VISITATION RIGHT DOES NOT INCLUDE TRANSFER OF CUSTORY OF WARD TO LOSING PARTY UNDER Section 25 OF GUARDIAN AND WARDS ACT 1890.

By
CH. MUHAMMAD BASHIR
Advocate, Faisalabad
(Ex. Member Punjab Bar Council)

It has oftenly been observed that a Guardian Judge, while holding a person entitled to custody of ward under Section 25 of Guardian and Wards Act, 1890, invariably makes an order that the losing party will have a right to visit the Ward periodically at a given place for a certain duration of time. Some times it is also supplemented with an order allowing the losing party to take away the Ward to its house for a certain period.

Such visitation orders, having been so consistently passed, seem to lend to believe that temporary transfer of ward to the losing party, is an essential part thereof and has matured into a right.

Such visitation orders are also, sometimes, passed under Section 12 of the said Act independently.

Both the said sections do not permit the transfer of temporary custody of ward to the losing party, as a sequel to order of custody under Section 25 of the Act.

In order to evaluate the said view I think it proper to reproduce the said sections.

Section 12.

Power to make interlocutory order for production of minor and interim protection of person and property:

(1) The Court may direct that the person, if any, having the custody of the minor shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.

(2) If the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.

(3) Nothing in this Section shall authorize—

(a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any; or

(b) any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person.

The said Section forms part of Chapter II of the Act, which deals with appointment and declaration of Guardians.

The said Section plays an ancillary role during the pendency of application for appointing or declaring a person to be guardian of person or property or both, of a minor.

It is intended to provide for temporary custody and protection of the person or property of the minor when the main application is pending and final order is yet to be passed under Section 7 of the Act. Order under this Section may entail the transfer of custody of minor from a person, presently holding it, to another person, whom the Court thinks to be proper, till the decision of the main application.

It is a sort of provision analogous to Order XXXIX of Civil Procedure Code, enabling the grant of Temporary Injunction during the pendency of suit.

It does not exist independent of application for appointment or declaration of Guardian. No direct application under this Section can be filed.

In PLD 1959 (W.P) Lahore. 750 it has been held.

"Section 12 empowers the Court to make interlocutory orders for production of the minor, and to pass such orders for the temporary custody and protection of the person or property of the minor as it thinks proper. It will thus be seen that in the scheme of the Act, Section 12 applies only when as application for guardianship is pending in the Court and not otherwise. I am forfeited in this view by the decision of Dalip Singh J . in Indar Singh V. Kartar Kaur (1) where the learned Judge held as follows:-

"I am of opinion that Section 12 by reason of the wording used as well as by reason of its location in the statute only applies during the pendency of guardianship proceedings."

Besides I am clearly of the view that this Section does not empower the Court to order the production of a minor for the purpose of giving access to any person entitled to visit and see the child. It only aims at making an ad-interim arrangement for temporary custody of the minor during the pendency of the guardianship application. The learned guardian judge, therefore, could not have passed the order under Section 12 of the Act."

Section 25(1).

Title of guardian to custody of ward:

(1) If a ward leaves or is removed from the custody of a guardian of his person, the court, if it of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.

A cursory analyses of the said Section shows that it can be invoked only at the instance of a Guardian from whose custody a ward leaves or is removed and he seeks the return of the ward, and the court, on being satisfied that it is for the welfare of the ward to cause him returned to his custody, will pass an order of his return and for the purpose of enforcing the order may cause the ward to be arrested and delivered into the custody of the guardian.

The word' guardian' has been defined in Section 4(2) of Guardians and Ward Act, as —

"a person having the care of the person of a minor or his property, or of both his person and property."

The said definition covers a person having de facto or de jure care of person or property of the minor as held in PLD 1968 Karachi, 774.

The said Section embraces within its fold not only Guardian appointed or declared under Section 7 of the Act but also a person who is Guardian under personal law to which he is subject.

The prime question to be decided in a proceeding under this Section is the welfare of the ward and his custody will go to a person in whose custody the welfare of the Ward lies, whether he be applicant or the person in whose custody the ward already is.

However once the question of entitlement to custody of Ward is finally decided under this Section then it cannot be allowed to be tampered with by passing an order allowing the losing party to take away the Ward from the custody of successful party. Such an order militates against the order of entitlement in favour of a winning party. So the visitation right of a losing party under Section 25 cannot include the transfer of custody of minor from the winning party to the losing party, for however short period it may be.

The very word 'visitation' denotes that the losing party can visit the minor at a place selected by the winning party or the one fixed by court, the Ward throughout remaining in custody of the winning party. If the Court fixes a meeting place then it has to make arrangements of such safe-guards which can prevent the visitor from taking away the minor.

This view finds eloquent expression in PLD 1979 (W-P) Lahore 750, which is reproduced hereunder:-

"6. In my opinion the jurisdiction of a Guardian Judge in regard to minors is confined to the powers expressly conferred on him by the Guardians and Wards Act. It is a cardinal principle of law that the jurisdiction must be acquired before a judgment is given, and a judgment rendered by a Court which has no jurisdiction in the matter, is nullity in the eye of law. It is true that according to sunni law, the parents have a right to visit and see their child, In Neil B.E. Baillie's Digest of Muhammad Law (2nd Edition page 439), the rule regarding access is stated thus—

"When a child is with one of its parents, the other is not to be prevented from seeing and visiting it."

But the question is whether the guardian Court had the jurisdiction to direct the petitioner to produce the child in Court once in every month for giving access to the father to see the child. It is not disputed that the petitioner is the lawful guardian of the minor boy who is aged about five or six years. Among the Hanfis, the accepted doctrine is, that the mother's hizanat terminates when the son has completed seven years of age. So long as the child is under the lawful guardianship of the mother, the father undoubtedly has a right to see and visit the child, but at the same time I do not find any warrant for the proposition that the mother can be forced to send the child to him for this purpose , or can be ordered to produce the child in Court for giving access to the father. As pointed out earlier, the powers of the Guardian Judge are confined to those given under the Guardian and Wards Act. There is no provision of law under this Act for working out such a right as the respondent claimed in his application under Section 12s and 25 of the Guardian and Wards Act. In the absence of any provision in the Act, such a right, in my opinion, cannot be given effect to by invoking the principles of equity, justice and good conscience."

In a recent judgment of Lahore High Court, reported in PLD 2008 L.527 parameter of visitation right has been spelled out, with a rider that minor cannot be allowed to be taken away by the visitor to a place outside the territorial jurisdiction of the guardian judge and the meeting, if it is to take place, outside the Court room, is to be supervised by bailiff of the court, who will ensure the return of the minor to the party from whose custody the minor was taken for the purpose of meeting.

The judgment of Karachi High Court, reported in PLD 2008 K. 499, has no precedent value as it only dealt with enforcement of compromise effected between contesting parents before the Supreme court, whereby minors were allowed to be taken away by father to his house periodically.

Taking notice of the present worsening law and order situation and insecurity it is hazardous to allow a losing party to take away the minor to a place outside the Court of Guardian Judge for the purpose of meeting, much less to a place beyond the territorial jurisdiction of the court, even if it is backed by security bond for however heavy amount it may be.

If a losing party is tempted to defy the order of Guardian Judge of return of minor to the winning party, the threat of forfeiture of security bond will not by any hindrance in his way. No amount of money can recompense the loss of minor. Safety considerations dictate that the meeting of the minor with a visiting parent be confined to Court premises, guarded by bailiff of the court.