1980 PLP 1018 (CLC)

Date of hearing : 5th December 1979. This dispute has arisen out of an application under section 25 of the Guardians and Wards Act filed by the appellant for the custody of her minor daughter, namely Sobia, who was born on 14th February, 1977 out of her wedlock with the respondent. It was averred in the application that the appellant having been expelled from his house by the respon dent was residing with her parents along with the minor; he came to their house, asked the appellant to give him permission to contract second marriage, which was refused ; while leaving the house he surrep titiously removed away the infant with him.

2. The respondent controverted these allegations and took up the stand that the appellant was residing in his house, when he had a talk with her for the second marriage, she flared up and left for the house of her parents leaving the minor in his custody. It appears that the learned Guardian Judge passed an order under section 12 of the Guardians and Wards Act, awarding temporary custody of the minor to the appellant. The respondent was also directed to produce the minor in the Court. He evaded compliance with this order. The parties, how ever, ultimately compromised and it was agreed between them that the appellant, to whom the minor was handed over, would retain her cus tody till further orders; the respondent and his relatives would have the right to meet the minor and that he would also be entitled to take the minor to his house if so desired by him. The clauses (d) and (e) of the compromise which are relevant for the decision of this appeal are repro duced below :- (d) The respondent shall not divorce the petitioner; and if he does so, he shall not be entitled to the minor girl and the minor shall be entitled to claim maintenance allowance from him. (e) The petitioner shall not claim divorce and if she does so, she will first surrender the custody of the minor girl to the res pondent, otherwise she will not be entitled to divorce in any case."

3. The learned Guardian Judge by his order dated 15th November 1978, held that the compromise was in the interest of the minor and decid ed the application in terms thereof. The validity of this order has been called in question by the appellant through this appeal.

4. The appellant's learned counsel argued that the decision of the dispute regarding minor's custody, under the impugned order rested on grounds extraneous to section 25 of the Guardians and Wards Act and was not in the interest of the minor. He submitted that the learned Gular dian Judge was bound to decide the application on merits and the matter regarding minor's custody, could not be linked up with the question of the appellant's divorce. He sought support from page 237 of the Muhammadan Law by Sayed Ameer Ali, Vol. II (1965 Edn.), for this submission.

5. On the other hand, the respondent's learned counsel, raised an objection to the competency of the appeal and contended that the impugned order being based on compromise was not appealable. It was also urged that the order under appeal was in the interest of the minor and the appellant was precluded from questioning its validity.

6. As regards the objection to the maintainability of the appeal, it is to be noticed that an order under section 25 of the Act is appealable under section

47. It cannot be denied that the impugned order was pass ed on an application filed by the appellant under section 25 of the Act. A Such an order is clearly appealable under section 47(c) of the Act. It is only section 96(3), C. P. C., which bars an appeal from a decree passed with the consent of the parties. This section does not control section 47 of the Guardians and Wards Act. The objection is, therefore, over .

7. As regards the merits of the case, under the impugned order retention of minor's custody, by the appellant has been made dependent on her refraining from obtaining divorce from the respondent. Though,1 in the order it has been recorded that the compromise is in the interest of the minor, yet the learned Guardian Judge has not really adverted to the question of welfare of the minor. Supposing the appellant is compelled to seek divorce, but under the impugned order she shall have to l deliver the minor to the respondent, which may or may not be conducive to the interest of the child. The learned Guardian Judge does not appear` to have paid attention to the relevant provisions of law. At page 237 of the Muhammadan Law, by Sayed Ameer Ali, referred to by the appellant's learned counsel, it has been laid down :- "The mother can on no account give up her right of hizanat for even if she were to obtain a khula' in lieu of abandoning her right to her child's custody, the khula' will be valid, and she will retain her right of hizanat." In Mst. Tahira Begum v. Saleem Ahmad Siddiq (P L D 1970 Kar 619), a mother who had obtained divorce iby agreeing to let a minor girl of 3J years of age to remain in the custody of her father, was held not bound by such an agreement and the minor's custody was awarded to her. The present age of the minor is less than 3 years. I do not think that the compromise reached between the parties is in her interest and the appellant is debarred from assailing the impugned order.

8. This appeal is, therefore, accepted, the order under appeal set aside, and the case is remanded to the learned Guardian Judge, who shall decide the matter, in accordance with law after hearing both the parties. Till then, the minor shall remain in the custody of the appellant. The parties are left to bear their own costs. M. A. K. Appeal accepted. Case remanded.