1993 PLP 1625 (CLC)

Date of hearing: 2nd December, 1992. The petitioner Mst. Irshad Bibi succeeded in obtaining divorce, by way of Khula`, from her husband Muhammad Zulfiqar, the respondent No.l herein. Respondent Muhammad Zulfiqar being aggrieved by the judgment mentioned above filed a petition under Article 199 of the Constitution being C.P. No. S‑60 of 1989 before this Court. His petition was dismissed in limine on 18‑3‑1990. The petitioner during the marriage had born two sons. The respondent No.l approached the IIIrd Senior Civil Judge, Karachi (South) for their custody and his appointment as their guardian without any success. He, therefore, filed an appeal which came to be heard by VII Additional District Judge, Karachi (South) and was disposed of by him on 30‑11‑1989. According to the terms of that order he was allowed to take the children for two days in the first week of every month and pay Rs.400 as their maintenance. It appears that after about a year of the order that was passed in appeal an application signed by both the parties was filed in the original Guardians and Wards Court. The application sought withdrawal of the original application under certain terms settled by the parties under a compromise whereby the custody of both the minor children was to be handed over to the respondent No.l unconditionally. The petitioner was allowed the freedom to see her two children any time without any restriction. The parties were present in Court and admitted the contents of .the application and the Civil Judge allowed it. After about a year after the compromise mentioned above was reached between the parties the petitioner has filed the present petition under Article 199 of the Constitution to impugned the order passed on the compromise application. Miss Afroze Ehsanul Haq, Advocate for the petitioner, mainly contended that the Guardians and Wards Court after the application for appointment of guardian was disposed of by it and appeal arising out of that order was also decided by the appellate Court, it became functus officio and could neither entertain an application for compromise nor permit the withdrawal of the original application on certain terms and conditions set forth therein. To support her such contention she has referred to the cases reported in PLD 1986 SC 14, PLD 1990 Lahore 350, PLD 1959 Lahore 750, PLD 1976 Karachi 506,1985 MLD 2229 and ILR Bombay

31. Mr. Amin Lakhani, Advocate for respondent No.l, contended that the order passed by the original Court that had decided the application for appointment of guardian of the minors is valid. He referred to the cases reported in PLD 1967 Lahore 977 and AIR 1922 Nagpur

184. He further contended that the petitioner cannot seek relief through a Constitutional petition. He referred to the case reported in 1982 CLC 737 and that the petitioner is guilty of laches. The main objection of Miss Afroze Ehsanul Haq, Advocate for the petitioner, is that once the matter was‑decided by the Family Judge by deciding the application of respondent No.l and refusing him to appoint him as guardian of two minor children, the original Court became functus officio and it was no more competent to entertain a fresh application of compromise and decide it at that stage. Unlike other causes once the proceedings are initiated either for appointment of guardian of the person or property of minors or indirectly de facto guardianship is confirmed by the order passed by the Court under section 25 of Guardians and Wards Act, the Court passing such order does not become functus officio on passing of such order. It continues to hold jurisdiction till the minor attained the age of majority which in such cases will be 21 years. There can be many instances like the death, insanity or other disability of the guardian to continue to act as guardian of the minor which may need change or modification without resorting to fresh proceedings. It, therefore, follows that the original Court in such cases would be competent to entertain the application for compromise and pass an appropriate order till the ward or the wards attained age of 21 years. It, therefore, cannot be said that order passed in this case and impugned in this petition is passed without lawful authority. Besides, the petitioner has not explained in her petition or otherwise about the delay of 12 months taken by the petitioner to file the present petition. For the above reasons I find no force in this petition which is dismissed with no order as to the costs. AA./I‑226/K Petition dismissed.