2017 PLP 1914 (MLD)

MUHAMMAD SHERAZ KIANI, J.

The above captioned appeal has been directed against the order of Guardian Judge Bhimber dated 19.05.2016, whereby the application filed by the appellant for temporary custody of the minors till decision of the case was rejected.

2. Brief facts forming the background of the instant appeal are that appellant herein filed an application for custody of the minors before Guardian Judge Bhimber. During the proceedings, the appellant herein filed another application for temporary custody of the minors till decision of the case. The learned Guardian Judge after hearing the learned counsel for the parties rejected the same vide its order dated 19.05.2016, hence this appeal.

3. The learned counsel for the respondents raised a preliminary objection that the instant appeal is not maintainable because the same has been filed against the interlocutory order of Family Court, which is not appealable before this Court. He also referred 1991 CLC 239 and 2001 SCMR 2000.

4. The learned counsel for the appellant reiterated the grounds as incorporated in appeal and argued that appeal may be accepted in the interest of justice and minors may be given to the appellant till the decision of the case.

5. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

6. It is pertinent to mention here that while dealing with the matter relating to custody or guardianship of a minor the provision of Family Courts Act and rules framed there-under would be applicable. A Judge Family Court is deemed to be a guardian Judge within the meaning of Guardians and Wards Act for the purpose to determine the suitability of the guardian. So question of appeal etc is decided under the Family Courts Act and rules framed thereunder. Reliance can be placed upon 2001 SCMR (sic), 1995 CLC 614 Kar. and 2010 MLD 340 Lah.

7. Under Section 14 of the Azad Jammu and Kashmir Family Courts Act, 1993, a decision or a decree passed by a Judge Family Court has been made appealable before this Court. In the present case it was interlocutory order which was not appealable before this Court, has been challenged through the instant appeal. No provision of law has been referred by the learned counsel for the appellant which may specifically provide that the impugned order is appealable. From perusal of Codal provisions of law, it is crystal clearly that against the impugned interim order has no scope of appeal and further indulgence into the matter in hand will be a futile exercise. My this view finds support from the case reported as. Mst. Nasim Bashir v. Abdul Jabbar (2003 SCR 526), wherein it was held by apex Court of AJ&K that interlocutory orders of the Family Court are not appealable, relevant portion is reproduced herein below;-- "A bare reading of the provisions of law provided for filing of appeal before the Shariat Court shows that it is only a decision or a decree which had been made appealable to the Shariat Court. The intention of the Legislature while enacting this law has been given in the preamble that the same was legislated for expeditious settlement and disposal of disputes relating to marriage and family affairs, therefore, to avoid protracted litigation no appeal or revision is provided against the interim orders. Even there were certain decrees which have not been made appealable before the Shariat Court which further supports the above view. Though a decision or a decree has not been defined in this Act and the application of the provisions of the Evidence Act and the Civil Procedure Code have been excluded." In the same judgment it was further held as under:-- "Therefore, keeping in view the phraseology employed in use of words `decision' or 'decree' in section 14 of the Family Courts Act, 1993 in the light of dictionary meaning approved by the wisdom of the learned Judges while resolving the controversy in above referred authorities, we can safely arrive at a conclusion that interlocutory matters which do not finally dispose of the cases are not appealable before the Shariat Court. It follows that the appeal filed before the Shariat Court against the order recorded by the Judge Family Court for restoration of the suits was not competent." Therefore, without going into the merits and de-merits of the case, as the appeal is not maintainable against the interim order as such the same is hereby dismissed and shall be consigned to record. HBT/12/Sh.C(AJ&K) Appeal dismissed.