IN THE HIGH COURT OF SINDH, KARACHI

Const. Petition No. 1543 of 2017

Mst. Farzeen and 2 others…………….……………….……….…. Petitioners

Versus

Yasir Kalwar and another………………………………………...Respondents

Date of Hearing: - 02.08.2017

Mr. Muhammad Haseeb Jamali, Advocate for the petitioners

M/S. Mohsin Tayebaly & Co, Advocates for the respondent No. 1

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The present petition impugns the Order dated 08-07-2017 passed by the learned Family Judge, Karachi South whereby the learned Judge, while deciding an interlocutory application, has made an interim arrangement during summer vacation by allowing the respondent No. 1 to have custody of minors (Petitioners No. 2 & 3) from 26-07-2017 to 04-08-2017 for three hours during the day time from 4:00 PM to 7:00 PM in presence of bailiff.

2. Factual matrix of the case is that the Respondent No. 1 filed a Guardian and Ward Application before the Family Court, Karachi South for the custody of his two minor daughters in the year 2016 which is still pending. Meanwhile, the respondent No. 1 filed an application for the temporary custody of his minor daughters to take them to the United Kingdom in their summer vacations. The learned Family Judge disposed of the said application through the order, which is impugned in this petition.

3. The learned counsel for the petitioner, while assailing the impugned order, submits that the learned Family Court has already decided an application under Section 12 Guardian and Ward Act, 1890 (hereinafter referred to as ‘G & W Act’) and under the verdict of order dated 14-10-2016, the meetings of respondent No.1 with the minors are being held and the said order is still in field as the same is not modified under any appeal/petition. According to him, after passing the order dated 14-10-2016, the learned Family Judge cannot pass another direction through the impugned order. He points out that the learned Judge has given a relief to the respondent No.1, which was neither pleaded nor responded by the petitioner. According to him, as the application was limited to request for taking the minors to UK, therefore counter submissions were limited to that extent, as such it amounts to condemn the petitioner unheard. He further submits that the petitioner has already filed another family case pertaining to different relief(s) in which the Court has given permission to the petitioner to take the minors UK but the impugned order contradicts the order of the other Family Court, which has granted permission to the petitioner to take the minors to UK. Regarding this point, he takes reliance from Dilawar Jan v. Gul Rehman and 5 others (PLD 2001 Supreme Court 149) and Pakcom Ltd v. Federation of Pakistan (PLD 2011 Supreme Court 44).

4. Regarding maintainability of the instant petition, the contention of the learned counsel for the petitioner is that as there is no other remedy available; therefore, the instant petition is maintainable. He submits that as per provision under Sections 47 & 48 of G & W Act, no appeal can be filed against the order under Section 12 G&W Act or any other order which is not mentioned in Section 47 of the said Act. He further submits that as per provision under Section 14 (3) of the West Pakistan Family Court Act 1964 (hereinafter referred to as ‘Family Court Act’), appeal against an interim order is not maintainable, as such the constitutional petition is the only remedy available to the petitioner. He takes reliance from Mst. Maham Shabbir v. Salman Haider and others (2014 CLC 330), Shahbaz Aftab Khan v. Judge Family Court (2014 CLC 1168), Imran Butt v. Mehrin Imran (2015 CLC 1209) and Maliha Hussain v. Additional District Judge and another (2017 MLD 485).

5. Conversely, the contention of Mr. Arshad Tayabaly, learned counsel for the respondent, is that the constitution petition is not maintainable. According to him, while deciding the question pertains to custody of minor, the only thing that should be considered is the welfare of minors. He submits that the order dated 14-10-2016 cannot be termed as unchangeable and the same has been changed and amended in the past. He submits that as per order, the meeting was allowed in the Court but looking to the circumstances of the case, the Family Court allowed meeting at home on the occasion of birthday during which the minors were very happy and this fact transpires from the report of Bailiff. He submits that it cannot be said that the Family Court allowed the relief, which is out of the prayer. According to him, the prayer was for the entire month but the Court has considered the situation and allowed the meeting during summer vacation for three hours daily for 10 days.

6. After hearing the arguments of both the learned members of bar, I have scanned the available record and perused the cited case laws. It is emphatically expressed by the learned counsel for the petitioner that an interlocutory order is not appealable; therefore, a constitution petition can be filed. In this respect, he has taken reliance from certain case laws referred above. No doubt, in case of an interim order passed by the Family Court, when a sheer violation of settled legal principle is done, the High Court has to invoke in the matter under constitutional jurisdiction because such order is not appealable under Section 14 (3) of the Family Court Act. However, the situation in the instant matter is entirely different, as impugned order pertains to temporary custody of minors, which definitely falls under Section 12 of G & W Act and the same has to be seen under the context of G & W Act read with the provisions of Family Court Act. There is no question about it that Section 12 of G & W Act is not mentioned under appealable orders as provided within Section 47 of the G & W Act, but after amendment in the First Schedule of Family Court Act, whereby the jurisdiction of Family Court is extended and now the matter pertains to 'Guardianship' are within the domain of Family Court, situation becomes somewhat different to the previous position.

7. As per provision of Section 12 (1) of the Family Court Act, "a decision given or a decree passed by a Family Court shall be appealable." Now, the provisions of Sections 47 and 48 are required to be read in the backdrop of the existing legal position. After bringing the matter pertains to ‘guardianship’ under the jurisdiction of Family Court, same are exclusively triable by the Family Courts created under the Family Courts Act, which is a later enactment comparing to G & W Act. As per settled principle of interpretation, the statute later in time prevails to the earlier. In this respect reliance may be taken from the cases 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).

8. Now, if we consider 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.

9. 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. With these observations, the instant petition is dismissed.

J U D G E