1980 PLP 909 (CLC)

Ch. Amjad Khan for Petitioner. M. Aslam Awan for Respondent. Dates of hearing : 9th and 16th November 1973. This civil revision is directed against the order dated 15th October, 1973, passed by the learned Guardian Judge, Lahore.

2. The petitioner is the father whereas the respondent, Razia Sultana is the mother of the minor, Muhammad Zaheer, aged 21 years. The respondent has filed an application under section 25 of the Guardian and Wards Act for the custody of the minor. Alongwith that application, she also filed an application under section 12 of the Act for the interim custody of the minor. That application has been accepted by the learned Guardian Judge by his impugned order.

3. The learned counsel for the petitioner has argued on the basis of Muhammad Sadiq Butt v. Khalida Parveen (P L D 1967 Kar. 645) that since the respondent has not alleged that the continuance of the minor's custody with the petitioner is likely to endanger his well-being or that his life or health is in danger, therefore, in the absence of the said allegation and any finding thereon the impugned order cannot be maintained. He has argued that the tenor of the impugned order shows as if the same has been passed on merits, virtually deciding the main application for custody of the minor.

4. It has been contended by the learned Counsel for the respondent that there is no such condition laid down in the relevant provision of section 12 of the Act, therefore, the impugned order has been passed in accordance with law. I am afraid, this contention has no force. Section 12 (1) of the Act reads as under :- "The Court may direct that the person, if any having the custody of the minor shall produce him or cause him to be produced It is clear from the language of the provision as reproduced above that the learned Guardian Judge is to make appropriate order for the temporary custody and protection of the person or property of the minor, as he thinks proper. As this order is to be made on interim basis, there-1 fore, I am of the view that unless the continuance of the custody of the minor with any of the parties, during the proceedings pending, is found likely to endanger the well-being or adversely affecting the person of the minor, meaning thereby that his life or health may not be in jeopardy, no order in this regard can be passed. It has been held in the case relied' upon by the learned Counsel for the petitioner, cited above. that the fact that no particular conditions are laid down in subsection (1) of section 12 of the Act, does not dispense with the fundamental requirement of passing the interim order. The learned Judge in that case has further observed that he had not slightest doubt that when such an order is sought, the party seeking the order has to show a certain element of urgency. It was further observed that nothing of the kind was done nor was any evidence recorded nor was any allegation of the kind made as would be necessary to justify passing of the interim order; and the learned Guardian Judge had dealt with the matter as if he was deciding the question of custody under section 25 of the Guardian and Wards Act.

5. In the present case, irrespective of the fact whether any such allegation was made by the respondent in her application or not, it was the duty of the learned Guardian Judge to hold some inquiry and probe into the matter circumstances and conditions so warranted as to hand over the interim custody of the child to the respon dent or not. The words used in the last line of subsection (1) of section 12 of the Act, "and protection of the person or property of the minor as it thinks proper cannot be read separately from the words, "may make such order for the temporary custody". The order for temporary custody is to be made in context of the protection of the person or property of the minor. If the interest or life of the minor is not found to be immediately adversely affected in continuing his custody with any of the parties, then no order under section 12 of the Act, may be warranted. The learned Guardian Judge, in the operative part of his order, has observed that since the child is of a tender age as such. immediately requires the care and affection of his real mother, therefore, his interim custody should be given to the respon dent, I am afraid the order in question being based upon this ground cannot be maintained. He has to find out as to whether, the life or health or interest of the minor is really in immediate danger or jeopardy or not and then he may pass appropriate order under the said provision. According to law the party concerned has to satisfy the Court as to why the interim custody of the child is required and for that purpose some urgency in this regard has to be shown.

6. Respectfully following the dictum laid down in the judgment in 1967 Karachi, cited above, the impugned order is held to be not sustain able in law and the same is hereby set aside, However, in. the interest of justice, the learned Guardian Judge is directed to decide the application for interim custody filed by the respondent afresh in accordance with law and in the light of the observations made above, after hearing the parties at the earliest possible moment. There will be no order as to costs. S. A, H. Petition allowed.