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‑‑‑Art. 199‑‑Guardians and Wards Act (VIII of 1890), S. 25‑‑Civil Procedure Code (V of 1908), 0. XVII‑‑Adjournment‑‑Respondent, father of minors filing application before Guardian Judge for custody of minors‑‑Petitioner, mother of minors, happening to be absent on date of. hearing but her counsel appearing and praying for adjournment on ground that nephew of petitioner had died‑‑Guardian Judge turning down request for adjournment, closing petitioner's evidence and fixing case for arguments and ultimately allowing respondent's application‑ Evidence on record showing that petitioner's nephew had died and petitioner attended deceased's Khatam Sharif on said date of hearing and thus she could not appear before Court and produce her evidence‑ Held , impact of custom and religious sanction of such a ceremony can hardly be ignored in our society and it could not be said that there was no valid reason for petitioner's absence‑‑Question of welfare of minors of tender age directly involved in case and in such cases Court exercises parental jurisdiction but Guardian Judge was seemingly oblivious of that aspect of case while refusing adjournment‑‑Order of Guardian Judge cannot, therefore, be upheld and order of Appellate Court in declining to interfere with such order suffered from same infirmity and could not be maintained‑‑Refusal of adjournment , resulted in denial of opportunity to petitioner to lead evidence in rebuttal‑ Impugned orders declared to have been made without lawful authority and of no legal effect in circumstances.

R.V. Thames v. Magistrates, Court (1974) 2 AllE R 1219 ref.

Muhammad Yamin for Petitioner. Malik Allah Yar for Respondent No. 3.

Date of hearing: 17th December, 1986.

Muhammad Iqbal respondent filed an application under section 25 of the Guardian and Wards Act, against the petitioner for the custody of three minors, namely Fauzia, Rukhsana and Rubina aged 31 years, 5 years and 7 years respectively who were born out of the wed‑lock between the parties. Separation took place between them on 6th of April, 1985. The respondent entered the witness‑box and examined two witnesses namely Manzoor Hussain P.W. 1 and Muhammad Ishaque P.W. 2, to establish that the welfare of the minors lay in handing over their custody to him.

2. After the respondent had produced his evidence, the learned Guardian Judge fixed the case for 25‑3‑1986 for recording the petitioner's evidence but on that date on her request the matter was adjourned to 6‑5‑1986 on payment of Rs.25 as costs. From the entries made in the order sheet copy whereof has been placed on this file by the petitioner, it transpires that on 6‑5‑1986 too her evidence was not present. However, on the request of both the sides the case was adjourned to 13‑5‑1986 but while allowing this adjournment the learned Guardian Judge recorded his observation that the last opportunity was being provided to the petitioner.

3. On 13‑5‑1986 the case came up for hearing before the learned Guardian Judge, the petitioner was absent but her counsel appeared and prayed for adjournment on the ground that her nephew had died. The learner Guardian Judge took the view that the prayer for adjournment was merely a device to prolong the proceedings. He thus turned down the request for adjournment, closed the petitioner's evidence and fixed the case for arguments. Before the arguments could be heard, the petitioner moved an application for review of the order, dated 13‑5‑1986. This application was disposed of alongwith the main case on 22‑6‑1986. Since there was no rebuttal of the respondent's evidence. the learned Guardian Judge relied upon the same, allowed the respondent's application and awarded him the custody of the minors.

4. The petitioner went in appeal, but the learned Additional District Judge upheld the closure of the petitioner's evidence, maintained that sufficient opportunity for production of the evidence was given to her. He thus declined to intervene in the order of the Guardian Judge. Resultantly, the appeal was dismissed on 6‑10‑1986. It is under these circumstances that the petitioner has come to this Court for removal of the orders passed by the Courts below through judicial review. It may be added that earlier the petitioner preferred an appeal against the interlocutory order, dated 13‑5‑1986 but it was withdrawn.

5. I have heard the learned counsel for the parties and examined the available record. The sole question requiring adjudication in this case, is, as to whether or not the refusal of adjournment to the petitioner. amounted to a denial of opportunity to lead evidence. In this behalf, her learned counsel has drawn my attention to the sworn affidavit of Muhammad Saeed, a real brother of the petitioner, to the effect that Javed, a son of his other sister namely Mst. Manzooran (real sister oi6 the petitioner), who resided in another village, had died and as the deceased's "Khatam Sharif" was performed on 13‑5‑1986, all the members of the family including the petitioner attended that ceremony and thus, he could not appear before the Court and produce her evidence. It is thus, contended that there was a cogent reason for the petitioner's non‑appearance and consequently there was no wilful failure to produce evidence before the Guardian Judge on 13‑5‑1986. According to the petitioner, since on 13‑5‑1986 she did not personally contact her counsel, full and complete information in this behalf was not placed by the latter before the learned Guardian Judge.

6. On the other hand, the learned counsel for the respondent relies upon the averments made in the petitioner's memorandum of appeal before the District Court and submits that the contention now raised by her, is, in conflict with the averments aforesaid. It is thus, argued that the petitioner having taken up different positions at different times, is not entitled to discretionary relief under writ jurisdiction of this Court.

7. There is no force in this argument. Paragraph 2 of the memorandum of appeal is so far as it is relevant for the purpose of this case in reproduced below:‑‑

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Not to speak of any contradiction, this averment is in line with the argument now advanced before me. The respondent's learned counsel, however, wants to rely upon the memorandum of appeal against the order, dated 13‑5‑1986 but this document is not the part of the record of this file. The respondent has not filed any affidavit to controvert the affidavit aforesaid. I am, therefore, inclined to hold that on 13‑5‑1986 the petitioner did not appear in the Court on account of Khatam Sharif of her nephew. The impact of custom and religious sanction, of such a ceremony can hardly be ignored in our society. It, therefore, cannot be said that there was no valid reason for the petitioner's absence. The petitioner is present in Court alongwith the minors. She appears to be an uneducated villager. The minors are of tender age. The question of their welfare is directly involved in the case. In such like cases the Court exercises parental jurisdiction. The Guardian Judge seemingly, was oblivious of this aspect of the case while refusing the adjournment. I am, therefore, not inclined to uphold the order dated 13‑5‑1986. The order of the appellate Court in declining to interfere with such an order, suffers from the same infirmity and cannot be maintained. In this connection, I may usefully refer here to the observations of Lord Widgery C . J . in R . V . Thames v . Magistrates' Court (1974) 2 All E R 1219:‑‑

"I think that that is probably the explanation of the position I would hold that where the central allegation on which an order of certiorari is sought is that the applicant was not given a reasonable time to prepare his case, the mere fact that the matter become apparent as a result of a refusal of an adjournment does not prevent the Court from treating the basic cause of complaint, namely the failure to provide the applicant with adequate time, as being a ground on which certiorari should go.

I am, therefore, of the view that refusal of adjournment resulted in denial of opportunity to the petitioner to lead evidence in rebuttal.

For all these reasons, the impugned orders are declared to have been made without lawful authority and of no legal effect. Consequently, the respondent's application for custody of the minors shall be treated as pending before the learned Guardian Judge and an opportunity shall be given to the petitioner to produce her evidence. The parties are left to bear their own costs.

S.Q. /S‑4/L Petition accepted.

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