P L D 1965 (W (PLP)

On the 11th of November 1963 Khawaja Mahmud Sadiq filed an application under section 25 of the Guardians and Wards Act (Act VIII of 1890) against Mst. Khalida Shafqat Khanum for the custody of his two minor children, namely, Mst. Kahkshan and Altahab Hassan, in the Court of the Guardian Judge, Lahore. Along with this application another application was filed under section 12 of the Guardians and Wards Act praying that Mst. Khalida Shafqat Khanum be restrained from marrying Mst. Kahkshan without the consent of Khawaja Mahmud Sadiq, during the pendency of the main application under section 25 of the Guardians and Wards Act, and that the interim custody of the children be handed over to the petitioner pending the disposal of the application under section 25 of the Guardians and Wards Act. This application came up for hearing before the Guardian Judge on the 12th of November 1963 and he issued notice for the 5th of December 1963. On the 5th of December 1963 Guardian Judge ordered that the respondent (Mst. Khalida Shafqat Khanum) shall not solemnize the marriage or enter into a contract for the marriage of Mst. Kahkshan without the concurrence of the petitioner, during the pendency of the proceedings. On the 12th of March 1964 the Guardian Judge passed the following order :‑ "I am induced to enable the children to make an unbiased decision which must be free from continuous influence of one party. They should be at a place where both the parents should see them according to the rules of the Institution. I shall, therefore, order that as an interim measure both the children shall be placed in the Boarding House at the expense of the petitioner as soon as the ensuing examinations are over. The mother shall report compliance. Both shall state in writing as to which Institutions are likely to accommodate the children." Against that order Mst. Khalida Shafqat Khanum has come up in revision to this Court.

2. It was argued on behalf of the petitioner that no order under section 12 of the Guardians and Wards Act can be passed along with the petition under section 25 of the said Act. According to the learned counsel the order under section 12 of the Guardians and Wards Act can only be passed if a petition for the appoint ment of a Guardian is pending. In the present case there is no question for the appointment of a Guardian because Kh. Mahmud Sadiq, being the father, is the natural guardian of the two minor children. In support of his contention the learned counsel cited the case of Indar Singh v. Mst. Kartar Kaur (119 I C 423) wherein it was held: "The provisions of section 12, Guardians and Wards Act, authorising the Court to order the production of a minor by the person having custody of him apply only during the pendency of guardianship proceedings. Where guardianship proceedings have terminated by appointment of a guardian, the Court can, however, order the production in Court of the minor by the person having custody of him under sections 24 and 25 of the Act." The learned counsel also cited the case of Mst. Imtiaz Begum v. Sheikh Azmat Ullah (P L D 1959 Lah. 750) wherein A. R. Changez, J., relying on the aforementioned authority held: "Section 12 of the Guardians and Wards Act, 1890 applies only when an application for guardianship is pending in the Court and not otherwise. This section only aims at making an ad interim arrangement for the temporary custody of the minor during the pendency of the guardianship application. It does not empower the Court to order the production of a minor for the purpose of giving access to any person entitled to visit and see the child."

3. The learned counsel for Khawaja Mahmud Sadiq, however, argued that the Single Bench authority (Indar Singh v. Mst. Kartar Kaur) relied upon by Mr. Justice A. R. Changez in case of Mst. Imtiaz Begum v. Sheikh Azmat Ullah had been overruled by a Division Bench of this Court in case of Mst. Nazir Begum v. Ghulam Qadir Khan etc. (A I R 1938 Lah.313) and that this authority was never brought to the notice of Mr. Justice A. R. Changez. In this case it was held: "That the application of section 12 is not barred after the appointment of the guardian as the proceedings are not complete until the guardian has obtained the custody of the minor." In case of Mst. Imtiaz Begum v. Sheikh Azmat Ullah the revision was heard ex parte as the respondent had not put in his appearance in spite of service and that is why the Division Bench authority of this Court was not brought to the notice of the learned Judge. I, accordingly, relying on the Division Bench authority of this Court in case of Mst. Nazir Begum v. Ghulam Qadir Khan etc. hold that the Guardian Judge could have passed an order under section 12 of the Guardian and Wards Act in this case.

4. In the result I see no force in this revision petition, which is hereby dismissed, but taking into consideration the relationship of the parties, they are left to bear their own costs. K. B. A. Petition dismissed.