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Constitutional Petition No.S‑21 of 1986, decided on 27th May, 1986.

‑‑‑S.25‑‑Paternity‑‑Guardian Judge cannot answer intricate questions about paternity of minor‑‑Such questions could be decided by Civil Court alone.

‑‑‑S.5‑‑Parentage of child‑‑Family Court or for that matter appellate Court, held, could not deal with intricate question of parentage of child‑‑Party agitating matter has to seek declaration of child's parenthood from Civil Court.

P L D 1985 Lah. 399 and P L D 1968 Pesh. 87 rel.

‑‑‑S.12‑‑Temporary custody‑‑Guardian Judge can order that temporary custody of a child may be given to someone if it is in the interest of child.

P L D 1971 Kar. 118 and P L D 1965 Lah. 399 rel.

‑‑‑S.12‑‑Temporary custody‑‑Parentage of child yet to be determined‑ Petitioner not real mother of child but nourished her from age of 3/4 days to the age of 13 months and given her all love and care‑ Respondent/real mother of child not appearing in witness‑box and not stating that she wanted to feed child from her breast, nor there existing any evidence on record that she was in a position to breast feed child ten months after she had allegedly given birth to, child‑‑Family Court holding that it would be detrimental to body and person of baby if her custody was changed at that stage‑‑Order of Family Court giving temporary custody to petitioner maintained and that of appellate Judge who reversed order of Family Court set aside‑‑Held, in circumstances‑ Appellate Court, had no justification to interfere a with discretion of Family Court.

K . B. Abbas for Petitioner.

Liaquat Ali Sheikh for Respondents.

This is a petition under section 203 of the Constitution. The petitioner has felt aggrieved against the order of handing over of temporary custody of girl Naveeta to the respondent by the Vth Additional District Judge, South Karachi by order, dated 17‑3‑1986 in Family Appeal No.2 of 1986.

The facts in brief are that the petitioner is the wedded‑wife of respondent No.2 and working with him. They had no child of their own. In April, 1985, the respondent 2 brought a 4 days old girl, who was later named Naveeta, stating that the girl was 'the daughter of a friend whose wife had died at the time of child birth and they would nourish and adopt this child. The child was thereafter nourished and looked after by the petitioner.

In October, 1985, respondent No.2 informed the petitioner that Naveeta was his own daughter from his second wife Koveeta respondent whom he had married earlier. The petitioner got worried and her father moved C.I.A. in the matter. Investigation was started.

The petitioner started living separately. Thereafter, the respondent No.l filed complaint under, section 344, P.P.C. against petitioner and her father which is pending.

Respondents also filed application under section 25 of Guardians and Wards Act before Family Judge claiming custody of Naveeta as their child. The application was resisted by the petitioner on the ground that he had been told that the child was of a friend of respondent No.2 and that she had to be adopted by the petitioner and respondent No.2. Petitioner denied that the respondents were the parents of that girl.

Application under section 12 of the Guardian and Wards Act was moved by the respondents for temporary custody of the child. The Family Court recorded the statement of Rati respondent No.2 and that of petitioner. Respondent No:1 Kerta did not examine herself. The birth certificate of Naveeta and marriage card of respondents were produced.

The Family Court did not grant the temporary custody of Naveeta to the respondent on the ground that the parentage of the girl was still to be determined and changed of custody would be detrimental to the life and person of the baby.

The appellate Court, however, in spite of observing that he was not supposed to examine the genuineness 'of the certificates of birth and marriage, observed that‑ since the petitioner did not claim to be the mother of the child and had clamed only that the child had been handed over to her by the respondent No.2 for looking after the child while the respondent claimed to beher parents, therefore, the question of temporary custody should be decided. He held that well‑being of the minor will be more safe in the hands of the mother and, therefore, the person who claims to be the mother should not be deprived of her right ‑as the child needs feeding from breast of her mother.

Mr. K.B. Abbas submitted that since the parentage of the child in the respondents was denied by the petitioner and it was an intricate matter of evidence to be recorded in the civil Court, therefore, Family Court. had no civil Court and not in Guardian case. He relied upon P L D 1985 Lah. 399rihdiction to deal with such a legality of the marriage is in question, ' here it, was held that where jurisdiction to decide about the custody the Guardian Judge had no upon P L D 1968 Pesh. 87 where it was the children. He also relied cannot answer intricate question about paternity held that Guardian Judge can be decided by Civil Court alone.

I am in agreement with the views expressed by the High Court' of West Pakistan at Lahore and Peshawar cited above and I am of the view that once the parentage of Naveeta had been challenged then the Family Court and the Additional District Judge should not have dealt with the intricate question of the Paternity of Naveeta and the respondents should have been directed to seek declaration of them parenthood from the Civil Court.

But that does not resolve the matter as the two Courts below have not decided about the permanent custody of the child as yet and I am sanguine that hereafter they would direct the respondents to seek the required declaration from the Civil Court.

However; the question of temporary custody of child is not free from difficulty. A Guardian Judge can order that temporary custody of a child may be given to someone if it is in the interests of the child.

Mr. Liaquat A. Shaikh had relied upon P L D 1971 Kar. 118 where it was held that control of H.C. under Article 102 of the Constitution was limited to correction op exercise of jurisdiction or non‑compliance of an statutory provisions of law but did not extend to interference on merits.

He, therefore, urged that since emporary custody of a child can be entrusted by a Family Judge if tie welfare and interests of a chid warranted the same and that such o,‑den can be passed suo motu, therefore, I should not interfere in the order passed or otherwise I would be interfering on merits.

I find that in P L D 1965 Lah. 399, the Hon'ble Judge had interfered with the order of temporary cuaody.

In the present case the respondent No.2 had conceded in Para 3 of his C/A that he had told the petitioner that the child is adopted and she should be nourished by all of then, This being the position it is apparent that the child had been nourished without her mother right from April, 1985 to February, 1986 by the petitioner and she was, therefore, hardly a snatching child in February, 1986 when the temporary custody was granted to respondents.

Moreover the respondent No.l had never offered herself in the witness‑box and had not even stated that she wanted to feed the child from her breast, nor was there any evidence on record that respondent No.l was in a position to breast feed the child 10 months after she had allegedly given birth to the girl. Moreover, the Family Court had held that it would be detrimental to the body and person of the baby if her custody was changed at that stage. There was no material before the appellate Court to interfere with the discretion exercised by the Family Court. Further the appellate Court having observed correct that it was not in a position to examine (he correctness of the marriage) and birth certificates at that stage, it was not open to it to assume that the respondent No.l was the mother of Naveeta. This amounted toy inconsistency and to breathing hot and cold in the same breath.

It, therefore, appears to me that the appellate Court below has based' its order on inference and presumptions and has assumed jurisdiction which it hardly possessed at least to the extent of interfering with ,the discretion of the lower Court which had been exercised on relevant and material considerations.

I, therefore, in my supervisory jurisdiction under Article 203 of the Constitution, upset the orders of the appellate Court and restore the order of the Family Court as I am of the clear view that the welfare of the child is in remaining with the woman who has given her) all the love and care and has brought her up from her infancy of 3/1 days to tire present age of 13 months.

M.Y.H. Petition accepted.

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