P L D 1967 Supreme Court 402 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of West Pakistan at Lahore in a petition under Article 98 of the Constitution. The said writ petition was filed for having two orders, one passed by the Civil Judge, Lahore, on the 7th of June 1966, and the other by the District Judge, Lahore, in appeal, on the 13th July 1966, under the West Pakistan Family Courts Act, declared illegal and void. The impugned orders were made in an application filed by the first respondent herein for the custody of her four minor daughters born to her during the subsistence of her marriage with the first appellant in this appeal. They were married in the year 1956 but it appears that after the birth of the last child in the United States of America the feelings between the spouses became strained to such an‑extent that they have now not only become involved in various litigations, both criminal and civil, but a divorce has also taken place. It is unnecessary however, to enter into the details of this unfortunate conflict between the husband and the wife but it appears that sometime in 1965 the said respondent went away with her minor daughters to Karachi. This led to the initiation of criminal proceedings against her, at the instance of the first appellant, under sections 363, 380 and 406, P. P. C., and in the course of these proceedings the latter recovered the children from her at Karachi and obtained their custody under the orders of the Cantoment Magistrate, Lahore, passed on the 1st of June 1965. The respondent Zainab Begum then moved an application under section 491 of the Code of Criminal Procedure in the High Court but it was dismissed on the 25th of June 1965. She then applied under section 25 of the Guardians and Wards Act on the 23rd of June 1965, to the Guardian Judge, Lahore, for the custody of the minors, claiming that she being the mother was their natural guardian possessing the right of Hizanat, as the eldest child was then aged only 8 years. No other ground for taking the children out of the custody of the father was given in this petition, although bitter complaint was made of his cruel behaviour towards the respondent presumably to show that he was not likely by reason thereof to have much regard for the welfare of the minors. On the same day she also filed an application under section 12 of the above‑mentioned Act Or the production of the minor children before the Court and for being given their interim custody till the final disposal of the application under section 25 of the Guardians and Wards Act. The learned Guardian Judge on the 31st of July 1965, by an elaborate order 'giving the entire history of the disputes between the husband and wife and entering upon a survey of the social conditions prevailing in many lands, came to the conclusion that the prayer for interim custody should be disallowed but, nevertheless, directed that "for the time being the elder three girls shall be sent to Queen Mary College, Lahore, as soon as it opens after the current vacation and shall regularly be visited and taken home by Sir Khizar and brought into contact with their youngest sister." Furthermore, Sir Khizar was also directed to authorise the principal of the College, to allow Lady Tiwana, as the respondent still then was, to interview the three elder daughters within the precincts of the College without taking them out in accordance with the rules and regulations of the College. The learned Judge also left the door open for the revision of this order "in the light of the future possible events, such as the procuring of admission for the girls in a school at Sargodha, the divorce taking place or not, Lady Tiwana being kept on bail or arrested, she taking up residence in Lahore or elsewhere, and so on." The main application under section 25 of the Guardians and Wards Act then came up for final hearing on the 9th September 1965, but as the respondent Zainab Begum. who was the peti tioner before the Guardian Judge was not present, it was dismissed for default of appearance. It is now stated that she could not appear, as she had left Lahore due to the outbreak of hostilities with India. Be that as it may, no further step was taken by her either to have the application restored or to prefer an appeal therefrom. But after the Family Courts Act, 1964, had been notified to have come into force by a notification published in the Gazette of the‑2nd of November 1965, she moved a fresh application under section 25 of the said Act on the 19th March 1966, for the custody of the minors. In this application she averred that she had been induced by threats and oral promises held out by the first appellant not to seriously press her petition under the Guardians and Wards Act and it was in those circum stances that she came to be absent when the same was dismissed for default in September 1965. But since the said appellant was still continuing to harass her by keeping the criminal cases hanging over her head she was constrained to reagitate the matter. Apart from this, further fresh grounds were also put in to support this petition. They were as follows:‑ (1) that the said appellant keeps on moving from one district to another district in connection with his work leaving the minors at the mercy of a step‑mother who has always been on bad terms with the respondent ; (2) that the step‑mother maltreated the minors even during the subsistence of the marriage between the first appellant and the respondent ; (3) that "it is also learnt that respondent No. 1 (now appel lant No. 1 before us) has contracted another marriage with some foreign lady and, as such, he has lost all interest in his minor daughters" and (4) that the first appellant would, it is learnt, soon be leaving Pakistan to enjoy his "honey‑moon" abroad with his foreign lady leaving the minors at the mercy of the step‑mother referred to earlier. The first appellant filed his written statement in the pro ceeding on the 30th of March 1966, contending that her previous petition on similar grounds under section 25 of the Guardians and Wards Act having been dismissed for default on the 9th September 1965, her second application was incompetent. Also that since she had now been divorced by him the proceeding was vexatious and had been instituted merely to extort money from him. Objection was also raised to the jurisdiction of the Court to entertain the application, as the minor were not residing at Lahore but at Sargodha. With regard to the allegations regarding the second marriage with the foreign lady and the possibility of the said appellant going abroad on honey‑moon, as alleged by the respondent Zainab Begum, the reply given was to the following effect: "The respondent has planned to go for Haj this year and had gone to Karachi to complete his arrangements. While there, he was contacted on the phone by the petitioner, who made certain monetary demands and held out the threat that, unless these demands were conceded, she would obstruct and upset my plans for‑Haj (which she now describes in her petition by some strange and vicious stretch of the imagination, as a project of honey‑moon" with some "foreign wife"). The respondent refused to submit to this blackmail and completed his arrangements, obtaining a visa (photostat copy enclosed as Annexure IV) and booking his passage by air. Then he learnt about the present petition. The respondent was very keen to go for Haj, but he had to cancel all his arrangements, thereby suffering considerable mental worry and agony, to say nothing about the financial loss." It will be observed that in this carefully drafted reply there is no denial of the allegation that the said appellant had since re married, or that he is going abroad, all that is denied is that he is going on any honey‑moon or that the lady concerned is a foreign lady. It was his case that he was going on Haj. There was no denial, however, of the other facts alleged in the petition. The main objections raised were as to maintainability of the petition by reason of the dismissal of the previous petition under the Guardians and Wards Act. The learned Civil Judge hearing the petition as a Family Court, therefore, took up only one issue as a preliminary issue, namely, as to whether the application was barred by reason of the dismissal of the previous application. On this he came to the conclusion that "since the framework of the old petition is identical with that of the present petition" and "the subject‑matter of both the petitions is same and co‑extensive" and nothing new has happened since the dismissal of the old petition "there can be no doubt that the two petitions are based on the same cause of action and are constructed on the same grounds". Hence, the order dismissing the previous petition in default barred afresh petition on the same cause of action, as, in his opinion, the procedure under the Family Courts Act could not be utilised to "resurrect disputes finally decided before its commencement". The petition was, accordingly, dismissed on that ground alone. This order was upheld in appeal by the learned District Judge of Lahore, since in his view the finding of the lower Court that "the subsequent petition as well as the previous petition were substantially the same has not been challenged in appeal" before him. Neither the learned District Judge nor the learned Guardian Judge noticed the new allegations, to which we have earlier referred, namely, that the first appellant had since taken another wife and was proposing to go abroad or considered whether these would have any bearing on the question of the custody of the minors. In these circumstances, the respondent Zainab Begum moved the High Court under Article 98 of the Constitution to have the orders of the learned Guardian Judge and the learned District Judge set aside on the ground that they had wrongly declined to exercise the jurisdiction, which was vested in them, upon a wrong view of the law. The High Court has, upon an exhaustive and careful examination of all the relevant facts and the law applicable, came to the conclusion that the grounds upon which jurisdiction had been declined were "basically wrong". The High Court has also held that Order IX, rule 9 of the Code of Civil Procedure has, in any event, no application to a case of a recurring or continuing cause of action, e.g. a continuous trespasser. The High Court has also, in our view, rightly pointed out that since the second application did contain facts which were new, having arisen after the dismissal of the previous application, it was clearly wrong to say the facts upon which the second application was based were the same as those in the first application. This was clearly a misconception. The very fact that the first appellant had since contracted another marriage and was going abroad could by itself have furnished a valid ground for a fresh applica tion for taking the minors away from his custody. But this either escaped the notice of the Courts below or worse still was not considered to be sufficient to constitute a fresh cause of action for the said application. In either view the petition under Article 98 of the Constitution had to be allowed and the order of the Family Courts set aside as they declined jurisdiction not only upon an erroneous view of the law but also upon a manifest misconception of the facts of the case. It is against this that the appellants have now come in appeal to this Court with the leave of this Court granted to them, as questions relating to the interpretation of certain provisions of A the Family Courts Act, 1964, read with the provisions of the Guardians and Wards Act and the Code of Civil Procedure, were involved and there was no authoritative decision of this Court on! these questions. Learned counsel appearing in support of this appeal ha:: taken us through the provisions of the Guardians and Wards Act and the West Pakistan Family Courts Act and has contended that by reason of the provision of section 25 of the Family Courts Act a Family Court is to be deemed to be a District Court for the purposes of a Guardians and Wards Act and, notwithstanding anything else contained in the Family Courts Act, is bound, when dealing with matters specified in the Guardians and Wards Act, to follow the procedure prescribed in that Act. In effect, therefore, although the forum had been changed the procedure was still the same. Thus if under the Guardians and Wards Act a second application would not have been maintainable in the facts and circumstances of this case it would also not be maintainable under the Family Courts Act. According to the learned counsel, apart from any other considerations, the general salutary rule should be followed that if a party has failed in one forum under one procedure he should not be allowed to re‑agitate the same matter in a different forum, for, then there would be no end to litigation. As far as the Guardians and Wards Act is concerned, learned counsel maintains that the provisions of the Code of Civil Proce dure apply ipse vigora to proceedings thereunder by reason of the provisions of section 141 of the Code of Civil Procedure, for, the Guardians and Wards Act itself does not prescribe any special procedure but does specify that a Court under the Guardians and Wards Act means the District Court having jurisdiction to enter tain an application under that Act and a District Court has been specifically defined therein as having the same meaning as a District Court under the Code of Civil Procedure and a High Court in the exercise of its original civil jurisdiction (vide section 4). Learned counsel has also relied on a number of decisions of various High Courts to show that the pro cedure prescribed by the Code of Civil Procedure has been held to be applicable to proceedings under the Guardians and Wards Act also. In this view of the matter he urges that since section 25 of the Family Courts Act has the effect of merely preserving the jurisdiction under the Guardians and Wards Act intact even the Family Court is governed by the same procedure notwithstanding anything contained in that Act itself. The cases cited are:‑ Sharaf Jahan Begum v. M. Yaqub Ali A I R 1947 Lah. 409; Mst. Pana Bibi v. Mahla and others A I R 1928 Lah. 488; Chandra Wati v. Jagan Nath Singh A I R 1925 Lah. 489; Muhammad Wazir Agha v. Muhammod Abdul Gafoor A I R 1929 Nag. 273 and Thiruvenkatasami Naidu v. Ranganathan Chettiar and another A I R 1934 Mad.

496. Of these the Lahore decisions are all decisions of learned sitting singly and do not give any reason for the view taken therein. The other two cases cited from a foreign jurisdiction also suffer from a similar defect. Learned counsel appearing on behalf of the respondent Zainab Begum has, on the other hand, drawn our attention to sections 10, 11, 36, 43, 46 and 48 of the Guardians and Wards Act itself to show that where the Legislature intended that the procedure prescribed by the‑Code of Civil Procedure should be followed it has expressly mentioned so but with regard to other matters the statute itself has prescribed its own procedure. If it was the intention of the Legislature that the provisions of the Code of Civil Procedure (hereinafter referred to as the Code) were to apply automatically to proceedings under the Guardians and Wards Act (hereinafter referred to as the Act) then it would have been wholly unnecessary to adopt this cumbersome procedure of providing in detail for many matters and then specifying a few in respect of which action should be taken in accordance with the Code. Such specification would have been redundant if Code was to apply of its own force in all cases where no special procedure was laid down in the Act. Therefore, this is not a case where no procedure has been prescribed under the special statute itself so as to attract the provisions of section 141 of the Code. In any event, it is urged, the procedure of dismissal for default under rule 8 of Order IX of the Code is clearly inapplicable to a proceeding under the Act, for, under the latter the Court has under section 11 to be first satisfied that there is ground for proceeding on an application before‑ fixing a date for its hearing. Then section 7 imposes a duty upon the Court to satisfy itself that the welfare of the minor demands that a guardian should be adopted and then under section 17 in selecting the guardian it has, inter alia, to be guided by the welfare of the minor. Thus even if the applicant does not appear the Court has still a duty to consider what will be in the interest of the minor. If it is satisfied that the welfare of the minor demands that a guardian should be appointed will it be powerless to do so if the applicant deliberately defaults and does not press his application? This argument is not without force. Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provision has been made in the Act itself that must be under the terms of section 141 of the Code itself only "as far as it can be made applicable." This clearly indicates that there can be no blind or rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore, in which there can, by its very nature, be any scope for any undue adherence to the technicalities. It is unnecessary, however, for us in the view we have formed upon the facts and circumstances of the present case to enter upon any detailed examination of the decisions cited or any elaborate discussion of this rather interesting question, for, we are in entire agreement with the High Court that neither the. learned Guardian Judge nor the learned District Judge had appeal their minds as carefully as they should have done to the facts of this case. If they had done so, it would have been apparent to them that this was not a case to which even principles analo gous to those contained in order IX, rule 9 of the Code could have had any manner of application, for, the right to the custody; of a minor is, in any event, in the nature of a continuing right as for each day the minor is kept out of the custody of a person lawfully entitled thereto separate applications can be made Unless, of course, the right of custody itself has been adjudicated upon and one or the other contesting party has been found to be disentitled to it or that it has been found that the welfare on the minor demands that no guardian should be appointed. But even then if a change in the situation has taken place a defeated party may still be entitled to renew his application for custody. Until such an adjudication of the right of the party concerned has been made there can be no question of a second application being barred specially if the second application is founded upon additional or new grounds which have come into existence since the making of the last application. In the present case, there were certainly two such new grounds which could have furnished the respondent Zainab Begum with a fresh cause of action) namely, the marriage of 1.he first‑named appellant with another, lady after divorcing the said respondent and the fact that the appellant No. 1 was going abroad leaving the minors in the care of a step‑mother. Upon such fresh material the second application was certainly maintainable; as the High Court has held, particularly, since, as earlier pointed out, this fact was not traversed 'in the written statement filed on behalf of the first appellant. We see no reason, therefore, to differ from the High Court that the learned Guardian Judge and the learned District Judge had/ wrongly refused to entertain the application under section 25 of the Family Courts Act. The argument that this could not have furnished the High Court with the jurisdiction to interfere with the impugned orders under Article 58 of the Constitution is, in our view, clearly untenable, for, if by an erroneous view of the law or an erroneous assumption of facts upon which the jurisdiction of the Court itself depends the Court has either usurped a jurisdiction it does not possess or refused to exercise a jurisdiction vested in it, the High Court has every power under Article 98 to review such a decision. In our view section 17 of the Family Courts Act which excludes the application of the Evidence Act and the Code to proceedings thereunder does not also govern proceedings under section 25 thereof, for, the latter takes effect notwithstanding) anything else contained in the said Act. For the reasons given above we dismiss this appeal but make no order as to costs. Let the records be sent down immediately for early disposal of the application as directed by the High Court. A. H. Appeal dismissed.