DR. SAJID QURESHI, J. --- Brief facts of the case are that respondent No. 1 filed a petition for the custody of the minors in the Court of Respondent No. 3, who dismissed the petition on the question of jurisdiction vide order dated 16.7.2005. The respondent No. 1 filed an appeal against the said order in the Court of respondent No 2, who was pleased to allow the appeal and remanded the case vide impugned order dated 15.11.2005. The case is now pending and fixed for framing of issues regarding the custody of two minors aged 9.Years (son) and 8 years (daughter) in the said Court, both are minor kids of late Muhammad Mansha and of the petitioner being the real mother. The two children are under the natural guardianship/custody of the petitioner.
2. The learned counsel for the petitioner contends that the learned A.D.J. Ignored the facts that no body was ready to take responsibility of the petitioner as well as the minors, hence the petitioner shifted to Sialkot and started a job to bring up her children and to educate them as well as she could. The learned Family Judge dismissed the case, filed by respondent No. 1 on the question of jurisdiction that the case was liable to be transferred in the interest of the minors. The learned counsel also contended that the minors are, happily settled with their real mother as well as their natural guardian in Sialkot. Further that it is very difficult for the petitioner and her two minors to travel to Islamabad and to attend the proceedings before the learned Guardian Judge at Islamabad. The Family Judge had jurisdiction only where the mother and the minors reside, Sialkot, therefore, the case should be either filed in the Guardian Court at Sialkot or the case may be transferred from Islamabad to Sialkot. The learned counsel for the petitioner relied on PLD 2005 (Supreme Court) 22 "Muhammad Iqbal v. Perveen Iqbal" in which it was held that suit for custody of children, inter alia, should be initiated before the Family'Court where the were ordinarily resided, therefore, the Guardian Judge has the jurisdiction to try the suit at the place where were resided and that the case can be transferred from one Family Court to another Family Court in that jurisdiction. He also relied on PLD 2001 Lahore 188 "Syed Zia ul Hassan Gilani v. Mian Khadim Hussain and others, 2001 SCM R 2000 (Supreme Court of Pakistan) "Anne Zahra v. Tahir Ali Khilji and others" in which the custody of the minor was based on Pakistan Family Courts Rules, 1964 Rule 6 and the provisions of the West Pakistan Family Courts Acts, 1964, has an overriding effect over the provision of Guardian & Wards Act, (VIII of 1890) and has no relevancy in deciding the territorial jurisdiction in the matter relating to custody of minor. The Family Court was the forum which has to be approached in respect of matters relating to custody of minors being one listed item in the Schedule attached to West Pakistan Family Court Act, 1964. The learned counsel finally relied on 2005 eYLR 795 (Peshawar) "Mst. Deeba Khanam v. Muhammad Jamshed' in which it was held that the application for transfer of cases, should be decided on a factor which is to the convenience of the female and that the High Court can transfer a suit from one place to another on this convenience.
3. The learned, counsel for the respondent stated that the question of determination in this case is to which Family Law has the territorial jurisdiction to entertain the application under Section 25 of the Guardian & Wards Act, 1890 -- Whether Islamabad or Sialkot? He stated that the respondent had filed a petition under Section 25 of Guardian & Wards Act, 1890 for the custody of the two minors and that since the death of the husband of the petitioner the petitioner had re-married and was residing in Sialkot with her second husband. This was the basis upon which the appeal was filed before the learned A.D.J., Islamabad, The learned counsel stated that the petitioner had filed an application under Section 9 of the Guardian & Wards Act, 1890 and that the petition should- be heard before the Guardian Court at Islamabad. He also stated that the provision of the Family Court Act has an overriding effect over the Guardian & Wards Act, in relating to custody of minors.
He relied on Anne Zahara case, in which he stated that application under Section 25 of the Guardian & Wards Act, 1890 has to be dealt with the procedure prescribed in the same matter and the provision, of the Guardian & Wards Act, (VIII of 1890) has no relevancy in deciding territorial jurisdiction in the matter relating to custody of minor.
4. Arguments heard. Record perused. Case law examined.
5. Upon examination of the Guardian & Wards Act, 1890, Section 9 (1) it is clearly stated that if the application is with respect with 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" (my emphasis). The word ordinarily means a means more than a mere temporary residence. The ordinarily abode of minor after second marriage of their mother would be where the mother resides (NLR 1996 Civil D.I.K. 624).
6. The above law is very clear in that Section 9 allows the District Court to have jurisdiction in the place where the minor's ordinarily resides.
7. Under Section 25-A of the Family Court Act, 1964 the High Court may on an application transfer any suit or proceeding under this act from one Family Court to another be it in another District.
8. In view of the above, it is evident that the petitioner who is the real mother alongwith her minors, are residing in Sialkot and the welfare and the interest of the minors come first. This writ petition is allowed. The order dated 15.11.2005 passed by the learned A.D.J. Is set aside and the order dated 16.7.2005 passed by .The learned Guardian Judge is upheld Parties to bear their on costs. .