1982 PLP 1223 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑This is a petition for special leave arising out of the judgment and order passed by a learned single Judge of the Sind High Court in a Constitutional Petition filed by the petitioners, whereby the judgment of the learned II‑Additional District Judge, Karachi, dated 11‑2‑1981, on appeal filed against the order of the First Family Judge, Karachi, dated 9‑8‑1980 allowing the application under section 12 of the Guardians and Wards Act, 1890 by the petitioners for the interim custody of the minor, was upheld. The petitioners are the grandfather and grandmother of minor Farhana Khalid, now aged about nine years who is the daughter of Khalid Iqbal Malik, from his wedlock with Mst. Attiya Zareen Malik, respondent No. 3 herein. The father of the minor died on 20‑6‑1974 and it seems that the third respondents alongwith child, after the death of her husband took up residence with the petitioners in their house After the death of her father, with the consent of the petitioners, the third respondent shifted to her mother's house alongwith the child in about November, 1975. The said respondent also took up a job as a teacher in a local school, but it seems after about two years' time, the relations between the petitioners and the third respondent became strained. At this time the third respondent is said to have developed some illness, as a result of which she is said to be now crippled. In April, 1979, the minor is said to have been sent to Murree and admitted in a school for her education, which further deteriorated the relations between the parties, and resulted in the petitioners filing a petition for guardianship of the person and property of the minor in the Court of First Family Judge, Karachi. In these proceedings, the petitioners also filed an interlocutory application under section 12 of the Guardians and Wards Act, 1890, for the interim custody of the person of the minor. On this application, by order dated 9‑8‑1980, the Family Judge granted interim custody of the minor to the second petitioner subject to the supervision and control of the first petitioner. The third respondent challenged the order in appeal, in the Court of District Judge, Karachi, which was finally heard by the II‑Additional District Judge, Karachi. The petitioners raised preliminary objection to the maintain ability of the said appeal, on the ground ; firstly, that section 14 of the Family Courts Act, 1964, was not attracted in view of the provisions of section 25 of the said Act; and secondly, that under section 47 of the Guardians and Wards Act, since an order passed under section 12 of the said Act does not figure as one of the orders in the category of appealable orders, no appeal was competent against such order. It will thus appear that the two‑fold preliminary objection raised by the petitioners pertained to the forum as well as competency of the appeal. The learned Additional District Judge, however, found no substance in these objections and accepted the appeal of the third respondent by his judgment, dated 11‑2‑1981, setting aside the order of interim custody and directed that the custody of the minor be handed over to the third respondent. The petitioners then filed a Constitutional petition before the Sind High Court and 'sought to urge the same points as were raised before the learned Additional District Judge. The learned single Judge of the High Court took the view that by enforcement of West Pakistan Family Courts Act, 1964, exclusive jurisdiction has been conferred on Family Courts to entertain, hear and adjudicate upon matters specified in the schedule to the Act, which includes matters relating to the custody of children and guardianship. Section 14 of the said Act provides for appeal against a decision given or decree passed by a Family Court, notwithstanding anything provided in any other law for the time being in force. The learned Judge has further taken the view that an order on an interim application under section 12 of the Act is a decision given within the meaning of section 14 and therefore, an appeal lay against such an order before the District Court, in terms of section 14(1) (b), since the original order was passed by a Family Court presided over by a subordinate Judge below the grade of a District Judge or Additional District Judge. In this view of the matter, the learned Single Judge, finding no legal infirmity in the order passed by the learned Additional District Judge, dismissed the petition, by the impugned judgment. . Now by virtue of section 5 of the West Pakistan Family Courts Act, 1964, the Family Courts have been conferred exclusive jurisdiction, in matters specified in the schedule to the said Act, which inter alia includes, the custody of children and guardianship. Section 14 of the said Act, provides for an appeal against a decision given or a decree passed by a Family Court, to the High Court where the Family Court is presided over by a District Judge, an Additional. District Judge or a person of such rank, and to the District Court, in all other cases. There appears no difficulty as to forums of appeal on the clear terms of section

14. But in regard to matters of guardianship and custody of children, controversy was raised as to the application of section 14 to matters arising under the Guardians and Wards Act, 1890, on account of the provisions of section 25 of the West Pakistan Family Court Act, 1964, which reads as under "A Family Court shall be deemed to be District Court for purposes of Guardians and Wards Act, 1890, and notwithstanding anything in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act." There was a conflict of opinion between the various High Courts as to the construction of section

25. According to the view of Sind and Baluchistan High Court, the forum and right of appeal, being matters of substantive law, were governed by section 14 and the effect of section 25 was only to make the procedure provided in Guardians and Wards Act, applicable to such proceedings before the Family Court. According to the other view held by the Lahore and Peshawar High Courts, the words "the procedure prescribed in that Act", occurring in section 25, were intended to include the right of appeal conferred by that Act, namely, the Guardians and Wards Act, so that the right of appeal in such matters was regulated by section 47 of the latter Act. It was, therefore, held that in such matters, in terms of section 47 appeal lay to the High Court. The learned counsel appearing for the caveator has invited our attention to Sakhawat Ali v. Shui Khelay (P L D 1981 S C 454) and submits that the aforesaid conflict of opinion has been set at rest, whereby it has been held that the right of appeal is governed by section 14 of the West Pakistan Family Courts Act. Accordingly, since the original order under section 12 in this case was passed by a Family Court presided over by a person other than an officer of the rank of District or Additional District Judge, the appeal was rightly entertained and disposed of. If the matters rested at that, there would, indeed have been no difficulty in holding accordingly. However, learned counsel for the petitioner has referred us to the Guardians and Wards (Amendment) Ordinance (XI of 1980), published on 26‑3‑1980, whereby section 47 of the said Act was amended in the following manner: ‑ "In the Guardians and Wards Act, 1890, in section 47, clause (j) for the full‑stop at the end a colon shall be substituted and thereafter the following proviso shall be added, namely Provided that, where the order from which an appeal is preferred is passed by an Officer subordinate to a District Court, the appeal shall lie to the District Court." It is contended on behalf of the petitioner that this amendment in law was not brought to the notice of this Court at the time of decision of Sakhawat Ali's case and, therefore, its effect has not been considered. The argument is that according to well established rule of interpretation of statutes redun dancy, is not to be imputed to any enactment. If, therefore, the view that section 47 of the Guardian and Wards Act, has been made dormant, in view of the combined effect of sections 5, 14 and 25 of the West Pakistan Family Courts Act, as held in Sakhawat Ali's case and the right of appeal is regulated by section 14 of the said Act, the amending Ordinance of 1980 would be' rendered totally redundant. It is further argued that if effect is to be given to the amending Ordinance, it will have to be held that the right of appeal would be regulated by section 47 and the consequence will be that, no appeal would lie from an order passed by a Family Court under section 12 of the Guardians and Wards Act. The submissions of the learned counsel raise a serious question of law, requiring the re‑examination of the view adopted by this Court in Sakhawat Ali's case referred to above and accordingly, we grant leave to appeal to the petitioners. The petitioners shall furnish security for costs in the sum of Rs. 2,

500. The appeal shall be beard on the same record with liberty to the parties to file additional documents. In view of the fact that the case relates to the custody of a minor, we order that the appeal shall be fixed for hearing during January, 1982. As to the prayer for stay, it has been urged by the learned counsel for the caveator, respondent No. 3, that although the orders in the field so far, entitle her to the custody of the minor, the petitioners have managed to deprive her of that and, therefore, he prayed that the interim order passed by this Court be modified suitably to permit her to meet her child more often. After considering the matter, we order that the interim order of stay passed by this Court on 17‑11‑1981 shall be modified, to the extent that the petitioners are directed to leave the minor with respondent No. 3 at her house on every Thursday at 3 p. m. and may take back the minor at 5 p. m., next day, i. e. Friday. Leave granted