' UMAR ATA BANDIAL, J.---This petition is filed against the decisions of the learned lower courts dated 15-2-2008 and 30-5-2006 emanating from the proceedings before the learned Guardian Judge in the peti tioner application for custody of her two minors children who are being kept by or on behalf of the respondent No,1, ex-husband of the petitioner. It was revealed during the proceedings that the children are residing at Multan with their paternal grand parents when their father, an Army officer, is on field duty; otherwise he also resides with the children at Multan. The learned lower courts have returned the petitioner's application on the ground of lack of territorial jurisdiction with a direction to re-file the same before the competent court. This direction has been given on the basis of Section 9 of the Guardian and Wards Act, 1890 which provides that an application is competent before the district court having jurisdiction over the place where the minor ordinarily resides.
2. On the other hand, learned counsel for the petitioner submits that section 7 of the West Pakistan Family Courts Act, 1964 ("Act") provides for institution of suits. This provision was amended vide Ordinance LV of 2002 by the incorporation of the following proviso:-- "Provided that a plaint for dissolution of marriage may contain all claims relating to dowry maintenance, dower, personal ' property for belongings of wife, custody of children and visitation rights of parents to meet their children."
3. Rule 6 of the Family Court Rules, 1965 provides that the court having jurisdiction to try a suit filed under the Act shall be the one where the cause of action has wholly or partly arisen or where the parties reside or last resided together but:-- "Provided that for relief of dissolution of marriage or dower the Court within the local limits of which the wife resides shall have jurisdiction."
4. Although rule 6 extends the relief of a convenient forum to a wife in a suit for the dissolution of her marriage, it does not provide her the same relief in suit for custody of minoRs, Learned counsel for the petitioner submits that the jurisdictional criteria mentioned in Rule 6 ibid was framed prior to the promulgation of Ordinance LV of 2002. Now a family court can entertain several types of claims by a wife including one for custody of minoRs, Such a claim is liable to be treated at par with a claim for dissolution of her marriage or for dower. Consequently, he maintains that a suit for custody of minors is also entertainable by the court having jurisdiction over the place where the wife resides. He relies in this respect upon Anne Zahra v. Tahir Ali Khilji and 2 others (2001 SCM R 2000) in order to show that the provisions of the Act have overriding effect to determine the question of territorial jurisdiction of a court in a custody matter. Then he relies on Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal (PLD 2005 SC 22) to show that the territorial jurisdiction in a custody matter lies with the same court that has jurisdiction in a, dissolution of marriage case. The relevant observations of the Hon'ble Supreme Court in this behalf are to the following effect:-- "the contentions of petitioner's counsel are devoid of force mainly for the reason that an amendment has been brought in section 7 of the Family Courts Act, 1964, whereby a proviso is added in its subsection (2). By the said proviso irrespective of suit for dissolution of marriage and dower, the suit for maintenance, personal property, belongings of wife, custody of children and visitation rights of parents to meet their children can also be instituted before Family Court where wife resides. It is borne out from the record that respondent Mst. Parveen Iqbal is residing with her son at Jhang in the house of her parents, as such, Guardian Judge, Jhang has the jurisdiction to try the suit. In view of this provision of law, the above mentioned Guardian Petition has been rightly withdrawn from the Court of Senior Civil Judge/Family Judge. Chakwal and transferred to the Court of Guardian Judge, Jhang. The impugned orders is proper and it does not require any interference."
5. By relying on the foregoing dictum of the Hon'ble Supreme Court, learned counsel for the petitioner contends that the Family Court at Lahore has jurisdiction to entertain the petitioner's claim for the custody of her children irrespective of where they reside or where the cause of action accrued.
6. Learned counsel for the respondent has submitted that on the facts of the present case the said precedent is un-helpful because there the child and the mother were residing at the same place.
Accordingly, the Court determined to have jurisdiction in the matter is the one within the local limits of which the minor resides. Secondly, he contends that the petitioner has not prayed for custody of minors in a claim filed for dissolution of marriage, as visualized by the second proviso to section 7 of the Act. She has filed the present application independently of other proceedings for dower and maintenance etc. Consequently, the present application by the petitioner cannot receive the benefit under the second proviso to section 7 of the Act.
7. Heard. The title of proceedings under the Guardians and Wards Act, 1890 is irrelevant. It is the substance and relief of the claim that determines the nature of the suit. Although the petitioner's application was filed under the Guardian and Wards Act, 1890 its subject matter is such that in the light of the judgment of the Hon'ble Supreme Court in the Anne Zahra case ibid it is liable to be treated and dealt with under the provisions of Act. Secondly, even if the observations of the Hon'ble Supreme Court in the Muhammad Iqbal case are obiter dictum these are nevertheless binding on a court of law under the principle enshrined in Article 189 of the Constitution. In this behalf reliance is placed on Muhammad Ismail and Sons v. Trans-Oceanic Steamship Co. Ltd. (PLD 1966 Dacca 296).
8. Focusing now on the judgment of the Hon'ble Supreme Court in the Muhammad Iqbal case ibid it is evident that enlarged right conferred on a wife by the second proviso to section 7(ii) of the Act has been interpreted by the Hon'ble Supreme Court to mean that the place of her residence creates the jurisdiction in the competent court for the types of claims mentioned therein that a wife may file. If procedural technicality A is allowed to rule the choice of forum in such a matter then benefit conferred upon a wife or a mother by the aforesaid second proviso may be easily lost.
Therefore, to the mind of the Court both the statutory intent of the second proviso to section 7 ibid and the observations by the Hon'ble Supreme Court in the Muhammad Iqbal case support the conclusion that in the present case the Family Court at Lahore has jurisdiction to entertain the petitioner's application for custody of her minor children who are reported to reside in Multan. This petition is accordingly allowed with the foregoing observations but with no order as to costs.