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Official Citation: 2003 YLR 1572
Court / Jurisdiction: Lahore High Court
Year of Decision: 2003
Decision Date: 2003-02-04
Parties: Mst. MUMTAZ KAUSAR vs GUARDIAN JUDGE And Another
This judicial decision was delivered by the Lahore High Court on 2003-02-04. The matter involves proceedings between Mst. MUMTAZ KAUSAR and GUARDIAN JUDGE And Another, officially reported as 2003 YLR 1572. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2003 YLR 1572
Court Name: Lahore High Court Judge(s): Fakhar-un-Nisa Khokhar Title: Mst. MUMTAZ KAUSAR vs GUARDIAN JUDGE And Another Case No.: Writ Petition No. 1625 of 2003 Date of Judgment:2003-02-04 Reported As: 2003 YLR 1572 Result: Petition dismissed
Judgment ORDER The brief facts of the instant writ petition are that respondent No.2 filed a custody application under section 25 of the Guardians and Wards Act which is pending adjudication before the learned Family Court/Guardian Judge, Lahore. He also filed an application under section 12 of the Guardians and Wards Act for the immediate custody of the minor Muhammad Ahmed. 2. The learned Family Court observed that the petition be registered, notices, telegram, registered post envelope A.D. Be issued to the respondent subject to the payment of process fee for 10-1-2002. Till then the respondent be restrained to snatch the custody of the minor from the petitioner and observed that this order will not bar any other order passed by the Court of competent jurisdiction. The petitioner/respondent has approached this Court in the instant writ petition. 3. The learned counsel for the petitioner has argued that the minor child is aged three years. As the marriage subsists between the parties, ' Hazanat' of the minor aged three years will remain with the mother. So, the suit filed by respondent No.2 is incompetent. He has placed reliance on PLD 1963 Karachi (W.P.) 90. 4. I have heard the learned counsel for the petitioner and have perused the record. 5. As the matter is undoubtedly pending before the learned Guardian Judge which is the competent Court fore determination of the custody of the minor to the respondent in the paramount consideration of the welfare of the minor. If the petitioner is convinced that the suit tiled before the learned Guardian Judge is incompetent and could not be filed under section 25 of the Guardians and Wards Act, she has every right to file the reply in respect of lack on jurisdiction and not maintainability of the custody application before the learned Guardians Judge. Even the learned Guardian Judge can look into the tender age of the minor and its interim custody to the
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petitioner in the prime consideration of the welfare of the minor. This Court in the writ jurisdiction in no way can pre-empt the jurisdiction of the Guardian Judge. In the judgment produced before this Court the circumstances were quite contrary to the present one. There the learned Guardian Judge dismissed the petition on the ground that 'Hazanat' was that of mother as the minor had not attained the age of seven. Here the petition filed by respondent No.2 is fresh and the petitioner -- mother has every right to file a reply and raise preliminary objections as to jurisdiction and maintainability of the suit by respondent No.2 and is further possessed with the right under section 14 of the Family Courts Act to challenge the same in appeal before the appellate forum. She is also possessed with the remedy to file an application for handing over the interim custody under section 12 of the Guardians and Wards Act. The writ petition being incompetent is dismissed in limine.