IN THE HIGH COURT OF SINDH, KARACHI

Present:

Mr. Justice Fahim Ahmed Siddiqui

Const. Petition No. 1098 of 2017

Mst. Erum Raza and 2 others……………………………….……….…. Petitioners

Versus

Syed Mushtaq Ali and another………………………………………...Respondents

Date of Hearing: - 03.07.2017

Mr. Zahid Hamid, Advocate for the petitioners

Mr. Irfan Haroon, Advocate for the respondent No. 1

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The present petition has been filed against the Order dated 13-05-2017 passed by the learned Family Judge-XXI, Karachi South whereby the learned Judge, while deciding an interlocutory application for interim custody, has made an interim arrangement during summer vacation by allowing the respondent No. 1 to have the custody of minors (Petitioners No. 1 & 2) from every Saturday at 6:00 PM to Sunday at 9:00 PM.

2. Succinctly, the facts as mentioned in the memo of petition are that the respondent No. 1 filed Guardian and Ward Application before the Family Judge seeking custody of his minor daughters (Petitioners No. 1 & 2). The said application was filed in the year 2012, which is still pending. In the body of the petition, the petitioner No.1 has levelled certain allegations against the respondent No. 1 due to which she forced to file proceedings for Khula which was granted in her favour. The petitioner No. 1 also claimed that she had filed a suit for recovery of her articles, belongings, testimonials and other documents, which are still lying in the marital home under the lock and key of the respondent No. 1. It is also alleged that the respondent No. 1 deliberately avoided to implement the order of interim maintenance, which is now fixed by the court at Rs. 5000/- for each minor. It is further alleged in the memo of the petition that the respondent No. 1 had been moving applications from time to time such as on birthdays, holidays and vacations and the Court allowed visitation right to him for a few hours at the famous eatery McDonald, Clifton or at his home through bailiff of the court. Lastly, on 15-04-2017, an application for interim custody was moved spanning over a couple of days on every weekend during approaching summer vacations. The said application was allowed through the impugned order, which is challenged in the instant petition.

3. In support of the instant petition, the learned counsel for the petitioners addresses at length. According to him, the respondent No. 1 is not a proper person. The morality and character of the minors will be at the stake if the custody is given for a few days. He points out that the impugned order was passed on an application, which appears to be an application under Section 12 of Guardian and Ward Act, 1890 (hereinafter G & W Act) for interim custody and as per provision of para-241 of Mohammed Laws (D. F. Mulla), the minors being girls will remain till 'HIZANAT' under custody and care of mother. He specifically objects regarding the mode and a style of deciding application by the learned Family Judge-XXI, Karachi South. According to him, our system is an 'adversarial system' and we do not follow the 'inquisitorial system'; therefore, the courts in the country have no authority to investigate before entering into adjudication. He submits that the learned Family Judge adopted the mode of inquisitorial proceedings by calling the minors and interviewing them before passing the impugned order. He submits that by adopting this method in the absence of the petitioner No. 1 and her counsel, the trial Court acted contrary to law and in violation of Articles 4 & 10-A of the Constitution of Pakistan. He also points out that prior to passing the impugned order, number of similar applications have already been dismissed by the concerned Family Court, as such a contrary and conflicting orders cannot be passed by the presiding officer of the same court. He further submits that after dismissal of an application, filing another similar application is not maintainable under the principle of ‘res judicata’. The learned counsel for the petitioner No. 1 while complaining against the learned Family Judge, submits that the petitioner No. 1 is not willing to proceed her case before the said presiding officer, as such a transfer application has already been filed. He also addresses the objection raised by this court regarding maintainability by submitting that the instant petition is competent as there is no other remedy available under the law. He points out that the impugned order is an interlocutory order under Section 12 of Guardian and Ward Act, 1890, against which appeal does not lie as such there remains the only option of a writ petition. He submits that the superior courts have already entertained similar applications. In support of his contention, he relies upon the following reported judgments: -

a). Saima Ahmed v. Tanvir Ahmed and others (2009 SCMR 1062)

b). Irfan Ahmed v. II-Judicial Magistrate, East at Karachi (2006 MLD 135)

c). Utility Stores Corporation v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447)

d). United Sugar Mills v. District Magistrate Sukker (PLD 1979 Karachi 410)

e). Syed Azmat Ali v. The Chief Settlement and Rehabiltation Commissioner Lahore & others (PLD 1964 SC 260)

f). State of UP v. Muhyammad Nooh (AIR 1958 SC 86)

4. While opposing the instant petition, the learned counsel for the respondent No. 1 argues that the instant petition is not maintainable as the same is against the interlocutory order. Filing of another similar application is not barred as such the same does not hit by the principle of ‘res judicata’ because the CPC is not applicable in family cases including G & W proceedings. He points out that the learned Family Judge at the time of meeting with minors removed both the parties from her chamber, as such it cannot be said that there was no equal treatment at that time. According to him, if the petitioner considers that the impugned order was passed on an application under Section 12, then the instant petition is absolutely not maintainable as the alternate remedy in the shape of appeal before the District Judge is available. When the provision of appeal is available, then the aggrieved person cannot approach to the High Court under a constitution petition. He submits that under the law, the Family Court can formulate and adopt its own procedure. He further submits that none of the similar application was dismissed, but all the previous applications were disposed of after making some alternate visitation arrangements. According to him, the respondent No. 1 has filed G & W Application in the year 2012 and the same could not be disposed of due to delaying tactics of petitioner. In the end, he requests that the impugned order is just and proper and the same should be maintained. He relies upon the following case laws: -

(a) Mian Shoaib Akram v. Judge Family Court and 4 others (2012 CLC 1900)

(b) Muhammad Irfan v. Judge Family Court, Sargodha and 2 others (2008 CLC 585)

(d) Muhammad Akram v. Mst. Raheela Aslam and 2 others (PLD 1999 Lahore 33)

5. In rebuttal, the learned counsel for the petitioner No. 1 submits that the petitioner has never objected for a temporary meeting or visitation for a few hours in the court or Macdonald or other similar places. He further emphasises that being females, the minors shall remain under ‘Hizanat’ during which overnight stay cannot be allowed.

6. After hearing the arguments of both the learned members of the bar, I have scanned the available record and perused the cited case laws. It is emphatically expressed by the learned counsel for the petitioner No. 1 that an interlocutory order is not appealable; therefore, a CP can be filed. In this respect, he has taken reliance from an order of this Court reported as Irfan Ahmed v. II-Judicial Magistrate, East at Karachi (2006 MLD 135). In the case of Irfan Ahmed (supra), an interim order was passed by a Family Court which was not appealable as per the provision of Section 14 (3) of the Family Courts Act, 1964 (hereinafter Family Courts Act) and against which a revision under Section 115 does not lie in view of the provision of Section 17 of the Family Courts Act. It is also the contention of the learned counsel for the appellant that the impugned order is an interlocutory order and against the same ‘no appeal’ lies, as such CP is maintainable. I have examined the application filed before the trial court, and found that in the said application ‘interim custody’ was sought; therefore, the same is an application under Section 12 of G & W Act. However, if for the arguments sake it is considered that the Order passed on the same is merely an interlocutory Order, which is not appealable even then a CP is not maintainable. Regarding a non-appealable order, a full bench of the Honourable Supreme Court in the case reported as Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary and another (1996 SCMR 1165) has held as:

“The contention of the learned counsel for the appellant that where appeal lies only against the final order a Constitution petition challenging the interim orders can yet be maintained is erroneous. In the Lahore case PLD 1990 Lah. 352 relied upon by the learned counsel for the appellant itself where a final order was passed pending proceedings in the Constitutional jurisdiction it was held that jurisdiction stood barred final order having come in the field.”

In the case of Syed Saghir Ahmed Naqvi (supra), the honourable bench further speaks:

“The statute excluding a right of appeal from the interim order cannot be passed by bringing under attack such interim orders in Constitutional jurisdiction. The party affected has to wait till it matures into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders.”

Similarly, in the case of Mumtaz Hussain alias Butta v. Chief Administrator of Auqaf, Punjab, Lahore and another (1976 SCMR 450), the Honourable Supreme Court held as under: -

"As the said Ordinance has taken away the right of petitioner to interim relief, learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings on the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law."

7. The instant case may be seen from another angle. As discussed above, the interim order is passed in the instant case is under Section 12 of G & W Act and now, it is to be seen whether the same is appealable or not. The Guardian Judge partially allowed the application filed under Section 12 of G & W Act and during summer vacation overnight custody of the minor girls was handed over to the respondent No. 1, who is the real father of the minors. The learned counsel for the petitioner No. 1 much emphasis upon filing of the Constitution Petition on the ground that the impugned order is not appealable. By quoting the case of Irfan Ahmed (supra), he considers that the matter pertaining to the guardianship issues shall be governed by the Family Courts Act and under Section 14 (3), there is a restriction upon filing an appeal against an interim order. However, the position is considerably different as the interim order is passed under Guardian and Ward Act and the same is required to be seen under this context. No doubt, Section 12 of G & W Act it is not mentioned under appealable orders as provided within Section 47 of the G & W Act, but after insertion of the word 'Guardianship' in the First Schedule of Family Courts Act, the provision of appeal is available against an order under Section 12 of G & W Act before the District Judge or Additional District Judge as per the provision of Section 14 of the Family Courts Act, which is reproduced as under: -

“Appeals. – (1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a 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 a 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.

(2) No appeal shall lie from a decree passed by Family Court–

(a) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (a) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939;

(b) for dower or dowry not exceeding rupees one hundred thousand;

(3) No appeal or revision shall lie against an interim order passed by a Family Court.

(4) The appellate Court referred to in sub- section (1) shall dispose of the appeal within a period of four months.”

8. As per the provision of Section 47 of G & W Act, an order under Section 12 of the said Act is apparently seems to be not appealable but in fact it is not so. Actually, the provisions of G & W Act cannot be read in isolation after bringing the matter pertaining to ‘guardianship’ under the jurisdiction of the Family Courts by the Legislature. Now all the matters pertaining to guardianship shall be exclusively triable by the Family Courts created under the Family Courts Act, which is a later enactment comparing to G & W Act. It is the settled principle of interpretation that the statute later in time shall prevail to the earlier. In this respect, I would like to take reliance from the cases of Apex Court reported as Aley Nabi and others v. Chairman, Sindh Labour Court and another (1993 SCMR 328); M/S Mehraj Flour Mills and others v. Provincial Government and others (2001 SCMR 1806) and Sou Motu Case No.13 of 2007 (PLD 2009 SC 217).

9. Now, it is clear from the plain reading of subsection 1 of Section 14 of the Family Courts Act, according to which ‘notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be ‘appealable’. Meaning thereby that in spite of the fact that Section 12 is not mentioned under Section 47 of G & W Act, an appeal can be filed against an order passed under Section 12 being a 'decision' given by a Family Court, and the same does not hit by subsection 3 of Section 14 of the Family Courts Act. It is also obvious from the bare perusal of the aforesaid statutory provision, that appeal shall be filed before the District Court, if the Family Court is not presided by a District Judge or an Additional District Judge.

10. In view of the above discussion, it is very much clear that the impugned order passed by the Family Court is appealable before the District Court; therefore, the same cannot be challenged in a writ petition. In the existing position of affairs, I restrained to enter into the discussion of the merits of the case save to that after disposal of an application under Section 12 of G & W Act, any of the parties of a guardianship proceeding may repeat the said application and such practice is not contrary to law as well as principal of res judicata. It has to be remembered that interim orders relating to the custody of minors are tentative and with the material change in the circumstances, the Guardian Court can always be moved for modification or variation of the orders to promote the minors ‘welfare’. With these observations, the instant petition is dismissed.

J U D G E