' This is an application filed by Mst. Kaniz Fatima for the transfer of the two petitions for the appointment of the guardian of the minors before the Judge, Family Court, Sahiwal.
2. The petitioner was married to the respondent and out of the wedlock was born Mst. Rukhsana Parveen. About 5/6 years ago, according to the petitioner, she was forced by the respondent to take shelter at Lahore with her parents and in June 1973 she was divorced. According to the petitioner she had filed a suit for dissolution marriage at Lahore which was also decreed by the Judge, Family Court at Lahore on 15th January 1974. At the time of separation Mst. Rukhsana Parveen remained with the respondent and her custody was restored through the agency of Police.
The petitioner is said to have given birth to a son by the name of Liaqat Ali on 14th January 1974 who is also residing with the petitioner at Lahore. On 3rd December 1977 the respondent No, 1 filed a petition for the restoration of custody of Mst. Rukhsana when she was only two years old. The service in the case could not be affected till 1976. On the 5th March 1978 the respondent No, I also filed a petition for the custody of his son born after the separation as already shown above. The present application for transfer relates to both the above petitions on the ground that the petitioner was pardanashin lady and on account of her poor financial sources she could not afford to defend the petition at Sahiwal. A concrete example of threat to the petitioner and her brother is also quoted in the petition. It is also contended that both the children are residing at Lahore with the petitioner and the petition for the appointment of guardian has been filed at Sahiwal by the respondent only with a view to cause harassment of the petitioner. The learned counsel for the petitioner has cited several decisions where the cases have been transferred on account of convenience of the lady and there is no dispute about the proposition. I would have readily allowed the transfer of the case but I feel that there is a legal bar in my transferring the case as the question of jurisdiction has been raised before the learned Judge, Family Court, Sahiwal. Both the petitions have been consolidated and the following issues have been framed.
(1) Whether this Court has jurisdiction to try both the petitions ? O. P. P.
(2) Whether the petitioner has paid proper Court fee on the petition ? 0. P. P.
(3) Whether it would be in the welfare of the minors to hand over their custody to the petitioner ? 0.
P. P.
(4) Relief.
' Section 9 of the Guardians and Wards Act specifically provides that if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides. Section 25 of the West Pakistan Family Courts Act provide that a Family Court shall be deemed 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 Act.
' Section 25-A of the West Pakistan Family Courts Act deals with the transfer of cases and provides as under :- "25-A.-(I) Notwithstanding anything contained in any law the ' High Court may, either on the application of any party or of its own accord, by an order in writing ;
(a) transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district ; and
(b) transfer any appeal or proceeding under this Act from the District Court of one district to the District Court of another district.
(2) ..
(3) Any Court to which a suit, appeal or proceeding is transferred under the preceding subsections, shall, notwithstanding anything contained in this Act, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it.
The question therefore that arises is whether in view of the provisions of section 25 read with section 9 of the Guardians and Wards Act a case can be transferred from one Court to another where the question of jurisdiction to entertain the application is under adjudication.
3. The learned counsel for the petitioner has relied on Dr. Rauf Ahmad v. Mst. Razia Farhat (1). This was a reference from the Civil Judge, First Class, Quetta under section 14 of the Guardians and Wards Act pointing out that two cases relating to the guardianship of minors were pending in two different places i. e. Quetta and Karachi, and an order was sought from the High Court for choosing one of the places for the disposal of the applications. It was observed in this case that in so far as the trend of the Laws of Family Courts is concerned it favours the wife because she is entitled according to rule 6 to commence proceedings against the husband at the place where she resides with respect to the recovery of dower and dissolution of marriage. As against the convenience of the mother rule 9 of the Guardians and Wards Act read with section 25 of the Family Courts Act was set up in order to show that it should be tried at a place where the minors are actually residing.
Prima facie this contention was held to be sound but not followed as it was a reference under section 14. The relevant observations are quoted below "In reply to this Mr. Habibur Rehman has referred to section 9 of the Guardians and Wards Act and section 25 of the Family Courts Act. According to section 9, an application for the guardianship of the person of a minor is to be made to the District Court having jurisdiction in the place where the minor ordinarily resides and according to section 25 of the Family Courts Act a Family Court is to be deemed a District Court for purposes of Guardians and Wards Act, 1890, and not withstanding contained in the Family Courts Act is empowered to deal with the matters specified in the Guardians and Wards (1) PLD 1971 Kar. $97 Act. It is unnecessary to discuss the question of jurisdiction in these proceedings because this is a reference under section 14 of the Guardians and Wards Act"
' The choice out of the two places in the above-referred case was made on the basis of convenience. This decision, therefore, is not a reply to the question under examination. The learned counsel for the petitioner has also cited Mukhlaran v. Muhammad Alamgir (1). This case is also of no avail to the petitioner as this was a transfer application under section 24 of the Civil Procedure Code and convenience of the petitioner being a pardanashin lady was kept in view for transfering a suitfor the grant of perpetual injunction. The learned counsel also cited Mst. Irshad Bibi v. Bashir Ahmad (2). In this case the wording of section 25-A of the West Pakistan Family Courts Act, 1964 were compared with S. 24 of the Civil Procedure Code and the effect of the deliberate omission of word `pending' as appeared in section 24 of the Civil Procedure Code was examined. It was observed that subsection (3) of section 25-A confers powers on transfer the transferee Courts to try even cases where jurisdiction and competence of trial Court had been challenged. This was a case relating to the transfer of the suit for restitution of conjugal rights filed by husband and in view of convenience and apprehension expressed by the wife was transferred to a place where the wife had instituted her own case against the husband. The principle laid in Mst. Razia Shafi v. Major M. S. Malik (3) that no case could be transferred unlest it was validly pending before the Court from which it could be transferred was also taken into consideration in the light of the provisions of section 25-A of the West Pakistan Family Courts Act. The observations in Mst. Irshad Bib is case are quoted below "The comparison of the two provisions would show that the Legislature, in its wisdom, while enacting section 25-A of the Family Courts Act, has intentionally omitted to use the word, 'pending' in clauses (a) and (b) of the said section which otherwise is pari materia with section 24, C. P. C. It can be legitimately presumed that the language of the two provisions being generally similar, it is quite possible that when enacting section 25-A, the language of section 24 of C. P. C. Was kept in view. The Legislature can, in proper cause, be presumed to have known the latest position of the precedent law on the subject of a particular legislation. The question of lack of jurisdiction of a Court as a ground vis-a-vis the competency of the transferring Court, as already noted, has been the subject-matter of considerable case-law If, despite what has been stated above, the Legislature chose to, omit the use of the word "pending" in enacting section 25-A of the Family Courts Act it must be intentional and with the purpose, namely, of widening the scope of transfer proceedings. It is legitimate further to presume that it was in view of the interpretation in several rulings of the language used in section 24, C. P. C. That the Legislature though it fits not only to exclude the use of word "pending" but also (1) PLD 1970 Lab. 52 (2) PLD 1978 Lab. 518 (3) PLD 1971 SC Z47 to add subsection (3) a new provision in section 25-A. The clear purpose was to confer powers on the transferring and transferee Courts, in those cases as well where the jurisdiction and competency of the Court trying the matter (from which it is sought to be transferred) is challenged in the transfer application. Moreover the Legislature must have kept in view the incalculable harm which could be caused to family set-up in case of conflicting judgments on same issues by different Courts. It appears, a salutary remedial measure has been taken. Thus, in view of this distinguishing feature qua the language used in section 25-A of the Family Courts Mt the cases under section 24 of the C. P. C. Dealing with the question in issue, would not be applicable.
Accordingly I, with respect, would treat the ruling in the case of Mst. Razia Shafi distinguishable and not attracted."
' The above judgment and the law as elaborated by Mr. Justice M. A. Zullah (as his Lordship then was) is also not applicable as section 9 of the Guardians and Wards Act and section 25 of the West Pakistan Family Courts Act were not under consideration in that case.
4. In view of the above discussion the provisions of section 9 of the Guardians and Wards Act read with section 25 of the West Pakistan Family Courts Act will not have the effect of enlarging the scope of section 25-A so as to enable the High Court to transfer a case from one if Court to another and thereby conferring jurisdiction as against section 9 of the Guardians and Wards Act.
Subsection (3) of section 25 of the West Pakistan Family Courts Act calls upon the Judge Family Court to follow the procedure as laid down in that Act.
5. In view of the above discussion this application cannot be allowed which is hereby dismissed with no order as to costs.
6. The learned counsel for both the parties however, made a request that directions be given to the learned Judge, Family Court to first decide the question of jurisdiction. The request seems to be reasonable. Let the Judge, Family Court, Sahiwal decide the issue No, 1, expeditiously before taking up other issues. Keeping in view the convenience of the petitioner the learned Judge, Family Court, Sahiwal shall fix the case on a day when the evidence of the petitioner is recorded and shall avoid any unnecessary adjournment.