Ali & Hyder Associates

19/07/2026

07/06/2026

فقہ جعفریہ کی طلاق کے بارے اسلام آباد ہائی کورٹ کا انتہائی معلوماتی فیصلہ
2026 C L C 1
[Islamabad]

Issuance of certificate of effectiveness of divorce (Certificate)---Fiqah-e-Jafria---Non-fulfillment of requirements of pronouncement of "seegha jaat" in presence of 02 Muslim witnesses for pronouncement of divorce---Resumption of relationship as husband and wife after compromise between the parties before the Family Court in a suit for recovery of maintenance instituted by the petitioner/wife---Petitioner filed application for cancellation of certificate on the ground that the certificate issued by the Chairman Arbitration Council was illegal, as the parties had resumed their relationship---Validity---Person belonging to Fiqah-e-Jafria can voluntarily with his own free will pronounce Talaq himself or through duly authorized attorney/Vakeel, uttering literal Arabic words seeghajaat in the physical presence of at least two witnesses, qualifying the requirement of Sub-Clause (1) of Art. 17 of Qanun-e-Shahadat, 1984, and without following the said procedure of proviso, the Talaq effectiveness certificate could not be issued---Literal Arabic pronouncement of required seeghajaat had not been pronounced even on the third Talaq, thus, as per Fiqah-e-Jafria, the Talaq was not effective---Certificate was issued without verifying the pronouncement of seeghajaat, which was a mandatory requirement in cases where parties belonged to the Fiqah-e-Jaferia---Word "may" permits the Court to consider it in sense of "shall” or "must"---If the "may" used in proviso to S. 7 of the Muslim Family Laws Ordinance, 1961, (Ordinance) is not made "mandatory" it would frustrate the entire intent of the proviso added by Second Amendment of 2021 in the Ordinance, thus, the word "may" is to be considered with reference to the whole text and the legislature has used the word "may" in the proviso which is an exception of a general rule in order to protect the rights of those parties, who belong to Fiqah-e-Jafria---High Court did not agree with the contention that word "may" should not be considered as a compulsion with the meaning of "must", thus, High Court issued a clear directive, placing a serious duty and obligation upon the Chairman of the Arbitration Council, particularly in cases governed by Fiqah-e-Jafria, to adhere to the principles ensuring the effectiveness of divorce, and to adopt the procedure as future guidelines devised by High Court---

Word “may”---Permissive or mandatory---Nature---Ordinarily the word "may" refers a discretion but if the whole context is considered as to what was the purpose of the legislature behind incorporating this amendment with reference to Fiqah-e-Jafria through S. 17(1)(a) of the Ordinance, the entire concept of, "may" as to discretion stands negated---There is no absolute settled test which can determine whether a statute is 'discretionary or 'mandatory'---It is the duty of the court to take into consideration the intent of the legislature and the whole scope of the statute to determine whether it is 'permissive' or 'mandatory' in nature.

Word “may” being an enabling word---Effect---Discretion of authority or Court to exercise its powers---Scope---Word “may” makes a provision “enabling” and it gives the discretion to the authority or Court to exercise its power but it is usually construed as “permissive” and not “mandatory”---Word “may” used in proviso to S. 7 of the Ordinance being an enabling word would be given meaning of a compulsion that must be followed---When the ordinary dictionary meaning of a provision of law leads to an absurd interpretation and contradicts the purpose of the law,in such situation the language of the text can be modified to meet the intention of the legislature---Such modifications are done by changing the meaning of the word or ignoring it altogether---Such exceptional interpretation is required when a careless word is used by an ignorant draftsperson which goes against the intention of the whole statute---Such instances are indeed exceptional and courts are reluctant to substitute or add a word in a statute, but courts may depart from the literal rule when required to avoid absurdity.

JUDGMENT
---Through this writ petition, the petitioner has assailed the order dated 12.06.2024, passed by Respondent No. 1, whereby her application for cancellation of effectiveness of Talaq certificate issued by Chairman of Arbitration Council has been turned down.

2. Learned counsel for the petitioner contends that petitioner and Respondent No. 2 belong to Shia Sect and their divorce is to be regulated in accordance with Section 7 (1) of Muslim Family Laws Ordinance, 1961, amended by the Act of 2021 dated 03.12.2021, whereby, procedure for Talaq of parties belong to Fiqah-e-Jafria has been explained separately. Learned counsel further contends that this section requires the pronouncement of seegah jaat talaq (Arabic expressions) to pronounce Talaq in accordance with Shia law which was not done in this case, and the certificate of effectiveness of divorce has also not been issued in accordance with the requirement laid down in Section 7 of the Muslim Family Laws Ordinance, 1961. Learned counsel further contends that the Talaq notice/divorce dated 18.12.2021, specifically refers to the words in Urdu, . Furthermore, the matter could not be concluded without establishing presence of two Muslim witnesses and fulfilling other legal requirements for effectiveness of divorce, especially in absence of the seegah jaat which were not pronounced by the respondent No.2 as a fundamental requirement in Fiqah-e-Jafria for pronouncement of Talaq. Learned counsel for petitioner further contends that the petitioner was ousted from the premises by the respondent No.2 and she went to her parents’ house and even filed a suit before the family judge Sargodha for maintenance, whereby a compromise was effected between the parties and the petitioner withdrew her suit for maintenance and started living with the respondent No.2 from 02.11.2022, till her second desertion i.e. 03.06.2023. Therefore, the certificate of effectiveness of divorce, which was issued by Chairman Arbitration Council is illegal, as the parties had resumed their relationship, though respondent No.2 has not disclosed the fact of resumption of the relationship of the parties.

3. Notice has been issued to the respondents, whereby, the Chairman Arbitration Council has submitted the original record of all the proceedings along with the report and respondent No. 2 also put appearance and opposed the maintainability of this petition primarily on the ground that a divorce certificate was issued by the Chairman, Arbitration Council after fulfilment of all the requirements. Therefore, the same could not be challenged.

4. Argument heard, record perused.

5. Perusal of record reflects that the petitioner and respondent No.2 were married to each other in accordance with Fiqah-e-Jafria on 02.02.2020, wherein, the petitioner was deserted from house as per her own stance along with the minor on 11.10.2021 and she moved to her parents' in Sargodha, where she filed a suit for maintenance on 11.01.2022. However, in the meanwhile, the respondent No.2 processed the case for issuance of effectiveness of divorce certificate and as per record of the Chairman Arbitration Council, the Arbitration Council has processed the case whereby, Arsalan Abdullah, respondent No.2, personally appeared before the Chairman Arbitration Council on 23.02.2022 and verifies the Talaq and recorded a statement that there is no chance of reconciliation between the parties. However, no one turned up on behalf of Bushra Hussain, the present petitioner, and as per record of the Arbitration Council, the matter was fixed for 16.03.2022, but only respondent No.2 put appearance and again reiterated his stance for non-reconciliation.

6. Another notice was issued to the petitioner and finally a notice has been published in newspaper for 22.04.2022. However, as per the report placed on record by the Arbitration Council the Council finally issued the certificate for effectiveness of divorce on 11.05.2024. It has also been highlighted in the report that there is no provision of law, which empowered the Chairman Arbitration Council to set aside the certificate or cancel the certificate for effectiveness of divorce.

7. While considering all these aspects, there is no cavil to the proposition that the Muslim Family Laws Ordinance, 1961, regulates the procedures and processes of Talaq irrespective of any particular sect. In Section 7 of Muslim Family Ordinance, 1969 an amendment, through the Act No. XXIX of 2021 by way of Muslim Family Laws (Second Amendment Act, 2021, was added whereb a proviso has been inserted which is reproduced as under:-

“Amendment of section 7, Ordinance VIII of 1961.- In the Muslim Family Laws Ordinance, 1961 (VIII of 1961), in section 7,-

(i) in subsection (1), for the full-stop, occurring at the end, a colon shall be substituted and thereafter the following proviso shall be inserted, namely:-

"Provided that where the parties belong to Fiqah-e-Jafria,-

(a) the man may voluntarily and with his free will pronounce himself or through duly authorized attorney (Vakil) Talaq uttering in literal Arabic words (seegha) in the physical presence of at least two qualifying the requirements of clause (1) of Article 17 of the Qanun-e-Shahadat, 1984 (P.O.No.1 of 1984);

(b) the pronouncement of Talaq shall be ineffective if it is done jokingly or under anger, intoxication, insanity, duress or coercion of any kind and from any corner whatsoever; and

(c) in case of dispute, with reference to paragraph (a) or (b) arising due to difference of opinion, the parties or any of the parties may have recourse to a court of competent jurisdiction or by approaching the "Mujtahid-e-Alam" and the decision of Mujtahid-e-Alam shall have a status of an Award and the same shall be dealt with in accordance with the provisions of the Arbitration Act, 1940 (X of 1940).

Explanation.- The expression "Mujtahid-e-Alam" (Faqih-e-Azam) means a juris-consult/religious scholar / doctor of Shia school of thought well versed with Shariat having international repute and of such recognition. The Council of Islamic Ideology shall maintain a panel of Muitahid-e-Alam having aforesaid qualification.

[(1A) As enshrined in Article 227 of the Constitution of the Islamic Republic of Pakistan, the divorce and matters connected therewith or ancillary thereto shall be decided according to the personal law interpreted by Fiqah-e-Jafria (Shia school of thought).]

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.

(3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection [(3)) or the pregnancy, whichever be later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person unless such termination is for the third time so effective.”

8. From the plain reading of the above proviso, it is confirmed that any person who belongs to Fiqah-e-Jafria can voluntarily with his own free will pronounce Talaq, himself or through duly authorized attorney/Vakeel, uttering literal Arabic words seegah jaat in the physical presence of at least two witnesses, qualifying the requirement of sub-clause (1) of Article 17 of Qanun-e-Shahadat Order, 1984 and without following the said procedure of proviso, the Talaq effectiveness certificate could not be issued.

9. In this case, the admitted position available on record has been considered in the light of the Talaq Nama; the divorce deed available with the Chairman Arbitration Council, wherein, the first notice of Talaq in writing was executed and issued by Arsalan Abdullah Respondent No. 2 on 13.10.2021, where-after, second Talaq notice was issued on 20.11.2021 and the third notice was issued on 18.12.2021. A specific note has been given at the end of the third talaq: -

10. The above referred phrase outrightly confirms that the literal Arabic pronouncement of required Seegha jaat has not been pronounced even on the third Talaq. Therefore, as per Fiqah-e-Jafria, the Talaq was not effective and this aspect has been fortified with the view rendered in PLD 2023 Lahore 38 (Syed Sajid Hussain Abidi v. Iram Shehzadi Abidi and others), 1984 CLC 1961 (Mst. Maryam Bano v. Hussain Ali and another), PLD 2025 Lahore 18 (Syed Zouzab Imran Kazmi v. Syeda Iffat Bukhari and 2 others), 2006 YLR 1753 (Mst. Saira Shaukat through Special Attorney v. District Collector ICT, Islamabad and 2 others), PLD 1965 West Pakistan Karachi 185 (The State v. Syedda Salma Begum and another).

11. All the judgments cited by both sides are clear in the requirement of Shia law whereby the effectiveness of Talaq could only be declared subject to pronouncement of Seegha Jaat directly or through representative/Vakeel in presence of female or her representative /Vakeel, or otherwise, whereafter, divorce will become effective. Such exercise could be undertaken in respect of a case even with the retrospective effect, as held in Syed Sajid Hussain Abidi’s case Supra. However, when the learned counsel for respondent No.2 has been confronted as to whether the Seegha Jaat have been pronounced by respondent No.2 accordingly in Arabic terms, the learned counsel has produced a certificate dated 20.06.2023, contents of which are as under:-

12. The above-mentioned certificate clearly discloses that the Seegha Jaat were issued on 20.06.2023 to Mst. Bushra Hussain, the present petitioner, on behalf of respondent No.2, through Mr. Kausar Abbas Kummi in presence of two witnesses namely Syed Najmul Hassan and Iftikhar Hussain. The document has been placed on record and resultantly this Court is of the view that on the day of pronouncing the Seegha Jaat in Arabic, the Talaq becomes effective. Therefore, the primary question is whether the original Talaq certificate will remain in filed and effective or not without pronouncement of Seegha Jaat. The answer is negative, as the Talaq certificate was issued without verifying the pronouncement of Seegha Jaat , which is a mandatory requirement in cases where parties belong to the Fiqa Jafferia.

13. I have also gone through the words used by the legislature in the Amendment Act, 2021, wherein phrase “voluntarily” and “with his free will” are used; to pronounce talaq by himself or through duly authorized attorney/Vakeel uttering in literal Arabic words (Seegha Jaat .

14. Learned counsel for respondent No.1 contends that the word “may” is used in the proviso (a) of section 7 of MFLO, 1961, which signifies the discretion of the man and it is not mandatory rather permissive. But this Court is not in agreement with this interpretation. No doubt ordinarily the word “may” refer a discretion but if the whole context is considered as to what was the purpose of the legislature behind incorporating this amendment with reference to Fiqah-e-Jafriya through a proviso in subsection (1) of Section 7 of Muslim Family Laws Ordinance, 1961, the entire concept of “may” as to discretion stands negated. There are certain rules of statutory interpretation which courts apply while interpreting a statute or a provision of statute, however, it is settled position that there is no absolute or settled test which can determine whether a statute is ‘discretionary’ or ‘mandatory’. It is the duty of the court to take into consideration the intent of the legislature and the whole scope of the statute to determine whether it is ‘permissive’ or ‘mandatory’ in nature as held in 2001 SCMR 1001 (Ghulam Hassan v. Jamshaid Ali) and 2011 SCMR 420 (Syed Zia Haider Rizvi v. Deputy Commissioner of Wealth Tax, Lahore).

15. The word “may” make a provision “enabling” and it gives the discretion to the authority or court to exercise its power but it is usually construed as ‘permissive’ and not ‘mandatory’. I have gone through the Principles of Interpretation laid down by Lord Cairns in Julius v. Lord Bishop of Oxford, (1874-80) All ER Rep. 43 where Lord Cairns enunciated Principles of Statutory Interpretation in the following words:-

“There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise the power when called upon to do so.

Where a power is deposited with a public officer for the purpose of being used for the benefit of persons specifically pointed out with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised.

The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right”

16. Relying on the above reasoning of Lord Cairns, the word “may” used in proviso to section 7 proviso being an enabling word would be given meaning of a compulsion that it must be followed. When the ordinary dictionary meaning of a provision of law leads to absurd interpretation and contradicts the purpose of the law; in such situation the language of the text can be modified to meet the intention of the legislature. Such modifications are done by changing the meaning of the word or ignoring it altogether. This exceptional interpretation is required when a careless word is used by an ignorant draftsperson which goes against the intention of the whole statute. Such instances are indeed exceptional and courts are reluctant to substitute or add a word in a statute (R. v. Trafford (1850) QB 200.) but courts may depart from the literal rule when required to avoid absurdity.

Maxwell on The Interpretation of Statutes (12th Edition page 234) says that:

“In ordinary usage, "may" is permissive and "must" is imperative, and, in accordance with such usage, the word "may" in a statute will not generally be held to be mandatory. In some cases, how-ever, it has been held that expressions such as "may," or "shall have power," or "shall be lawful," have to say the least a compulsory force, and so their meaning has been modified by judicial exposition.” (underlined for emphasis)

17. Similarly, I have also gone through Crawford on The Construction of Statutes1 (1940 edition, pages 519 to 522) which states that:

"Mandatory and directory are permissive words.

Ordinarily, the words 'shall' and 'must' are mandatory, and the word 'may' is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature. Nevertheless, it will always be presumed by the c

24/05/2026

📚 GUARDIANS AND WARDS ACT, 1890 – DETAILED NOTES

🏛️ Introduction

The Guardians and Wards Act, 1890 is a colonial-era legislation that provides a legal framework for the appointment and regulation of guardians for minors. It is the principal law that governs custody and guardianship of children where personal laws are silent or insufficient.

⚖️ Objective of the Act

To protect the welfare of minors (children under 18 years).

To appoint guardians for minors when needed.

To regulate the powers and responsibilities of appointed guardians.

To act in the best interest of the child in terms of health, education, and well-being.

📌 Key Definitions (Section 4)

Minor: A person who has not completed 18 years of age.

Guardian: A person having the care of the person of a minor or of his property, or both.

Ward: A minor for whose person or property, or both, there is a guardian.

🧑‍⚖️ Types of Guardians

✍️1. Natural Guardian: Usually the father; after his death, the mother.

✍️2. Testamentary Guardian: Appointed by a will.

✍️3. Guardian Appointed by Court: Under this Act.

✍️4. De facto Guardian: A person who acts as a guardian without legal authority (not recognized under the law).

✍️5. Guardian of Property / Person: Can be appointed for either or both.

🏛️ Important Provisions

🔹 Section 6 – Persons Entitled to Guardianship

The father is ordinarily the natural guardian.

After the father, the mother, unless the welfare of the child requires otherwise.

🔹 Section 7 – Power of the Court to Appoint Guardian

The court may appoint a guardian if it is necessary for the welfare of the minor.

🔹 Section 9 – Jurisdiction

The guardian petition shall be filed in the district where the minor ordinarily resides.

🔹 Section 10 – Form of Application

The application must include:

Name, s*x, religion, and date of birth of the minor,

Relationship of the applicant,

Description of minor's property,

Cause for application,

Existing guardians (if any),

Any previous proceedings.

🔹 Section 11 – Notice to Parents and Relatives

Court must serve notice to natural guardians and near relatives before appointing someone else.

🔹 Section 12 – Interim Protection

The court may make temporary arrangements for custody or protection of the minor or property pending final orders.

🔹 Section 17 – Matters to Consider Before Appointing a Guardian

The welfare of the minor is the paramount consideration.

Age, s*x, religion, character of proposed guardian.

Wishes of a deceased parent (if any).

Preference of minor (if old enough to express a preference).

⚠️ “Welfare of the child” is the overriding consideration in all guardian matters.

🔹 Section 19 – No Guardian Appointment When Natural Guardian is Alive

Court shall not appoint a guardian if the father is alive and not unfit, unless:

The father is unfit.

The father renounces his rights.

It's otherwise necessary in minor’s interest.

🔹 Section 25 – Return of Custody of Ward

If a minor is under illegal custody, the guardian may apply to the court for recovery.

The court can order return of the minor to the lawful guardian.

🔹 Section 26 – Removal of Ward from Jurisdiction

A guardian must seek court's permission before taking the minor out of jurisdiction (especially abroad or to another province).

🔹 Section 39 – Removal of Guardian

Guardian may be removed for:

Abuse of trust,

Failure in duty,

Conviction of certain crimes,

Mental or physical incapacity.

🔹 Section 41 – Cessation of Guardianship

A guardian ceases to be guardian if:

Minor reaches majority (18 years),

Guardian dies,

Court discharges the guardian,

Guardian removed.

👨‍👩‍👧 Jurisdiction in Pakistan

Guardian matters are heard in Family Courts in Pakistan under the West Pakistan Family Courts Act, 1964, in addition to this Act.

Guardian Judges are usually Civil Judges with special jurisdiction.

Family Court Rules may vary province to province.

👶 Custody vs Guardianship

Custody Guardianship

Physical possession of child Legal authority and decision-making
Often granted to mother initially Usually with father (unless unfit)
Can be temporary/interim Is usually long-term or permanent

📜 Filing a Guardian Petition – Step-by-Step

✍️1. Prepare a petition under Section 7 of the Act.

✍️2. File in Family Court/Guardian Court where minor resides.

✍️3. Attach documents: birth certificate, marriage certificate, witness affidavits, etc.

✍️4. Issue notice to opposite party (e.g., father/mother).

✍️5. Court may call evidence and may appoint guardian ad litem.

✍️6. Decision is based on best interest of the child.

📌 Important Points to Remember

The Guardian and Wards Act is a welfare-centric law, not just rights-based.

Mother's right of custody is upheld unless proven unfit.

Fathers retain legal guardianship of property, unless removed.

Any arrangement or agreement that harms the child can be invalidated.

Conclusion

The Guardians and Wards Act, 1890 is a vital legal tool in ensuring the protection, welfare, and proper upbringing of minors in Pakistan. Its provisions reflect that the interest of the minor is supreme — beyond all legal rights and relations.

23/05/2026

The Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor‑‑‑Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of jurisdiction for Guardian Court for all time to come.

P L D 2001 Karachi 371



Before Anwar Zaheer Jamali, J



AYESHA TAHIR SHAFIQ‑‑‑Petitioner



versus



SAAD AMANULLAH KHAN and 2 others--‑Respondents



Constitutional Petition No.161 and Miscellaneous Nos.876, 235, 253 and 254 of 1999, decided on 22nd May, 2000.



(a) Constitution of Pakistan (1973)‑‑‑



‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Disputed question of fact‑‑‑Scope‑‑‑Investigation into disputed question of fact cannot be done in Constitutional jurisdiction of High Court.



(b) Guardians and Wards Act (VIII of 1890)‑‑‑



‑‑‑‑S. 25‑‑‑Custody of minor‑‑‑Welfare of minor, a prime consideration and basic criterion‑‑‑For deciding the question and other issues relating thereto, welfare of minor is the paramount consideration for Guardian Court‑‑‑Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court has toy record a definite finding on the point before passing any order in the matter.



(c) Guardians and Wards Act (VIII of 1890)‑‑‑



‑‑‑‑Ss. 13 & 25‑‑‑Custody of minor‑‑‑Modification or alteration of an earlier order‑‑‑Guardian Court, power of‑‑‑Scope‑‑‑Order passed by Guardian Court in respect of custody of minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same may not serve as such‑‑‑It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor‑‑‑Order passed earlier by Guardian Court with regard to custody of minor cannot operate as a bar of jurisdiction for Guardian Court for all time to come.



(d) Guardians and Wards Act (VIII of 1890)‑‑‑



‑‑‑‑S. 25‑‑‑Custody of minor‑‑‑Compromise between the parties ‑‑‑Effect‑‑ Compromise or an agreement between the parties does not absolve Guardian Court from its basic responsibility to safeguard and protect the interest and welfare of the minor.



(e) Guardians and Wards Act (VIII of 1890)‑‑‑



‑‑‑‑Ss. 13 & 25‑‑‑Custody of minor‑‑‑Modification or alteration in an earlier order passed with the consent of the parties‑‑‑Duty of Guardian Court to examine subsequent developments‑‑‑Scope‑‑‑Compromise, agreement or consent order cannot be lightly upset/rejected by Guardian Court while re examining question of welfare of minor in the given facts and circumstances of each case‑‑‑Where earlier order passed by Guardian Court is intended to be modified/altered, the Guardian Court should proceed with the presumption that the compromise, agreement or the consent order passed in earlier guardianship proceedings was in the best interest and welfare of the minor and therefore the Court should examine the subsequent developments and allegations which were made basis for seeking modification/change in the earlier order.



(f) Guardians and Wards Act (VIII of 1890)‑‑‑



‑‑‑‑S. 25‑‑‑Custody of minor‑‑‑Grant of relief‑‑‑Power of Guardian Court‑‑ Scope‑‑‑Guardian Court, to ensure and safeguard the interest and welfare o.` the minor, can grant any relief while deciding guardianship application‑‑ Substance and not the form of application was to be examined even if Court was found lacking the authority to grant relief in strict terms as prayed in the application.



Samar Gul v. Central Government and others PLD 1986 SC 35 ref.



(g) Guardians and Wards Act (VIII of 1890)‑‑‑



‑‑‑‑Ss. 13 & 25‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Custody of minor‑‑‑Modification of order passed earlier on compromise by Guardian Court‑‑‑Mother of the minors was given custody and periodical meetings between the father and the minors were agreed to by the parties‑‑‑Mother of the minors raised serious and shameful allegations against the father which pertained to the period of meeting with the minors‑‑ Guardian Court declined to modify the order passed earlier without making any inquiry into the matter and said decision of the Guardian Court was upheld by the Appellate Court‑‑‑Plea raised by the father was that the Constitutional petition was not filed with clean hands‑‑‑Validity‑‑‑Finding with regard to truthfulness or otherwise of the allegations levelled by the mother of the minors in her guardianship application was not recorded by the Court and unless the same was recorded it could not be held that the mother of the minors had not approached the High Court with clean hands or she was not entitled to equitable relief in the matter‑‑‑Orders passed by the two Courts below were set aside by the High Court in circumstances.



PLD 1967 SC 402; PLD 1970 Kar. 619; 1983 SCMR 606; 1985 SCMR 2066; PLD 1986 SC 14; 1989 MLD 3427; 1993 CLC 736 and PLD 1996 Kar. 174 ref.



1993 CLC 736; PLD 1996 Kar. 174; 1998 MLD 1271; 1996 CLC 1603; AIR 1936 Lah. 1019; AIR 1930 Lah. 250; AIR 1954 SC 82 and PLD 1963 Dacca 816 distinguished.



Khalid Latif and Mubarak Hussain Siddiqui for Petitioner.



Raja Qureshi and Masooda Siraj for Respondent No. 1.



Dates of hearing: 24th January; 1st, 21st February and 27th March, 2000.







ORDER


By this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed orders dated 3‑4‑1999 and 2‑11‑1998 passed by the respondents Nos.2 and 3 respectively.



2. The relevant facts forming background of this litigation are that the petitioner and respondent No.1 were married at Karachi on 10‑11‑1989. From this wedlock, the petitioner gave birth to two children Sara (daughter) on 19‑4‑1991 and Amin (son) on 7‑11‑1993. Later on, relations between the petitioner and respondent No. 1 became strained which resulted in filing of Guardianship Application No.371 of 1995 for the custody of two minor children and Family Suit No.368 of 1995, for restitution of conjugal rights, by respondent No. 1 and a suit for dissolution of marriage being Family Suit No.483 of 1995 by the petitioner. During the proceedings of these cases after passing of various orders before the Guardian Court/Family Court, Appellate Court and Revisional Court, this litigation culminated in an agreement dated 18‑6‑1996 between the petitioner and the respondent No. 1 and consequent order of the same date passed by the Hon'ble Supreme Court of Pakistan in C.P.L.A. No.225 of 1996.



3. The terms of the aforesaid agreement relating to the meeting/visitation of the children were adhered by the parties for about 8 months. However, thereafter, on 21‑3‑1997 the petitioner addressed an application to the Hon'ble Chief Justice of Pakistan wherein she narrated the incidents of s*xual abuse of the minors at the hands of respondent No.1, during the period of their visitation/meeting in terms of the agreement and the order dated 18‑6‑1996. ,



4. On 31‑3‑1997 the respondent No. 1 complaining about the violation of the terms of agreement dated 18‑6‑1996 by the petitioner, also filed a Contempt Application No.06 of 1997 before the Hon'ble Supreme Court of Pakistan, to which objections were filed by the petitioner on 3‑5‑1997. This contempt application after some proceedings, was eventually dismissed by the Hon'ble Supreme Court of Pakistan on 20‑10‑1997, with the observations that .no ground for variation in the consent arrangement provided in the agreement and order dated 18‑6‑1996, was made out.



5. In the meantime on 2‑4‑1997, the petitioner als6 filed an application under the Guardians and Wards Act, 1890 before the District Judge (South), Karachi, being Guardianship Application No.146 of 1997, which was ultimately transferred to the Court of Senior Civil Judge and Family Court (South), Karachi. In this Guardianship Application, the petitioner narrated almost the similar facts as disclosed by her in her application dated 21‑3‑1997 addressed to the Hon'ble Chief Justice of Pakistan agitating that due to his conduct the respondent No. 1 has rendered himself disentitled from the right of his meeting/visitation with the minors in the terms of agreement dated 18‑6‑1996.



6. During the pendency of the Guardianship Application filed by the petitioner, on 19‑5‑1998 she also moved C.M.A. No.500 of 1998 before the Hon'ble Supreme Court of Pakistan praying therein for variation in the terms of the agreement dated 18‑6‑1996 so that the respondent No.1 may not be allowed to take the children at his house on Eid days or during visitations but he may be allowed to meet the children at some other place where the acts complained by the minors could not be repeated. Such application of the petitioner was however, dismissed by the Hon'ble Supreme Court of Pakistan on 5‑6‑1998 with the observations that as such dispute is already in issue before the Family Court therefore it will be proper for the petitioner to present her application before the Family Court who will be free to pass such order as deemed appropriate after hearing both the parties and providing them reasonable opportunity which may be warranted by law. On 16‑7‑1998 the petitioner moved an application under sections 7 and 48 of the Guardians and Wards Act, 1890 before the Family Court where her Guardianship Application No.146 of 1997 was already pending. In her application the petitioner prayed for suspension of the effect of agreement/order dated 18‑6‑1996.



7. On 1‑9‑1998, the respondent No. 1 also filed a Guardianship Application No.486 of 1998 before the District Judge (South) Karachi, which was transferred to the Court of 1st Senior Civil Judge (South), Karachi. When both these Guardianship Applications were pending in Court, on 21‑9‑1998 the respondent No. 1 moved a transfer application before the District Judge (South), Karachi for seeking transfer of both the Guardianship Applications before the same Court. Such application was allowed on 24‑9‑1998 and the Guardianship Application No.146 of 1997 filed by the petitioner was transferred to the Court of 1st Senior Civil Judge and Family Court (South), Karachi where the other Guardianship Application No.486 of 1998 was already pending. Later on, on a reference made by the Court of Ist Senior Civil Judge and Family Court (South), Karachi, District Judge (South), Karachi transferred both the Guardianship Applications to the Court of IV‑Senior Civil Judge and Family Court (South), Karachi. On 17‑10‑1998 respondent No. 1 made an application under section 13 of the Guardians and Wards Act 1890 before the Family Court and IV‑Senior Civil Judge (South), Karachi praying therein for recording of evidence of the parties in both the connected Guardianship. Applications before passing of any interim orders for deciding question of modifying the terms of the agreement dated 18‑6‑1996. However, the counsel for the petitioner prayed before the IV‑Senior Civil Judge and Family Court (South), Karachi for passing of some interim orders on his‑ application dated 16‑7‑1998. The respondent No.3 heard the arguments of the learned counsel on this application and by his order dated 2‑I1‑1998 not only dismissed the application for interim relief moved by the petitioner but also her Guardianship Application No. 146 of 1997.



8. Against the aforesaid order dated 2‑11‑1998 passed by respondent No.3, the petitioner preferred Family Appeal No.45 of 1998 before the District Court (South), Karachi, which was transferred to the Court of V‑Additional District Judge (South), Karachi, who ultimately dismissed the same on 3‑4‑1999.



9. In his reply to the allegations made in the petition, the respondent No. 1 did not deny the history of previous litigation between the parties as" narrated in the petition, however, he vehemently denied the allegations levelled against him by the petitioner with regard to his alleged conduct with the two minors at the time of their meetings with him and with regard to the alleged complaints of the children, and termed such allegations as false, baseless, wild, outrageous and shameful. Referring to the orders dated 22‑5‑1997, 20‑10‑1997 and 5‑6‑1998 passed by the Hon'ble Supreme Court of Pakistan, respondent No. 1 submitted that on three occasions, similar relief claimed by the petitioner for change/modification in the terms of agreement dated 18‑6‑1996 was declined by the Hon'ble Supreme Court. As regards to the contents of the application under sections 7 and 48 of the Guardians and Wards Act dated 16‑7‑1998 and the Guardianship Application No. 146 of 1997, respondent No. 1 submitted that the reliefs claimed therein were misconceived and thus the lower Court was fully justified in passing the impugned order dated 2‑11‑1998. In reply to several documents placed on record by the petitioner alongwith her petition and with specific reference to the medical reports dated 9‑2‑1998 and 14‑5‑1998, respondent No. 1 not only strongly denied the same but also placed on record other medical reports dated 4‑6‑1998 and 31‑7‑1998 to show that his daughter Sara was examined by the doctor and was found perfectly normal. Referring to various orders passed in the earlier proceedings before different forums respondent No. 1 submitted that the wild allegations levelled against him by the petitioner were already disbelieved by the Courts as discussed in various orders and thus the same were rightly, rejected by respondents Nos. 2 and 3.



10. The petitioner in her affidavit‑in‑rejoinder to the reply of the petition filed by respondent No. 1 reiterated her allegations made in the petition and denied other allegations made by the respondent No. 1 in his reply to the petition.



11. I have heard the learned counsel for the parties.



12. Mr. Khalid Latif, learned counsel for the petitioner, after narrating in detail the history of previous litigation between the petitioner and respondent No. 1 as summarised above, raised following contentions:‑‑‑



(A) The two orders impugned in this petition are illegal as the averments made in the Guardianship Application No. 146 of 1997 could not have been rejected summarily by the Family Court without affording a proper opportunity to the petitioner to prove such assertions by adducing her evidence in that respect. The petitioner was denied such opportunity which resulted in miscarriage of justice.



(B) Welfare of the minors is the paramount consideration for the Family Court/Guardian Court for deciding the question of their custody or any other matter relating thereto and even a consent order or a compromise between the parties contrary to the interest and welfare of the minors is liable to be set aside. The Guardian Court while passing the impugned order so also the Appellate Court while maintaining that order did not examine this crucial aspect of the case at all and thus the issue of welfare of the minors with reference to the allegations made by the petitioner remained undecided.



(C) The Hon'ble Supreme Court of‑Pakistan in its order dated 5‑6‑1998 had specifically observed that the grievance agitated in C.M.A. No.500 of 1997 could be decided by the Family Court but such observations were overlooked by the respondents Nos.2 and 3.



(D) Filing of Guardianship'' Application No.486 of 1998 by the respondent No. 1 by itself was a proof of the fact that even the respondent No. 1 was not disputing this legal position that the Guardian Court/Family Court had the jurisdiction to take into consideration the subsequent events and conduct of the parties and to set aside, modify/change the earlier arrangement as per agreement dated 18‑6‑1998, keeping in mind the question of welfare of minors as prime consideration for this purpose.



13. On the strength of above submissions the learned counsel while concluding his arguments contended that the two orders challenged in this petition may be set aside and the respondent No.3 may be directed to decide Guardianship Application No.146 of 1997 filed by the petitioner afresh after affording proper opportunity to both the parties to lead their evidence in respect of their respective contentions. To fortify his contentions learned counsel placed reliance on the following cases:



(1) PLD 1967 SC 402, (2) PLD 1970 Karachi 619, (3) 1983 SCMR 606, (4) 1985 SCMR 2066, (5) PLD 1986 SC 14, (6) 1989 MLD 3427, (7) 199 73~PLD 1996 Karachi 174.



14. Mr. Raja Qureshi the beamed counsel for respondent No.1 in his arguments/written arguments controverting the submissions of the learned counsel for the petitioner urged that the petition is based on false, baseless, wild, outrageous and shameful allegations against respondent No.1, the petitioner has not approached this Court with clean hands and thus the petition is not maintainable in law. Learned counsel further argued that the grounds urged by the petitioner in her Guardianship Application and the allegations levelled therein against respondent No.1 were already considered and rejected by the Hon'ble Supreme Court of Pakistan on three occasions when orders dated 22‑5‑1997, 20‑10‑1997 and 5‑6‑1998 were passed in the matter and in such circumstances the Guardian Court as well as the Appellate Court were justified in not allowing the petitioner to reagitate, the same allegations and grounds before them. Learned counsel also argued that tha Guardian Court was not competent to grant the reliefs as prayed in the application under sections 7 and 48 of Guardians and Wards Act as well as in the Guardianship Application No.146 of 1997 wherein a declaration was sought in respect of an order passed by the Hon'ble Supreme Court of Pakistan, as grant of such relief was beyond the jurisdiction of Guardian Court. Referring to the application under section 13 of Guardians and Wards Act moved by respondent No. 1 learned counsel submitted that such application was filed by the respondent No.1 without prejudice to his objections taken in this counter‑affidavit with regard to the maintainability of the petition and the jurisdiction of the Guardian Court. Learned counsel lastly argued that as a result of such baseless allegations levelled by the petitioner against the respondent No. 1 site has already succeeded to avoid the implementation of the agreement and order dated 18‑6‑1996, which is a consent arrangement, and thus the petitioner is guilty of repeated contempts, disentitling her for any equitable relief. In support of his arguments, learned counsel placed reliance on the following cases:



(1) 1998 MLD 1271, (2) 1996 CLC 1603, (3) AIR 1936 Lahore 1019, (4) AIR 1930 Lahore 250, (5) AIR 1954 SC 82 and (6) PLD 1963 Dacca 816.



15. I have considered the arguments advanced before me by the learned counsel and perused the case record so also the case‑law referred by them. The parties have placed on record copies of several documents including one video cassette each by the petitioner and respondent No. 1, with the object to rebut the allegations of the other side and to justify and substantiate their respective assertions. In the facts and circumstances of the present case I will refrain from discussing and commenting upon the merits or otherwise of such material placed on record for the reason that such an exercise will amount to A investigation into the disputed questions of fact for which writ jurisdiction of

this Court will not be a proper forum.



16. The moot point for consideration in the present petition is, as to whether the two Courts below were justified in passing the impugned orders, thereby dismissing the Guardianship Application of the petitioner, without allowing her any opportunity to .prove the allegations contained in the Guardianship Application against respondent No.1.

17. In order to appreciate properly the case of the parties in this context, it will be useful to reproduce here the contents of paragraphs 5 to 7 of G & W Case No. 146 of 1997 and also the observations of the Hon'ble Supreme Court of Pakistan contained in the order dated 5‑6‑1998. The same read as follows:



Paragraphs 5. 6 and 7 of G & W Case No 146 of 1997:



"5. That in terms of the aforesaid compromise (Annexure A) the respondent used to take the two minors to his house every week, but on their return from the house of respondent since last about 6 to 8 weeks the applicant felt that both the children appeared visibly frightened and confused. They often voiced immense hatred towards their father, the respondent which was quite unusual. The daughter did not want to go for the weekly meeting and begged the applicant to send her to respondent as according to the minor daughter she did not want to see the 'insect' which reportedly was being shown to her by her father (respondent) after taking off his clothes.



6. Applicant was tremendously concerned and upset about the event of happening at the place of respondent but the daughter was very hesitant in disclosing the details, however, after great persuasion and taking the minor into confidence she revealed that respondent has been causing her s*xual harassment by various means inclusive of kissing very hard on her lips and rubbing himself against her body and private parts at night. She also complained that he puts his finger in her private part and as she tried to pull herself away from him she was locked in the bath room and lights are switched off.



7. That minor son Amin Saad complained of some medicine given to him by the father (respondent) as a punishment which made him very unhappy. It was revealed that the father had administered suppository to the little baby without any reason. Both the children after these starling revelations, were taken to the psychiatrist who opined that there seems to be much more than merely forcible pushing of the suppository to the child."



Observations of the Hon'ble Supreme Court of Pakistan in its order dated 5‑6‑1998:



"It is unfortunate that such a serious allegation has been made. In our view, in these proceedings the same cannot be inquired into. It seems that an application under section 7 read with section 48 of the Guardians and Wards Act bearing No. 146 of 1997 is pending in the Family Court at Karachi in which the mother has prayed for the following relief:‑‑

It is therefore prayed that in the circumstances of the case and in the light of the submissions made hereinabove this Hon'ble Court may graciously be pleased to pass an order that the respondent has disentitled himself from meeting minor children and as such has no right to take them to his house in terms of the compromise, Annexure "A" which he declared as null and void, inoperative and impracticable in the interest and welfare of the minors."

3. In our view, since the question as to whether the father has lost his right to the custody of the minors for the reasons inter alit mentioned in the aforesaid application filed before the Family Court is in issue before the Family Court, it will be appropriate for the mother to file the present application also before the Family Court if she is so advised. However, the Family Court will be free to pass such order, as it may deem appropriate after hearing both the parties and providing them reasonable opportunity, which may be warranted by law. With the above observation, this application is dismissed."

18. There is no cavil to this legal position that for deciding the question of custody of a minor and any other issue relating thereto welfare of the minor is the paramount consideration for the Guardian Court and, therefore, any issue to this regard is to be assessed, examined and measured by the Guardian Court on such yardstick and the Court had to record a definite finding on this point before passing any order in the matter. In the instant case, looking to the serious nature of allegations contained in the Guardianship Application, as reproduced above, it was the duty of the Guardian Court to have allowed proper opportunity to the parties to lead their evidence and place on record other material to substantiate their respective case. From the nature of allegations it is evident that in case the petitioner had succeeded to prove the same, passing of an appropriate order setting aside/modifying/changing the arrangements made in the agreement dated 18‑6‑1996 was inevitable for the Guardian Court and in case of her failure to prove such allegations she was bound to face its repercussions, but by not allowing such opportunity, and undertaking such exercise, the respondent No.3 remained oblivious of this situation, acted illegally and failed to exercise his jurisdiction in accordance with law. The observations of the Hon'ble Supreme Court of Pakistan in its order dated 5‑6‑1998 were also quite pertinent on this issue, but the respondent No. 3 did not care to abide by such observations which had virtually given a guideline to the respondent No.3 in this regard.

19. The perusal of the impugned order dated 2‑11‑1998 would show that on the relevant date the case was only fixed for hearing and disposal of miscellaneous application under sections 7 and 48 of the Guardians and Wards Act, 1890 dated 16‑7‑1998 and therefore respondent No.3 was supposed to confine his order to that extent but respondent No.3, in a hasty manner took up the main Guardianship Application No. 146 of 1997 and dismissed the same summarily.

20. From the facts and circumstances involved in the present petition, it is apparent that the petitioner had approached the Guardian Court and for seeking modification/change in the agreement and the order dated 18‑6‑1997 by urging certain facts and developments, which are subsequent to the passing of such order. It may be mentioned here to this regard that an order passed by the Guardian Court in respect of the custody of the minor (consent order or otherwise) may be an order in the best interest and welfare of the minor at that point of time but due to certain future eventuality and subsequent developments the same may not serve as such. It is for this reason that the Guardian Court has been empowered to modify, set aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context will not operate as a bar of jurisdiction for the Guardian Court for all future time to come. A consent order, a compromise or an agreement between the parties will not absolve the Guardian Court p from its basic responsibility to safeguard and protect the interest and welfare of the minor. Moreso as in the litigation before a Guardian Court the two parties participating in such proceedings are not adversaries in the strict sense but they plead their own view‑point before the Court to enable the Guardian Court to arrive at a just and proper conclusion on the question of welfare of the minor. For these reasons I am of the view that a Guardian Court can re examine such issue even if a compromise, agreement or consent order in that regard is already in the field. By expressing so I do not mean to observe that such a compromise, agreement or consent order can be lightly upset/rejected by the Guardian Court while re‑examining the question of the welfare of the minor in the given facts and circumstances of each case. In such a situation the Guardian Court will normally proceed with. the presumption that the compromise, agreement or the consent order passed in the earlier guardian‑ E ship proceedings was in the best interest and welfare of the minor and, therefore, the Court will examine the subsequent developments and allegations made basis for seeking modification/change of such order in this background of matter. This view of the matter is fortified from various decisions as referred by the learned counsel for petitioner.

21. Coming to the arguments of Mr. Raja Qureshi, it may be observed that none of the three orders passed by the Hon'ble Supreme Court of Pakistan as referred by him had decided the merits of the allegations made by the petitioner in her Guardianship Application No.146/1997. On the contrary, the observations of the Hon'ble Supreme Court of Pakistan contained in order dated 5‑6‑1998 had given a guideline to the Guardian Court for proceeding in the matter. The other contention with reference to the form of relief claimed in the Guardianship Application No.146/1997 has also no force as for this purpose the whole contents of the Guardianship Application is to be looked into and the substance rather than its form is to be examined, even if the Court is found lacking authority to grant reliefs in the strict terms as prayed in the Guardianship Application, such other relief as deemed appropriate by the Court can be granted to the petitioner to ensure and safeguard the interest and welfare of the minor. If any case‑law is needed to strengthen this view, reference may be made to the case of Samar Gul v. Central Government and others (PLD 1986 SC 35). Relevant observations are as under:

"It is well‑settled that a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. "

22. As regard the contentions of Mr. Raja Qureshi with reference to the questions of maintainability of the petition, suffice to observe that unless a proper and definite finding with regard to the truthfulness or otherwise of the allegations levelled by petitioner in her Guardianship Application is recorded by the Court, it cannot be held that the petitioner has not approached this Court with clean hands or that she is not entitled for any equitable relief in the matter. The case‑law referred by the learned counsel for respondent No. 1 is also of no help to ms case.

23. The upshot of the above discussion is that this petition is allowed and the two orders dated 2‑4‑1999 and 2‑11‑1998 passed by the respondents Nos.2 and 3 are declared to be without lawful authority and of no legal effect. The respondent No.3 is directed to proceed with the Guardianship Application No.146/1997 afresh and dispose of the same within three months of the receipt of this order. In the meantime, the Guardian Court/Family Court will also ensure disposal of application dated 16‑7‑1998 moved by the petitioner, in the light of observations contained in the order dated 5‑6‑1998, as reproduced above.

24. In case the other connected Guardianship Application No.486/1998 filed by respondent No. 1 is still pending for adjudication, the District Judge concerned will ensure that both these Guardianship Applications are proceeded together before the same Guardian/Family Court to avoid any conflict of view at the time of disposal of these two cases.

(1)(3)(4)(5) In view of the above order, these applications have become infructuous and are dismissed as such.


Q.M.H./M.A.K./A‑163/K Petition allowed