1. Through this Constitution petition, the petitioner has sought a declaration to the 2002, effect that impugned judgment dated 5-8-2002 passed by respondent No,2/learned. District Judge, Karachi
(West) is nullity in law, without jurisdiction, not binding upon the petitioner and of no legal effect. He has further prayed that the order passed by respondent No,3/IInd Senior Civil Judge, Karachi
(West) be restored.
2. The facts relevant for the purpose of disposal of this petition are that petitioner Syed Sakhawat Ali Shah was married with respondent No,1 Mst. Shabana Shah on 26th January, 1998 at Karachi. The "Rukhsati" took place on 26th June, 1998 and parties started residing in Orangi Town, Karachi. As a result of this wedlock two children namely Master Syed Asama Ali Shah presently aged about three
(3) years and baby Alisba Eman presently aged about one year were born. The parties could not pass a happy matrimonial life and there are allegations of cruelty and maltreatment against the petitioner. Some efforts for reconciliation were taken and the parties started living together but again there arose some differences. It is alleged that petitioner caused serious injuries to the respondent and turned her out in three clothes after forcibly snatching the custody of minors which resulted in filing of Criminal Miscellaneous Application No,463 of 2001 by the respondent No,1, which was decided by a learned Single Judge of this Court on 4-1-2002. The relevant paragraph of the said order reads as follows:-- "From the peculiar facts and circumstances of the case, the custody of suckling baby namely Alisba Eman is delivered to the applicant/mother Mst. Shabana Shah whereas for the custody of S. Asama Ali Shah, she should approach the Guardian and Wards Court. This Criminal Miscellaneous Application No,463 of 2001 is disposed of in above stated terms. The parties may seek their further remedies from the concerned Family Court."
3. It appears that respondent Mst. Shabana Shah thereafter filed a case under Guardians and Wards Act in the Court of learned Ilnd Senior Civil Judge, Karachi (West) and by an order dated 15-5-2002 the learned Judge returned the case/application to applicant Mst. Shabana Shah for want of jurisdiction as according to the learned Judge the minor Master Asama Ali Shah was in custody of his real paterrfal grandmother, who is residing in Kohat N.-W.F.P. therefore, the Court at Karachi had no jurisdiction. The said order was challenged before the learned District Judge, Karachi (West) who by a judgment dated 5th August, 2002 set aside the order of the learned IInd Senior Civil Judge, Karachi (West) and held that the Courts at Karachi had jurisdiction to entertain and decide the dispute in question. The matter was withdrawn from the Court of learned find Senior Civil Judge and assigned to learned IIIrd Senior. Civil Judge, Karachi (West). The petitioner is aggrieved of the said order and has filed this Constitution petition.
4. I have heard Messrs Abid Hussan and Aurangzeb, Advocates for the petitioner and Mr. Adnan Ahmed, Advocate for respondent No,
1. I have also gone through the order passed in Criminal Miscellaneous Application No,463 of 2001, the order passed by the learned 'Ind Senior Civil Judge, Karachi (West) and the Order passed in appeal by the learned District Judge, Karachi (West).
5. The learned counsel for the petitioner have vehemently urged that after the decision of the habeas corpus petition by this Court, the petitioner has voluntarily shifted the minor to Kohat in the interest of minor where paternal grandmother of the minor is residing and the minor is being properly looked after by her. The learned counsel further argued that at the time of the filing of the guardian and wards case by respondent No,1 at Karachi the minor was not present in Karachi and as such the Courts at Karachi have no jurisdiction to entertain or decide the said dispute. In support of their contention the learned counsel have relied upon the case of Khalilur Rehman v. Mst. Tajunnisa, etc. 1991 CLC Note 62 at p.46, which case was also cited before the learned Appellate Court. The other case is of Anne Zahra v. Tahir Ali Khilji and 2 others (2001 SCM R 2000) Unfortunately, both the cases are distinguishable and do not support the stand taken by petitioner. In the case of Khalilur Rehman (supra) while discussing Rule 6 of Family . Courts Rules, 1965 the jurisdiction of trial Court was determined and it was found that respondent Mst. Tajunnisa was turned out in three clothes after snatching her son javed lqbal at Mansehra whereafter she reached Karachi with the help of her father and filed the case in Karachi. It is not the case here. Even prior to the marriage petitioner and respondent No,1 were residing at Karachi, their marriage was solemnized at Karachi, children were born at Karachi and when habeas corpus petition was filed both the children were available at Karachi and it was thereafter that Master Asama Ali Shah was shifted to Kohat by the petitioner.
6. In the case of Anne Zahra (supra) the Hon'ble Supreme Court of Pakistan again considered Rule 6 of the West Pakistan Family Courts Rules, 1965 and held that a Court which shall have the jurisdiction to try a suit will be that within the local limits of which the cause of action wholly or in part has arisen or where the parties reside or "last resided together". It is not disputed that parties are still residing at Karachi. Even if the petitioner would have shifted to Kohat the Courts at Karachi would have not been divested of the powers to entertain and deal with the matter in the circumstances of the case.
7. Mr. Adnan Ahmed learned counsel for the respondent No,1 has supported the impugned order and relied upon the same authorities as cited before the learned Appellate Court.
8. In view of the discussion made above, the material available on record and the case-law cited by the learned counsel for the petitioner as well as that discussed by the learned Appellate Court, I am of the considered view that jurisdiction in the circumstances lies with the Family Courts at Karachi.
9. The impugned order- does not call for any interference, hence this petition is dismissed. However, there will be no order as to costs.