P L D 1976 Karachi 506 (PLP)

MUSHTAK ALI KAZI, J.-This petition is directed against the order of Vth Additional District Judge passed in appeal, whereby the judgment in guardianship matter passed by the Family Court & Civil Judge, Ist Class, Karachi was set aside and case remanded on the ground that no attempt had been made to effect a compromise by holding a pre-trial hearing under section 10 of the West Pakistan Family Courts Act.

2. The facts of the case in brief are that the parties were married in November 1959. But these was disagreement between the husband and wife and ultimately petitioner Mst. Khadija Khatoon left her husband and went and stay ed in the house of her parents. The respondent No. 2 thereafter divorced her sometime in 1969. During these 10 years, 5 sons were born to the petitioner. The respondent demanded the custody of the children from the petitioner but the petitioner contended that although the children bad been sent to the house of the respondent he had sent them back to the petitioner and since then they were residing with her. and are being maintained by her with the help of her father and brothers. The Family Court framed the usual issues regarding maintainability of the suit; the welfare of the minors and the entitlement to custody of the plaintiff-respondent. He decided these issues in favour of the petitioner and held that the respondent had neglected and failed to maintain the children and they had to take shelter in the house of the petitioner. That the respondent/father had not taken proper interest in the welfare of the minors and their custody could not, therefore, be disturbed at that stage.

3. Against the aforesaid decision of Ist Class Civil Judge & Family Court an appeal was preferred and the same was heard by the Vth Additional District Judge, Karachi. The learned Additional District Judge without going into the merits of the decision on the various issues found ,that the Family Court had ignored the provisions of section 10 of the West :Pakistan Family Courts Act, regarding pre-trial hearing. That the Court had not summoned the parties for reconciliation in presence of the Civil Judge though heavy responsibility was placed on the Judge to effect a compromise as far a3 possible when the question of custody of children was before him. He accordingly allowed the appeal and remanded the matter to the lower Court to again proceed from the stage of pre-trial hearing, which according to the learned Additional District Judge, was a legal requirement.

4. It has been argued by Mr. Talmiz Burney on behalf of the petitioner that the procedure provided under section 10 of the West Pakistan Family Courts Act could not be made applicable to proceedings under the Guardians and Wards Act and since these directions, for bringing about a compromise regarding the question of custody of the children, were against the provisions of law, the order of the appellate Court may be declared to be of no legal effect.

5. Under section 25 of the West Pakistan Family Courts Act, the Family Courts have to follow the procedure laid down in Guardians and Wards Act in matters of guardianship and custody of minors. This is an exception to the procedure otherwise laid down by this Act. The main reason for this exception is that the Court's powers and duties in appointment of guardians or in respect of custody of the minors are in the nature of parental jurisdiction, the main question to be considered by the Court being the welfare of the minor. All that the Court is required to see is that in passing an order the Court might also consider the personal law to which the minor is subject, but the paramount .consideration is always the one regarding the minor's welfare and protection of his interest. No case under the Guardians and Wards Act with regard to' the custody or guardianship of a minor can be decided merely by consent of -the parties or by giving effect to any compromise. Under these circumstances a pre-trial hearing, to induce the parties to effect a compromise in respect of questions connected with the guardianship or custody of minor children, is snot only unnecessary but even undesirable. The requirement with regard to the framing of issues referred to by the learned Additional District Judge in his order, has been held to be merely a directory provision and any omission ,to frame such issues in the circumstances would not be fatal to the case nor would the proceedings be vitiated on that account. But in the judgment of the Family Court, it has been mentioned that the issues had actually been framed on the 'pleadings' of the parties.

6. The above view has been emphasised in a number of decisions. In Mst. Zaibun Nisa v. Muhammad Mozammil (P L D 1972 Kar. 410) it has been explained in detail, shat the matters of procedure relating to the mode of trial, the manner of staking evidence etc.. in guardianship cases are governed by the Guardians an& Wards Act and not by the Family Courts Act, as provided under section 25, of that Act.. In Malik Khizr Hayat Khan v. Mst. Zainab Begum (P L D 1967 S C 402) it was held that in proceedings under the Guardians and Wards Act, the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore in which there could by its very nature be any scope for any undue adherence to technicalities, and if by an erroneous view of law or erroneous assumption of facts the Court had exercised the jurisdiction which it did not possess. High Court had every power under Article 98 to review such a decision. In Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore and others (P L D 1967 Lah. 977), it was observed that guardianship proceedings are held in exercise of parental jurisdiction which is not a proper branch of law for enforcing of technicalities of pleadings or strict formalities. The Guardianship Courts are to keep the welfare of the minors constantly in mind and to act with the object of promoting their interest. In an earlier decision reported in Sajjan Singh v. Mst. Gujri (A I R 1928 Lah. 108) it was observed that the procedure under the Guardians and Wards Act is not intended to be summary procedure. In fact section 11 of the Guardians and Wards Act provides the procedure to be followed in dealing with cases under the Guardians and Wards Act. and where section 11 is silent having regard to section 141 of the Civil Procedure Code it must be held that the provisions of C. P. C. should be followed as far as may be in proceedings under the Act.

7. Mr. Sabir Hussain Rahmani on behalf of the respondent has not been able to cite any authority to suggest that the requirements of a pre-trial hearing for effecting a compromise or re-conciliation between the husband and wife should also apply to questions connected with guardianship or custody of minors. As already pointed out above, a husband or wife's consent with regard to these matters would have no binding force; it being the responsibility of the guardian Judge to decide such questions of paramount importance relating to the welfare of the minors. In any case mere technicali ties of procedure would not affect the decision of the guardian Judge based on broad principles in the interest of the minor. . In such matters even the personal law is not absolutely binding on the Court and can be ignored if welfare of the minor so requires. Under the circumstances we have no hesitation in arriving at the conclusion that the view taken by the learned Vth Additional District Judge has no legal justification. and his judgment. would, therefore, be of no legal effect. The decision of the lst Class Civil Judge & Family Court would accordingly prevail. KHUDA BAKHSH MARRI, J.-I agree. S. A. H. Petition accepted