I

;
JTTDGMENT SHEET
PESHAWAR HIGH COURT. PESHAWAR
JUDICIAL DEPARTMENT

W.P No.502-P of 2024

Mst Sadia
Vs.
Ubaid Afridi and others

Date of hearing 08.03.2024

Petitioner(s) by: Mr. Sufian Malik and Mr. Ilyas Orakzai,

Advocates.
Respondent(s) by: Muhammad Ziaullahn Advocate.

** *rr,r?k

JUDGMENT
,r r. ?k:k:k *

IJAZ AI\WAR. J. This writ petition has been filed under

Article lgg of the Constitution of Islamic Republic of
Pakistan, 1973,with the following prayer: -

"It is, therefore, most respectfully prayed

that on acceptance of instant writ petition,
the impugned iudgments/orders of both the
learned sub-ordinate Courts may kindly be
declared as illegal, unlawful, without lawful
authority and ineffective upon right of the
petitioner.
Secondly impugned iudgrnents/orders of

both the learned sub-ordinate Courts may

4 graciously be set'aside and consequently,

interim custody of minor be testored to

petitioner for safe administration ofi ustice.

Or

Any other remedY deemed Jit and

appropriate in the circumstance of the case

may also be granted lo Petitioner."

 2

v
2. In essence, petitioner instituted her application

under Section 25 of the Guardian and Wards Act before the

Judge Family Court against the respondent/trusband for the

custody of her minor daughter Miss. Ahlam Afridi aged

about four years. She also moved an application for interim

custody of the minor. Both the applications were contested

by the respondent by filing his written statements. The

learned Judge Family Court, after hearing both the parties

dismissed the application for interim custody. Being

aggrieved petitioner filed an appeal before the District &

Sessions Judge Khyber, which was also dismissed vide the

impugned judgment and order dated 17.01.2024. Hence the

instant writ petition.

3. Arguments heard and record perused.

4. Perusal of the record reveals that suit was filed

by the present petitioner for the custody of minor namely

Ahlam Afridi, aged about four years. The Judge Family

Court vide order dated 02.11.2023 dismissed the application

for interim custody and it was ordered that the custody of

the minor would remain with respondent No.l. It appears

that appeal thereagainst before the learned District Judge

( Khyber was also dismissed vide order dated 17.01 .2024 on

the ground that appeal is not maintainable.

5. I have heard both the learned counsel for the

parties at length both mainly argued the matter pertaining to

the interim custody and welfare of minor and also relied

 3

v
upon certain judgments of the Superior Courts, however, to

my understanding the main issue that cropped up from the

order of the learned District Judge is that as to whether

appeal under Section 14 of the Family Courts Act 1964

would be maintainable against the order of the Guardian

Judge/Family Court refusing interim custody and what

would be the effect of Section 47 of the Guardians and

Wards Act, 1890, which provides different orders to be

appealable before the appellate Court/High Court.

6. Now it is to be seen that in case it is held that

appeal before the District Court as provided under Section

14 of the Family Courts Act 1964 is not maintainable only

then the merit of the case and maintainability of the writ

petition against interim order will be deliberated

7 Section 14 of the Family Courts Act being

relevant in the matter is reproduced as below:-

"14. 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 ilperson notifted by
fl Government to be of the ranh and status of a
L
District Judge or an Additional District Judge;
a
and
(b) to the District Court, in any other case.J

(2) No appeal shall lie from a deuee passed by

Family Court-
(a)for dissolution of marriage, except in the case
of dissolution for reasons speciJied in clause (d)
 4

v
of ilem (viii) of section 2 of the Dissolution of
Muslim Maniages Act, 1939;
(b) for dower [or dowryJ not exceeding rupees
lthirty thousandJ;
(c) for maintenance of rupees [One thousandJ
or less per month.
Punjab amendment:
Subsection (2) in clause (b) for the word *thirty
thousand" the words "one hundred thousand"
substituted and (b) $one thousands" the words
'(five thousand" substituted by Family Courts
(Amendment) Act 2015 (XI of 2015)
(3) No appeal or revision shall lie against an
interim order passed by a Family Court.

@) The appellate Court refeted to in sub-section

(1) shall dispose of the appeal within a period of
four rnonths..J"
8. Similarly, Section 25 of the Family Courts Act

1964 provides as follows:-

"25. Family Court deemed to be a District Court

for purposes of the Guardians and Wards Act,

1890.- A Family Court shall be deemcd to be a
District Court for the purposes of the Guardians
and Wards Act, 1890, and notwithstanding
anything contained in this Act, shall, in dealing
with matters specified in that Act, follow the
procedure prescribed in that ActD.

9. While Section 4(5) of the Guardians and Wards

Act, 1890 defines "the Court" as follows:-

'5.4(5) "the Court" pssns;- (a) the Dtstrict

,t
Court having jurisdiction to entertain an
I application under thh Act for fln order
appointing or declaring a person to be a
guardian; or
(b) where a guardian has been appointed or
declared in pursuance ofany such application-
 5

(i) the Court which, or the Court of the OfJicer

who, appointed or declared the guardian or is
under this Act deemed to have appointed or
declared the guardian; or
(ii) in any matter relating to the person of the
ward the District Court having jurisdiction in the
place where the ward for the time being
ordinarily resides; or
(c) in respect of any proceeding transferred under

section 4A, the Court of the officer to whom such

proceeding has been transfened.Ju

10. Section 47 of the Guardians and Wards Act

provides for orders that can be appealed against, it being

relevant is also reproduced as under:-

"47. Orders appealable. An appeal shall lie to the

High Court from an order made by a

[***JCourt,-
(a) under section 7, appointing or declaring or
refusing to appoint or declare a guardian; or
(b) under section 9, sub-section (3), returning an
application; or,
(c) under section 25, making or refusing to make
an orderfor the return of a ward to the custody of
his guardian; or,
(d) under section 26, refusing leave for the
a removal of a ward from the limits of the
jurisdiction of the Court, or imposing conditions
(
with respect theretol or,
(e) under section 28 or section 29, refusing
permission to a guardian to do an act referred to
in the secttory or,
ff) under section i2, delining, restricting or
extending the powers of a guardian; oL
(g) under section 39, removing a guardian; or,
(h) under section 40, refusing to discharge a
guardiary or,
 6

v
(i) under section 43 regulating the conduct or
proceedings of a guardian or settling a matter in
difference between joint guardians, ot enforcing
the ordery or,
(j) under section 44 or section 45, imposing a
penalty:

[provided that, where the order from which an

appeal is preferred is passed by an officer
subordinate to a District Court, the appeal shall
lie to the District Coart,J"

11. In the instant case, the learned Family/Guardian

Court has declined interim custody of minor to the

mother/petitioner and ordered that she has to remain in the

custody of father/respondent vide order dated 02.L1.2023.

Though Section 14 (3) of the Family Courts Act provides

that interlocutory orders/interim orders passed by the

Family Court cannot be made a subject of appeal or

revision, however, Section l4(l) provides that "a decision

given or a decree passed by o Family Court shall be

appealable ". In the case titled "Ms. Ouratulain Aleem Vs

Muhammad Rehsn Khan and qnother" (2006 YLR 2604

I(@!), it was held as under:-

"............. Section l4 of Family Courts Act

refers to two categories of orders i.e. "decision
given" or "decree passed". By using these two
( il terms in the section legislature intends two
dffirent meanings of them. Normally, decision
means the conclusion of Court proceedings, but
I where two words i.e. "decision given" or
"decree passed" are used in a statute requiring
a liberal construction the term "decision given"
would mean a declaration which is to be
followed in subsequent proceedings of a case.
Therefore, the term "decision given" does not
qualifu with any such word as /inal. Hence, an
order under section 12 of Guardians and ll'ard
Act being of introductory nature will fall under
 7

the category of "decision given". Same like

views were expressed in PLD 1975 Karachi 448
and in 1987 MLD 2563 that:

"Expression "decision given" in section 14 of

West Pakistan Family Courts Act is not
qualifi,ed by word "final" order by Guardian
Judge under section l4 Guardian Ward Act---
Appeal able to District Court under section 14."

Even otherwise; while inserting clause (3) in

section 14 of Family Courts Act no amendment
has been made in clause (1) of it and the term
"decision given" or "decree passed" are still
without any changing position to an order
under section 12 of Guardians and Ward Act
made on an interlocutory application moved to
invoke provisional or interlocutory relied,
rather than a final judgment and thus the
remedy lies in filing appeal before District
Judge in case an order is passed by
Civil/Family Judge.

Learned counsel for petitioner has also referued

certain authorities in support that Constitution
petition against an order passed under section l2
of Guardians and Wards Act is maintainable but
in the decision referred the point under discussion
about the maintainability of constitution petition
against an interlocutory order was not the issue
and those petitions were entertained in dffirent
circumstances which are not appearing in the
matter".

12. The same question came up before a Division

Bench of the Hon'ble Lahore High Court in case titled

"Mst. Shsbeena Younas Vs Additional Disttict Judse,

Lahore and 3 others" (PLD 2023, Lahore 453r, while

relying upon the judgment of the superior Courts the

'ble Lahore High Court held as under:-

"6.The question of original order passed on

Application under section 12 of the Guardians
and lVards Act, 1890 being appealable or not
( came upfor consideration in iudgments reported
-a
as 1987 MLD 2563 Mst. Lali v. Muhammad
Raheem Bakhsh and another, 2006 YLR 2604
(Ms. Quratulain Aleem v. Muhammad Rehan
Khan), 2012 YLR 2266 (Shazia Akbar v.
Maqsood Ahmed and another) and 1987 CLC
1630 (Mst. HafeezaBarohi v. Guardian
 8

V
Jadge/Family Judge and unother), which
judgments on the basis of section l4(1) of the
Family Courts Act, 1964 have declared the order
passed on application under section 12 of the
Guardians and li4ards Act, l890whereby custody
of minor fu changed as appealable. For
reference the relevant portion of
HafeezaBarohi's case (sapra) is reproduced
below: -
"4. The learned counsel submits that as
the impugned order is not appealable,
therefore, no appeal could be tiled.
Further contends thqt section 12 of the
Guardians and Wards Act is not
appealable by virtue of section 47 of the
same Act. As the matter essentially falls
within the purview of lYest Pakistan
Family Courts Act 1964, therefore, by
virtue of section 14 of the said Act, it does
become appealable. The opening words of
section 14 of the Family Courts Act 1964
read "Notwithstanding anything provided
in any other law for the time being in
force". The effect of these words is to
exclude any provision of the Guardians
and lVards Act which may be in conJlict
with section 14, Reliance is placed on Mst.
ZaibanNisa v. Muhammad Mozammil
PLD 1972 Kan 410. The same question
also cflme before the Supreme Court
wherein their Lordships have in Sakhawat
Ali and another v. Mst. Shui Khelay PLD
1981 SC 454 held that section 14 does
provide appeal which would lie to the
District Judge. Therefore, this petition is
not maintainable as alternate remedy is
available.

Even otherwise also the present petition

has been filed challenging an
interlocutory order. The main case under
section 25 of the Guardians and llards
Act with regard to the custody of the
minor is still pending, therefore, this
Court would not interfere in writ
jurisdiction. As has been held in Mst.
Kaniz Fatima and 3 others v. Member
(Revenue), Board of Revenue, Panjab,
Lahore and 5 others PLD 1973 Lahore
495 writ petition would not lte to impugn
or impeach order of interim nature.
For the reosons discussed above, Itind no
force in this petition which is dismissed in
limine."
 9

13. The effect of Section 47 of the Guardians and

Wards Act, 1890 vis-a-vis Section 14 of the Family Courts

Act was taken up in the case titled ',Mst. Eram Raza and 2

others Vs Sved Mutaqi Muhammad Ali snd another,'

Q018 MLD 7271, the relevant paras of which is reproduced

as under:-

"7. The instant case may be seen Irom 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. I much emphasis upon filing of the
Constitution Petition on the ground that the
impugned order is not appealable. By quoting the
case of lrfan 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 dffirent as the interim
order is passed under Guardians and Wards Act
and the same is required to be seen under this
context. No doubt, section 12 of G & W Actit is not
mentioned under appealable orders as provtded
within section 47 of the G & lY Act, but afier
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 Actbefore 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 in
subsection (1) shall dispose of the appeal within a
period offour months."

8. As per the provision of Section 47 of G & If

Act, an order under Section 12 of the said Act is
apparently seems to be not appealable but infact 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
 l0

jurisdiction of the Family Courts by the

Legislature. Now all the matters pertaining to
guardianship shall be *clustvely triable by the
Family Courts created undq 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 cqses of Apex Court reported as Aley Nabi
and others v. Chairman, Sindh Labour Court and
another (1993 SCMR 328); MessrsMehraj Flour
Mills and others v. Provincial Government and
others (2001 SCMR 1806) and Suo Motu Case
No.13 of 2007 (PLD 2009 SC 217).

9. Now, it is clear from the plain reading of

I
subsection of Section 14 of the Family Courts
Act, according to which tnotwtthstanding 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 mcntioned under section 47 of G & W Act, an
appeal can beftled 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."

14. It is pertinent to mention here that the effect of

the provision of the Guardians and Wards Act, 1890 vis-a-

vrs the provisions of the Family Courts Act 1964 was also

taken up in the case titled "Shazia Akbar Vs Maqsood

Ahmad and snother" (2012 YLR 2266 Sindhl, wherein, it

"9. The Family Court would not only have

exclusive jurisdiction to decide the matters relating
to the custody of children and guardianship etc.,
but would also be deemed to be a District Courtfor
the purposes of Guardian and ll/ards Act, 1890 and
that an appeal against the order passed by a
Family Court would lie to District Judge under
section 14 of the West Pakistan Family Courts
Act, 1964 when Family Court was presided over
by a Judge subordinate to a District Judge and
that would be an end of the matter. Aggrieved
 ll

person could ftle Constilufional Petition in the

High Court, and that too when Jinding of District
Judge was based on misreading and non-reading of
evidence, erroneous assumption of law and fact or
htas founded on considerations which was
extraneous to the record,

10. In respect of the family disputes cropped up

between the parties as well as custody of the minor,
what does law say, is as under: --

"(l) Custody of minor - Forum of sutt.

Provisions of W.P. Family Courts Act, 1964 has
overriding effect insofar as the matters fall within
the ambit of Schedule. Family Court is the forum
which has to be approached in respect of matters
relating to custody of minor being one listed item in
the Schedule attached to Family Courts Act, 1964.

(2) Form of appeal. For appeal against judgment

and order of Family Court, provisions of
Guardians and Wards Act, 1890 are applicable only
to the ertefi offollowing the procedurefor the trial
of such matters and not as regards substantial right
of appeal."

I I. Bare reading of above quoted provisions of law

ckarly shows that this Court has no jurhdiction
whether in cases dealt under the Family Courts Act
or those dealt under the Guardians and Wards Act
by virtue of section 25 of the Family Courts Act.
Section 14 providing for the appeals continues and
will continue to cover thefield of remedy, of course,
apart from the Constitutional remedy".

15. In view of the above, despite the fact that the

order passed under Section L2 of the Guardians and Wards

Act, 1890 has not been mentioned to be appealable order as

provided within Section 47 of the Guardians and Wards

Act, 1890, however, this point has also further been

elaborated in case titled "Tqssadaq Nswaz Vs Masood

/
Iobsl Usmani and others"(PlD 2018 Lahore 830t in the
a
followins words:-

"6. The interim order passed in the instant case is

under section 12 of the Guardian and Wards Act,
1890 and now it is to be seen whether the same h
appealable or not. The learned Guardian Judge
 t2

\r/
portially allowed the application and the petitioner
has been allowed to meet his son namely Danial only
twice in a month on second and fourth Saturday of
every month in the Court premises. The learned
counselfor thepetitioner hos stressed upon /iling of
the constttution petition on the ground that the
impugned order is not appealable as the matters
pertaining to the guardianship issues shall be
governed by the Family Courts Act, 1964 and under
section 14(3)there is a restraint upon filing an
appeal against an interim order. No doubt, order
passed under section 12 of the Guardian and
Wards Act, 1890 is not mentioned under appealable
orders as provided within section 47 of the Act,
1890 but after insertion of the word
"Guardianship" in the First Schedule of Family
Courts Act, 1964, the provision of appeal ,s
available against an order under section 12 of the
Act, 1890 before the District Judge or Additional
District Judge as per the provision of Section 14 of
the Famtly Courts Act, 1964. In actual, the
provisions of Guardian and Wards Act cannot be
read in isolation after bringtng the matter
pertaining to 'guardianship' under the jurisdiction
of the Family Courts by the Legislature. All the
matters, now, pertaining to guardianship shall be
exclusively triable by the Family Courts created
under the Family Courts Act, 1964, which is a later
enactment comparing to Guardian and Wards Act,
1890, because it is the settled principle of
interpretation that the statute later in time shall
prevail to the earlier; reliance is placed on Aley
Nabi and others v. Chairman, Sindh Labour Court
and another (1993 SCMR 328), MessrsMehraj
Flour Mills and others v. Provincial Government
and others (2001 SCMR 1806) and Suo Motu Case
No.13 of 2007 (PLD 2008 SC 217).

7. Sofar as the argument that section H(3) of the

Family Courts Act, 1964 bars appeal before the
District Court in the matter in hand is concerned,
plain reading of the language of section 14 of the
Act, 1964 makes tt vivid that notwithstanding
anything provided in any other law for the time
being in force a decision given or a decree shall be
appealable.The only exclusion is with regard to an
( interim order. lVhile dealing with the similar
situation earlier it was pronounced that such like
order falls within the purview of 'decision given'
and is appealableunder section 14 of the ll/est
Pakistan Family Courts Act, 1964. In this regard
reliance is placed on Mst. ZaibunNisa v.
Muhammad Mozammil PLD 1972 Karachi 410,
Syed Shamim Ahmad v. Mst. Riaz Fatima PLD
1975 Karachi 448, Mst. Akbar Jan v. Mst. Bibi
Nasim and 4 others 2000 YlB/2652-Peshawar,
Memoona Ilyas v. Additional District Judge and
 I
t3

others 2017 CLC 1747-Lahore and Mst. Eram Raza

and 2 others v. Syed Mutaqi Muhammad Ali and
another 2018 MLD 727-Sindh.

16. In light of the above, it follows that the order

passed under Section 12 of the Guardians and Wards Act

allowing or refusing interim custody of the minor is

appealable under Section 14 of the Family Courts Act,
which provides appeal against decision as well. While in

terms of Section (5) of the Guardians and Wards Act, the

"Court" means the "District Court" having jurisdiction to

entertain an application under the Act and the later statute

Family Courts Act specifically provides under Section 25

that Family Court deemed to be a District Court for the

purpose of Guardians and Wards Act, 1890. Though under

Section 47 of the Guardians and Wards Act details of the

eventualities were given under which appeal can only be

filed before the High Court against the orders passed by the

Guardian Court, and as stated above, an order passed under

Section 12 of the Guardians and Wards Act is not covered

under Section 47 of the Act ibid, albeit, Section 14 of the

Family Courts Act has been given an overriding effect when

it starts from words "Notwithstanding anythtng provided in

any other law for the time being tn force". Thus, the order

of the learned District Judge refusing to exercise his

appellate jurisdiction is not sustainable under the law, it is

accordingly struck down.

17. Though much emphasis was made for the

custody of minor to the mother, however, since it is held

 t4

that the appeal is maintainable in the matter, as such, in the

event of the availability of adequate and efficacious remedy

the constitutional jurisdiction cannot be exercised, as such,

the impugned order of the District Judge Khyber is set aside

and the appeal of the petitioner shall be deemed as pending

and it shall be decided strictly in accordance with law.

Being a matter relates to the custody of minor, as such, it is

expected that the appeal be decided expeditiously. Parties

are to appear before the learned District Judge, Khyber on

14.03.2024 for frrther proceedings in the matter.

Announced
Dfi08.03.2024

JUDGE
fi)B) Hon'ble Mr. Justice Iiaz Anwar
/
3olrllcIlldl