2000 PLP 3046 (YLR)

The learned Guardian Judge vide his order, dated 20‑2‑1998 withdrew his earlier order, dated 15‑12‑1998 and directed that the minor be admitted as a boarder in the Aitchison College, Lahore. It was further held in the said order that the minor would be taken by the writ petitioner i.e. his mother to her house if permitted by the College rules on week end or on any holiday. The petitioner filed Writ Petition No.3502 of 1999 taking exception to the order, dated 20‑2‑1999. It so happened that subsequent to the filing of this writ petition, respondent No.l filed an application before the Guardian Judge for the issuance of warrants under section 100, Cr.P.C. on the ground that the writ petitioner had not complied with the order, dated 20‑2‑1998. The learned Guardian Judge without giving any opportunity to the writ petitioner issued warrants for the recovery of the minor from the writ petitioner vide his order, dated 24‑4‑1998. A 'revision petition was filed by the petitioner which was dismissed by the learned Additional Sessions fudge, Lahore on 10‑5‑1999. The petitioner challenged the order of issuance of warrants, dated 24‑4‑1998 by the Guardian Judge, Lahore and the dismissal of her revision petition vide order, dated 10‑5‑1999 by the Additional Sessions Judge through writ petition bearing No.8613‑

99. The learned Judge vide his order, dated 17‑5‑1999 suspended the operation of the warrants. Learned counsel for the petitioner has argued that after the passage of the order, dated 15‑12‑1998 dismissing respondent's application filed under section 12 of the Act, the learned Guardian Judge could not have reviewed his order, as such, the impugned order, dated 20‑2‑1999 and consequent issuance of the warrants cannot be sustained. A further argument has been advanced that respondent cannot blow hot and cold in the same breath as he himself took off the minor from Aitchison College and got him admitted at Lahore Grammer School which factum is reflected from the order, dated 15‑12‑1998 of the learned Guardian Judge. Since the minor is doing fine in the present school as such, there is no justification at this stage to uproot him from there which course of action in the circumstances would have adverse effect on his upbringing. In support of his contentions learned counsel for the petitioner has placed reliance upon Mst. Maqsoodan Bibi v. Mst. Bhano (PLD 1965 Lah. 183), Ali Khan Suban Poto v. Federation of Pakistan and others (1997 SCMR 1590), Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1), Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94), Anwarul Rahman and others v. Modarba‑al Mali (1997 MLD 3132), Captain S.M. Aslam v. Mst. Rubi Akhtar (1996 CLC 1), Mst. Zar Bibi v. Haji Malik Abdul Ghaffar and others (1998 MLD 1969), Mst. Tehmina Khan v. Jehanzeb Khan Bharwana (PLD 1997 Lah. 541) and Sheoshankar and another v. Khupchand (AIR 1925 Nagpur 233). Learned counsel for the respondent has supported the impugned order. He has stated that the application under section 12 of the Act was still pending as the reply thereto was not filed by the petitioner. He has stated that the order, dated 15‑12‑1998 is nothing but the disposal of his application made for the early disposal of his interim plea qua the lodgment of minor as Boarder in the Aitchison College, Lahore On this basis it is argued that the order dated 20‑2‑1999 was a first order disposing of respondent's application filed under section 12 of the Act. He has also argued that the order of the custody of the minor is not of permanent nature and may be changed at any time for strong and good reasons. He has also argued that the Aitchison College being a prestigious Institute, the study of the minor as boarder in the present circumstances when the parents are living apart due to strained relations would help a lot in improving his career. In support of his contentions he has relied upon Muhammad Saeed Bin Mughni v. District Judge, Central Karachi and 2 others (1989 ALD 400), Mst. Sultana Begum v. Muhammad Shafi (PLD 1965 (W.P.) Karachi 416), Abu Saeed A. Islahi v. Mrs. Talat Mir and 2 others (1994 MLD 1370), Muhammad Gul v. Mst. Sharu Bibi and 3 others (PLD 1995 Pesh. 77), Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge Lahore (PLD 1967 Lahore 977), Malik Khizar Hayat Khan Tiwana and others v. Mst. Zainab Begum PLD 1967 SC

402. I have given my anxious consideration to the entire facts of this case. The argument of the learned counsel that since the reply to the application made under section 12 of the Act was filed on 6‑1‑1999, as such, said application could not be considered to have been disposed of by the order, dated 15‑12‑1998 is devoid of any force. This argument does not lie in the mouth of respondent No. l whereby his earlier interim plea made through application filed under section 12 of the Act for the lodgement of the minor in the Aitchison College as a boarder was rejected by the learned Guardian Judge on 15‑12‑1998. The grievance, if any, for the non‑submission of the reply to the application under section 12 of the Act could have been made by the writ petitioner. In this view of the matter when the interim issue qua the lodgement of the minor has been decided by the Guardian Judge on, 15‑12‑1998 it cannot be said that the application under section 12 of the Act qua the same issue/relief is still pending. The review is a substantive right. It could not have been exercised unless and until there is some provision to that effect' in the Act itself. Reliance in this respect has been aptly placed by the learned counsel for the writ petitioner on Maqsoodan Bibi v. Mst. Bhano PLD 1965 (W.P.) Lahore 183), where it was held as under: "The right of review is like a right of an appeal a substantive right, and it is not available unless it is expressly conferred by a Statute. No such right is conferred by the Guardians and Wards Act. It appears that the Legislature did not intend to give such a right because otherwise it would have been included in section

48. The absence of reference to review in the section leaves no doubt whatsoever that the power of the Courts to review their orders was excluded by necessary intendment. It was further observed as under: "In Ralla v. Mst. Manglan 116 PR 1912 it was held that section 114, C.P.C. providing power to review does not apply to the Guardians and Wards Act. Mst. Sharfan v. Mst. Bholi and others AIR 1922 Lah. 395 it was held that it was not competent for the subordinate Judge to review his order of appointment of the guardian of the minor. It would thus be clear that no power of review existed in the learned Guardian Judge to have set aside his earlier order, dated the 16th of November, 1962. " The argument of the learned counsel that the order of the custody of the minor is not of permanent nature and can be changed at any time is not applicable to the facts and circumstances of the present case. It is true that so long as the matter is not finally determined, the order regarding the custody of the minor can be changed. The welfare of the minor is the paramount consideration, as such, the same can be changed subsequently for good reasons. Once the order of custody has been passed by a Court of competent jurisdiction after full deliberation, it cannot be reviewed/changed as of right unless and until some material change has taken place. One such good reason may be that after securing the custody of the minor girl, if the lady marries a stranger, in that eventuality any change can be made. In the case of Begum Zainab Tiwana reported in PLD 1967 Lahore 977, reliance on which is heavily placed by the learned counsel for respondent No.l, her first application was dismissed for non‑prosecution as she could not pursue the same appropriately on account of threats and juicy promises extended by the respondent in that case.. On her second application the other side pleaded bar by the principle of res judicata and accordingly the learned Guardian Judge found that it was barred by Order 9, Rule 9, C.P.C. The learned District Judge also as an Appellate Court upheld the findings of the Guardian Judge. In the Constitutional petition learned Division Bench repelled the applicability of res judicata as it was not a case of review of earlier order of custody of the minor. The learned Division Bench held as under: "The two Courts ought to have appreciated that guardianship proceedings are held in exercise of parental jurisdiction which is not a proper branch of law for enforcement of technicalities of pleadings or strict formalities‑‑‑See Mst. Khundi Devi v. Chhotey Lah AIR 1922 All.

338. The Guardianship Courts are to keep the welfare of the minors constantly in mind and to at with the object of promoting their interest: See Saraswati Bai v. Sharipad Ved AIR 1981 Bom. 103 and Muhammad Sadiq v. Wafati AIR 1948 Ough.

51. The Courts may, in suitable circumstances, at any time change or modify their orders for purposes of better supervision of wards: See Mazhar Ali v. Kulsum AIR 1970 All. 315 and Nagards v. Anandrao ILR 31 Bom.

590. Similarly those who claim the custody of minors cannot do so for satisfying their vanity, nor even to soothe the carving of their live of affection, but ought to do so when it is essentially for the welfare of the minors themselves. This is clear from the trend and language of section 25 of the Guardians and Wards Act, 1890. The learned Judges finally accepted the Constitutional petition and directed to dispose of the matter of custody in accordance with law, holding that the second application would be deemed pending before the Court. An appeal was filed against this order, which was dismissed by the Hon ble Supreme Court in Malik Khazar Hayat Khan Tiwana and others v. Mst.Zainab Begum and others (PLD 1967 SC 402). The Hon ble Supreme Court held as under: The right to the custody of a minor is, in any event in the mature of a counting right as for each day the minor ids kept out of the custody of a person lawfully entitled thereto separate application can be made. Unless, of course, the right of custody itself has been adjudicated upon and one of the other contestingparty has been found to be disentitled to it or that it has been found that the welfare of 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." The view of the Hon'ble Supreme Court is that until and, unless the question of custody of the minor is finally adjudicated on merits, second application cannot be barred. Further as already stated keeping in view the question of welfare of the minor, the order of custody once passed can be varied in a situation which has completely changed the complexion of the case. At the cost of repetition one such eventuality would be, that the mother of the minor has entered into marriage contract with a stranger. Apart from this during the course of arguments minor Umair Ahmad Khan appeared before me in response to my earlier direction. He appears to be an intelligent young lad having reached age of discretion. He has categorically stated that at no cost he would like to go as a boarder to the Aitchison College, Lahore. According to him he is getting his education in a good atmosphere from Lahore Grammer School by staying with his mother and maternal grandparents. His version keeping in view his age and his intelligence which he has demonstrated in the Court cannot be brushed aside lightly. In forming this view that the minor's wishes are to be taken into consideration I am fortified from a Hadith Mubarika which is as under: "Hazrat Abu Huraira (R.A.) transmitted that 'woman came to the Holy Prophet (may peace be upon him) and said ' My husband intends to take away my son. While he fatches water for me from the well of Abu Atha and also serves me'. On that the Holy Prophet (may peace be upon him) said to the minor' this is your father and this is your mother. Hold the hand of any of the two, you like'. So, the minor held the hand of his mother and she went away with him. Ref. l Almosoha Alfiqiah published by Wazart‑ul‑Auqaf Washoon‑al Islamia, Kuwait. Part 17, page 316.

2. Sunan Abu Dawood, translated by Allama Waheed‑uz‑Zamaia Part II, page 209." Reliance is also placed upon Captain S.M Aslam v. Mst. Rubi Akhtar (1996 CLC 1 where it was held as under: "I have no hesitation to hold that both the subordinate Courts have failed to exercise their parental jurisdiction, in their true sense as they have not taken into consideration the wishes of the minors in terms of section 17(3) of 'the Act' particularly after their attaining puberty. Therefore, the opinion drawn by the subordinate Courts on the basis of textbooks or judgments of High Courts not approved by the Supreme Court are not sustainable in the eyes of law. In my view this legal defect radiating from the judgments of the subordinate Courts with reference to section 17(3) of 'the Act' is more than sufficient to declare that the impugned orders of the Courts below were passed without any lawful authority." Reference is also made to Mst. Zar Bibi v. Haji Malik Abdul Ghaffar and others (1998 MLD 1697) where it was held as under: "By now, it is well‑settled that while disposing of applications under sections 17 and 25 of the Guardians and Wards Act, the supreme consideration should be the welfare of minors coupled with their own wishes, as it has been held in Mst. Talat Nasira v. Mst. Munawar Sultana and 2 others (1985 SCMR 1367). Relevant para. therefrom is reproduced hereinbelow: "From the perusal of the order of the Guardian Judge, it seems that the main consideration that prevailed with him was the factum of second marriage contracted by the petitioner with a stranger. Prima facie, however, the learned Judge did not give due regard to the wishes of the minor himself and seems to have disregarded the same on considerations, which, in our opinion, require re‑examination. It is axiomatic that in the matter of appointment of a guardian the welfare of the minor coupled with his own wish particularly when be can make a reasonable preference on account of his age is the primary consideration for a Court of Law for the decision of such cases. It was stated before us that the minor is now thirteen years of age and he appeared to us to be capable of making an intelligent preference on the question in dispute. The other point that requires consideration is whether in case of a male child marriage of his mother with a stranger would be a relevant consideration for depriving her of the custody of the minor'. " (Underlined is mine). There is another aspect of this case which also cannot be lightly ignored. In case the minor Umair Ahmad Khan is lodged as a boarder in the Aitchison College, he would be deprived of love and affection of his mother as well as maternal grand parents. Above all Noor Zohra his younger sister for no fault of her own would be deprived of the company of her only brother. I am definite in my mind that in the circumstances of the present case, the lodgement of the minor as a boarder‑in the Aitchison College would have adverse effect upon his upbringing particularly so when he is taking his education at Lahore Grammar School by living with his family members. I would not like to make him a shuttle cock as he was earlier got removed from Aitchison College by respondent No. l himself as reflected from the order of learned Guardian Judge, dated 15‑12‑1998 though respondent No. l has denied the same. At this juncture when the minor has got himself fully adjusted in Lahore Grammar School I would not like to uproot him from there. Resultantly for what has been stated above both the writ petitions are accepted and the orders impugned therein are declared to have been passed without lawful authority having no legal effect. The record of this case be sent back immediately to learned Guardian Judge who shall expeditiously decide the matter pending before him being uninfluenced by any observation made in this judgment. There shall be no order as to costs. Petitions allowed. Q.M.H./M.A.K.A./F‑15/L