Guardian Judge has parental jurisdiction over minor
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This case involved a custody dispute over two young children after their father died. The mother had left the matrimonial home due to strained relations with her husband before his death by suicide. After his death, she attended the funeral but was later made to leave the household without her children, who remained with the paternal family. She approached the Guardian Judge seeking custody under the Guardian and Wards Act, 1890, and also asked for interim (temporary) custody while the main case was pending. The trial court granted her interim custody, and this was upheld on appeal. The paternal side then challenged this before the Lahore High Court, arguing there was no urgent need to change custody and that they were better off financially.
The High Court dismissed the challenge. It held that a Guardian Judge does not need to show urgency before granting interim custody under Section 12 of the Act; the law should be interpreted liberally, and the judge has broad parental jurisdiction to act in the child's interest at any time. The paramount consideration is always the welfare of the minor, taking into account factors like age and sex. The court emphasized that young children need their mother's love and care, especially since she had not remarried, and that a mother's bond cannot be substituted by a grandmother's care. It also ruled that interim custody arrangements should not be disturbed without compelling reasons. The court directed the main custody case to be decided quickly, within one month.
یہ مقدمہ دو کمسن بچوں کی تحویل کے تنازع سے متعلق ہے جو ان کے والد کی وفات کے بعد پیدا ہوا۔ والدہ اپنے شوہر کے ساتھ تعلقات کشیدہ ہونے کی وجہ سے، اس کی خودکشی سے موت سے پہلے ہی، سسرال کا گھر چھوڑ چکی تھی۔ شوہر کی وفات کے بعد وہ جنازے میں شریک ہوئی مگر بعد میں اسے بچوں کے بغیر گھر سے جانے پر مجبور کر دیا گیا، اور بچے دادا کے خاندان کے پاس ہی رہے۔ اس نے گارڈین اینڈ وارڈز ایکٹ، 1890 کے تحت تحویل حاصل کرنے کے لیے گارڈین جج سے رجوع کیا اور ساتھ ہی یہ درخواست بھی کی کہ مقدمے کے زیرِ التوا رہنے تک اسے عارضی (انٹیرم) تحویل دی جائے۔ ٹرائل کورٹ نے اسے عارضی تحویل دے دی اور اپیل میں بھی اس فیصلے کو برقرار رکھا گیا۔ اس پر دادا کے خاندان نے لاہور ہائی کورٹ میں اس فیصلے کو چیلنج کیا اور موقف اختیار کیا کہ تحویل تبدیل کرنے کی کوئی فوری ضرورت نہیں تھی اور یہ
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PLJ 2004 Lahore 1048 [ Rawalpindi Bench Rawalpindi ] Present: SARDAR MUHAMMAD ASLAM, J. Mrs. KHURSHID BEGUM-Petitioner versus ADDITIONAL DISTRICT JUDGE, RAWALPINDI . and 2 others-Respondents W.P. No. 3060 of 2003, heard on 15.1.2004. (i) Guardian and Wards Act, 1890 (VIII of 1890)-- —S. 12--Interim Custody of minor child-Jurisdiction of Guardian Judge- Extent of-Essentials-No bar is placed on Guardian Judge to exercise his power, even in absence of urgency-Guardian Judge has parental jurisdiction over minor-No hard, and fast rule of universal application can be laid down, however, provision of S. 12 of Guardian and wards Act 1890, calls for liberal interpretation—Interim arrangement for custody of minors cannot be fettered with pre-condition of urgency-Over riding and paramount consideration of handing over interim custody of minor under S. 12 of Guardian and Wards Act 1890 is welfare of minor-Guardian Judge would take into consideration age, sex and welfare of minor while 4 deciding question of custody of minor. [P. 1050] A (ii) Guardian and Wards Act, 1890XVIII of 1890)-- —S. 12 Interim Custody of minor-Real mother and paternal grandmother seeking custody of minors-Minors being of tender age require love and affection of real mother who has not re-married-Preference cannot be given to paternal grandmother qua real mother who is monument of devotion, love and sacrifice—Guardian Judge having exercised jurisdiction, in granting interim'custody, the same should be allowed to stay unless there were compelling circumstances to change-No interference was thus, warranted in terim orders of Courts below- Guardian Judge was, however, directed, to decide main petition expeditiously. . [Pp.-1050 & 1051] B PLD 1967 Karachi 645; PLD 1974 Lahore 125; 1988 CLC 1741; 1989 CLC 1419 & 1988 SCMR 1784, ref. Ch. Muhammad Ashraf Gujjar, Advocate for Petitioner. Raja Imtiaz Ahmad Kiani, Advocate for Respondents. Date of hearing: 15.1.2004. judgment This writ petition has been filed against the judgment dated 16.11.2003 passed by a learned Additional District Judge, Rawalpindi, whereby, he has affirmed the order of the learned Guardian Judge, Rawalpindi allowing the application of Respondent No. 3 under Section 12 of the Guardians and Wards Act directing delivery of interim custody of the minor children to their real mother.
2. Respondent No. 3 was married with Mazhar Javid on 8.9.2000. They were blessed with two male babies Artaza Ahmad and Murtaza Ahmed on 28.9.2001. The respondent left the house of her husband due to strained relations in November, 2002. Mazhar Javaid is stated to have committed suicide on 22.12.2002. Acquiring this information Respondent No. 3 joined the funeral ceremony and started living in house of her late husband along- with the family members. After some time she was made to leave'the house without minors. She took shelter in her parents house at Nafowal.
3. She filed an application for custody of the minors under Section 25 of the Guardians and Wards Act also accompanying an application under Section 12 of the Act for interim custody. The learned trial Court allowed the interim custody on 21.10.2003 which order was" challenged in appeal unsuccessfully. This writ petition assails the judgments of the learned Courts below.
4. Learned counsel for the petitioner contends that "firstly, .the welfare of the minors lies with the petitioner, who has sound financial position qua the respondent and, secondly that no urgency has been shown for change of interim custody. He relies on Muhammad Sadiq Butt v. Mst. Khalida Parveen (PLD 1967 Karachi 645), Mirza Muhammad Yousaf v. Razia Sultana (PLJ 1974 Lahore 125), Zulfiqar Ahmad v. Qaisar Sattar and 2 others (1988 GLC 1741) and Mst. Rani Begum v. The Additional District Judge ( East Karachi ) 1989 CLC 1419).
5. On the other hand, learned counsel for Respondent No. 3 submitted that the judgments of both the learned Courts below are based on well settled principles of law, the minors are of tender age and need the' company of their mother and interlocutory orders are immune from attack in - Constitutional jurisdiction. He relied on Khushi Muhammad v. Mst. Arshad -Bibi and others (1988 SCMR 1234).
6. The judgments cited by the learned counsel for -the petitioner provide element of urgency as a pre-condition for exercising power under Section 12. I intend to re-produce Section 12(1) of the Guardians and Wards Act, 1890-- "12. Power to make interlocustory order for production of minor and interim protection of person and property:-- (1) The Court may direct that the person, if any, having the custody of minor shall produce him or cause him to be produced at Such place and time and before such person as it appoints and may make such order for the temporary custody and production of the person or property of the minor as it thinks proper." Bare reading of the section .makes it abundantly clear that no ba'r is placed on the Guardian Judge to exercise his power, even in the absence of urgency. He has parental jurisdiction over the minor. No hard and fast rule of universal application can be laid down. The social set up is on a rapid change. The world has reduced to a global village Section 12, therefore calls for a liberal interpretation. Interim arrangement for the custody of minors cannot be fettered with a pre-condition of urgency. There may be cases where the minors are being kept away and grow in atmosphere which may bring complete estrangement to the parent or one of them.
7. The over riding and paramount consideration of handing overthe interim custody of a minor under Section 12 is the welfare of the minor. The Guardian Judge dealing with the application under Section 12 of the Act shall take into account the consideration of the age, sex and welfare of the minor.
8. The minors are of tender age requiring love and affection of their real mother, who has not re-married Preference cannot be given to the paternal grand mother qua the real mother.
9. None else can look better the minor than their, own mother. There is no substitute and parallel to mother's love and affection in this world. She is a monument of a devotion love and sacrifice. The lap of mother has been held to be a cradle of God.
10. The custody of the minor cannot be allowed to shuttle between the parties. Once the learned Guardian Judge has exercised its jurisdiction in granting the interim custody, the same should be allowed to stay, unless there are compelling circumstances to .change.
11. In view of the above, I do not find any good reasqn to interfere in the orders of both the learned Courts below which are interlocutory in nature.
12. I have been informed by the learned counsel for the parties that the main guardian petition under Section 25 of the Act is at thie stage of recording of evidence. The respondent mother is resident of Narowal and undertakes long journey to prosecute her case at Islamabad . The main petition, therefore, deserves decision expeditiously. The learned Guardian Judge seized of the matter is, therefore, directed to decide the main petition within a period of one month from the date of receipt of this order, if necessary by holding day to day proceedings. .13. In view of the above discussion, this Constitutional petition is meritless and is thus dismissed. (A.A.) P etition dismissed.