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‑‑ S. 25‑Civil Procedure Code (V of 1908), S. 115‑Mother seeking actual restoration of custody by issuance of warrant under S. 100, Cr. P.C. ‑Petitioners seeking cancellation of order by filing objection petition on ground that minors (girls) having been married and to be in custody of mother not necessary‑Petitioners' objection petition and appeal dismissed‑Revision against such misconceived objection petition, held, not competent.‑[Revision (civil)].

‑‑ S. 25 and Civil Procedure Code (V of 1903), S. 115‑Revision, competency of Revision petition competent,. if case decided by any Court subordinate to High Court‑‑Orders passed by Guardian Judge directing issuance of warrant under S. 100, Cr. P. C. and rejection of misconceived objection petition do not amount to case decided‑Revision petition against such orders, held, not com petent‑Court having jurisdiction in matter, deciding same while exercising its jurisdiction not illegally or with material irregularity, High Court has no power to interfere merely because it differs from conclusion of subordinate Court.

N. S. Venkataglri Ayyangar and another v. The Hindu Religious Endow ments Board, Madras P L D 1949 P C 26 ref.

‑‑S. 25‑Civil Procedure Code (V of 1908), S. 115‑Revision Order passed by Family Court, held, cannot be treated to be an order passed by Court subordinate to High Court within meaning of S. 115.

Mst. Tehseen Akhtar v. Mohmood ul Hassan P L D 1971 Lah. 875 and WaJahat Ali Hasnie v. Mst. Ghazala P L D 1970 Lah. 641 ref.

‑‑ S. 25‑Order of restoration of custody of minor not of perma nent character‑Change, however,‑ cannot be brought by filing objection petition‑‑Such order, held, can be passed by Guardian Judge in interest of welfare of minors.

Mst. Sultana Beg um v. Muhammad Shafi P L D 1965 Kar. 416 ref.

Mirzo Hafee2ur Rehman for Petitioners.

S. M. Almas for Respondent No. 1.

Date of hearing: 30th October, 1982.

This petition for Civil Revision is directed against the orders dated 22nd March, 1982 and 20th April, 1982 passed respectively, by the learn ed Guardian Judge, Mianwali and the learned District Judge, Mianwali, dismissing the objection petition‑filed by the petitioners in connection with the execution of an order passed under section 25 of the Guardians and Wards Act by the learned Guardian Judge, Mianwali on 10th June, 1977 in favour of respondent No. 1 and against respondents Nos. 2 and 3, directing the restoration of the custody of the three minors namely, Mst. Zaitoon Bibi, Mst. Kalsoorn Fatima alias Saleem Bibi and Mst. Kaniz Fatima alias Sarwar Jan, daughters of respondent No. 1.

2. It appears that after the demise of the father of the aforesaid three minors they (minors) were taken into custody by respondents Nos. 2 and 3 the paternal uncles of the minors. Their 'mother Mst. Shui Khelay, i.e. respondent No. 1 filed an application under section 25 of the Guardian and Wards Act for the restoration of the custody of the minors. Her application was allowed and custody of the minors was directed to be restored to her vide Guardian Judge's order dated 10th June, 1972.

3. Respondents Nos. 2 and 3 challenged the order of the Guardian Judge by way of appeal before this Court, which was dismissed on l0tb January, 1980 except for Mst. Zaitoon Bibi who had attained majority and had contracted marriage by that time.

4. Respondents Nos. 2 and 3 thereafter applied for Special heave to Appeal before the Supreme Court of Pakistan under Article 185 of the Constitution of the Islamic Republic of Pakistan, 19713. The application was also dismissed by the Supreme Court on 22nd March, 1981 vide its reported judgment, i.e., Sakhawat Ali and another v. Mst. Shui Khelay (P L D 1981 S C 454).

5. After the dismissal of the petition for special leave to appeal in the Supreme Court of Pakistan respondent No. t filed an application be fore the learned Guardian Judge, Mianwali, seeking execution of the order dated 10th June, 1979 whereby custody of the minors was directed to be restored to her. During the pendency of this application the present petitioners who are sons of respondents Nos. 2 and 3 and are husbands of the minors filed objection application contending that since the minors were their legally‑wedded wives and were in the custody of the petitioners (their husbands) their custody was not liable to be restored to respondent No. 1. The learned Guardian Judge dismissed the objection application on 22nd Match, 1982. Appeal was subsequently preferred before the learned District Judge, Mianwali who too dismissed the appeal vide order dated 20th April, 1982 and hence this revision petition.

6. The impugned orders are sought to be revised mainly for the following reasons

(a) the mother is entitled to the custody of a female minor up to the tune the minor attained puberty and that both the minors :a this case have already attained puberty and the mother has thus lost the right of Hizanat under the Muslim Law ;

(b) section 19 of the Guardians and Wards Act, serves as a bar to the appointment of a guardian of the person of a minor who is a married female arid whose husband is not, in the opinion of the Court unfit to be the guardian of her person

(c) the order of the restoration of the custody of the minors is not of permanent character. it can be changed where welfare of the minors so demands ;

(d) the minors in this case are of sufficiently matured age, and due weight should be attached tee their preference ;

(e) the mother is not appointed as guardian of the minors ; and

(f) the objection application filed by the petitioners was in fact for the change of the guardianship/custody.

7. The petitioners, in fact, seek the cancellation of the order where by the custody of the minors is directed to be restored to respondent No. 1, their mother. The object cannot legally be achieved by filing objection application before the Guardian Judge when the mother seeks for actual restoration of the custody of the minors by issuance of a warrant under section 100, Cr. P.C. and as a matter of fact a revisions also not legal competent against the order dismissing such misconceived objection application. A revision petition is competent under section 115 of to Code of Civil Procedure if a case has been decided by any Court sub ordinate to the High Court. An order passed by a Guardian Judge directing the issuance of warrant under section 100, Cr. P.C. for restora tion of the custody of the minors pursuant to an order under section 25, of the Guardians and Wards Act does not amount to a case decided with he meaning of section 115. Similarly rejection of a misconceived objection application also does not amount to a case decided. Moreover, it a Court having jurisdiction in the matter has decided the same while exercising its jurisdiction not illegally or with material irregularity the High Court has no power to interfere merely because it differs from the conclusion of the subordinate Court. In N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (P L D 1949 P C 26) it was held that "if the High Court is satisfied that (a) the order of the subordinate Court is within its jurisdiction ; (b) that the case is one in which the Court ought to exercise jurisdiction : and (c) that in exercising jurisdiction the Court has not acted illegally or with material irregularity, it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate Court upon questions of fact or law." Moreover, an order passed by the Family Court cannot be treated to be an order passed by a Court subordinate to the High Court within the meaning of section 115, C. P. C. It has been held in Mst. Tehseen Akhtar v. Mahmood ul Hassan (P L D 1971 Lab. 875) that an order passed by a Family Court (presided over by a Civil Judge) or by Appellate Court (presided over by a District Judge) is not amenable to revisional jurisdiction of the High Court under section 115, C. P. C. Similar view was expressed in Wajahat Ali Hasnie v. Mst. Ghazala (P L D 1970 Lab. 641).

8. The order regarding the restoration of the custody of the minors to respondent No. 1 was passed when they were not married. This order is certainly not of permanent character but its change cannot be brought about by filing an objection application as has been done by the peti tioners in this case. Such an order can be passed by the Guardian Judge in the interest of the welfare of the minors. In Mst. Sultana Begum v. Muhammad Shafi (P L D_1965 (W.P.) Kar. 416) it was held that an order of delivery of custody of a child is not of a permanent nature and may be changed if welfare of the minor so necessitates, but there must be clear and strong reasons and the circumstances must have so changed as to require a change of custody of the minor in the interest of his welfare.

9. Till such time there is no order regarding the appointment of guardian of the minors, the order already passed under section 25 of the Guardian and Wards Act in favour of respondent No. 1 holds the field and it to be enforced.

10. It is also noteworthy that it was brought to the notice of the Supreme Court that both the minor girls had been married to the present petitioners but the said august Court in the interest of the welfare of minors did not wash to make any observation in this respect and proceeded to dismiss the appeal of respondents Nos. 3 and 4 treating the same to be incompetent.

11. As already observed the under consideration petition for Civil Revision is not legally competent and is, therefore, dismissed with no order as to costs.

M. A. K. Petition dismissed.

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