account the consideration of the age, sex and welfare of the
minor.
8. The minors are of tender age requiring love and affection of their
real mother, who has not re-married Preference cannot be given to the
paternal grand mother qua the real mother.
9. None else can look better the minor than their, own mother.
There is no substitute and parallel to mother's love and affection in this
world. She is a monument of a devotion love and sacrifice. The lap of mother
has been held to be a cradle of God.
10. The custody of the minor cannot be allowed to shuttle between
the parties. Once the learned Guardian Judge has exercised its jurisdiction
in granting the interim custody, the same should be allowed to stay, unless
there are compelling circumstances to .change.
11. In view of the above, I do not find any good reasqn to interfere in
the orders of both the learned Courts below which are interlocutory in
nature.
12. I have been informed by the learned counsel for the parties that
the main guardian petition under Section 25 of the Act is at thie stage of
recording of evidence. The respondent mother is resident of Narowal and
undertakes long journey to prosecute her case at
petition, therefore, deserves decision expeditiously. The learned Guardian
Judge seized of the matter is, therefore, directed to decide the main petition
within a period of one month from the date of receipt of this order, if
necessary by holding day to day proceedings.
.13. In view of the above discussion, this Constitutional petition is
meritless and is thus dismissed.
(A.A.) Petition dismissed.
