P L D 1965 (W (PLP)

Sh. Ghias Muhammad for Appellant. Ehsanul Haq for Respondent. Dates of hearing: 29th and 30th January 1964. Faiz Muhammad claimed custody of two girls aged twelve and six and a boy aged nine years, under section 25 of the Guardians and Wards Act, claiming to be the father of the said minors, who were alleged to have been born out of his wedlock with Mst. Aziz Begum. The mother of the children denied the Nikah and pleaded that she belonged to the class of prostitutes; Faiz Muhammad also belonged to the same profession and as the children 'were illegitimate and Faiz Muhammad merely acted as a pimp during the time she carried on her vocation of singer and dancer, he was not entitled to the custody of the children.

2. The learned Guardian Judge framed the following four issues on the pleadings of the parties:‑ (1) Whether the respondent is the duly wedded wife of the petitioner and were the minors born during the continuance of the said marriage? (2) Whether the petition has been made in good faith? (3) Is the petitioner entitled, to the custody of the minors, and would it be in the interest and welfare of the minor to pass such an order? (4) Relief. Despite the fact that he was conscious that a Guardian Judge is not competent to pronounce over the validity or existence of marriage, which is a function of the civil Court, he proceeded to decide issue No. 1 and held that "In the absence of proof of a valid marriage I have come to the conclusion that the illegitimate children were born when the petitioner admittedly lived with the respondent." He further held that "it would be in the welfare of the children to be restored to the petitioner".

3. It is against this order of the learned Guardian Judge that Mst. Aziz Begum has come up in appeal to this Court.

4. The main question that requires consideration in this appeal is as to whether the finding of the learned Guardian Judge with regard to the validity or otherwise of the marriage between the appellant and Faiz Muhammad is with jurisdiction. It can be said without hesitation that the learned Guardian Judge in giving a decision on this question has exceeded his jurisdiction because the powers and the jurisdiction vested in a Guardian Court is under the Guardians and Wards Act neither more nor less. It is not a Court of civil jurisdiction as understood in the Civil Procedure Code and, therefore, any decision which should have been made by a civil Court cannot be adjudicated upon by the Guardian Judge exercising his special jurisdiction as a special Tribunal under the said Act. It was held in K. Somakka v. K. P. Ramiah (I L R 36 Mad. 39) that "The whole scheme of the Guardians and Wards Act, generally speaking, is to entrust to the District Court the duty of looking after the welfare of the minor's person and property and for this purpose it gives it power to appoint a guardian to of the minor's person and property as the most mode of discharging its duty

The jurisdiction or power conferred upon the District Court by thin Act is of a very special and limited character, and the procedure prescribed under the Act, which is of a summary character, though appropriate for the determination of question arising therein, is very different from the procedure laid down by the Civil Procedure Code for the trial of suits. That being so, can we uphold an order such as this, which purports to be made under, but is not in fact warranted by the provisions of that Act as a decree passed in a suit". I am in respectful agreement with the observations of their Lordships of the. Madras High Court and hold that the finding of the learned Guardian Judge as to the absence of a valid marriage between the appellant and Faiz Muhammad is without jurisdiction. The proper course for the learned Guardian Judge would have been to direct the applicant‑respondent to the civil Court so as 'to obtain a declaration in his favour as to the validity of the alleged wedlock with Mst. Aziz Begum and to make alternative arrangements for the custody of the children meanwhile.

5. The next question that falls for consideration is as to the interim arrangement for the custody of the children. The appellant came forward with a plea that her sister is married to a rich Zamindar and the said husband of the appellant's sister is prepared to maintain the children and they would be kept in a healthy atmosphere: I am afraid the children cannot bed entrusted to a third party especially when the statement of the appellant is not accepted by the opposite‑party. The proper course would seem to be that the children are removed from the custody of the mother as .she is admittedly a prostitute and is carrying the vocation of dancing and singing. However, at this stage, I order that the grown up girl, namely, Khalida Bano be placed for the present in Darul Shafqat of Anjuman Hamayat Islam, Lahore and the maintenance charges will be borne by the applicant‑respondent, who claims to be the father. The other two minors will continue in the custody of the appellant. If the applicant gets a decision in his favour from the civil Court, the question of custody will be decided afresh by the Guardian‑ Court. Order accordingly. A. H. Order accordingly.