2019 PLP 1352 (CLC)

SHAKEEL AHMAD, J.

This writ petition has been filed against the judgment dated 10.01.2019, passed by the learned Additional District Judge, Bannu, whereby he has affirmed the order of the learned Guardian Judge, Bannu, allowing the application of the respondent No.1 Mehr-un-Nissa under section 12 of the Guardians and Wards Act, directing delivery of interim custody of the minor child to his real mother.

2. Concisely, the facts of the case in brief, are that respondent No.1 was married with Mujeeb-ur-Rehman (petitioner No.1). They were blessed with one male baby Muhammad Zain on 13.5.2010. Due to strained relations with the petitioner, she started residing in the house of her parents and ultimately, the marriage between the parties was dissolved through a suit for dissolution of marriage.

3. She filed an application for custody of the minor under section 25 of the Guardian and Wards Act. An application under section 12 of the ibid Act was also filed along with said petition. The learned trial court, after providing an opportunity of hearing to the parties, allowed the interim custody of the minor to respondent No.1 on 21.12.2018. Appeal filed before the learned Additional District Judge, failed in the manner that he confirmed the said order vide his order/judgment dated 21.12.2018. This petition assails the judgment of the learned courts below.

4. It has been urged by the learned counsel for the petitioner that welfare of the minor lies with the petitioner, who has sound financial position qua the respondent, secondly no urgency has been shown for change of interim custody and thirdly that the minor is aged about 8/9 years, therefore, the petitioner being real father of the minor is entitled to retain his custody.

5. Conversely, learned counsel for the respondent No.1 contended that the judgments of both the learned courts below are based on well established principles of law; that petitioner is serving at United Arab Emirates, the minor is of tender age and he was totally at the mercy of his paternal grandfather and cousin of the petitioner; that the minor needs the company of his mother and interlocutory orders are not challengeable through constitutional petition and prayed for dismissal of the writ petition.

6. I have heard the arguments of learned counsel for the parties at length and have gone through the record with their eminent assistance.

7. Before going to the legality of orders passed by the learned lower courts, it would be appropriate to reproduce section 12(1) of the Guardians and Wards Act, 1890, which read as under:- "

12. Power to make interlocutory order for production of minor and interim protection of person and property. (1) 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 order for the temporary custody and protection of the person or property of the minor as it thinks proper."

8. A plain reading of ibid section makes it crystal clear that Guardian Judge is empowered to make interlocutory orders for production of minor and interim protection of his person and his property, even this power can be exercised in the absence of an urgency. He has parental jurisdiction upon the minor. Interim custody of minor cannot be fettered with a pre-condition of urgency.

9. It is evident from the record that petitioner father is serving in United Arab Emirates and not residing in Pakistan. He does not visit very often, and minor was totally at the mercy of his paternal grandfather and cousin of the petitioner, hence, for all practical purposes, the minor is not having paternal love and affection in any manner, company of grandfather and cousin of the petitioner obviously, cannot be a substitute to the mother and even father either. This also gives support to the claim of the petitioner. In this respect, I am fortified by the judgments reported as Mst. Farah Waqar v. Dr. Waqar Ahmad Khan (2000 YLR 3046) and Mst. Khurshid Begum v. Additional Sessions Judge, Rawalpindi (PLD 2004 Lahore 395).

10. It is now well settled that maintenance of a child is the responsibility of the father; the minor can still have the same level of the education and treatment even while remaining under the shadow of his mother. The custody of minor cannot be allowed to shuttle between the parties. Once the Guardian Judge has examined its jurisdiction in granting interim custody, the same should be allowed to stay, unless there are compelling circumstances to change his custody. Even other-wise, order of temporary custody of the minor being interim in nature, would be subject to decision in the main case. Same could be varied, altered or rescinded by taking notice of all subsequent events and welfare of minor.

11. For the foregoing reasons, I came to irresistible conclusion that findings of the courts below with respect to the interim custody of minor is unexceptional, no illegality or irregularity or jurisdictional defect could be pointed out in the impugned judgments of the courts below, calling for interference. The writ petition, therefore, is without substance, hence, is dismissed. However, the learned trial court is directed to pass an appropriate order for production and visitation of minor to petitioner father without disturbing his studies in the school in earliest opportunity. SA/82/P Petition dismissed.