2020 PLP 1353 (CLC)

AZIZ-UR-REHMAN, J.

Through this Constitutional Petition No.S-928 of 2019, the Petitioner namely Mst. Muniba Raheel, ex-wife of Raheel Taufiq Feroz d/o Naeem Akhtar, has assailed the order dated 29.07.2019 [Annexure 'P' to the MoP], whereby, the learned Family Judge-XXI, Karachi-South [Respondent No.2 herein], has 'disposed of' an application under Section 12 of Guardians and Wards Act, 1890 [VIII of 1890], filed by Respondent No.1 herein, namely Raheel Taufiq Feroz son of Taufiq Feroz in Guardian and Wards Application No.1075 of 2019, [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter] for 'temporary'/ 'interim custody' of his minor daughter namely Alyna Raheel born on 09.01.2015 [age about 5 years]. The prayers sought in the petition in hand, are as follows:- a]. Set aside the impugned order dated 29-7-2019 passed by Respondent No.2 on application under section 12 of Guardians and Wards Act, 1890. b]. Suspend the operation of impugned Order dated 29.7.2019 till final disposal of the instant Petition. c]. Any other relief (s) this Honourable Court may deem fit under the circumstances of the case.

2. Brief facts of the case are that; the Petitioner herein, was married to Respondent No.1 on 21.02.2014, against a 'dower amount' of Rs.20,00,000/- [Rupees Twenty Lacs only] and thereafter, 'Rukhsati' took place and the Petitioner herein [Ex-wife] thus started to live with Respondent No.1 [Ex-husband] at his house No.D-205 KDA, Scheme, Extension, Karachi, as stated was/is owned by the parents of Respondent No.1. Later on, out of the wedlock, baby Alyna Raheel was born on 09.01.2015 [now aged about 5 years].

3. For and on account of various 'allegations' and 'adverse assertions' as leveled in Memo of Petition [In short MoP], the Petitioner and Respondent No.1 herein, thus failed to maintain their 'matrimonial' relationship'. Resultantly, such deteriorated relationship led and logged the Petitioner and Respondent No.1 in un-happy litigation 'inter alia' on account of the alleged 'harassment' and fight for custody of the minor baby Alyna Raheel, presently aged about 5 years. Further, as asserted, in 'Para-13' of Memo. of Petition, the Petitioner herein, on 3rd July 2019, had also exercised the delegated right of 'divorce' through/under 'clause-18' of 'Nikahnama', which 'clause 18' of 'Nikahnama', as per 'Divorce Deed' dated 3rd July 2019, [Annexure 'P/1' to the MoP], delegates to and confers upon Petitioner herein, un-conditional powers to divorce the Respondent No.1 herein.

4. From the record, it transpires that Respondent No.1 herein-Ex-husband i.e. much prior to his 'divorce' filed a Constitutional Petition bearing C.P. No.S-501 of 2018, [Raheel Toufiq Feroz s/o Taufeez Feroz v. Province of Sindh and 12 others], before this Court 'inter alia' with a prayer for issuing direction to Respondents Nos.4 to 6 therein, to produce the minor baby Alyna Raheel [daughter of the Petitioner and Respondent No.1 herein], before this Court for handing over the custody of minor daughter to the Respondent No.1 herein [Father]. Besides, a prayer for direction was also sought for the return of his wife, Petitioner herein. Moreover, in the said C.P. No.S-501 of 2018 [Raheel Toufiq Feroz s/o Taufeez Feroz v. Province of Sindh and 12 others see page 395], direction was also sought for stopping 'illegal activities' of the Respondents Nos.4 to 13 in CP No.S-501 of 2018, as according to Respondent No.1's version, the said Respondents Nos.4 to 13, were advancing threats 'inter alia' for lodging an FIR, against Respondent No.1 herein. Per 'averments', made in the Memo. of this Petition, the filing of the aforesaid C.P. No.S-501 of 2018, [Raheel Toufiq Feroz son of Taufeez Feroz v. Province of Sindh and 12 others], was nothing but in fact, aimed to 'cause harassment' to the Petitioner herein, namely Mst. Muniba Raheel. Needless to say, the Petitioner herein, was not party to the said Constitutional Petition No.S-501 of 2018, filed by the present Respondent No.1 herein, 'inter alia' for return of his wife.

5. The Petitioner herein, [now Ex-wife], it appears, had also filed a Criminal Miscellaneous Application No.57 of 2018 [Mst. Muniba Saeed d/o Naeem Akhtar v. Raheel Feroz and 3 others], under section 491 Cr.P.C., before the court of learned District and Sessions Judge Karachi-East. The prayer sought in the said Cr. Misc. Application No.57 of 2018, reads as follows:- It is, therefore, prayed that this Honourable Court may be pleased to issue Appropriate Order/Direction to the Respondents Nos.1, 2 and 3, to produce the minor/detenue before this Honourable Court or in case of failure or refusal the minor may be brought through Respondent No.4 and to handover the custody of minor/detenue to Applicant in the interest of justice. Any other relief [s] which this Honourable Court may deed fit and proper in the interest of justice

6. Nevertheless, on 19.02.2018, when, the aforesaid Criminal Misc. Application No.57 of 2018, [Mst. Muniba Saeed d/o Naeem Akhtar v. Raheel Feroz and 3 others], came-up before the Court of learned Vth Additional Sessions Judge Karachi-East, then, the said Cr. Misc. Application, was also 'disposed of' with consent of parties. Being relevant order dated 19.02.2018, is reproduced here-in-below: - IN THE COURT OF VTH ADDITIONAL DISTRICT JUDGE, KARACHI-EAST. HCP No.57 of 2018 Mst. Muniba Saeed Applicant VERSUS Raheel Feroz and others .. Respondent Alyna Raheel .. .. Detenue Order Dated 19.02.2018 This Petition under section 491, Cr.P.C. filed on behalf of the applicant against with prayer to direct the respondents Nos.1 to 3 to produce the minor/detenue before this Court and to hand over her to the applicant. Facts necessary for disposal of instant petition are that the applicant was married to respondent No.1 on 21.02.2014, out said wedlock one child namely Baby Alyna Raheel was born on 09.01.2015. After marriage the attitude of the respondent No.1 was not good with the applicant and due to differences the respondents Nos.1, 2 and 3, ousted the applicant from the house by retaining custody of the minor with them and not allowed the applicant even to see/meet with minor/alleged detenue. There is serious apprehension that the respondents shall remove the custody of the minor/alleged detenue from the jurisdiction of this Court. The minor/alleged detenue is aged about three years and the applicant being real mother of the minor/alleged detenue is entitled for custody of the minor. The applicant approached to concerned Police Station for redressal of her grievance but to no avail. Hence this petition. I have heard learned counsel for applicant, as well as learned counsel for the respondents. They submitted that the respondent No.1 has produced the alleged detenue/minor and both the parties have settled their disputes with regard to custody of alleged detenue/minor outside the court. The respondent No.1 is ready to hand over the custody of minor/alleged detenue to the applicant, with the condition that he would be allowed to meet with his daughter/alleged detenue, whenever he wants, keeping in view the convenience of minor/detenue and the applicant. Since the parties have settled their dispute outside the court with regard to custody of minor/alleged detenue and the respondent No.1 has handed over the custody of minor/alleged detenue to the applicant, with the condition that he would be allowed to meet with his daughter/alleged detenue, whenever he wants, keeping in view the convenience of minor/detenue and the applicant, therefore, the instant petition is disposed of accordingly [Emphasis supplied]. ANNOUNCED IN OPEN COURT Given under my hand and seal of the Court, this 19th day of February, 2018. Sd/- [KAMRAN ATTA SOOMRO] V-Additional Sessions Judge [Karachi-East]

7. On account of violation/non-compliance of the aforesaid order dated 19.02.2018, the Respondent No.1 herein, was constrained to file Cr. Misc. Application No.435 of 2018 [Raheel Taufeeq Feroz son of Taufeez Feroz v. SHO, P.S. Tipu Sultan and Mst. Muniba Saeed d/o Naeem Akhtar showing therein, baby Alyna Taufeeq as a 'DETENUE'], under Section 491, Cr.P.C. on or about 16th March, 2018, before the Court of the learned District and Sessions Judge, South, at Karachi, with the prayers as follows:- It is respectfully prayed on behalf of the applicant abovenamed that this Hon'ble Court may graciously be pleased to direct the respondent No.1 to recover the detainees from the wrongful private confinement of the respondent No.2 and to produce the minor detainee before this Hon'ble Court and also take legal action against the respondent No.2, who has illegally put the minor detainee in his wrongful private confinement amounting to abduction .

8. On 16.03.2018, when the aforesaid Cr. Misc. Application No.435 of 2018 [Raheel Taufeeq Feroz s/o Taufeez Feroz v. SHO PS Tipu Sultan and Mst. Muniba Saeed d/o Naeem Akhtar], came-up before the concerned Court, then, the following order was passed:- IN THE COURT OF IIND ADDITIONAL SESSIONS JUDGE, SOUTH AT KARACHI Before: GHULAM MUSTAFA LEGHARI Cr. Misc. Application No.435 of 2018 Raheel Taufeeq Feroz S/o Taufeeq Feroz Muslim, adult, R/o House No.D-205 KDA Scheme-1, Karachi . Petitioner Versus

1. Station House Officer P.S. Tipu Sultan, Karachi.

2. Mst. Muniba Saeed. d/o Naeem Akhtar, Muslim, adult R/o House No.245, Block-6, P.E.C.H.S. Karachi Respondents. Baby Alyna Raheel d/o Raheel Taufeeq Feroz, Muslim, minor, aged about 3 years Illegal detention of Respondent No.2 .Detenue. ORDER 16.03.2018 This is an application/petition filed under section 491, Cr.P.C. regarding illegal detention of above named detenue by the respondent No.2. Heard learned counsel for the petitioner and perused the petition in hand. Let the Respondent No.1 is directed to recover the detenue above named on the pointation of petitioner above named from the illegal detention of respondent No.2, and produce her before this court on 17.03.2018 at 08:30 a.m. The respondent No.1 is also directed to appear before this Court on the date mentioned above without fail. Announced in open court Given under my hand and seal of court this 16th day of March, 2018. Sd,/- [GHULAM MUSTAFA LEGHARI] II-Additional Sessions Judge,South at Karachi

9. On service, in the aforesaid Cr. Misc. Application No.435 of 2018, the counsel of the Petitioner herein, [Respondent No.2 in Cr. Misc. Application No.435 of 2018], under the instruction of Petitioner herein [Respondent in Cr. Misc. Appl. 435 of 2018], filed a 'statement' which reads as follows:- . IN THE COURT OF II ADJ SOUTH AT KARACHI Cr. Misc: 435/2018 Raheel Taufiq Feroz v/s Mst. Muniba Saeed and others STATEMENT It is submitted on behalf of respondents that the minor baby shall be allowed to see/meet his father i.e. applicant/Petitioner twice a week at KFC for two hours each day. Sd/- Advocate for the Respondent .

10. On the above statement, the learned counsel for the Petitioner herein, 'write down'/ 'raised' his 'no objection'. Consequently, the said Criminal Misc. Application No.435 of 2018 [Raheel Taufeeq Feroz son of Taufeeq Feroz v. SHO PS Tipu Sultan and Mst. Muniba Saeed d/o Naeem Akhtar], was 'disposed of' vide order dated 17.03.2018, passed by learned IInd A.D.J. Karachi, South. For ready reference, the said Order dated 17.03.2018, is also reproduced here-in-below: - Crl. Misc. Appin No.435 of 2018 ORDER Let the instant application be disposed of as per mutual consent of learned counsel for the respective parties in respect of statement filed by them SD/- 17.03.2018 IIND A.D.J. KARACHI SOUTH.

11. Notwithstanding, passing of the aforesaid 'consent orders' time and again, the burning 'issue of custody' of minor daughter namely Alyna Raheel and the so-called 'harassment', by the one or other, however, could not be resolved conclusively and effectively, and that too despite passing of the aforesaid 'consent orders'. The Respondent No.1, namely Raheel Taufeeq Feroz son of Taufeeq Feroz [Father], as a last resort, opted to file an Application under Section 25 of the 'Guardians' and 'Wards' Act, 1890 [VIII of 1890], before the Court of Family Judge XXI, South, Karachi, bearing Guardians and Wards Application No.1075 of 2019, [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter], with the prayers as follows:- Prayer That the applicant respectfully prays that this Hon'ble Court may be pleased to pass a judgment and decree in favour of the applicant and against the respondent as under:- [i] To direct the respondent to handover the custody of the minor Baby Alyna Raheel to the applicant. [ii] To direct the respondent to allow the applicant for free access to the applicant with the minors and allow the applicant to meet the minors. [iii] To direct the respondent not to act adversely for the welfare of the minors. [iv] To direct the respondent not to remove the custody of the minor beyond the jurisdiction of this Hon'le Court. [v] To direct the respondent to deposit the passport of the minor with the Nazir of this Hon'ble Court. [Emphasis Supplied]. [vi] Cost of the application. [vii] Any other relief or reliefs which this Hon'ble court may deem fit and proper under the circumstances of the case.

12. In the aforesaid Guardians and Wards Application No.1075 of 2019 [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter], the Respondent No.1 herein [Father], also filed an Application under Section 12 of Guardians and Wards Act, 1890 [VIII of 1890], 'inter alia' for production of his minor daughter namely Baby Alyna Raheel by the Petitioner herein [Mother] and to also allow the Respondent herein [Father], the 'interim custody' of his minor daughter. On 29.07.2019, when, the said Application under section 12 of Guardians and Wards Act, 1890 [VIII of 1890], came-up before the Court of learned Family Judge XXI, Karachi-South, then, the said Application was 'disposed of'. The 'material portion' of Order dated 29.07.2019, reads as follows:- "This court is vested with a parental jurisdiction to govern the affairs pertaining to permanent or even interim custody and we are also fortified by the statutory powers. Needless to say that this Court has already boasted its authority with the automatic parental jurisdiction over the supervision of minor and with such authority, this Court is seized to decide application under section 12 and is vested with the power to pass interlocutory orders in connection to temporary custody of children. Section 12 [1] of G&W Act, 1890 is also reproduced for the sake of convenience. [Emphasis Supplied]. "Power to make interlocutory order for production of minor and interim protection of person and property. 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 the temporary custody and production of the person or property of the minor as it thinks proper." Applicant has filed a proper case this time and it is notable that both the parties had also previously locked horns in two of the previous habeas corpus petitions in relation to the custody of female minor. Moreover, perusal of the main application and annexures suggest that both the parties hail from respectable backgrounds and there appears no reason why applicant/father shall not be deemed entitled for the temporary custody being a real father on the weekly basis. Perhaps, that is a least bit of concession he deserves after having been denied opportunities to meet his real daughter. Therefore, he should be deemed worthy to be handed over the interim custody of a female minor on every weekend and he is hereby deemed entitled to the interim custodial rights for every Saturday 12:00 PM till Sunday 05:00 PM. Interim rights will commence from 03-08-2019. Picking and dropping the minor will also be the sole responsibility of Applicant/Father. Bailiff of the court is further appointed and he will collaborate with the father to oversee the smooth procession of weekly meetings. Let the order be transmitted to respondent for information and necessary cooperation. Bailiff is also directed to submit weekly reports in respect of weekly meetings on every Monday and he is also entitled to receive Rs.2,000/- from Applicant as cost for his round conveyance/assistance on every meeting. Respondent is directed not to remove the minor from the jurisdiction of this Court without prior permission [Emphasis supplied].

13. The Petitioner herein [Mother], somehow, feeling 'aggrieved by' and 'dis-satisfied' with the 'aforesaid order' this time has approached this court by way of filing the instant Constitutional Petition No.S-928 of 2019 on 08.08.2019 'inter alia' with a prayer that the 'impugned order' dated 29.07.2019 [Annexure 'P' to the MoP] be set aside, as the same besides, being erroneous, as alleged, has been passed in ignorance of the 'relevant facts' of the case i.e. [i]. 'previous history' of the litigant between the parties, as well as, [ii]. 'consent orders'. On 08.08.2019, when the instant petition bearing Constitutional Petition No.S-928 of 2018 [Mst. Muniba Raheel v. Raheel Taufiq Feroz and another others], came-up before the Court then, this court, while, 'issuing notice' to the Respondents, as well as, learned AG Sindh, for 05.09.2019, in the meantime, suspended the 'operation' of the 'impugned order' dated 29.07.2019, [Annexure 'P' to the MoP]. The 'relevant part' of the Order dated 08.08.2019, is reproduced herein-below: ...It is stated by the learned counsel for the petitioner that baby Alyna Raheel is aged about four (4) years and presently, she is studying in class 'K.G.' of Bayview School and accordingly to him, the impugned order is harsh one and if implemented, the study for the minor will be seriously affected. He further submitted that the impugned order has been passed in the back of the petitioner as the Petitioner has not been heard on application under Section 12 of the Guardians and Wards Act, 1890. According to learned Counsel, no order could be passed at the back of a party, particularly, against a person, who may be affected by such an order, which deprived him from his vested right or interest. He further added that when the basic order is without lawful and void ab-initio, then the entire superstructure raised thereon falls on the ground automatically. [Emphasis Supplied]. Points raised in this petition needs serious consideration. Let notice be issued to the respondents and Advocate General, Sindh for 05.09.2019. In the meantime, the operation of the impugned order stands suspended till the next date of hearing. [Emphasis Supplied]. Office is directed to fix this matter the next date according to Roster.

14. Upon service, Respondent No.1 [Father] of the minor baby Alyna Raheel, filed a 'detailed Reply' in response to the 'Memo of Petition' [in short MoP], duly supported with an 'affidavit' of Respondent No.1 [Father], namely Raheel Taufiq Feroz son of Taufiq Feroz wherein, the 'allegations'/'assertions' made in the MoP were not only specifically 'denied' but also the same were seriously 'controverted'. In 'REBUTTAL', the Petitioner herein namely Mst. Muniba Raheel-Ex-wife of Respondent No.1, however, did not file any 'affidavit-in-rejoinder'. From the record, it reveals that even in Guardian and Wards Application No.1075 of 2019, in 'response' /'opposition' of the Application under section 12 of Guardians and Wards Act, 1890, [VIII of 1890], the Petitioner herein, [Mother of the minor daughter] did not file any 'COUNTER AFFIDAVIT'. The contents of the said application under section 12[2] C.P.C. r/w S.151, C.P.C. [C.M.A. No.24046/2013], filed by Raheel Taufeeq [Father of the minor daughter] thus gone un-rebutted/un-challenged and consequently, the same was allowed through the impugned order dated 29.07.2019 [Annexure 'P' to the MoP].

15. Lastly, on 20.11.2019, when this matter came-up before the court then, I heard Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner herein, Mr. Asif Ali Pirzada a/w Mr. Naeem Qureshi, learned counsel for Respondent No.1 and learned AAG, Ms. Naushaba Haque Solangi for Respondent No.2 and also perused the available record [about 1000 pages], before me with their valuable assistance.

16. Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner herein while, arguing the case forcefully submitted that Respondent No.2 herein, [i.e. learned Family Judge XXI-South, Karachi], at the time of passing the 'impugned order' dated 29.07.2019, has totally ignored the relevant facts of the case i.e. previous 'history of litigation', and the 'consent orders', passed in various proceedings. Being relevant ground [a], under the heading 'GROUNDS', reads as follows: a). That the learned Respondent No.2 while passing the impugned order has totally ignored the facts of the case regarding previous history of litigation as well as consent orders." . Per learned counsel for the Petitioner herein, the 'impugned order', as such, besides being erroneous is suffering from 'mis-reading' and 'non-reading' of materials, available on record.

17. At this juncture, it is worth mentioning that in the previous litigation neither the question of giving away 'regular custody' of the minor daughter - namely Alyna Raheel to either of the parties and/ or otherwise, the issue of declaring any of them as 'Guardian' under Section 7 read with Sections 12 and 25 of Guardians and Wards Act, 1890 [VIII of 1890], was involved. The provisions of Section 491, Cr.P.C. under which, the previous 'Habeas Corpus Petitions' [In short HCPs] were filed are not meant or available for declaring any persons as a Guardian or otherwise determining the 'question of custody' of minor because in this regard a final decision of 'regular custody' yet to be made/ decided in the proceedings under Guardians and Wards Act, 1890 [VIII of 1890], which proceedings as seen, have and ready been initiated before the appropriate forum of Guardian Court that is learned Family Judge-XXI District [South] Karachi. The allegations of non affording of opportunity of hearing to the Petitioner's counsel are not only false but also seems afterthought. In this regard, the 'impugned order' dated 29.07.2019 [Annexure 'P' to the MoP] itself, belies the Petitioner herein, in her version of non-affording opportunity of hearing to the Petitioner herein [Respondent in Guardians and Wards Application No.1075 of 2019] [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter].

18. In background, learned counsel for the Petitioner while, referring to 'consent order' dated 19.02.2018 [Annexure 'P-6/6' to the MoP], passed by this Court in H.C.P. No.57 of 2018] [Mst. Muniba Saeed d/o Naeem Akhtar v. Raheel Feroz and 3 others], next contended, that the Respondent No.1 herein, [Father], indeed, was free to have meetings with the minor daughter namely Alyna Raheel, as per his wish and choice. The Petitioner herein, [Mother], as alleged, has/had never resisted and/or objected. Per learned counsel, after handing over, the custody, under the order of this Hon'ble Court, Respondent No.1 herein [Father], however, without any reason and/ or justification, filed another Constitution Petition No.501 of 2018 [Raheel Toufiq Feroz s/o Taufeez Feroz v. Province of Sindh and 12 others], before this court, manifestly, with an 'aim' and 'purpose' to 'cause harassment' to the Petitioner herein [Ex-wife].

19. Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner herein, apart from the above proceedings also made a reference to Cr. Misc. Application No.435 of 2018 under section 491 Cr.P.C. [Raheel Taufeeq Feroz v. SHO, P.S. Tipu Sultan and Mst. Muniba Saeed d/o Naeern Akhtar showing therein, baby Alyna Taufeeq as a 'DETENUES], filed by the Petitioner's Ex-husband [Respondent No.1 herein] and forcefully submitted that the said Cr. Misc. Application No.435 of 2018, was also filed on the basis of a false plea. The Respondent No.1 herein, [Father], per learned counsel, was never dis-allowed by the Petitioner herein [Ex-wife] to see and meet the minor daughter. The said Cr. Misc. Application No.435 of 2018 under section 491, Cr.P.C. [Raheel Taufeeq Feroz v. SHO, P.S. Tipu Sultan and Mst. Muniba Saeed d/o Naeem Akhtar showing therein, baby Alyna Taufeeq as a 'DETENUE], was also 'disposed of' on a 'joint statement' of parties' counsel on 17.03.2018. The Respondent No.1 herein [Father], as urged by Mr. Amir Mansoob Qureshi, pursuant to Order dated 17.03.2018, passed on the joint statement, did continue his meeting with the minor i.e. twice a week for two 121 hours each day.

20. The Respondent No.1 [Father], as per Mr. Amir Mansoob Qureshi, learned counsel for the Petitioner [Mother], nonetheless, opted, as alleged, with 'mala fide intention' to file an Application under Section 25 of Guardians and Wards Act, 1890 [VIII of 1890], bearing No.1075 of 2019 before the Court of learned Family Judge-XXI South Karachi 'inter alia' for 'issuing direction' to the Petitioner herein [Mother] to handover custody of the 'minor daughter' namely Alyna Raheel to Respondent No.1 herein [Father], 'inter alia' for the reasons and grounds given/disclosed in the Guardian and Wards Application No.1075 of 2019. Besides, an Application under Section 12 of Guardians and Wards Act, 1890, [VIII of 1890], was also field in the said Guardians and Wards Application No.1075 of 2019 [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter], allegedly with a view and in order to either cause 'harassment' and/ or otherwise, blackmail the Petitioner herein [Mother].

21. Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner herein, next contended that Respondent No.2 i.e. learned Family Judge XXI, District Karachi, South, decided the Application under section 12 of Guardians and Wards Act, 1890 [VIII of 1890], in haste and, as alleged, without giving an 'opportunity' of hearing to the Petitioner's counsel and/or providing an opportunity for filing of a 'counter affidavit' as then, one of the Petitioner's counsel [not the one who argued the Application under section 12 of Guardians and Wards Act, 1890], as claimed, was on general adjournment. Per Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner [Mother], the 'impugned interim' order dated 29.07.2019 [Annexure 'P' to the MoP], as such, is not only illegal but also has been passed without appreciating the settlement reached between the parties under the 'consent orders' of courts. According to Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner [Mother], the Respondent No.2 herein, while, granting the 'interim custody' under parental jurisdiction, basic 'criteria' that was needed to be kept in mind, in the interest of the minor daughter, was also overlooked. Moreover, in the 'impugned order' [Annexure 'P' to the MoP], the learned Respondent No.2 herein, has also failed to properly consider the 'paramount interest' of the minor in 'juxtaposition' of her age and sex. The minor daughter namely Alyna Raheel even if, was/is not a milk suckling child, aged about 5 years. Besides, as urged, by Mr.Aamir Mansoob Qureshi, the court has failed to look into the alleged bad intention of Respondent No.1, while passing the 'impugned order' dated 29.07.2019, [Annexure 'P' to the MoP].

22. According to Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner [Mother] since, the 'impugned order' of 29.07.2019 is illegal, as such, under law, the same is not sustainable though if it is an 'interim order'. In support of his contentions reference was made to the cases; [i] Mst. Madiha Younus v. Imran Ahmed, [2018 SCMR 1991], [ii] Mst. Marium Tariq and others v. SHO of Police Station Defence and others [PLD 2015 Sindh 382], [iii] 'Common CONSENT' order dated 14.06.2016, passed in C.P. No.185-K of 2016, [Kiran Sana-ul-Haq v. Muhammad Salman Niazi and others] and in Cr. O.P No.4- K of 2016, [Kiran Sana-ul-Haq and another v. Arif Ahmed Khan and others], passed by Hon'ble apex Court on 14.06.2016. The relevant 'portions' from the 'aforesaid cases' are reproduced at 'i', 'ii' and 'iii' respectively, herein below:- i. 2018 SCMR 1991:

3. We appreciate that both the learned counsel for the parties who have made efforts in bringing about reconciliation between the parties accordingly following orders are passed: i) Both the minors shall remain with the petitioner - Madiha Younus (mother). ii) On every alternate weekend minors may reside with respondent No.1-Imran Ahmed (father) i.e. respondent No.1 will pickup the minors from the house of the petitioner on Friday at about 8:00 p.m. late evening and shall drop the minors at the house of the petitioner on Sunday by 01:00 p.m. in the afternoon. iii) During summer vacations the custody of the minors to be handed over to the respondent on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the petitioner in evening of the 4th Sunday during the vacation so that minors may have four weeks to spent with his father i.e. respondent No.1. iv) Winter vacations which are generally due from 21st December to 30th December. 1st week of the winter vacation shall be spent by the minors with respondent No.1 and 2nd week with the petitioner. v) In Eid-ul-Fitr the minors will celebrate Eid with his father respondent No.1 from Chand Raat of Eid-ul-Fitar at 08:00 p.m. till second day of Eid upto 08 p.m. vi) In Eid-ul-Adha the petitioner will allow the minors to celebrate Eid-ul-Adha with father i.e. respondent No.1 who shall pick the minors from the residence of petitioner on the second day of Eid-ul-Adha at 11:00 a.m. in the morning till 3rd day of Eid-ul-Adha at 10:00 p.m. or earlier. vii) Unscheduled holidays the minors may spent alternate holidays with respondent No.1-father from 10:00 a.m. to 08:00 p.m. in the evening. viii) The respondent No.1-father shall bear all expenses of the minors i.e. school fees, uniforms, van fees as well as others miscellaneous expenses as may be needed for the minors. ix) In addition to such expenses the respondent No.1 Father shall also provide a sum of Rs.5,000/- per month each minor for their other personal needs and requirement. x) It may be observed that in case there is any family occasions in which the respondent No.1 desire and wish that his sons may also attend shall inform the petitioner who shall not unreasonably stop the minors from attending such family. events and or functions. xi) It is needless to say that the minors are of such in impressionable age and both the parents appears to be sensible and conscious of their social responsibility shall not do any act that may prejudice their mind towards the other parents. ii. PLD 2015 Sindh 382

8. The custody of a child is known as "Hizanat", the female entitlement to the custody is called "Hazinat" and male entitlement is known as "Hain". In the Guardian Ward case, the father of Ayla Shafqat (respondent No.3) himself stated that he belongs to Hanafi Sect, therefore the concept of Hizanat in Hanafi Sect would be quite noteworthy. Under the Hanafi School of Mohammedan Law mother is entitled to the custody of female child till the age of puberty while in the case of a son, the period of Hizanat is 7 years of age. The mother is entitled in preference to the father to the custody during Hizanat and she does not lose the guardianship because she is no longer wife of her former husband. It is an admitted fact that the minor was in the custody of mother since birth and there was no allegation that the mother snatched the custody from father. It is also an admitted fact that when the FIR was lodged the age of daughter was 2-1/2 years. The learned counsel of the complainant did not argue that Marium Tarique is disqualified from the right of Hizanat or Hizanat was terminated due to any such act committed which disentitled her from claiming or asserting her right of custody in preference of father. In the case in hand the mother and father both are natural guardians and one natural guardian cannot lodge the FIR of kidnapping against the other natural guardian. In all probability, a mother who is enjoying custody since birth of her daughter and whose right of Hizanat or custody has been affirmed by three courts cannot be held accused of kidnapping her own daughter. However this important aspect cannot be ignored that being a natural guardian, father is also entitled for the access and visitation rights to his daughter which right has been also given by the Family Court and affirmed by the Appellate Court as well as this Court in the aforesaid Constitution Petition. Under section 43 of the Guardians and Wards Act a comprehensive procedure is provided for regulating, conduct or proceedings and enforcement of orders while sections 44 and 45 of the same Act provides penalty for removal of Ward from jurisdiction and penalty for contumacy. It is an admitted fact that the Family Court passed the orders and granted visitation rights to the respondent No.3 but the orders were not implemented so in our view appropriate remedy is to approach Family Judge for the implementation of the orders which has not been done in this case but the father of child has filed C.P. No.D-1105 of 2012 for issuing directions against the F.I.A. and National Central Bureau and Interpol for issuing red and yellow notice forms for ensuring appearance of accused in Crime No. 632 of 2010. [Emphasis Supplied].

9. All the juristic schools give first preference to a mother's claim to physical custody of her young child provided that she satisfies all the requirements. The father should have access to his children and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother. At this juncture we would like to put forward a judgment authored by one of us (Muhammad Ali Mazhar, J.) in the case of "Muhammad Shafi alias Papan v. State" reported in 2011 PCr.LJ 1424 in which the allegation of kidnapping of a son was against a real father and he was convicted by the trial Court, however on appeal to this court, he was acquitted of the charge. We would like to quote paragraph (21) of the judgment which is reproduced as under:-- "

21. A father cannot be held liable for kidnapping his own son being a natural guardian. Children are focus of gravity in Islamic Family tradition and law. When spouse are together, upbringing their children is paramount joint responsibility. Not only physical care and health, but emotional, educational and religious welfare and well being are mutual responsibility. When spouses separate by divorce or annulment, these welfare responsibilities get also split according to best abilities of each parent. While fathers are vested with financial burden and legal guardianship roles, mothers are given role of physical care and emotive guardian of children. Inherently, Islamic system balances between multitude levels of children's need. The father should have access to his children and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother or one of her relations". [Emphasis Supplied].

10. Our Prophet Muhammad (peace be upon him) continually used to remind his followers of the status of the mother and the obligation of being good to one's parents. The honor which our religion Islam has given. to mothers is beyond that found in any other religion, ideology or culture. All the verses of Quran and hadiths on mothers amply demonstrate the importance of this figure in Islam. The following narrations are most beautiful examples of righteous and noble position of the mother:-- "A man came to the Prophet and said: O Messenger of Allah! Who from amongst mankind warrants the best companionship from me? He replied: "Your mother". The man asked: Then who? So he replied: "Your mother." The man then asked: Then who? So the Prophet replied again: "Your mother." The man then asked: Then who? So he replied: "Then your father." (Sahih Bukhari 5971 and Sahih Muslim 7/2). Commenting on this hadith, Shaykh Muhammad Ali Al-Hashimi notes: This hadith confirms the the Prophet (peace and blessings be upon him) gave precedence to kind treatment of one's mother over kind treatment of one's father (Al-Hashimi, The Ideal Muslimah, IIPH 2005, p. 165). Likewise, the late Grand Mufti of Saudi Arabia, Shaykh Abdul-Aziz Ibn Baz (d. 1999) comments on this hadith saying: So this necessitates that the mother is given three times the like of kindness and good treatment than the father. (Majmoo' Fataawaa wa Maqalat Mutanawwi'ah). He also writes: The secret of her importance lies in the tremendous burden and responsibility that is placed upon her, and the difficulties that she has to shoulder responsibilities and difficulties some of which not even a man bears. This is why from the most important obligations upon a person is to show gratitude to the mother, and kindness and good companionship with her. And in this matter, she is to be given precedence over and above the father. The Prophet Muhammad (peace and blessings be upon him) also said in a famous narration: 'Paradise lies at the feet of your mother' [Musnad Ahmad, Sunan An-Nasa'i, Sunan Ibn Majah]. Shaykh Ibrahim Ibn Salih Al-Mahmud writes: Treat your mother with the best companionship, then your father; because paradise is under the mother's feet. It is related from Talhah ibn Mu'awiyah as-Salami who said: I came to the Prophet and said, "O Messenger of Allah, I want to perform Jihad in the way of Allah. He asked, "Is your mother alive?" I replied, "Yes." The Prophet then said: "Cling to her feet, because paradise is there." (at-Tabarani). Abdullah Ibn Abbas (d. 687CE), a companions of the Prophet and a great scholar of Islam, considered kind treatment of one's mother to be the best deed for strengthening or rectifying one's relation with God. He said: I know of no other deed that brings people closer to Allah than kind treatment and respect towards one's mother. [Al-Adab al-Mufrad Bukhari 1/45]. An even more powerful example is found in the statement of another one of the Prophet's companions, Abdullah Ibn 'Umar (d. 692CE), who was also a great scholar of Islam. It has been related that: Abdullah Ibn 'Umar saw a Yemeni man performing Tawaf (circumambulating the Kabah) while carrying his mother on his back. This man said to Abdullah Ibn 'Umar, "I am like a tame camel for her! I have carried her more than she carried me. Do you think I have paid her back, O Ibn 'Umar?" Abdullah Ibn 'Umar replied, "No, not even one contraction!" [Al-Adab al-Mufrad Bukhari 1/ 62]". Reference: http:www.islamswomen.com and http:insideislam.wisc.edu..." [Emphasis Supplied]. At this moment it would be most advantageous and apt to quote Verse 15, Chapter 46, Surah al-Ahqaf, [Al-Quran]. Surah al-Ahqaf - Verse 15

15. And We have enjoined on man to be dutiful and kind to his parents. His mother bears him with hardship. And she brings him forth with hardship, and the bearing of him, and the weaning of him [lasts] thirty months, till when he attains full strength and reaches forty years, he says: "My Lord! Grant me the power and ability that I may be grateful for Your Favor which You have bestowed upon me and upon my parents, and that I may do righteous good deeds, such as please You, and make my offspring good. Truly, I have turned to You in repentance, and truly, I am one of the Muslims [submitting to Your Will]. SOURCE: https:/ www.al-islam.org/ enlightening-commentary-light-holy-quran-vol-17/ surah-al-ahqaf-chapter-46-verses-1-21 iii. CONSENT ORDER DATED 14.06.2016 BY HON'BLE APEX COURT:- Gulzar Ahmed J.:- A joint application signed by the Petitioner, petitioner's counsel so also by counsel for respondent No.1 for disposal of this petition has been filed. The contents of application are as follows:

1. Father shall be entitled to meet the child Salaar every alternate Saturday for 11:00 a.m. to 1:00 p.m. in the Court of concerned Family Judge Karachi South who shall monitor and keep record of such meetings.

2. If a Saturday happens to be a public holiday, the meeting shall take place on following Saturday and thereafter on alternate Saturday.

3. The Child shall remain in the Court room for entire two hours and father shall not be allowed to take him out of Court room. So far the issue with regard to travelling of the minor abroad, it is clarified that whenever the petitioner desires to take the minor abroad, she will give a proper intimation and undertaking to the Family Judge, Karachi-South who will keep the same on record. The Petition along with Cr.Org. Petition No.4-K/ 2016 stands disposed of in the above terms. Sd/- Sd/- ..

23. Lastly, learned counsel for the Petitioner [Mother] strenuously prayed for allowing the instant Petition in view of the 'consent orders' referred to herein above otherwise, Petitioner herein [Mother], as urged, shall be seriously prejudiced.

24. On the other hand, Mr. Asif Ali Pirzada a/w Naeem Qureshi and Muhammad Asif, learned counsel for Respondent No.1 [Father], raised a 'legal objection' vis-a-vis maintainability of the instant Petition 'inter alia' on the ground that the instant Petition since, has been filed against an 'interim order', passed on an Application under section 12 of Guardians and Wards Act, 1890 [VIII of 1890], the same, under law, as being not maintainable, is liable to be dismissed with costs.

25. Without prejudice to the aforesaid legal objection, Mr. Asif Ali Pirzada, while, continuing his arguments not only controverted but also vehemently opposed the 'adverse assertions', leveled in the Memo. of Petition [reiterated by Mr. Aamir Mansoob Qureshi, during his arguments], as being false, afterthought and without any foundation. Per learned counsel, the 'consent orders' referred to herein above, in fact belie, the Petitioner herein [Mother] in her version. As far as, the 'welfare' of the minor daughter [age about 5 years], is concerned, Respondent No.1 herein [Father], apart from paying her 'school fees' has reserved two [2] cars for her pick and drop. Besides, a 'money order' in the sum of Rs.6,50,000/- [Rupees Six Lac and Fifty Thousand only], has also been sent for the 'welfare' of the minor daughter namely Alyna Raheel d/o Raheel Taufeeq Feroz and in continuity the Respondent No.1 herein [Father] is ready and willing to discharge his obligations with full responsibility i.e. in his capacity, as a loving father of his minor daughter namely Alyna Raheel [Aged about 5 years].

26. According to Mr. Asif Ali Pirzada Advocate, contention of Mr. Aamir Mansoob Qureshi Advocate viz-a-viz 'non-affording' of an opportunity of hearing regarding the Application under Section 12 of Guardians and Wards Application lastly fixed on 29.07.2019 before the Court of learned Family Judge-XXI South, Karachi is not only contrary to the record of the case in hand, but also the contention now being raised seems an afterthought attempt to mis-lead this Hon'ble Court. To belie the Petitioner herein, in her version and to ascertain the 'true position', in this regard, reference was made to the court's diaries of 24.07.2019, 27.07.2019, 29.07.2019, 05.08.2019 and 07.08.2019, of the learned Family Judge-XXI Karachi-South, in the Guardians and Wards Case No.1075 of 2019 [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter]. Being relevant the same are reproduced at [i], [ii], [iii], [iv] and [v] respectively, herein below:- [i] 24.07.2019 Case on Service. Counsel for applicant present and has pressed for the grant of temporary custody application under section

12. Undertaking in the meantime has also been submitted by the Respondent's counsel. Counsel for Respondent is directed to file Vakalatnama. Respondent counsel has also received the set of copies and is also directed to conduct hearing on application under section 12 for temporary custody of female minor on 27-07-2019. Matter to come up on 27-07-2019 for hearing on temporary custody application and also for order. Respondent shall also be at liberty to file detailed reply against the main application on the future date consequent after 27-07-2019. [Emphasis Supplied]. [ii] 27.07.2019 Associate Counsel for Applicant and Respondent are present, due to suspension of Court work by the K.B.A, Matter to come up on 29-08-2019 for S/P. [iii] 29.07.2019 Case Called, Counsel for Applicant and Respondent are present, Respondent counsel filed a power same place on record, Heard both sides directly on Appl. under section 12 Guardians and Wards same is allowed order passed on separate sheet, Appl. disposed off, Case adjourned to 05-08-2019 for W.S. [Emphasis Supplied]. [iv]. 05.08.2019 Matter fixed for W/s. Advocate for Applicant and also Advocate for Respondent have also marked their attendance. Respondent Advocate has filed application for recalling of order dated 03-08-2019 and have also filed proof to justify non-compliance of order dated 03-08-2019. Copy of the same application is provided to counsel for applicant. However, Respondent is directed to submit proofs for seeking condonation with accompanying affidavit. In the late hours, Applicant has appeared in person and had also filed contempt application against non-compliance committed by Respondent and has also filed joint application for Eid and 14th August for a desirous meeting with minor. Let the contempt notice be issued along with the copy of application pertaining to special meetings to respondent. Respondent is directed to appear in person and file proofs to justify non-compliance with her affidavit on 07-08-2019. Date for the main case is fixed for 24-08-2019. Matter now fixed for contempt proceedings on 07-08-2019. [Emphasis Supplied]. [v] 07.08.2019 Today was fixed for the contempt proceedings. Counsel for applicant and also respondent have also appeared. Notice has returned unserved since according to the bailiff report attending person has refused to receive the same. Let the contempt proceedings be adjourned for future date. In the meantime notice for the hearing on joint application of Eid and 15th August's meeting with minor shall again be issued to the Respondent. To come up for hearing on 09.08.2019 for Eid/14th August Applicant. [Emphasis Supplied]. Note: Main matter is already fixed for 24.08.2019.

27. Mr. Asif Ali Pirzada/ Mr. Naeem Qureshi while, concluding their arguments vehemently, submitted that the Petition in hand, besides, being not maintainable, under law, is also devoid of any 'merits'. The same, as such, is liable to be dismissed with cost, otherwise, the Respondent herein, shall be prejudiced seriously if, the 'interim order' dated 08.08.2019, is not 'vacated' and Petition in hand is not dismissed. Ms. Noushaba Haque Solangi, learned A.A.G. while, supporting the 'impugned order' dated 29.07.2019 [Annexure 'P' to the MoP], passed by learned Family Judge XXI, District South-Karachi, prayed for dismissal of the instant Petition, as according to learned A.A.G., Constitutional Petition does not lie against an 'interim order' of interlocutory nature, passed in Family matters, as the case in hand is. Per learned AAG if, 'interim orders' are left open to challenge in CPs then, the very purpose and object of the relevant statutes would be frustrated. The G&W Act, 1890, [VIII of 1890] and West Pakistan Family Court Act, 1964 [XXXV of 1964], otherwise, are meant for providing speedy method for settling of family disputes between the parties.

28. Heard learned counsel for the parties and perused the record.

29. Before proceeding further, I would like to mention herein, that the 'allegations' and 'assertions' made in the Memo. of Petition [in short MoP], filed by the Petitioner herein [Ex-wife of Respondent No.1], have not only been specifically/emphatically 'denied' / 'controverted' by Respondent No.1 [Ex-husband], by way of filing a 'comprehensive' reply duly supported with an 'affidavit' of Respondent No.1. The Petitioner herein, [ex-wife of Respondent No.1], however, in her own wisdom has failed and/or avoided to file any 'affidavit-in-rejoinder' in response thereof. The contents of RESPONDENT'S REPLY, duly supported with an 'affidavit' of Respondent No.1 herein, have thus gone 'un-rebutted'/'un-challenged'. Likewise, as appears from the record that the contents of the Application under section 12 of Guardians and Wards Act, 1890 [VIII of 1890], filed in the Guardians and Wards Application under Section 25 of the Guardians and Wards Act, 1890 [VIII of 1890], bearing No.1075 of 2019, have also gone 'un-opposed'/'un-challenged' from the Petitioner's side herein [Ex-wife]. The 'veracity' of the contents of the Application under Section 12 of Guardians and Wards Act, 1890 [VIII of 1890], thus could not have been dis-believed otherwise, by the learned Family Judge-XXI, South Karachi.

30. On the above aspect of the matter, reliance can be placed on the cases of [a]. Abdul Rauf and 10 others v. Government of Sindh and others [2003 CLC 1602], [b]. Akbar Cotton Mills Ltd. v. Messrs Ves/Ojuanojo Objedinenije Tech/Amesh Export and another [1984 CLC 1605] and [c]. Pakistan International Airlines Corporation v. Air Master (Pvt.) Limited and another [PLD 2004 Kar. 77-DB]. The relevant portions therefrom, read as a follows: [a]. 2003 CLC 1602-SB: "...The detailed counter-affidavit has been filed by the private respondents as well as parawise comments have been filed by the official respondents. In the counter-affidavit private respondents made serious allegations of forgery and manipulations in the record. The said allegations have not been denied by the petitioners by filing the rejoinder affidavit and as such the same go without any rebuttal". [b] 1984 CLC 1605-SB: "...These allegations in the counter-affidavit of the plaintiff have gone absolutely unchallenged as no rejoinder affidavit in rebuttal was filed by defendant No.

1. It is also not disputed before me that the defendant No. 1, is engaged in extensive commercial activities in Pakistan and have their permanent representation here, besides their representation through U.S.S.R. Trade Representative in Pakistan. In consideration of above circumstances, I am of the view that it is a fit case in which stay of legal proceedings should be refused by the Court under section 34 of the Arbitration Act. I accordingly reject the application of defendant No. 1 under section 34 of the Arbitration. Act but grant two months time to them to file their written statement, There will be no order as to costs". [c] PLD 2004 Kar 77-DB: "...It is further to be noted that he had observed that in spite of being directed, respondent No.2's Advocate failed to furnish rejoinder/comments to the objections/reply filed by the petitioner as a result of which the elaborate and convincing explanation given by the petitioner/Messrs PIAC for not extending the relief sought by the petitioner had gone unrebutted".

31. Further, according to the parties' counsel, in the main Application under Section 25 of the Guardians and Wards Act, 1890 [VIII of 1890], bearing No.1075 of 2019 [Raheel Taufiq Feroz s/o Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter], issues 'inter alia' regarding granting 'regular custody' of the minor daughter namely Alyna Raheel [age about 5 years], to either party, have already been framed by the learned Family Court XXI District South, Karachi. The question of paramount 'welfare' of the 'minor daughter', of course, would be decided/adjudicated upon in the light of evidence and other materials to be brought on record by the parties i.e. in 'support' and in opposition of their 'pro' and 'contra' versions in the main case already filed under Section 25 of Guardians and Wards Act, 1890 [VIII of 1890] bearing No.1075 of 2019 [Raheel Taufiq Feroz s/o Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter]. The Respondent No.1-Ex-husband of the Petitioner herein and real Father, of the minor daughter namely Alyna Raheel however, in the meanwhile could not be denied and/ or deprived of his right of access to his minor daughter and/or her 'temporary' /'interim custody' as, under law, neither the father nor the mother, can be treated/considered, as an alien/enemy qua the minor. In the case in hand, as far as G&W Application under section 12 is concerned, the 'assertions' / 'averments' made on oath, by the Ex-husband [Respondent No.1 herein] have gone 'un-rebutted'/'un-challanged' which 'inter alia' are to the effect and extent that the child/minor daughter herein [age about 5 years], is the 'first child' in the Respondent's family that has born after about THIRTY [30] YEARS. The minor daughter, namely Alyna Raheel, as such, is the only hope of happiness of her father, as well as, of all other family members specifically grandparents.

32. Further, it is/was the Petitioner herein, namely Mst. Muniba Raheel who under 'clause-18' of 'Nikahnama' has divorced herself. For ready reference in this regard 'Para-13' from the MoP and 'relevant portions' from the 'DIVORCE DEED' dated 31.07.2019, [Annexure 'P/1' to the MoP] are reproduced herein-below at 'A' and 'B' respectively:- A Para-13 of MoP: That it is worth mentioning here that the petitioner had availed the right of divorce through clause 18 of the Nikkah Nama, which has been signed and had already been sent to the Respondent No.1. B AND WHEREAS this Divorce Deed is being executed/signed and pronounced by the Party of the 2nd Part in exercise of unconditional power of divorce delegated under Clause-18 of the Nikanama by the Party of the 1st Part as mentioned above. AND Whereas although after Rukhsati the Party of the 2nd Part tried her level best to lead a harmonized life and had bear all domestic problems but unfortunately failed to lead a harmonized life on the part of Party of the 1st Part lastly happens in the month of February, 2018 and since after complete failure of natural love and affection and to lead a happily married life, the Party of the 2nd Part was left with no option but to exercise her power to dissolve the marriage delegated to her and to end this tie by virtue of this Divorce Deed. Hence, I pronounce divorce/talaq thrice upon in the following terms and manner with my sound mind without any pressure, duress and coercion of whatsoever, and on the terms and conditions mentioned infra; I, Mst. Moniba Saeed Daughter of Naeem Akhtar, Muslim, adult, having CNIC # 42201-5354774-0 in exercise of powers delegated Under Clause-18 of Nikahnama duly executed between the parties on 12.02.2014 pronounce divorce on behalf of the Party of the 1st Part as under:- [Emphasis supplied].

1. I, Raheel Feroz son of Taufeeq Feroz, do hereby divorce you Mst. Moniba Saeed daughter of Naeem Akhtar first time.

2. I, Raheel Feroz Son of Taufeeq Feroz, do hereby divorce you Mst. Moniba Saeed Daughter of Naeem Akhtar second time.

3. I, Raheel Feroz Son of Taufeeq Feroz, do hereby divorce you Mst. Moniba Saeed Daughter of Naeem Akhtar third time.

33. The 'DIVORCE DEED' is dated 31.07.2019, but no any allegations, as now, have been leveled in the Memo. of Petition [In short MoP] find reference in the said Divorce Deed of 31.07.2019, [Annexure 'P/1' to the MoP]. In any event, such allegations are yet to be proved in the main case, filed under section 25 of Guardians and Wards Act, 1890 [VIII of 1890].

34. As per record and in view of 'history of the litigation'/ still going on between the parties, the 'impugned order' dated 29.07.2019 [Annexure 'P' to the MoP], and/or the 'interim custody' could not be alleged/called as being 'un-justified' and/or otherwise, harsh and illegal 'inter alia' for the reason, that a real father, as the case in hand is, cannot be 'deprived' of his right to meet his real daughter and/or otherwise, spend time with her. If, it is done/permitted, then, of course, it would lead to/cause emotional deprivation of the minor daughter, indeed, on both sides. It is 'significant' to note, that a 'child' not only needs love, affection, care and attention of a mother but also of a father.

35. Manifestly, in the case in hand, since, Respondent No.1 [Father], was refused to 'meet' or 'visit' his minor daughter, as such, Respondent No.1 herein [Father] was constrained to seek assistance of the courts through filing of legal proceedings which proceedings, in no manner be alleged, as proceedings, based on 'mala fide intention'. Like-wise, the 'suspension' of the 'impugned order' dated 29.07.2019, [Annexure 'P' to the MoP], in the instant petition and other proceedings, filed by the Petitioner herein, against Respondent [Ex-husband] also could not be alleged as an attempt made with mala fide intention. None of the parents of the minor daughter can be deprived from the rights of 'visitation' and 'interim custody'. In view of this position, none of the parties be condemned on account of filing of legal proceedings in the court of law, for re-dressal of her/his grievances.

36. Further, as evident from order dated 03.08.2019, it is/was the Petitioner herein who without any 'intimation' has failed and/or avoided to deliver the 'minor daughter' in 'temporary custody' of the Respondent No.1 herein [Father] and that too despite Court's direction. Being relevant, in this regard, Order dated 03.08.2019, is reproduced herein below:- .. IN THE COURT OF XXI FAMILY JUDGE KARACHI SOUTH BEFORE: SALMAN AMJAD SIDDIQUE G & W No: 1075/2019 Raheel Taufiq Feroz s/o Taufiq Feroz Applicant Baby Alyana Raheel .Ward Versus Mst. Muniba Saeed d/o Naeem Akhtar .Defendant ORDER 03.08.2019 Advocate for the Applicant has appeared and has filed urgent application for the police aid asserting that custodial rights which were scheduled to begin from today 12:00 PM onwards have been obstructed and respondent has failed to deliver the minor in the temporary custody of applicant/father as per the directions of this court issued by vide order dated 29.07.2019. Simultaneously, bailiff has also placed his report on record and has [not legible] not having found anyone at home of Respondent and by virtue of the [not legible] detriment, could not enable the smooth procession of meeting between Applicant/father and minor. It is notable that no intimation or condonation has been filed by Respondent. Heard advocate for Applicant also perused the report of Bailiff available on record. Counsel for Applicant has stressed that respondent has arranged a special event at his house having been over the moon with the grant of temporary custodial rights commencement with the minor. Therefore, such compassionate efforts and aspirations of applicant cannot be allowed to go in vain. Hence, this court exercise of conferred powers under section 100, Cr.P.C. R/W 25 Guardians and Wards Act, 1890 is left with no other option but to enable deliverance of the female minor through aid of concerned SHO [PS Tipu Sultan] immediately to Applicant in collaboration with the designated bailiff. Bailiff is directed to immediately comply with the directions and correspond the instant order to the concerned SHO with immediate effect and efficiency. SHO is also directed to deploy female constable for taking female minor into custody and for onward deliverance to her father/Applicant. Bailiff is directed to file subsequent report on next working day. [Emphasis supplied]. Copy to SHO for immediate compliance. Order accordingly Announced in open court, given under my hand and seal of the Court, this 3rd day of August 2019. Sd/- Salman Amjad Siddique Family Judge-XXI South Karachi

37. Now coming to the aspect of non-maintainability of the instant Constitutional Petition, against an 'interim order' and further to see the difference between a 'final order' and 'interim order', at this point of time, I would like to refer the cases of [i]. Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary S&GAD, Karachi [1996 SCMR 1165] and [ii], Bank Al-Falah Limited v. Inter Global Commerce Pakistan [Pvt.] Ltd. and 5 others [2017 CLD 1428]. In the aforesaid cases, an 'Interlocutory' 'interim order' has been saved from attack in an appeal, as well as, in a Constitutional Petition. As observed therein, such kind of orders cannot be assailed/brought under attack in a Constitutional Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 if, there against a remedy of appeal is not provided. Needless to say, to bring such 'interim order' under challenge, one then, has to wait till such 'interim order' in the nature of 'interlocutory order' is matured into a final order. The 'relevant portions' from the aforesaid cases are reproduced herein below at [i] and [ii] respectively: [i]. 1996 SCMR 1165 9. ...There are so many laws on the statute books of the country which provide for an appeal only against the final order. In the Punjab Urban Rent Restriction Ordinance, 1959 proviso to section 15 reads "provided further that no appeal shall lie from an interlocutory order passed by the Controller. In the Cantonments Rent Restriction Act, 1963, section 23 provides "any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order, prefer an appeal to the. High Court". In Sindh Rented Premises Ordinance, 1979, section 21 provides "any party aggrieved by an order, not being an interim order, made by the Controller may, within thirty days of such order prefer an appeal to the High Court. In the Banking Companies (Recovery of Loans) Ordinance, 1979, proviso to section 12 reads: "Provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Special Court". A notification under the West Pakistan Waqf Properties Ordinance, 1961 could be challenged only by means of a petition under section 7 in the District Court and an appeal lay against the decision to the High Court. Both the Courts were placed under duty not to issue a temporary injunction or order restraining the Chief Administrator from taking over of assuming the administration, control, managenwnt and maintenance of property in respect of which a notification had been issued under section

6. While the suit or an appeal, as the case may be, was pending, such prohibitions, limitations and regulatory provisions with respect to appeal and grant of relief against the interlocutory orders were considered vis-a-vis the maintainability of the Writ Petition in the case Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR

450. On examining the statute, the Supreme Court held as hereunder:-- "As the said Ordinance has taken away the right of petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings on the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law." The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interini orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders. [Emphasis Supplied]. [ii] 2017 CLD 1428

10. Black's Law Dictionary (Sixth Edition) defines final order as under: "One which terminates the litigation between the parties and the merits of the case and leaves nothing to be done hut to enforce by execution what has been determined." The words 'final order' and ' an interlocutory order' have now been settled from various pronouncements of the apex Court viz. "A final order means an order which finally disposes of the rights of the parties. The real test for determining whether the order is final ought to be this: 'Does the judgment or order, as made, finally disposes of the rights of the parties' ? If it does, then it ought to be treated as a final order; but if it does not, it is then an interlocutory order. Similarly, in AIR 1933 PC 58, Sir George Lowndes observed:- "The finality must he finality in relation to the suit. If after the order the suit is still alive in which rights of the parties have still to be determined, no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one." Furthermore, in order to constitute a final order, it is necessary that the order should be one by which the suit or the proceeding in either way is finally disposed of. The decision of an important and vital issue which may ultimately affect the fate of the proceeding is by itself not enough. The test to be applied is, whether the proceeding is disposed of completely and the case is not kept alive for being dealt within the ordinary way. The final order must contain a final adjudication of the matter in contest between the parties to the action.

11. Though the word 'interlocutory order' has not been defined anywhere either in the C.P.C. or in the F.I.O., 2001, but the appeals were made competent under C.P.C. against orders covered by Order XLIII but the legislature under subsection (6) of section 22 of F.I.O., 2001 clearly mentioned that no appeal shall lie against an interlocutory order which does not dispose of the entire case. It is thus clear that the word 'interlocutory order' has been used in contradistinction to the term "order". The legislature, in order to achieve the object that appeal shall lie only against the final order, did not stop after legislating that no appeal shall lie against interlocutory order but further qualified the interlocutory order, which does not dispose of the entire case. The intention of the legislature is crystal clear from the language employed in the provision that appeal can only he maintained against last or final order." [Emphasis Supplied].

38. As far as, non-affording of opportunity of hearing as contended by Mr. Aamir Mansoob Qureshi, learned counsel for the Petitioner is concerned, indeed, after incorporation of Article 10-A through 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973, a 'FAIR TRIAL' and 'DUE PROCESS' is now a 'fundamental right' of every citizen if logged in litigation. This contention of the learned counsel, being correct, needs no debate. As far as, the case in hand is concerned, the Petitioner herein, has duly participated in the process of hearing of the Application under section 12 of Guardians and Wards Act, 1890 [VIII of 1890]. Moreover, at the same time, one cannot ignore the importance of 'ARTICLE 4' OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, of course, does not permit an action, detrimental to the life, liberty, body, reputation or property of any person but at the same time it does not prohibit an action in accordance with law. In spirit, this Article 4 re-enforces, a legal action, against a person including a litigant. A litigant, indeed, needs to be 'DEALT WITH' or 'DEPRIVED' of his rights if, it so prescribed/provided in any other law for the time being in force. Both 'Articles 4' and '10-A' of the Constitution of Islamic Republic of Pakistan, 1973, for ready reference are reproduced respectively, here-in-below: - "4. (1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan. (2) In particular

(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. [Underlining is mine]. (b) No person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) No person shall be compelled to do that which the law does not require him to do. "10-A, Right to fair trial

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process." [Underlining is mine].

39. As far as, the CASE IN HAND, is concerned, both the learned counsel for the contesting parties, as per record were not only heard but due process of law in all respect was followed. From the record, it appears that a 'fair chance' of hearing to the Petitioner's counsel herein, on the Application under section 12 of the G & W Act, 1890, [VIII of 1890] was afforded. The 'impugned order', it is needless to say, was passed after hearing of learned counsel for the contesting parties and this factum also evident from the 'impugned order'. The Petitioner herein, despite granting of time in his own wisdom, however, did not file any 'counter affidavit' in rebuttal of Section 12 of G&W Application and thus the contents thereof, were gone un-challenged/un-opposed/un-rebutted. The 'pleas' and 'contentions' as being now raised by the Petitioner herein, [Ex-wife Respondent No.1 herein], on the face of it, not only seems afterthought but also contrary to the record.

40. On the aspect of 'FAIR TRIAL' and 'DUE PROCESS', one can place reliance on the cases [a]. Shabbir Ahmed v. Kiran Khursheed and 8 others [2012 CLC 1236] and [b]. Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another [2012 SCMR 1235], wherein it was respectively, observed as follows:- a. Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that 'each person shall be accorded certain 'process' if they are deprived of life, liberty or property

The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis and underlining are mine]. b. "11. ....Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void." [Underlining is mine].

41. As far as, the question of 'welfare' and provision of love and affection is concerned, the same can only be decided in the main case, filed under Section 25 of Guardians and Wards Act, 1890 [VIII of 1890] and that too, after recording of evidence in 'pro' and 'contra' versions of the Petitioner herein [Mother] and Respondent No.1 [Father]. The 'allegations' 'counter-allegations' leveled against the Father of the minor daughter, aged about 5 years [not a suckling baby] are yet to be proved by the parties through evidence to be recorded in Guardian and Wards Application under section 25 of Guardians and Wards Act, 1890 [VIII of 1890].

42. Mr. Amir Mansoob Qureshi, learned counsel for the Petitioner herein [Mother] next contended that even against an interim order a Constitutional Petition, filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, is maintainable, as according to him, against the impugned order of 'interim custody', no appeal is maintainable. This argument of the learned counsel for the Petitioner besides, being mis-conceived, is also mis-leading 'inter alia' for the reason that when the statute itself has taken away they right of Appeal against and 'interim order' then, how such order can be 'assailed'/'questioned'/brought under attack in a Constitutional Petition under the exercise of Constitutional Jurisdiction of this Court. Needless to say, any order passed under section 12 of Guardians and Wards Act, 1890, [VIII of 1890] is not an equivalent to an order passed under section 25 of Guardians and Wards Act, 1890 [VIII of 1890], which later order, to determine the rights of the parties with regard to the 'regular custody' of a minor and that too only after taking into consideration the capacity/position of a party to either maintain a child and/or to provide love and affection to such child. Such like questions, however, could only be decided in a 'final adjudication' of the Application under section 25 of Guardians and Wards Act, 1890. On the above aspect of the matter, reliance can be made to the cases of [i]. Mst. Maham Shabbir v. Salman Haider and others [2014 CLC 330] and [ii]. Syed Maosood Ali v. Mst. Soofia Noushaba and 2 others [1986 CLC 620]. The relevant portions of therefrom respectively, read as follows: [i]. 2014 CLC 330

7. On the other hand in many other judgments, it was held that the way the words decree and decision have been used in section 14 shows that the word decision should be read as ejusdem generis (of the same kind or class) to the word decree. In other words, the decision as well as decree are both outcome of the final adjudication. Decision itself means judgment as well as act of deciding determination of point under deliberation or discussion. By adopting this definition it becomes clear that any final judgment or decision would be appealable as provided in section 14 of the West Pakistan Family Courts Act, 1964, but if the judgment or decision is not a final adjudication the same would not be appealable. This view was followed in judgments reported as 1986 CLC 620, PLD 1976 Lahore 1015, 1979 CLC 754 and 1989 ALD 506 (1). [Emphasis Supplied].

8. In my humble view, the words decision given or decree passed are to be taken as ejusdem generis. In other words, appeal lies only against final judgment and not against any interlocutory order. [ii]. 1986 CLC 620

12. A perusal of the various provisions of the Act shows, that, subsection (1) of section 14 the Act provides only for one appeal against a decision or decree of the Family Court. Subsection (2) of that section even goes to make certain decrees passed by the said Court non-appealable. The intention of the legislature, therefore, clearly seems to be to reduce further litigation in matters triable by the Family Court, specially in case of orders of interlocutory nature. Further, according to section 17 of the Act, the application of the C.P.C. to the proceedings under the Act is completely barred except and 11 of the C.P.C. The intention of the Legislature, therefore, clearly seems to be that every decision given or decree passed by the Family Court should not be made appealable and also liable to be carried to the High Court under section 115 of the C.P.C. In this respect reference may once again be made to Wajahat Ali Hasnie v. Mst. Ghazala PLD 1970 Lah. 641 wherein similar views were expressed. The view taken in Farida Parveen v. Fariduddin Ahmed PLD 1971 Kar. 118, earlier decided by this Court; is also not different. However, the case reported as Mst. Zaibun Nisa v. M. Muzammil, earlier decided by the Full Bench of this Court to which I have already referred should be binding on me because this very question was in issue before the Full Bench in that case.

43. With regard to contention of Mr. Amir Mansoob Qureshi, learned counsel for the Petitioner herein that an order which is not appealable could be challenged by resort to the Constitutional Jurisdiction of this Court is also erroneous, as such, the same is also repelled because when a statute excluding a right of appeal against an interim order/interlocutory order then such statutory bar of appeal could not be bypassed by bringing such interim order/interlocutory order under attack in a Constitutional Jurisdiction, filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. Any party, if feeling aggrieved/affected by any such interim order needs to wait till it is matured into a final order. Even then, it would be open to attack in the proper exclusive forum created for examining such orders. In the above aspect of the matter, reliance can be placed on the cases of [i]. Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others [1998 SCMR 328] and [ii]. Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another [1996 SCMR 1165]. The relevant paras therefrom, read as follows: [i] 1998 SCMR 328

3. After hearing the learned counsel for the parties, we are of the view that as the main election petition is still pending before the learned Tribunal and an appeal is provided against the final decision of the Tribunal before this Court, the petitioner in the event of the final decision going against him, will be entitled to raise all the pleas available to him, in the appeal before this Court including the preliminary objection as to the maintainability of the petition which has been overruled by the learned Tribunal by the impugned judgment. With these observations, the petition stands disposed of accordingly. [ii] 1996 SCMR 1165 9. ...The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders. [Emphasis Supplied].

44. As far as the case laws and un-reported order dated 14.06.2016, referred to by learned counsel for the Petitioner are concerned, the same under the 'facts' and 'circumstances' of present case, are not only distinguishable but also of no help as far as the Petitioner's case in hand is concerned. In the present case, no doubt, efforts were made to bring the parties to a settlement to protect the interest of the minor daughter namely Alyna Raheel [aged about 5 years], but such efforts for one reason or the other could not succeed.

45. Needless to say, a preamble is a source/gateway to a statute for ascertaining the intention/object of the legislature which in the case in hand is Family Court Act, 1964 [XXXV of 1964], which provides a speedy method for settling the family disputes. Keeping in view of this object of the Act if, orders of 'interlocutory character' are left open to challenge or brought to the High Court in CPs then, this object of the statute would, of course, be defeated. Further, under the provisions of the Act, a Family Court is subordinate to the High Court if, it is presided over by a person who is or has been District Court or an Additional District Judge and to the District Court in any case as provided in terms of Section 4 of the Family Court Act, 1964 [XXXV of 1964]. Nonetheless, merely, because of subordination to the High Court the orders passed by such subordinate courts do not become revisable by the High Court automatically. Further, by virtue of Section 17 of the Act the application of provisions of C.P.C. does not, as provided in Section 4 C.P.C., overrides any special or local law. In this view of the matter, the orders passed by a Family Court remain excluded, also from the operation of Section 115, C.P.C., if seen in juxtaposition of Section 17 of the Family Courts Act, 1964.

46. Further, no doubt, Section 14 of West Pakistan Family Courts Act, 1964 [XXXV of 1964], mentions the words 'decisions' but such 'words', as has been held by various courts has been used in 'ejusdem generis' and takes colour from the word 'decree' as used in the said Section 14 of West Pakistan Family Court Act [XXXV of 1964]. This being the position, only a final order would be deemed and covered by the word decision and not otherwise. For this reason, as well, no appeal would lie against an order of interlocutory nature. Likewise, is the legal position in respect of a Constitutional Petition against an 'interim order'. Since, in the case in hand, an 'interim order' of 29.07.2019 [Annexure 'P' to the MoP], on the Application under section 12 of Guardians and Wards Act, 1890, [VIII of 1890] has been assailed, as such, the instant petition is not maintainable under law. The Petitioner herein, however, would not be deemed remediless if, a decree is ultimately passed against the Petitioner in Guardians and Wards Application No.1075 of 2019, by a Family Court. In such eventuality, the Petitioner will be at liberty to file an Appeal against such decree/ decision, as well as, the 'impugned order' herein if, so advised.

47. In view of the foregoing discussion, I find no 'infirmity' or 'illegality' in the 'impugned Order' dated 29.07.2019 [Annexure to the MoP], passed by learned Respondent No.2 herein i.e. learned Family Judge-XXI, Karachi-South, therefore, this Constitutional Petition besides not maintainable in law is devoid of any merits. Accordingly, the same is dismissed along with the pending application[s], however, with no order as to costs.

48. Any observation, made / contained in this order, shall not prejudice the merits of Guardians and Wards Application No.1075 of 2019 [Raheel Taufiq Feroz son of Taufiq Feroz v. Mst. Muniba Saeed d/o Naeem Akhter], which shall be decided on its' own merits and in accordance with law. MH/M-2/Sindh Petition dismissed.