1983 PLP 353 (CLC)

The facts briefly stated are that the petitioner Arif Hussain and respon dent Maria Elice Hussain are husband and wife. The petitioner is Muslim by faith whereas the respondent is professing christianity. They both are nationals of Sweden and bad married at Town Hall of Malmal (Sweden), on 18‑2‑1976 and out of the wedlock a female child Rubina Sakina was born or 1‑2‑1979. The petitioner who is the father of the minor brought her to Pakistan and is living alongwith his parents and other near relatives. Res pondent No. 1 mother of the minor also came to Pakistan and is living at Karachi separate from the petitioner. Consequently, respondent No. 1 filed an application under section 25 of the Guardians and Wards Act for the custody of the minor, in the Court of IV Senior Civil Judge, Karachi. During the pendency of the proceedings respondent No. 1 also filed an application under section 12 of the Guardians and Wards Act for the temporary cus tody of the minor. The learned Civil Judge vide his order dated 30‑9‑1981 allowed the application in favour of respondent No. 1 granting her temporary custody of the minor on certain conditions imposed on her as specified in the impugned order. The petitioner, father of the minor has challenged this order in this Constitutional Petition.

2. I have heard Mr. S. M. Abbas, the learned counsel for the petitioner, and Mr. Hamid Ali Rizvi for respondent No.

1. The learned counsel for the petitioner has mainly contended that there was shown no urgency at all by res pondent No. 1 while praying for passing the impugned order. The learned counsel 1%or respondent No. 1 has mainly contended that the petition is not maintainable as the petitioner had an alternate adequate remedy available iii appeal. He has also contended that on the merits of the case the im pugned order passed in favour of respondent No. 1 was quite, just and proper.

3. I would in the first instance, deal with the first contention raised by the learned counsel for respondent No. 1 with regard to the maintainability of the petition. Mr. S. M. Abbas, the learned counsel for the petitioner relying on the provisions of section 47 of the Guardians and Wards Act has con tended that the impugned order passed under section 12 of the Guardians and Wards Act is not appealable, and, therefore, he had no other option but to come in this constitutional petition. This contention has been repelled on behalf of respondent No. 1 by his learned counsel. According to him Family Court Constituted under West Pakistan Family Courts Act, 1964, shall have exclu sive jurisdiction to entertain, hear and adjudicate upon the matters relating to Guardianship and custody of the children. In that respect he has referred to the provisions of sections 5, 14 and 25 of the West Pakistan Family Courts Act, 196‑

1. He has also relied on the Full Bench Decision of this Court in the case of Mst. Zaibunnisa v. Muhammad Muzamil (P L D 1972 Kar. 410). Section 14 reads as under :‑ "Appeal.‑(1) Notwithstanding anything provided in any other law for the time being in force a decision given or a decree passed by a Family Court shall be appealable. (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or a person notified by Government to be of the rank and status of a District Judge ; and (b) to the District Court in any other case," Section 25 reads as under :- "Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1980. A Family Court shall be deemed to be a Dis trict Court for the purpose of the Guardian and Wards Act, 1890 and notwithstanding anything contained in this Act, shall in dealing with matters specified in that Act, follow the procedure prescribed in that Act." Considering the relevancy of these sections, it was observed by the learned Judge in the abovementioned Full Bench case as follows :‑ "It is true that the section expressly refers to this Act, but it is significant that the opening words of section M which I have quoted earlier read : Notwithstanding anything provided in any other law for the time being in force. The clear effect of these words is to include any provision of the Guar dian and Wards Act which may be contrary to section

14. Even otherwise section 25 merely prescribes that a Family Court shall be deemed to be a District Court." Although section 25 is overriding provision, it relates only to procedure. The word "procedure" cannot include the right of appeal which is a substan tive right. The right of appeal is creature of statute and as the language of section 14 of the Family Courts Act is plain the Courts have to give effect to it. As Guardianship disputes fall under subsection (1) of the section, it is clear that the legislature has conferred in plain and unambiguous language a right of appeal against every decree and decision of Family Court whoever be the Presiding Officer of that Court. It is clear that under section 14 of the Wes Pakistan Family Court Act even decision of a Family Court under section 121 of the Guardian and Wards Act is appealable before a District Judge. The learned counsel for respondent No. 1 in support of that view has relied on the following observation from the abovementioned Full Bench Authority :‑ "

12. I now turn to the revision application. The applicant is aggrieved by an interlocutory order passed in application under section 12 of the Guardian and Wards Act and he has come in revision to this Court because, according to him he has no other remedy.

13. In the first place the argument that the applicant has no other remedy is based on a misreading of section 14 of the said Act. 1 have quoted section earlier and it confers a right of appeal even against the decisions of a Family Court, it is clear that the applicant could have filed an appeal in the District Court under clause (b) of subsection (i) of section 14 against the order by which he was aggrieved." It would, therefore, be very clear that against the decision of a Family Court passed on application under section 12 of the Guardian and Wards Act the petitioner had very clearly a remedy in appeal. Accordingly, the peti tioner has failed to avail of the alternate adequate remedy in appeal and this petition is not maintainable.

4. In view of my abovementioned finding to the effect that this petition is not legally maintainable. I would refrain from expressing my opinion on the merits of the case one way or the other.

5. For the foregoing reasons, the petition is dismissed with no order as to costs. K. M. A. Petition dismissed.