Abrupt Withdrawal of Custody of Minor from Maternal Grandparents is not possible

 PLJ 2024 Lahore (Note) 126

[Multan Bench, Multan]

Present: Raheel Kamran, J.

Mst. AMEER MAI etc--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 11228 of 2023, decided on 20.2.2024.

Guardian and Wards Act, 1890 (VIII of 1890)--

----S. 25--Constitution of Pakistan, 1973, Art. 199--Application for custody of minor--Pendency of litigation--Appeal--Dismissed--Visitation schedule--Maternal grand parents--Visitation rights--Challenge to--Undisputedly minor had been resided with her grandmother since her birth--She was of tender age of about 2½ years--No emotional bond had been developed between minor and her father and paternal relations, abrupt withdrawal of her custody from her maternal grandparents might be very traumatic for minor--Documents qua early retirement of Respondent No. 3 and admission of brother of minor in F.G. Public School No.1 (Boys), Gujranwala Cantt did not form part of evidence as those came into existence after decision of Guardian Court--High Court deemed it appropriate to remand matter to trial Court concerned for determination of custody of welfare of minor after permitting parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à-vis minor twice every month on weekends for two hours each time so that bond of love and affection between minor and her father was allowed to be developed--Petition disposed of.               

                                                                                  [Para 6] A, B & C

Mr. Muhammad Nadeem Fareed, Advocate for Petitioners.

Rao Muhammad Adnan, Advocate for Respondent No. 3.

Date of hearing: 20.2.2024.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed judgment dated 06.07.2023 passed by the learned Additional District Judge, Taunsa Sharif whereby her appeal against the judgment dated 27.04.2023 passed by the learned Guardian Judge, Taunsa Sharif about custody of minor namely Rukhsar Bano aged 2½ years to her real father i.e. Respondent No. 3 was dismissed.

2. Learned counsel for the petitioner contends that impugned judgments of the learned Courts below are unsustainable as Respondent No. 3 is serving in Pakistan Army who is not residing within the village and is unable to devote time for proper upbringing of the minor, whereas the minor has been residing with her maternal grandmother since her birth. He maintains that no effort has been made by Respondent No. 3 to exercise his visitation rights during pendency of proceedings before the learned trial Court, learned Appellate Court or this Court, therefore, there is no bond of love and affection between minor and her father. He adds that application for custody of the minor has been moved with malafide to deprive maternal grandparents from custody of minor and entrust the same to her paternal grandparents which hardly serve welfare of the minor. Reliance has been placed on judgments in the cases of Raja Muhammad Owais vs. Mst. Nazia Jabeen and others (2022 SCMR 2123) and Mst. Anwari Bibi vs. Hidayat Ulah Khan and others (2020 MLD 302).

3. Conversely, learned counsel for the Respondent No. 3 has supported the impugned judgments for the reasons that stated therein. He has emphasized that not only father of the minor is her natural guardian who, in the absence of any disqualification in law, is entitled to her custody but he is with better means and resources to ensure welfare of the minor and her upbringing with the assistance of his mother and sister. He adds that the minor would be better off to be brought up in the company of her brother who is already in the custody of her father. It has been emphatically argued that custody of the minor could not be entrusted to maternal grandparents who are delinquent in upbringing their own granddaughter and litigation in this regard is pending adjudication before the learned Family Court which has been filed by their daughter- in-law for the provision of her maintenance. He maintains that in order to properly bring up his minor children, the Respondent No.3 has applied for early retirement and his son has already been enrolled at F.G. Public School No. 1 (Boys), Gujranwala Cantt since July 2023 where he is residing with his paternal grandmother and paternal aunt. Reliance has been placed on the case of Shabana Naz vs. Muhammad Saleem (2014 SCMR 343).

4. Father of the minor, present in the Court, submits that he has not been allowed to meet the minor rather threats have been extended to him whenever he made any such attempt of visitation. Documents i.e. Fee Card of Muhammad Saqlain issued by F.G. Public School No. 1 (Boys) Gujranwala Cantt, application regarding retirement submitted by the Respondent No. 3 and Residency Certificate are produced by the learned counsel for the Respondent No.3, copies whereof has been retained and original documents have been returned to the learned counsel for the Respondent No. 3.

5. Arguments heard. Record perused with the able assistance of learned counsel for the parties.

6. Welfare of the minor is the primary consideration governing the grant of custody of minors. While this Court is of the considered opinion that in the absence of his disqualification, a father cannot be deprived of custody of the minor as ordinarily welfare of the minor lies with his or her parents. In exceptional cases and for valid reasons, a parent can be denied the right of custody while entrusting it to the grandparents, when it is absolutely necessary and in the welfare of the minor to do so. In the instant case, undisputedly the minor has been residing with her grandmother since her birth. She is of tender age of about 2½ years. Undeniably, no emotional bond has been developed between the minor and her father and paternal relations, therefore, abrupt withdrawal of her custody from her maternal grandparents may be very traumatic for the minor. Additionally, documents qua early retirement of Respondent No.3 and admission of brother of the minor in the F.G. Public School No.1 (Boys), Gujranwala Cantt do not form part of the evidence as those came into existence after decision of the Guardian Court. Therefore, to allow fair opportunity to either side, this Court deems it appropriate to remand the matter to the learned trial Court/Guardian Judge concerned for determination of custody of welfare of minor after permitting the parties to lead additional evidence as well as allowing Respondent No.3 along with his mother and/or sister to exercise of his visitation rights vis-à- vis the minor twice every month on the weekends for two hours each time so that the bond of love and affection between the minor and her father is allowed to be developed. For that purpose, schedule of visitation shall be set down on an application to be moved by Respondent No.3. The learned Guardian Judge shall ensure that visitation right is allowed to be exercised by the Respondent No. 3 without any hindrance or intimidation whatsoever. Accordingly, the impugned judgments shall be set aside and application of Respondent No. 3 shall be deemed to be pending before learned Guardian Judge concerned who shall decide the same afresh within a period of three months and a compliance report in that regard shall be submitted to the Deputy Registrar (Judicial) of this Court.

7. Disposed of.

(Y.A.)  Petition disposed of

Ex-Parte Decree in a Guardian case can be set-aside

PLJ 2015 Lahore 748

Present: Muhammad Khalid Mehmood Khan, J.

MUHAMMAD QAYYUM & 6 others--Petitioners

Versus

HAQ NAWAZ DOGAR and another--Respondents

Civil Revision No. 2994 of 2004, heard on 13.4.2015.

Civil Procedure Code, 1908 (V of 1908)--

----Ss. 12(2) & 114--Appointment of COC as guardian ad-litem of minors for defending minors in a suit failed to perform his duties--Not cross-examined the witnesses--Ex-parte decree was passed--Application for setting aside ex-parte decree was refused--Appointment of guardian ad-litem was against law when especially mother of minors was alive--Mother was not asked whether she wanted to become guardian ad-litem--Valuable right was involved--Maintainability of application--Validity--It was duty of guardian ad-litem not to act against minor’s interest and if decree was passed due to negligence of guardian ad-litem the minor is not bound to the decree--It was proven fact that guardian ad-litem had failed to cross-examine witnesses on basis of which trial Court passed the decree--Order for dismissal of application u/S. 12(2), CPC is set aside and application for setting aside was accepted.

                                                                                                                        [Pp. 751 & 753] A & D

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Appointment as guardian ad-litem of minors for defending minors in a suit--Failed to perform his duties--Not cross-examined the witnesses--Ex-parte decree was passed--Negligence of guardian ad-litem even proof of negligence is not necessary to be proved--Petitioners had right to file appeal against ex-parte judgment and decree but where judgment debtors claim fraud or decree is out come of fraud the application u/S. 12(2), CPC is maintainable.

                                                                                                                        [P. 751] B

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Appointment guardian ad-litem of minors for defending suit--Guardian ad-litem is trustee of rights of minor--Failed to cross-examined the witnesses--Ex-partedecree was passed--Application for setting aside exparte decree, dismissal of--Challenge to--Guardian ad-litem had failed to look after or safeguard rights of minor--He had failed to cross-examine the witnesses who deposed against petitioners interest--Trial Court was not justified to dismiss application but should have set aside expartedecree and minor should have been permitted to defend case their mother.                                                                                [P. 752] C

Malik Amjad Pervaiz, Advocate for Petitioners.

M/s. Nisar Ahmad Baryar and Iftikhar Ahmad Mian, Advocates for Respondents.

Date of hearing: 13.04.2015

Judgment

The petitioners filed an application under the heading of review petition, application under Section 12(2), CPC and under Section 114 CPC for setting-aside ex parte decree dated 31.07.2002 praying that the guardian ad-litem appointed by the trial Court has failed to perform his duties; the decree has been obtained by practicing fraud with the Court, hence, the same is liable to be set-aside. In addition to the above basic grounds, the petitioners have taken number of grounds on merits of the suit and finally that the application under Section 12(2) CPC could not be dismissed summarily. The learned trial Court after hearing the parties on 02.11.2004 dismissed the application and refused to set-aside the ex parte decree dated 31.07.2002.

2.  Learned counsel for the petitioners submits that the petitioners are minors and the learned trial Court has appointed the COC and its own Reader as guardianad-litem of the minors for defending the minors in a suit for specific performance of an agreement filed by Haq Nawaz Dogar; the COC and Reader of the Court have failed to perform their duties; they have not cross-examined the two witnesses and the learned trial Court has ex parte decreed the suit. Learned counsel submits that the question of fact could only be decided after recording of evidence; it is an admitted fact that the appointment of guardian ad-litem was against law when especially the petitioners’ mother is alive; the learned trial Court has not asked the mother of the minors whether she wanted to become the guardian ad-litem of the minors or not. He has finally submitted that the impugned order for dismissal of the application under Section 12(2), CPC is liable to be set-aside alongwith the decree dated 31.07.2002.

3.  Learned counsel for the respondents submits that the learned trial Court has issued number of notices to the mother of the minors who failed to appear in Court and in execution she appeared, hence, her appearance in execution proceedings is sufficient to prove that the pendency of the suit was in the knowledge of the petitioners’ mother. Learned counsel adds that the Court is bound to appoint guardian ad-litem of the minors under Order XXXII Rule 4 of CPC where there is no relative or suitable person is available for appointment as guardian ad-litem; the learned trial Court thus was justified to appoint COC in the first instance and when COC was retired, the learned trial Court appointed its own Reader as guardian ad-litem of the minors. Learned counsel submits that the impugned judgment and decree was rightly passed against the petitioners and the petitioners’ application for review was not maintainable. The main argument of learned counsel for the respondents is that the petitioners were bound to file an appeal, hence, the application for review and application under Section 12(2), CPC is not maintainable. He has relied on Monazah Parveen versusBashir Ahmad and 6 others (2003 SCMR 1300), Dost Muhammad (deceased) through L.Rs. versus Muhammad Yousaf and others (2008 SCMR 1339), Muhammad SaleemQureshi versus VTH Additional District and Sessions Judge, Karachi East and 2 others (2014 MLD 405), Syed Ali Asghar and 3 others versus Creators (Builders and 3 others (2001 SCMR 279), Mrs. Nargis Latif versus Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Nazir Ahmed versus Muhammad Sharif and others (2001 SCMR 46),Warriach Zarai Corporation versus F.M.C. United (Pvt.) Ltd. (2006 SCMR 531), Amjad Ikram versus Mst. Asiya Kasuar and 2 others (2015 SCMR 1) and MuhammadIqbal versus Mehboob Alam (2015 SCMR 21) and finally adds that it is the discretion of the learned trial Court to frame issues and record evidence and the learned trial Court thus is not bound to frame issues and record evidence in every application under Section 12(2), CPC.

4.  Heard. Record perused.

5.  It is an admitted fact that respondent Haq Nawaz Dogar filed a suit against one Wali Muhammad for specific performance of an agreement. Wali Muhammad submitted his written statement and before recording the evidence he died. The petitioners were impleaded as party being the legal heirs of deceased Wali Muhammad. Record further shows that Wali Muhammad during the pendency of suit has gifted the suit property to the Petitioners Nos.1 to 5. Respondent No. 1 thus amended the plaint. The suit was pending and the learned trial Court half-heartedly tried to procure the attendance of the mother of the minors for obtaining her permission for the appointment as guardian ad-litem of the minors. Record did not show that the learned trial Court has made any serious effort for procuring the personal attendance of the petitioners’ mother. However, the learned trial Court appointed COC of the Court as guardian ad-litem of the minors/petitioners, COC was retired and after that the learned trial Court appointed its own Reader.

6.  The petitioners started to produce evidence. Ali Asghar appeared as PW.1. He was cross-examined by the petitioners’ guardian ad-litem; Khadim Hussainappeared as PW.2 but the guardian ad-litem has not cross-examined the said witness; likewise, he has failed to cross-examine PW.3 in spite of the fact that he was sitting in the Court. It is not understandable why the guardian ad-litem of the petitioners failed to cross-examine two witnesses when a valuable right of the petitioners/defendants was involved in this case. It is the duty of the guardian ad-litem not to act against the minors’ interest and if decree is passed due to negligence of the guardian ad-litem the minor is not bound to the said decree. It is proven fact on record that the guardian ad-litem has failed to cross-examine the respondents’ witnesses on the basis of whichthe learned trial Court passed the decree. The petitioners in their application have specifically pleaded that the decree has been obtained by fraud, hence, the argument of learned counsel for the respondents that the petitioners were to file an appeal and no review or application under Section 12(2), CPC is maintainable, has no force. No doubt, the petitioners have right to file appeal against the ex parte judgment and decree but where the judgment debtors claim fraud or the decree is outcome of fraud the application under Section 12(2), CPC is maintainable. In the case of negligence of the guardian ad-litem even the proof of negligence is not necessary to be proved. This issue came up for discussion before this Court in Bhagat Ram versus Buta Singh and another (AIR 1935 Lahore 349) and this Court held as under:

“It is pointed out that the observations of Field, J., in 12 Cal 69 (3) were in the nature of an obiter dictum and were not concurred in by his colleague. These cases lay down the law definitely that fraud and negligence stand on the same footing and that a minor was not bound by a decree passed against him in a suit where his guardian showed gross negligence by not setting up a good defence of which he must have been aware. They have also quoted a case reported in 3 CLR 17 (7) in which it was held that gross misconduct amounted to fraud. With the law as laid down in these cases I respectfully concur as they are in a line with the view which I entertained independently. With the utmost deference I am not prepared to follow the view of law as laid down by Scott- Smith, J. in 1920 Lah 417 (2). I therefore affirm the decree of the lower appellate Court and dismiss the appeal with costs”.

7.  This issue again came up in case Kale Khan versus Masud Husain (AIR 1941 Oudh 223) and the Court held as under:--

“In the present case the plaintiffs wanted a declaration that the decree is not binding on them on the ground that they were not properly represented. Such a right is recognized in law and there must be a remedy for a legal right. Section 108, Oudh Rent Act, bars the jurisdiction of the Civil Court in respect of some suits, but the jurisdiction of the Civil Court in respect of a suit of the present nature is not barred. A Civil Court has jurisdiction to entertain a suit of every nature---of course of a civil nature---unless its jurisdiction has been barred by some legislative enactment. The jurisdiction of the Civil Court has not been excluded by the Oudh Rent Act or by any other legislative enactment. I therefore hold that the Civil Court has jurisdiction to entertain the suit. This view was held in 54 ALL 646. It has been found by the lower appellate Court that under a custom the plaintiffs were not the heir of Ashiq Ali and the guardian acted with gross negligence. The plaintiffs’ guardian was their uncle Manzoor Ahmad and his interests were adverse to heirs. His liability was decreased if the plaintiffs also shared it. He was grossly negligent in not raising the objection on behalf of the plaintiffs that they were not heirs of Ashiq Ali and so could not be made liable. I think the lower Court was quite right to granting the declaration prayed for by the plaintiffs”.

8.  The guardian ad-litem is the trustee of the rights of the minor. In the present case, the guardian ad-litem has failed to look after or safeguard the rights of the minor. He has failed to cross-examine the witnesses who deposed against the petitioners’ interest. The learned trial Court thus was not justified to dismiss the petitioners’ application but should have set-aside the ex parte decree and the minors should have been permitted to defend the case through their mother widow of Muhammad Saleemand the mother of Petitioners Nos. 5 to 7.

9.  The upshot of the above discussion is that the impugned order for dismissal of application under Section 12(2), CPC is set-aside and the application under Section 12(2), CPC is accepted and the ex parte decree dated 31.07.2002 is set-aside and the case is remanded to the learned trial Court with the direction that the learned trial Court will decide the suit after providing opportunity of hearing to the parties in accordance with law.

10.  The petition is allowed in the above-said terms.

(R.A.)  Petition allowed