After insertion of the word "Guardianship" in the First Schedule of The West Pakistan Family Courts Act, 1964, the remedy by way of appeal is available against an order under Section 12 of the Guardians and Wards Act, 1890.......................

 After insertion of the word "Guardianship" in the First Schedule of The West Pakistan Family Courts Act, 1964, the remedy by way of appeal is available against an order under Section 12 of the Guardians and Wards Act, 1890 although earlier, as per Section 47 of the Act, 1890, the right of appeal was not available. It has been further held that plain reading of Section 12(1) of the Act, 1890 indicates that the overarching and controlling position held by the welfare of a minor in granting his permanent custody under Section 25 of the Act, 1890 is equally applicable to the grant of interim custody under Section 12 of the Act ibid and it will defeat the legislative intent and object of the law if the paramount interest of welfare of a minor is considered supreme and dominant feature only at the time of deciding application under Section 25 of the Act and not so at the time of deciding an application under Section 12 thereof. Thus, the welfare of a minor is always to be controlling force at every stage and decision made under Section 12 of the Act, 1890 is no exception. In the instant case, the respondent/father was allowed to retain the custody of the minor, who was admittedly of tender age of four years, which has been held not to be in best interest of the minor inasmuch as the minor of such tender age, at an interim stage, should not be deprived from the love and care which a mother can extend since such deprivation has far reaching impact on mental and physical upbringing of the minor, which is not the object of Section 12 of the Act, 1890.

Family 36910/22
Ayesha Tahir Vs ADJ Lahore etc
Mr. Justice Anwaar Hussain
19-01-2023
2023 LHC 434