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Constitutional Petition No.124 of 1986, decided on 16th February, 1987.

---Ss.12 & 25--West Pakistan Family Courts Act. (XXXV of 1964), S.14--Custody of minor--Any agreement arrived at between spouses about custody of minor, held. could not come in way of minor--Father of minor girl claiming that petitioner mother voluntarily gave up custody of child by executing an agreement with father of girl--Petitioner mother within days after execution of agreement repudiated same and asserted that it was brought about as a result of duress and coercion on her and instituted proceedings to claim custody of child--Agreement ignored--Held, Guardian Judge could pass appropriate order keeping in view welfare of minor notwithstanding said agreement arrived at between parties.

---Ss.12 & 25--West Pakistan Family Courts Act (XXXV of 1964),5.14- Custody of minor--Minor daughter, aged three years, given up voluntarily by mother under an agreement between spouses--Mother of child within few days of agreement repudiating agreement and instituted proceedings for custody of girl on ground that said agreement was entered by her as a result of duress and coercion- Guardian Judge impressed by fact that child was looked after well by father and allowed mother to meet child on every date of hearing between 9 and 12 hours--Child, when produced in Court, not showing much attachment with her mother--Held, Guardian Judge should have kept said factor in mind while passing order under S.12 of Guardians and Wards Act--Since in law custody of child belonged to mother, it was in welfare of minor that she might be restored to her mother as it might create sentimental problem for child who was not attached with mother--Meeting between minor child and her mother in a court room on-date of hearing could not possibly promote desired attachment of child with her mother--Courts below while passing said order under S.12 of Act did not as such properly exercise jurisdiction vested in law--Order of Guardian Judge declared to have been -passed without lawful authority and Guardian Judge ordered to take up application under S.12 of Act and pass an appropriate order regulating custody of minor child keeping in view circumstances of case and observations made by High Court.

---Ss.12 & 25--West Pakistan Family Courts Act (XXXV of 1964) S.14- Constitution of Pakistan (1973), Art. 199--Constitutional petition- Custody of minor child during pendency of petition under S.25 of Guardians and Wards Act, is a matter for Guardian Judge to pass appropriate order in accordance with law and keeping in view circumstances of case--High Court while hearing a constitutional petition, if satisfied that order was not passed in accordance with law or jurisdiction was not exercised by Family Court in keeping with circumstances of case, could only .declare such an order as without lawful authority.

Zaib-un-Nisa v. Mohammad Mozamal P L D 1972 Kar.401; Wali Mohammad v. Mohammad Iqbal Khan Mokal P L D 1985 Lah.492 and Khizar Hayat Khan Tiwana v . Zainab Begum P L D 1967 S C 402 ref.

Sakhawat Ali v. Soli Kheley P L D 1981 S C 154 and Ahsanur Rehman v. Najma Parveen P L D 1986 S C 14 rel.

Mohammad Ashraf Kazi for Petitioner.

Habibur Rehman for Respondent No.1.

Date of hearing: 9th February, 1987.

This petition under Article 199 of the Constitution is filed by the petitioner/mother of the minor Farah Yamin to challenge the orders by the Family Judge on an application under section 12 of the Guardians and Wards Act filed by the petitioner during pendency of her petition under section 25 of the Guardians and Wards Act, which has been confirmed in appeal by the 1st Appellate Court.

The petitioner was married to respondent No.1 on 18-9-1980 and out of the wedlock a female child Farah Yamin was born to them on 6-7-1983 who is presently in the custody of respondent No.1, the father of the minor. The parties are living separately since 20-2-1986 as a result of an alleged agreement which the petitioner claims was brought about as a result of duress and coercion, while Respondent No.1 claims it was written voluntarily by the petitioner. There are various disputes between the parties and they have made serious allegations against each other but it is quite unnecessary to mention them here. The short question involved in the present petition is whether the order passed by the trial Court on the application of the petitioner under section 12 of Guardians and Wards Act directing that the minor may meet the petitioner on each date of hearing in Court between 9 to 12 noon. was passed in proper exercise of the jurisdiction vested in the Guardian Judge. It is not disputed by the learned Counsel for the respondent that during pendency of the main petition of petitioner under section 25 of the Guardians and Wards Act, the Guardian Court could pass appropriate order for interim custody of the minor or regulate the custody of the minor, if the circumstances of the case so warranted. It is however, contended that there existed no emergent or special circumstances in the case which warranted passing of an order under section 12 of the Act by the Guardian Judge during the trial of application under section 25 of the Act. The admitted position in the case is that minor-is a female child of tender age of 3 years. The child was produced before rt:e in Chamber in obedience of my order dated 12-1-1987 and I found that she was recluctant to go with her mother, the petitioner. This conduct of the child is quite understandable as the petitioner is living separately since 20-2-1986 while the child is in the custody of father. No doubt it is claimed by the respondent that petitioner had given up the custody of the child voluntarily on 20-2-1986 when she executed the agreement but it cannot be ignored that within days of the execution of that agreement she repudiated the same and asserted that it was brought about as a result of duress and coercion on her by the respondent No.1 and instituted proceedings to claim the custody of the child. The trial Court as well, as the first appellate Court, therefore, rightly ignored that agreement and held that such agreement could not come in the way of welfare of the child and the Guardian Judge could pass appropriate order keeping in view the welfare of minor notwithstanding such agreement between the parties. The Courts below were however, much impressed by the fact that the child was looked after well by the father and as such if the petitioner is allowed to meet the child on every date of hearing in Court between 9 to 12 noon it will serve the purpose. In my opinion this approach by the Courts below was not proper keeping in view the age and sex of the minor and the law applicable for custody of such minor. I have already mentioned above that when the child was produced before me in my chamber she did not show much attachment with her mother (petitioner) and this fact was also noticed by the Guardian Judge as well as first Appellate Court. The Guardian Court, therefore, should have kept this factor in mind seriously while passing order under section 12 of the Act. Because if it is ultimately found by the Guardian Judge that in law the custody belongs to petitioner and it is also in B the welfare of minor that she may be restored to petitioner, it might create sentimental problems for the child who is not much' attached with the petitioner (mother). The Guardian Court and the first appellate Court, therefore, should have passed an order regulating the custody of the minor during the trial of main case, of such a nature which could allow reasonable opportunity to the minor for developing attachment with her mother (petitioner). A meeting between the minor and her mother in a Court room on the date of hearing could not possibly promote the desired attachment between the minor and her mother. I am, therefore, of toe opinion the Courts below did not properly exercise the jurisdiction vested in them under the law in ordering that the minor may meet the petitioner between 9 a.m. to 12 noon in the Court on every date of hearing. It may be stated here that the learned Guardian Judge in the impugned order dated 6-5-1986 referred to the voluntary suggestion given by the counsel for respondent No.1 for regulating the custody of minor during the trial according to which the respondent No.1 had no objection to the meeting of minor with her mother (petitioner) either in the Court on every date of hearing, or at the place of residence of petitioner or respondent No.1, or in the offices of the Advocates of either party. It is, however, stated by the learned counsel for respondent No.1 that the above offer given by his client could not be acted upon as the petitioner did not agree to any of these suggestions and insisted for interim custody of the minor. The learned counsel for the respondent also stated before me that his client would have no objection to the meeting of minor at the house of petitioner provided sufficient safeguard is provided that the minor will not be removed from the jurisdiction of Guardian Judge by the petitioner or her mother as most of the members of petitioner's family including petitioner's mother are settled in USA and hold Green Card. In fact while disposing of the interim application in the case I passed the following consent order on 12-1-1987 but this order could not be given effect to. as the petitioner failed to comply with the terms of the order:-

"I have heard the learned counsel for the parties as well as parties personally in my Chamber. The minor Farah Yamin was also produced pursuant to my oral direction in Chamber today and I have seen the behaviour of the child both with the mother and father. For the present it will be in the interest of the minor to make the following order for regulating the custody of the child and which has also been consented to by the parties:-

(1) That the respondent Muhammad Yamin, will drop the child at about 9 in. the morning at the residence of the petitioner, 31-13,10 Central Street, Defence Housing Authority, Karachi on every day and will collect the child at 5 in the evening.

(2) That the petitioner shall surrender her passport and identity card to .the Nazir of this Court which will be kept in safe custody and Immigration Authorities will be informed that they will not allow the departure of child or the petitioner out of Pakistan. The child will also be not removed out of Karachi. The petitioner also undertakes to surrender the travelling documents including the Green Card of her mother to the Nazir of this Court to ensure that the child will not be removed out of Pakistan which will be kept in safe custody and Immigration Authorities in Pakistan will be informed that the lady cannot travel out of Pakistan except with the permission of the Court until further orders.

This arrangment will continue upto 17-1-1987 and the case will be listed for further. orders on 18-1-1987."

Thereafter, I heard the main petition on merits and disposed of the same by an oral order dated 25-1-1987 which I produced to pass in exercise of the revisional jurisdiction of this Court under section 115, CPC. However, before I signed the above oral order I noticed that in the case of Zaibun Nisa Vz. Muhammad Mozamal (P L D 1972 Karachi 401) a Full Bench of this Court held that the orders of the Family Court passed under the Guardians and Wards Act are not revisable by this Court under section 115, C P C. Although the decision in the Zaibun Nisa's case was dissented by a learned Single Judge of Lahore High Court in the case of Wali Muhammad v. Muhammad Iqbal Khan Mokal (P L D 1985 Lahore 492) but Wali Muhammad's case has been disapproved by the Supreme Court in the case of Sakhwat Ali v. Soli Kheley (P L D 1981 SC 454). Both the above cases were once again considered by the Supreme Court in the case of Ahsanur Rehman v. Najma Parveen (P L D 1986 SC 14) and in that case the Karachi decision in the case of Mst. Zaibun Nisa's case has been approved. In these circumstances I ordered rehearing of the case and notices were issued to the learned counsel for the parties. Mr. Muhammad Ashraf Kazi, learned counsel for the petitioner at the rehearing submitted that there is no bar on the powers of this Court to pass an order regulating custody of the minor even if the matter is brought before this Court in a writ petition under the Constitutional jurisdiction of the Court. In support of his contention the learned counsel relied ort the case of Khizar Hayat Khan Tiwana v. Zainab Begum (P L D 1967 S C 402) . The case relied by the learned counsel for the petitioner only lays down that a remedy by way of writ petition is available to an aggrieved party in proceedings under the Guardians and Wards Act if due to erroneous view of law or assumption of facts the jurisdiction is assumed or denied by the Guardian Court. This case however, does not lay down that the High Court while exercising jurisdiction under the Constitution could itself pass an order regulating the custody of the child. The question in these circumstances, therefore, which arises for consideration before me in this petition is, whether I should declare the order of the Courts below as without lawful authority and leave the matter to be dealt with by the Guardian Court in accordance with law or should pass a fresh order regulating the custody of the child during the pendency of the main petition of the petitioner under section 25 of the Guardians and Wards Act before the Family Court. In my opinion while hearing a Writ petition, if the Court is satisfied that the order was not passed in accordance with the law or that the jurisdiction was not exercised by the Family Court in keeping with the circumstances of the case the Court can only declare such an order as without lawful authority and leave the matter with the Guardian Court to pass appropriate order in accordance with the law, keeping in view all the circumstances of the case. Th.e Court cannot while declaring the order of the Guardian Court as without lawful authority substitute its own order under Article 199 of the Constitution, thereby regulating the custody of the child. As stated above as I have already reached the conclusion that the learned Family. Judge as well as first appellate Court did not pass an order regulating the custody of the child during the pendency of the proceedings which was in keeping with the circumstances of the case, I declare the impugned orders as an orders having been passed without lawful authority. The Guardian Court will take up the application of petitioner a/s 12 of the Act again as a result of the above declaration and will pass an appropriate order keeping in view the circumstance of the case and observations made in this order, in accordance with the law. I am informed by the learned counsel for the parties that the main petition under section 25 of the Guardians and Wards Act is proceeding from day to day. The learned Gardian Judge will, therefore, take every care to pass the interim orders regulating the custody of the minor in such manner which will promote the welfare of the child and will also meet the ends of justice. There will be no order as to costs.

M.Y.H./G-47/K Case remanded.

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