1982 PLP 441 (CLC)

(1) That respondent No. I had no jurisdiction to pass the impugned order. (2) That under the law there could be no appeal against interlocutory order on application under section 12 of the Act. (3) That the welfare of the minor was overlooked in passing the impugned order. With regard to contentions Nos. 1 and 2, it is firstly argued that no appeal lies against order passed on application under section 12 of the Act as such order is not included in the schedule of appealable orders in sec tion 47 of the Act. Secondly, it is argued that the appeal against the order of respondent 2 as Family Court did not lie to. respondent No.

1. By enforcement of the West Pakistan Family Courts Act, 1964, exclusive jurisdiction was conferred on Family Courts to entertain, hear and adjudicate upon matters specified in the Schedule to the Act, and custody of Children and Guardianship are mentioned as ` Items Nos. 5 and 6 in the Schedule. Section 14 of the West Pakistan Family Courts Act provides for appeal against "a decision given or decree passed by a Family Court". The section makes it clear that it shall prevail, notwithstanding anything provided in' any other law for the time being in force. In Wajahat Ali Hasnie v. Mst. Gazala (P L D 1970 Lah. 641), it was observed that "the object of this Act is to provide a speedy method of settling family disputes and if orders of interlocutory character are to be brought to the High Court, this object would be defeated. Under the provisions of the Act the Family Court is subordinate to the High Court if it is presided over by a person who is or has been District Judge or an Additional District Judge and to the District Court in any other case, vide section 14 of the Family Courts." In Adnan Afzal v. Capt. Sher Afzal (P.L D 1969 5 C 187), the general principle with regard to interpretation of statutes,' as laid down in the well‑known case of Colonial Sugar Refining‑ Company Limited v. Irving (1905 A C 369) was considered, as also various other authorities referred to in the decision, and the principle adopted by the Supreme Court in the case of State v. Muhammad Jamil (P L D 1967 S C 259) was relied upon; and it was observed as under "The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure." With regard to jurisdiction of the Family Courts‑it was observed that in the absence of provisions of subsections (4) and (5) of section 1 of the West Pakistan Family Courts Act, 1964 pending proceedings even under the Guardian and Wards Act would have been affected and heard and determined by Family Courts to which exclusive jurisdiction had been given. In the aforesaid decision of the Supreme Court where the contention was that the West Pakistan Family Courts Act, 1964 did not affect the jurisdiction of Magistrates under section 488, Cr. P. C. and that in any event the provisions of the Act could not affect pending proceedings before the Act came into force the Supreme Court observed as under "A comparison of provisions of section 488 of the Criminal Procedure Code, 1898 and of the West Pakistan Family Courts Act, 1964 indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court. Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters." It was further observed as under "Looking at the provisions as a whole it is, therefore, clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has, thus, in every sense of the term, brought about only procedural changes and not. affected any substantive right. According to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. It could, therefore rightly be held that the Act affected also pending proceedings and Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance." In the instant case, therefore, in view of the authorities cited I would hold that in respect of providing appeals, predominance goes to section 14 of the West Pakistan Family Courts Act, 1964. Section 14(1) of the West Pakistan Family Courts Act, 1964 reads as under "

14. Appeal.‑(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable‑‑ (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge ; and (b) to the District Court, in any other case. . It has already been decided that order on an interim application under section 12 of the Act is "a decision given" within the meaning of the words used in section 14 aforesaid. In Syed Shamim Ahmed v. Mst. Riaz Fatma (P L D 1975 Kar. 448) it was observed that the expression "a decision given" in section 14 was not in any manner qualified by any such word as `final' and, therefore, an order under section 12 of the Act was "a decision given", and hence appealable under section 14 of the Family Courts Act, 1964. In Mst. Zaibun Nisa v. Muhammad Mozzammil (P L D 1972 Kar. 410) it was inter alia observed that an appeal against a decree or decision of a Family Court under the Act, when its presiding Judge is not a District Judge or' a Judge of equivalent rank lies to the District Court and not to the High Court. Since there was some conflict of decision on the point where other High Courts were concerned, the matter of controversy was laid to rest by amendment of section 47 of the Act by the Guardian and Wards (Amendment) Ordinance, 1980 by which in section 47, clause (j), for the full‑stop at the end, a colon was substituted and thereafter the following proviso has been added provided that where the order from which an appeal is preferred is passed by an officer subordinate to a District Court the appeal shall lie to the District Court." In the decision in Mst. Zaibun Nisa v. Muhammad Mozzammil referred to above, while discussing Revision application filed against an interlocutory order passed on an application under section 12 of the Act, it was observed as under :‑ "In the first place; the argument that the applicant has no other remedy is based on a misreading of section 14 of the said Act. I have quoted this section earlier and it confers a right of appeal even against the decisions of a Family Court. It is clear that the applicant could have filed an appeal in the District Court under clause (b) of section 1‑ of section 14 against the order by which he was aggrieved." As already pointed out the Full Bench decision in Mst. Zaibun Nisa v. Muhammad Mozzammil conclusively decided the two points now raised, firstly with regard to the order under section 12 of the Act being appealable ; and secondly, that the same is appealable in case the Presiding Officer of the Family Court was not a District Judge or a Judge of equivalent rank to the District Court and not to the High Court. Mr. A. R. Mirza, the learned counsel for the petitioners, had referred to the decision of the Supreme Court in Civil Petition for Special Leave to Appeal No. K‑16 of 1972 in which his contention that in such cases appeal lies to the High Court was discussed. The learned counsel before the Supreme Court had also relied on decision of the Lahore High Court in Muhammad Ismail v. Fazal Ahmed (P L D 1969 Lah. 834) and of the Peshawar High Court in Juma Khan v. Gul Farosha (4 P L D 1972 Pesh. 1). The Supreme Court had no doubt observed that there was conflict of opinion in different High Courts on the point and had granted leave to the petitioner to appeal. However, the grant of leave to appeal was before the amendment of section 47 of the Act which was made by Guardian and Wards (,Amendment) Ordinance,.1980. In view of the aforesaid amendment, the controversy on the point has been settled. In any case, since there was in existence the Full Bench decision in the case of Mst. Zaibun Nisa v. Muhammad Mozzammil which incidentally was and is binding on this Court, the contentions Nos. 1 and 2 stated above cannot be accepted. With regard to contention No. 3 it was argued on behalf of the peti tioners firstly that respondent No. 3 being an invalid and requiring herself care of others, is not fit person to have the custody of the minor. Secondly, it is argued that the very fact that the minor had been put in a Christian Missionary School at Murree is sufficient reason for the apprehension that the faith of the minor may be adversely affected. At the very outset it may be stated that as the first two contentions raised on behalf of the petitioners have not been accepted, it is only when the impugned order could be. considered to be contrary to law that the same could be interfered with in exercise of the discretionary jurisdiction of this Court. It is accepted legal position that under the Muhammadan Law, which is the law of the parties, the Hizanat or custody of a female child till she attains puberty is given to 'the mother and the same provision must be considered to be for the welfare of the minor unless the circumstances alleged show that for special reasons the aforesaid provision should not be applied in a particular case. The respondent No. 3 who was attending the Court proceedings in this petition appeared to be able to look. after her affairs, although it is apparent that she can move around only n a wheel chair. There is no authority brought to the notice of this Court ‑that the custody of a minor should not be given to the mother if she is not in a perfect condition of health. The decision as to what could be considered to be for the welfare of the minor would depend' on the evidence that is placed on record. It is apparent from a perusal of the impugned order that the learned Additional District Judge, Karachi went into the question of the welfare of the minor, and it is quite clear that the main question about appointment of a Guardian of the person and property of the minor has yet to be decided and that the impugned order is only with regard to the interim custody of the child. The learned Judge in the impugned order has stated that the real mother of the minor is admittedly holding a responsible post of Vice‑Principal in a very big school of Sindhi Muslim Housing Society, Karachi, and that the mother being entitled to the custody of female minor up to the age of puberty, there was no urgency to transfer the interim custody of the minor from her to the petitioners in absence of any proof of any immediate danger to the person or property of the minor. It was further observed by him that the most important object of the petitioners that the religion of the minor is likely to be affected in the School at Murree obviously did not prevail with the Family Court Judge as he bad not specifically ordered that the minor be removed from that school. It may here be observed that the Missionary Schools in this Country are considered to be some of the best Institutions for education of children and all those people who can afford to give their children good education Make efforts for getting the children admis sion in these Schools. The presumption that there is danger to the religious beliefs of the children would appear to have been taken only as a ground to bolster up the case of the petitioners without there being say evidence on record which could justify such presumption. Under the circumstances, I find no substance in the petition which is accordingly dismissed with no order as to cost. M. A. K. Petition dismissed.