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P L D 1985 Karachi 645
Before Saleem Akhtar, J
Mst. NASERA BEGUM-Petitioner
versus
WITH ADDITIONAL DISTRICT JUDGE, KARACHI AND 2 OTHERS-
Respondents
Constitutional Petition No. S-34 of 1985, decided on 30th May, 1985.
Ss. 12 & 25 - Custody of minor-Nature of interlocutory order--Court has authority to pass interlocutory order for temporary custody of minor subject to final decision in main case-Overriding consideration in matters relating to guardianship was always welfare of minor - Court exercises parental jurisdiction as if it were in loco parentis to minors.
Niamatullah Qureshi and another v. Bilquis Sitarit P L D 1973 Lab. 442 ; Shabbir Raza v. Mst. Sartoj Fatima and 2 others P L D 1975 Lab. 690 ; E. C. Ratti and 2 others v. Arthur Dennis and others P L D 1975 Quetta 35 ; Khizar Hayat Tiwana v. Zainab Begum P L D ( ) S C 462 and Muhammad Sadiq Butt v. Khalida Parveen P L D 1967 Kar 645 ref.
-- S. 12-Interlocutory order-Variation, alternation or rescission of interim order-Principle stated-Order for interim custody of minor was interlocutory order subject to decision of main case--Interim order passed earlier, held, could be varied, altered or rescinded-Order passed under Guardians and Wards Act, 1890 would be interim order with no finality attached to it.
Manzoor Ahmad Khan v. S. Maqsood Ali P L D 1975 Lab. 1521 distinguished.
-- Ss. 12 & 25-Custody of minor-Paramount consideration--Temporary custody granted to mother that she would keep children in her own custody and care at K and bring them to Court on every date to enable them to meet their father-.-Mother leaving K and placing children in care of husband of her sister--Court's below, held, were justified in holding that it would be in welfare of minors that interim custody be given to their father-Trial Court in exercise of jurisdiction could vary order or rescind its previous order and pass fresh interim order.
-- Ss. 12 & 25 -Provisional Constitution Order (1 of 1981), Art. 9Order for interim custody of children not challenged-Effect-Petition, held, was liable to be dismissed on ground that petitioner has neither challenged nor sought any relief against order for custody of children-Such order being basis of all subsequent orders was not challenged on ground that such order was without jurisdiction-Plea that interim order for custody of minor was without jurisdiction, held, could nut be entertained in circumstances.-[Jurisdiction].
A. Q. Malik for Petitioner.
Ghulam Ghouse and Rizvi for Respondent No. 3. Date of hearing : 30th May, 1985.
The petitioner was married to the respondent No. 3 on 23-7-1973 and out of this wedlock Muhammad Ali was born in June, 1975 and Aisha alias Rani was born in April, 1976. Thereafter differences arose between the parties and marriage was dissolved through a Court and the minors remained in the custody of the petitioner. There seems to be spate of litigations between the parties including the suit for maintenance by the petitioner and Family (G & W) Suit No. 2164/80 filed by respondent No. 3 under section 25 of the Guardian and Wards Act for the custody of the two minors. During the pendency of this suit the respondent No. 3 filed an application under section 12 of the Guardian and Wards Act for temporary custody of the minors. The learned Family Court by its order dated 1-3-1981 did not accept the application as at that time Muhammad Ali was about 5J years old and Rani was aged 4J years. The Court held that as they are of tender age and have remained with the mother (petitioner) it is in the welfare of the minors .that they shall continue in her custody, but she was restrained from removing the minors from the jurisdiction of the Court and bring the minors, in Court on the date of hearing to meet the respondent No. 3. On 20-8-1981 the respondent No. 3 filed application under sections 25 read with sections 26, 44 and 45 of the said Act alleging that as the petitioner has not brought the minors to Court and removed them from the jurisdiction of the Court, the custody may be restored to him. Again on 20-12-1982 application under section 45 was filed by the respondent No. 3 for issuing direction to the petitioner to produce the minors. These applications remained pending. Yet another application under section 12 was filed by the respondent No. 3 on 1-11-1983 for the interim custody of the minors. By an order dated 3-3-1984 the learned trial Court ordered that the interim custody of the minors be delivered to the petitioner. The appeal filed by the petitioner was dismissed by the learned District Judge. As the order dated 3-3-1984 was not complied with, the custody of the minors was not delivered to the respondent No. 3, the respondent No. 3 made application under section 45 of the Guardian and Wards Act. The learned trial Court by order dated 15-7-1984 directed the petitioner to produce the minors in Court on the next date of hearing failing which warrant of arrest was to be issued against the petitioner for detention in Civil prison. The petitioner filed an application which was dismissed by the trial Court on 30.7-1984 and warrant of arrest was issued against her. This order was modified on 6-8-1984 and warrant of arrest was issued against the petitioner and was ordered to be produced in Court on the date of hearing. The petitioner filed appeal against the orders dated 15-7-1984 and 30-7-1984 which was dismissed on 27-2-1985. The petitioner has filed this petition against the orders dated 15-7-1984, 30-7-1984 and 24-2-1985. As the outset it may be pointed out that there is no order dated 24-2-1985. It should be order dated 27th February, 1985.
The orders dated 15-7-1984 and 30-7-1984 were passed by the learned trial Court issuing warrant of arrest against the petitioner as she had failed to comply with order dated 3-3-1984. The order dated 27-2-1985 is the appellate order confirming these orders.
The main ground of the learned counsel for the petitioner is that after passing the order under section 12 of the Guardian and Wards Act in proceedings under section 25, the Court could not have passed any other order under section 12 varying substantially the first order during the pendency of the main application under section 25. The learned counsel also contended that such an order amounted to a review of the previous order, and as the Family Court is not competent to review its own order the interim order and subsequent orders passed by the respondents Nos. i and 2 are void ab initio and without lawful authority. It is pertinent to note that the petitioner has not challenged the order dated 10-3-1984, therefore, the same cannot be attacked.
Before considering the contention of the learned counsel it is necessary to ascertain the nature of proceeding under section 12 of the Guardian and Wards Act. Section 12 empowers the Court to pass an order for temporary custody and protection of person or property of the minors as it deem fit and proper. Such application can be made in a pending proceeding under section 25 of the Act. It, therefore, authorises the Court to pass interlocutory order for temporary custody of the minor, subject to the final decision in the main case. It is now well-settled that an order for temporary custody can be passed during the pendency of proceeding under section 10 or section 25 of the Act. Reference can be made to Niamatullah Qureshi and another v. Bilquis Sitara (P L D 1973 Lab. 442), .Shabbir Raza v. Mst. Sartaj Fatima and 2. others (P L D 1975 Lab. 690), E. C. Ratti and 2 others v. Arthur Dennis and others (P L D 1975 Quetta 35) and a large number of other cases, which have been cited in these authorities.
As section 12 empowers the Court to pass an interlocutory order in respect of temporary custody of the minor, it is necessary that the application should make out a prima facie case that the situation is so urgent that is calls for an interim order for the welfare of the minor. The overriding consideration in matters relating to guardianship is always the welfare o the minor. In such cases the Court exercises a parental jurisdiction as if it were in loco parentis to the minors. A reference can be made to Khiza Hayat Tiwana v. Zainab Begum P L D ( ) S C 462. In such circumstances, and in exercise of such jurisdiction when a case is made out for urgent interim order for protection and welfare of the minor the Court can exercise its power under section 12 to pass necessary orders. In Muhammad Sidiq Butt v. Khalida Parveen ( P L D 1967 Kar. 645) while dealing with the contention that the language of subsection (1) of section 12 does not lay down any condition for the making of an interim order it was observed as follows :
"But like that there are no specific conditions laid down for the appointment of a Receiver under Order XLI, rule 1, C. P. C. and yet before the interlocutory order under that provision is passed the Court has to go into question whether the passing of the interim order pending decision of the matter is in the interest of justice, and if not passed there was danger to property or likelihood - of waste etc. The fact that no particular conditions are laid down in subsection (1) of section 12 does not dispense with the fundamental requirement of passing interim order. I have not the slightest doubt that when such an order is sought the party seeking the order has to show a certain element of urgency."
The question now arises whether an order passed under section 12 can be varied, altered or set aside by the Court. The nature of the order passed under section 12 has already been determined. It is interim and interlocutory. It is not a final order and is subject to the decision of the main case. The order for interim custody is passed on a given set of fact and circumstances in the welfare of the minors. If subsequently those facts which had impressed the Court to pass such an order are varied or altered by an act of omission or commission by any of the parties or otherwise, the Court will be competent to take note of all such subsequent events and if it comes to the conclusion that due to change of circumstances, the situation has completely varied and if it is in the welfare of the minor, interim order passed earlier can be varied, altered or rescinded. The interim orders are always subject to change on such grounds. A Court which has the power to pass an interim order can exercise jurisdiction in changed circumstances, to vary or alter the same. The order under section 12 has been described as interim order and no finality is attached to it. It will be a misconception to say that once an interim order .for interim custody has been passed if the circumstances change and adversely effect the interest of minor, the, Court is powerless and cannot pass any order to vary it in the welfare of the minors.
The learned counsel for the petitioner has referred to Manzoor Ahmad Khan v. S. Maqsood All (P L D 1975 Lath. 1521) and contended that the second order passed by the trial Court was hit by the principle of res judicata. In the authority relied upon by the learned counsel the finding of the Controller with respect to the rate of rent was confirmed by the appellate Court, but his successor made contrary observation. In those circumstances the finding could not have been reversed. This authority is not applicable, as no finding has been given by any Court after hearing the entire case on merits. The matter has yet to be considered and decided on the basis of evidence of the parties which will now be recorded.
In the present case the respondent No. 3 had filed application for recalling the earlier order and or its variation on the facts that subsequent to the passing of the order for interim custody, the petitioner has married a stranger and is residing at Multan. This fact has not been denied. The paramount consideration before the Court granting custody to the petitioner was that she would keep the children in her own custody and care at Karachi and bring them to Court on every date of hearing to enable them to meet the respondent No. 3. Admittedly she has left Karachi and is residing in Multan. It is stated by the learned counsel for the petitioner that she has left the children in the custody of her brother-in-law i.e. husband of her sister, Abdul Qayoom. It seems that throughout the proceedings Abdul Qayoom has appeared as attorney and Parokar of the petitioner and before the Appellate Court as well as in this Court he has filed affidavits at various stages. The facts brought on record are that Muhammad Ali received injuries and suffered disease which made him completely crippled and unable to walk. I had asked Abdul Qayoom to bring the minors in Court and today they are present here. Muhammad Ali is completely crippled and unable to walk. Whatever may be the reason for such inability will be investigated by the learned trial Court, but at this stage, I am concerned whether the learned Courts below were justified in altering the interim order of custody. From facts stated above, the learned Courts below were justified in holding that it will be in the welfare of the minors that interim custody is given to their father. The circumstances under which interim custody was given to the petitioner have radically changed. The petitioner having married a stranger went away to Multan. She did not comply with order of the Court and seems to have removed the minors from the jurisdiction of the Court. In spite of penal provision resorted to by the learned trial Court the petitioner continued to avoid and disobey the order. The conduct of the petitioner has been contumacious. She has transferred the custody of the minors to his -brother-in-law which she is not permitted to do. Presently she is not keeping the minors in her custody. In these changed circumstances, the trial Court in exercise of jurisdiction under section 12 could vary, alter or rescind its previous interim order and pass a fresh interim order. Such order passed by the trial Court cannot be termed as illegal, or without jurisdiction.
The entire argument of the learned counsel for the petitioner was that as the order dated 10-3-1984 is without jurisdiction all the subsequent orders passed on 15-7-1984, 30-7-1984 and 27-3-1985 are illegal and of no legal effect. Except this plea no other ground has been urged to challenge the impugned orders. The order dated 10-3-1984 is unexceptionable, therefore, the petitioner's plea fails.
This petition is liable to be dismissed on the short ground that the petitioner has neither challenged nor sought any relief against the order dated 10-3-1984, but the entire argument against the validity of the impugned orders was that the order dated 10-3-1984 which is basis of all subsequent orders is without jurisdiction. In these circumstances such plea cannot be entertained.
For these reasons by the following short order the petition was dismissed :
"The minors have been brought in Court. The interim custody in terms of the order passed by the learned Courts below is delivered to the respondent No. 3. The matter has been pending before the Trial Court since 1980. The learned trial Court should now proceed with the matter. The hearing is fixed on 21‑7‑1985 for which no further notice will be issued to the parties. On that date, the parties should produce their entire evidence. The learned trial Court should dispose of the matter within two months."
The petition is dismissed with cost.
A. A. Petition dismissed.
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