P L D 1959 (W (PLP)

3. The question which requires determination is whether such an order could have been passed under the provisions of sections 12 and 25 of the Guardians and Wards Act, section 12 (1) reads as follows :‑ "The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper ". And section 25 is in the following terms :‑ "(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return tc the custody of his guardian, may make an order for hip return, and, for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody o the guardian. (2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the firs class by section 100 of the Code of Criminal Procedure, 1882. (3) The residence of a ward against the will of his guardian with a person who is not his guardian does not of itself terminate the guardianship ". Section 12 is included in Chapter 11 of the Act, the heading of which is " appointment and declaration of guardians " Section 10 of the Act prescribes the form of application in accordance with which an application for appointment o declaration of a guardian of the person of the minor or o his property or of both is to be made. Section 11 lays down that if the Court is satisfied that there is ground for proceeding on the application it shall fix a date for hearing thereof and cause notice of the application and of the date fixed for hearing. Section 12 empowers the Court to make interlocutory orders for production of the minor, arid to pass such orders for the temporary custody and protection of the person or property of the minor as it thinks proper. It will thus be seen that in the scheme of the Act, section 12 applies only when an application for guardianship is pending in the Court and A not otherwise. I am fortified in this view by the decision of Dalip Singh J. in Indar Singh v. Kartar Kaur (A I R 1929 Lah. 487) where the learned Judge held as follows :‑ " I am of opinion that section 12 by reason of the wording used as well as by reason of its location in the statute only applies during the pendency of guardianship proceedings ". Besides I am clearly of the view that this section 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. It only aims at making an ad interim arrangement for the temporary custody of the minor during the pendency of the guardianship application. The learned Guardian Judge, therefore, could not have passed the order under section 12 of the Act.

4. Similarly the order could not have been passed under section 25 of the Act. Even a cursory reading of this section shows that the order could not have been founded on the provisions of this section. It comes into operation only when a ward leaves or is removed from the custody of a guardian, and provides a machinery for the restoration of the ward to the custody of the guardian. Having regard to the terms of the section, there is not even the remotest possibility of using it for passing such an order as has been passed in the instant case.

5. I have searched in vain to find out if the order could be supported by any other provision in the Act, but I confess that I have not been able to find such a provision.

6. In my opinion the jurisdiction of a Guardian Judge in regard to minors is confined to the powers expressly con ferred on him by the Guardians and Wards Act. It is a cardinal principle of law that the jurisdiction must be acquired before a judgment is given, and a judgment rendered by a Cour which has no jurisdiction in the matter, is a nullity in the eye of law. It is true that according to Sunni Law, the parents have a right to visit and see their child. In Neil B. E. Baillie's Digest of Muhammadan Law (2nd Edition page 439), the rule regarding access is stated thus‑ " When a child is with one of its parents, the other is not to be prevented from seeing and visiting it " But the question is whether the Guardian Court had the jurisdiction to direct the petitioner to produce the child in Court once in every month for giving access to the father to see the child. It is not disputed that the petitioner is the lawful guardian of the minor boy who is aged about five or six years. Among the Hanfis, the accepted doctrine is, that the mother's hizanat terminates when the son has completed seven years of age. So long as the child is under the lawful guardianship of the mother, the father undoubtedly has a right to see and visit the child, but at the same time I do not find any warrant for the proposition that the mother can b6 forced to send the child to him for this purpose, or can be ordered to produce the child in Court for giving access to the father. As pointed out earlier, the powers of the Guardian Judge are confined to those given under the Guardians and Wards Act. There is no provision of law under this Act for working out such a right as the respondent claimed in his application under sections 12 and 25 of the Guardians and Wards Act. In the absence of any provision in the Act, such a right, in my opinion, cannot be given effect to by invoking the principles of equity, justice and good conscience.

7. For the aforesaid reasons I hold that the learned Guardian Judge in passing the impugned order, appears to have exercised jurisdiction not vested in him by law. It is, therefore, a fit case for interference of the High Court under section 115 of the Code of Civil Procedure which is applicable to the case by virtue of section 47 of the Guardians and Wards Act. I accordingly accept this petition for revision and set aside the order of the Guardian Judge, Lahore, dated the 17th of July, 1958. As the respondent has not appeared before me to contest this revision petition, there will be no order as to costs.

8. Before parting with this judgment, I would like to add that the respondent may approach the petitioner to allow him to see the child now and then, at a place to be selected by the petitioner for the purpose. I understand that she is willing to accommodate him in this matter. K. B. A./A. H. Petition accepted.