2021 PLP 1610 (MLD)

ROZI KHAN BARRECH, J.

The instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") carries the following prayer: "It is therefore, respectfully prayed that in view of above submission this Hon'ble Court while considering the above mentioned facts and circumstances may kindly allow the instant Constitution Petition and after setting aside the impugned Order dated 25112 August 2020 passed by learned Family Judge-I, Quetta the petitioners may kindly be allowed to continuously remained the custody of minor till the final disposal of instant Constitution Petition as well as main case pending before the learned trial court, or any other order which this Honourable Court deems fit and proper in the circumstances of the matter may kindly awarded to the petitioner, this will meet the ends of Justice, equity and fairplay." It is the case of the petitioners (defendants Nos. 1 and 2) that Samina Tabasum respondent No.1 (plaintiff) widow of late Tahir Mehmood filed a suit for custody of minor under section 25 of the Guardians and Wards Act, 1890 (hereinafter "the Act") along with suit respondent No.1 has also filed an application under section 12 of the Act ibid with an averment that respondent No.1 husband late Tahir Mehmood was serving as Machine Man in EME Center bearing No. 26537. Husband of respondent No.1 passed away on 5.10.2014 during service leaving behind respondent No.1 and two daughters namely Javeria and Farheen. After the demise of her husband, respondent No.1 served her Iddat period at Quetta and thereafter proceeded to her native village, Punjab and spent some days with her parents. Subsequently, respondent No.1 came to Quetta and received group insurance of her late husband which amounts to 1ts.15,00,000/- which was invested in National Saving Center in the names of her two daughters, thereafter respondent No.1 went to Punjab and procured Succession Certificate and Guardianship of her minor daughters; whereafter respondent No.1 along with her two daughters started living at Quetta in the house of her late husband. In the year, 2018 respondent No.1 went to Punjab and moved an application to learned Guardian Judge, Piplan District Wali, Punjab seeking permission to withdraw the amount from National Saving Center, as she had no source of income, and the amount was needed for the expenses of minors. The application of respondent No.1 was accepted vide order dated 3.4.2018 with direction to submit a statement of account before the court; that respondent No.1 came back to Quetta and presented the court order to National Saving Center for withdrawal of amount from NSC, she was apprised that petitioner No.1 with the connivance of his daughter Arifa Tufail who is also serving in NSC, have managed to get release the amount of Special Saving Certificate deposited by respondent No.1 for the future welfare of her daughters. It has been further stated by respondent No.1 in her suit that petitioners expelled her from their house and forcibly retained her minor daughter, namely Farheen aged, about 8 years. Petitioners forced respondent No.1 to withdraw her complaint and also threatened respondent No.1, if she did not withdraw her complaint and did not waive her claim, her daughter would be done to death. She further contended in her suit that the minor was admitted in a renowned school, i.e. Iqra Rozatul Itfal School by respondent No.1 where her minor daughter is getting worldly as well as religious education and is learning Holy Quran by heart. Supreme welfare of minor lies with respondent No.1 and religion as well as law gives priority right to the mother for keeping the custody of the minor.

3. The suit along with the application under section 12 of the Act was contested by the petitioners on legal as well as factual grounds. The learned trial Court after affording an opportunity of hearing to the parties, handed over the interim custody of minor to respondent No.1 on 25.8.2020, whereafter the petitioners filed the instant constitution petition.

4. We have heard learned counsel for the parties at length and have gone through the record with their eminent assistance.

5. Before going to the legality of the order passed by the trial Court, it would be appropriate to reproduce section 12(1) of the Act, which roads as under: "

12. Power to make interlocutory order for production of minor and interim protection of person and property. (1) 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."

6. A plain reading of ibid section makes it crystal clear that the Guardian Judge is empowered to make interlocutory orders for production of minor and interim protection of his person and his property, even this power can be exercised in the absence of an urgency. She has parental jurisdiction upon the minor. Interim custody of minor cannot be fettered with a pre-condition of urgency.

7. It is evident from the record that petitioner No.1 is the grandfather of the minor Farheen aged about 8 years and respondent No.1 is the real mother of the minor Farheen hence for all practical purposes, the minor is not having paternal love and affection in any manner, a company of grandfather obviously cannot be a substitute to the mother.

8. The custody of minor cannot be allowed to shuttle between the parties. Once the Guardian Judge has examined, its jurisdiction in granting interim custody, the same should be allowed to stay, unless there are compelling circumstances to change her custody. Even otherwise, the order of temporary custody of the minor being interim in nature, would be subject to the decision in the main case. Same could be varied, altered or rescinded by taking notice of all subsequent events and welfare of a minor. For the foregoing reasons, we came to the irresistible conclusion Chat findings of the court below with respect to the interim custody of minor is unexceptional, no illegality or irregularity or jurisdictional defect could be pointed out in the impugned order of the court below, calling for interference. The constitution petition, therefore, is without substance, hence, is dismissed. However, the learned trial Court is directed to pass an appropriate order for production and visitation of minor to the petition without disturbing her studies in the school in the earliest opportunity. MQ/1/Bal. Petition dismissed.