Find a Lawyer

Writ Petition No. 4004 of 1985, decided on 15th April, 1986.

---S. 25--Contitution of Pakistan (1973), Art. 199--Custody of minors- Entitlement of--Ex parte proceedings- -C-Constitutional jurisdiction, exercise of--Court dealing with matter of custody of minor, held, was required to be more careful when proceeding ex parte and should not take as gospel truth what was stated by one party in absence of the other--Ex parte decree passed against petitioner by Trial Court without applying conscious mind to circumstances of case and without taking pains to determine matter of entitlement to custody of minor, was declared to be without lawful authority and of no legal effect by High Court in exercise of constitutional jurisdiction.

---S. 25--Custody of minors--Civil Procedure Code (V of 1908), OAX, R.13--Ex parte decree--Setting aside--Even time-barred application by mother for setting aside ex parte decree, held, should be considered in the context that having given birth to ors for custody thereof she was entitled to be heard on merits.

Malik Abdus Sattar Chughtai for Petitioner.

Malik Muhammad Rashid Awan with Ghulam Hussain for Respondents.

Date of hearing: 15th April, 1986.

This Constitutional petition is by the mother of two minors aged about 6 and 5 years old. She had married the respondent No. 1 as stated by the latter sometime in the year 1968. The two minors a girl and a boy were born. The respondent divorced the petitioner in the year 1975. He got remarried and has six children from the second wife. He filed an application under section 25 of the Guardian and Wards Act for the custody of the two minors born from the petitioner. The application was proceeded ex parte. The respondent and a witness appeared and on the basis of their statements, the learned Civil Judge 1st Class, Faisalabad on 8-1-1978 passed an ex parte decree directing the petitioner-mother to hand over the custody of the minors to the respondent-father. The petitioner-mother filed an application for setting aside the ex parte decree on 20-5-1978. It was dismissed for non -prosecution on 18-9-1980. However, on her application it was restored on 23-7-1981. The main application for setting aside an ex parte decree was dismissed by the learned trial Court on 13-2-1985. Her appeal against the last order was dismissed by the learned Additional District Judge, Faisalabad vide order, dated 8-9-1985 upholding the findings that the application for setting aside the ex parte decree was barred by time. The petitioner-mother has filed this Constitutional petition praying for setting aside the ex parte decree and the subsequent orders.

2. Learned counsel for the petitioner has contended that the petitioner was entitled to the setting aside of the ex parte decree and hearing of the matter on merits. Learned counsel for the respondent No. 1 has vehemently contended that the petitioner's application for setting aside the ex parte decree, dated 8-1-1978, was rightly dismissed. That had been done after recording the evidence of the parties and both the learned Guardian Judge and learned appellate Court have come to the conclusion that the application for setting aside the ex parte decree was barred by time. Therefore, there is no good reason to interfere in the orders of the two Courts below. Learned counsel further contended that the respondent had himself appeared and was corroborated by a witness on the issue that the welfare of the minors lay in their being given to the father-respondent, as the petitioner was of an immoral character and there was no rebuttal of that evidence.

3. I have heard the learned counsel for the parties. Some of the facts noted above have been told by the respondent who is present in person. The question whether the petitioner-mother was entitled to the setting aside the ex parte decree, dated 8-1-1978 or not for lack of knowledge or otherwise and the decision of the two Courts below that the application was out of time, does not determine the real matter in hand. It is for the custody of the two minors, a girl and a boy, aged 6 and 5 years. The learned Guardian Judge of deed the minors to be given by their mother to their father who had divorced their mother, had re-married and got six children from the second wed-lock. Before the learned trial Court, the father-respondent appeared and stated that the mother of the minors, the petitioner was of an immoral character and, therefore, he was entitled to the custody. He was supported by a witness. I have seen the statements of both the respondent as well as his witness. The learned Court trying the matter did not bother even to ask a single question from the respondent or his witness about the circumstances of the case to determine as to how the respondent-father was better entitled to the custody of the minors and as against their mother. If he has, he would have come to know as found now that the respondent-father had remarried and got six children from the second wife. In these circumstances, he would have applied his mind as to whether grant of the application of the father for custody of the minors to live with the step-mother as against their own real mother, was justified. If the learned trial Court had taken pains to determine the matter which it was required to do, especially in the case of custody of minors, he would have had more material to determine the matter justly and legally. His observation that "since the respondent-mother had not appeared and there is no rebuttal of the evidence of the petitioner (now respondent-father), therefore, I accept the same", is not quite a correct approach to the case of custody of minors. If it were so and a person were to come to a Court and say that so and so were his minor children and be handed over to him as their mother was not of good character and produce a witness and a Court were to pass a decree accordingly, it could lead to grave injustice. It can happen that a person claiming to be the father of the children of somebody else may file a petition for custody and produce a witness and get a decree for the custody of children of somebody else, who may be living happily in their homes. Therefore, it is obvious and patent that in such like case of custody of minors a Court dealing with the matter is required to be more careful when it is proceeding ex parte and is not to take as gospel truth what is stated by one side in the absence of the other party. Since in this case, the learned trial Court has passed an ex parte decree of the custody of minors without himself putting a single question to the applicant or his witness, the order is quite clearly without lawful authority and, in the circumstances, patently arbitrary. The fact that the petitioner-mother did not file an application within time for setting aside the ex parte decree, should have been considered in the context as to whether a mother even if she had the notice of the proceedings, should not be heard on merits about the custody of the minors whom she had given birth from her womb. In this view of the matter, the impugned judgment and decree, dated 8-1-1978 and subsequent orders are declared to be without lawful authority and of no legal effect. The learned trial Court is directed to re-determine the matter, allowing the parties to produce their evidence and decide the same in accordance with law. Anything stated above is confined to the present proceedings and the learned Judge is in no way to be influenced by the observations. He shall determine the application of the respondent for the custody of the minors after allowing the parties to produce their evidence and in accordance with law. The petition is allowed but, in the circumstances, the parties are left to bear their own costs.

H . B . T . Petition allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.