20/09/2025
فیملی کورٹ کی طرف سے دیا گیا عبوری یا عارضی حکم (Interim/Interlocutory Order) نگرانی (Revision)، اپیل یا ریویو کے قابل نہیں ہوتا۔ اپیل یا نگرانی کا حق صرف فیملی کورٹ کے حتمی فیصلے (Final Order) کے خلاف دیا گیا ہے۔ دفعہ 14(3) فیملی کورٹس ایکٹ 1964 کے تحت فیملی کورٹ کے عبوری حکم کے خلاف نہ تو اپیل اور نہ ہی نگرانی دائر کی جا سکتی ہے۔
🔴 2023 Y L R 497
[Lahore (Bahawalpur Bench)]
Before Safdar Saleem Shahid, J
Mst. SHARAM ELLAHI---Appellant
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Writ Petitions Nos. 3332 and 3333 of 2021, decided on 11th October, 2021.
📍(a) Guardians and Wards Act (VIII of 1890)---
----Ss.12, 25 & 47---Family Courts Act (###V of 1964), S.14(3)---Welfare of minors---Father as a natural guardian---Scope---Res judicata, non applicability of---Petitioner being maternal grandmother filed application before Guardian Judge for custody of minors, who were residing with the petitioner---Petitioner also filed application for permanent injunction regarding the custody of minors---Respondent (father) contested the application before Guardian judge for custody of minors along with application of interim custody of the minors---Guardian Court dismissed the application of the petitioner, and, accepted the application of respondent---Petitioner filed appeal before Appellate Court---Appellate Court dismissed appeal of the petitioner---Contention of father was that maternal grandmother had no lien to file the application in presence of real father---Validity---Father was natural guardian of the minors and he could look and take care of the welfare of the minors in a better way, when specifically there was no allegation of the character or any other negative object/act which was necessary to refuse the real father for the custody of minors---Order under S.12 of the Guardians and Wards Act, 1890 was not mentioned under the appealable orders as provided in S. 47 of the Act---Application for the custody of minors under S.25 of the Act, was still pending before the Guardian Court---As such there was no ground to interfere in order passed by Guardian Judge---Appeal against interlocutory order under S.12 of the Guardians and Wards Act, 1890, is not maintainable---No bar existed for repeating the applications for interim custody before the Guardian Court, if new grounds are available because such practice is not contrary to law as well as principle of res-judicata, as interim orders relating to the minors are tentative and with the material change in the circumstances, the Guardian Court can always be moved for modification of the orders to promote the welfare of the minors---High Court declined to interfere in the order of Guardian Judge, being interim in nature---High Court observed that final custody of the minors will be determined while deciding the application under S. 25 of the Guardians and Wards Act, 1890---Constitutional petitions were dismissed.
Nasir Raza v. ADJ, Jhelum and another 2018 SCMR 590 rel.
Maliha Hussain v. Additional District Judge-V and another 2017 MLD 485; Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828; Javed Irfan v. Additional District Judge 2007 MLD 1089; Nasir Raza v. Additional District Judge, Jhelum and another 2018 SCMR 590; Tassadaq Nawaz v. Masood Iqbal Usmani and others PLD 2018 Lah. 830 and Syed Saghir Ahmad Naqvi v. Provinvce of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 distinguished.
📍(b) Family Courts Act (###V of 1964)---
----S.14(3)---Guardians and Wards Act (VIII of 1890), Ss. 12, 25 & 47---Appeal against interlocutory order---Interlocutory order/interim order passed by the Family Court is not subject to revision or appeal or review---Provision of revision or appeal has been given to the final order of the Family Court---Under S.14(3) of the Family Courts Act, 1964, no appeal or revision lies against interim order passed by the Family Court.
(c) Family Courts Act (###V of 1964)---
----S. 14(3)---Guardians and Wards Act (VIII of 1890), Ss. 12, 25 & 47---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court--- Scope--- Interference at the interlocutory stage should be avoided by the High Court in constitutional jurisdiction, more particularly when the legislatures have not provided any appeal against interlocutory orders in relevant statutes--- Under, the constitutional jurisdiction such right should not be allowed to be exercised.
Syed Saghir Ahmad Naqvi v. Provinvce of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 rel.
Jamil Hussain Joiya for Petitioner.
Abdul Jalil Khan for Respondent No.4.
Date of hearing: 11th October, 2021.
🔴 JUDGMENT
SAFDAR SALEEM SHAHID, J. - Through this single judgment it is proposed to decide W.P. No.3332/2021 and W.P. No.3333/2021 as common questions of law and facts are involved in both these petitions.
2. Brief facts necessary for disposal of W.P. No.3332/2021 are that the petitioner being maternal grandmother filed an application before the learned Senior Civil Judge (Family Division), Bahawalpur for custody of minors Sobia Bibi (aged 07 years), Tayyeba Bibi (aged 06 years), Muhammad Owais (aged 04 years) and Muhammad Usama (aged 02-1/2 years) who are residing with the petitioner. Along with this application, the petitioner also filed an application for permanent injunction regarding the custody of the minors which was contested by respondent No.4 and he has also approached the learned Guardian Judge for the custody of the minors along with application of interim custody of the minors. The learned Guardian Judge after hearing arguments, dismissed the said application of the petitioner vide order dated 28.01.2021, whereas, accepted the application of respondent No.4 for interim custody of the minors vide order of same date. Then the petitioner moved an appeal before the learned Additional District Judge, Bahawalpur against the order dated 28.01.2021, but the same was also dismissed vide judgment dated 31.03.2021.
3. The facts narrated in W.P. No.3333/2021 are that respondent No.4 filed an application under section 25 of the Guardians and Wards Act, 1890 for taking permanent custody of the above said minors who are residing with the petitioner/maternal grandmother. Along with said application, respondent No.4 also filed an application under section 12 of the Guardian and Wards Act, 1890 for interim custody of the minors. Application under section 12 of the Guardians and Wards Act, 1890 was contested by the petitioner and the learned Guardian Judge after hearing arguments on the said application, accepted the same vide order dated 28.01.2021. Thereafter, the petitioner moved an appeal before the learned Additional District Judge, Bahawalpur but the same was also dismissed vide judgment dated 31.03.2021.
4. The petitioner has attacked the orders dated 28.01.2021 and 31.03.2021 of both the courts below on the ground that real facts have not been considered by the courts below while passing the impugned orders. The learned Additional District Judge has not considered the facts on the record. And on the technical side, the matter has been decided by the learned Additional District Judge by observing that in view of Maliha Hussain v. Additional District Judge-V and another (2017 MLD 485), instant appeal against the interim order is not maintainable in the eyes of law. It was contended that respondent No.4 was not entitled for the custody of the minors as he has violated the order of the court. In the case of maintenance, interim maintenance allowance fixed by the court has not been paid by respondent No.4, but both the courts below have ignored this fact. Moreover, welfare of the minors lies with the petitioner and the petitioner being maternal grandmother has preferential right as the children are more safe and they feel comfortable in the company of the petitioner than respondent No.4.
5. Counsel for the petitioner while arguing the case referred the copy of proceedings of the case for maintenance allowance pending before the court. It was argued that till this time, the interim maintenance allowance fixed by the court for the minors had not been fully paid by respondent No.4. Furthermore, the court at this stage has to see the prima facie welfare of the minors. The minors from the very beginning i.e. after the death of their mother, had been residing with the petitioner. The point of permanent custody of the minors would be determined after recording evidence. It was argued that they have been admitted in the school by the petitioner. Furthermore, the father was not present at the time of the birth of the minor Usama; who treats the petitioner as mother; specially at this stage, since the minors were living since long in the custody of the petitioner and in absence of mother, they need special care, therefore, prima facie, the petitioner was entitled for the custody of the minors but the court has not considered all these facts. Counsel in this regard referred Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others (2005 MLD 828), Javed Irfan v. Additional District Judge (2007 MLD 1089), Nasir Raza v. Additional District Judge, Jhelum and another (2018 SCMR 590) and Tassadaq Nawaz v. Masood Iqbal Usmani and others (PLD 2018 Lahore 830).
6. Counsel for respondent No.4, on the other hand, resisted the arguments and argued that respondent No.4 is real father of the minors. The children were residing with respondent No.4, the minors were taken by the petitioner for meeting and thereafter, detained them with her; since that time, the children are residing with the petitioner. It was argued that the petitioner then filed the suit for maintenance allowance and delivery expenses and dowry articles. The respondent No.4 had been paying the maintenance allowance regularly. Since last two months, the lady petitioner had not attended the court and she had not withdrawn the maintenance allowance deposited by respondent No.4. It was argued that for the permanent custody of the minors, respondent No.4 filed an application under section 25 of the Guardians and Wards Act, 1890 and also filed the application under section 12 of the act ibid for interim custody of the minors. Guardian Court has rightly decided the application keeping in view the welfare of the minors in favour of respondent No.4. It was argued that the learned Additional District Judge has decided the application on merits.
7. Arguments heard. Record perused.
8. The court has discussed all the relevant points and believing the fact that welfare of the minor lies with respondent No.4, the appeal of the petitioner was declined by the court. The court has referred that it was interlocutory order against which the appeal was not maintainable, even then the other points raised by the petitioner were discussed and answered by the court and ultimately decided the fate of the appeal in favour of respondent No.4 and appeal of the petitioner was dismissed. It was version of respondent No.4 that the petitioner has no lien to file the application in presence of the real father. The father is natural guardian of the minors and he can look and take care of the welfare of the minors in a better way. When specifically there is no allegation of character or any other negative object/act which is necessary to refuse the real father for the custody of the minors. To this extent, the version of respondent No.4 is justified. Under section 14(3) of the West Pakistan Family Courts Act, 1964, against the interlocutory orders/interim orders passed by the family court is not subject to revision or appeal or review, keeping in view the fact that the matter should not be struck up because of all those factors. The provision of revision or appeal has been given to the final order. Therefore, under the constitutional jurisdiction such right should not be allowed to be exercised. As it is held in Syed Saghir Ahmad Naqvi v. Provinvce of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165) that constitutional jurisdiction, exercise of---Statute excluding a right of appeal from the interim order could not be by-passed by brining under attack such interim orders in Constitutional jurisdiction---Party affected had to wait till it matured into a final order and then to attack it in the proper exclusive forum created for the purpose of examining such orders. It also has been held by the superior courts in the number of cases that interference at the interlocutory stage should be avoided by the High Court to constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 more particularly when the legislatures have not provided any appeal against interlocutory orders in the relevant statutes. Under section 14(3) of the West Pakistan Family Courts Act, 1964, no appeal or revision shall lie against the interim order passed by the family court. The order under section 12 of the Guardians and Wards Act, 1890 is not mentioned under the appealable orders as provided within section 47 of the Act ibid which is as under;-
47. Orders Appealable.---An appeal shall lie to the High Court from an order made by a [***]3 Court,--
(a) under section 7, appointing or declaring or refusing to appoint or declare a guardian; or
(b) under section 9, subsection (3), returning an application: or
(c) under section 25, making or refusing to make an order for the return of a ward to the custody of his guardian; or
(d) under section 26, refusing leave for the removal of a ward form the limits of the jurisdiction of the Court, or imposing conditions with respect thereto; or
(e) under section 28 or section 29, refusing permission to a guardian to do an act referred to in the section; or
(f) under section 32, defining, restricting or extending the powers of a guardian; or
(g) under section 39, removing a guardian; or
(h) under section 40, refusing to discharge a guardian; or
(i) under section 43, regulating the conduct or proceedings of a guardian or setting a matter in difference between joint guardians, or enforcing the order; or
(j) under section 44, or section 45, imposing a penalty.
G
9. The application for custody of minors under section 25 of the Guardians and Wards Act, 1890 is still pending before the court. There is no such ground to interfere in the order passed by the learned Guardian Judge. The appeal against the interlocutory order under section 12 of the Guardians and Wards Act, 1890 was not as such maintainable. The learned Additional District Judge has rightly not entertained the same, however, he has also based his judgment on the available record, study of the concerned Guardians and Wards Act, 1890 states that there is no bar for repeating the application for interim custody before the guardian court, if new grounds are available because such practice is not contrary to law as well as principle of res-judicata as interim orders relating to the custody of the minors are tentative and with the material change in the circumstances, the guardian court can always be moved for modification of the orders to promote the welfare of the minors. I will place reliance on Nasir Raza v. ADJ, Jhelum and another (2018 SCMR 590), wherein, it is held that;-
----S. 25--Custody of minors Right of hizanat--Death of mother--Old age of maternal grandmother--Father and maternal grandmother filing application for custody--Guardian Judge allowed application filed by maternal grandmother and dismissed application filed by father--Appellate Court accepted appeal of father and allowed him custody of minors--High Court set aside judgment of appellate Court--Challenge to---Petitioner submitted that respondent is 67 years of age and in bad health, children are being looked after by their step maternal aunt, who is not in position to look after an educate children properly--Welfare of minors--Validity--Father is natural guardian of children--On account of children s ages, right of Hizanat, no longer vests in their maternal grandmother--Petitioner is real father of children, is ready and willing to look after children and has financial resources to fulfil their maternal needs and educational requirements--Petitioner has neither returned to his job abroad nor remarried keeping in view welfare and best interest of his children--Best interest and welfare of minors lies in handing over their custody to petitioner, real father--There is nothing on record to suggest and it has not even been alleged that petitioner is unfit, unable or unwilling to perform his duties as a guardian of his children--Petition converted into appeal and allowed.
The learned Senior Civil Judge (Family Division) has mentioned in detail the reason for allowing the application of respondent No.4 under section 12 of the Guardians and Wards Act, 1890, however, this is interim management of the custody of the minors. The final custody of the minors will be determined while deciding the application under section 25 of the Guardians and Wards Act, 1890 certainly at its own criteria and merits.
10. In view of above, the writ petitions, on this ground are not maintainable before this Court, therefore, both these petitions i.e. W.P. No.3332/ 2021 and W.P. No.3333/2021 are hereby dismissed.
MHS/S-32/L Petition dismissed
