' MIAN SAQIB NISAR, J.---This appeal with the leave of the Court emanates from the judgment of the Lahore High Court, vide which by allowing the constitution petition of respondent No,1, the orders/judgments of the Guardian Court Lahore, affirmed by the appellate Court, that it has no territorial. Jurisdiction in the instant custody/guardianship matter, as the minors are not residing at Lahore, were set aside and the case was remanded for the decision on merits. For comprehending and resolving the proposition of 'territorial jurisdiction' involved in the matter, the necessary factual backdrop of the case is, that respondent No,1, the mother on 11-4-2005 filed applications under sections 25 and 12 of the Guardianship Act, 1890, (the 1890 Act) for the guardianship .And custody of her minor children namely Sana Khalid (daughter) and Faizan Khalid (son) born on 26-1-1996 and 12-2-1999 respectively, against the petitioner, the father (of the children) before the Guardian Judge, Lahore. The appellant joined issue qua the 'territorial jurisdiction' of the said Court, at Lahore on the plea that the minors are permanently residing with him in Multan, where he is posted and resides, they (minors) are also seeking education in the schools over there, therefore, the jurisdiction of the Guardian Court at Lahore was controverted, rather that of the Court at Multan was pressed for. After recording of the evidence of the parties on the afore-stated issue only, the learned Guardian Judge found, the minors to be the residents of Multan and, therefore, returned such applications for filing those before the Court there. The appeal of the respondent against the above decision was dismissed by the Additional District Judge vide judgment dated 15-2-2008.
However, the respondent's constitution petition has been allowed by the learned High Court, primarily by relying upon the judgment of this Court reported as Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen lqbal (PLD 2005 SC 22) .
' Leave to appeal, in this case, was granted on 20-7-2009 to consider the following questions:-- "(A) Whether second proviso to section 7(2) of West Pakistan Family Courts Act, 1964 added by Ordinance No,55 dated 1-10-2002 viz. "Provided that a plaint for dissolution of marriage may contain all claims relation to dowry, maintenance, dower, personaLproperty and belongings of wife, custody of children and visitation rights of parents to meet their children" has overriding effect on section 9(1) of the Guardians and Wards Act, 1964, which provides that, "if the application is with respect to the guardianship of the person of the minor, it shall be made to the District Judge having jurisdiction in the place where the minor ordinarily resides";
(B) In the matters of custody of minors where the question of territorial jurisdiction is involved, which of the afore-noted two provisions of law either second proviso to section 7(2) of West Pakistan Family Courts Act, 1964 or section 9(1) of the Guardians and Wards Act would be applicable; and
(C) Whether in view of second proviso to section 7(2) ibid filing of suit for dissolution of marriage is sine qua non for including claims relating to dowry, maintenance, dower, personal properties and belongings of a wife, custody of children etc. In one plaint or independent suits to claim the said relief could be filed notwithstanding the filing of suit for dissolution of marriage?"
' Further, vide order dated 7-10-2009, a Division Bench of this Court, while hearing the matter observed that, during arguments, certain rulings were pressed into service, especially Anne Zlfara v.
Tahir Ali Khilji (2001 SCMR 2000), which is rendered by a full bench of the Court. As. The matter is fairly arguable, the instant case may be placed before a Bench of at least three Hon'ble Judges.
The appeal was accordingly set out for hearing on 10-11-2010, it was dismissed by an oral order but, then it was thought expedient to rehear the matter for the reasons recorded in the order; furthermore assistance on the propositions involved in the matter was sought from Syed Najam- ul-Hassan Kazmi, Sr. ASC and Khawaja Haris Ahmed, the Advocate General, Punjab as amicus.
2. Learned counsel for the appellant has argued that the applications of the respondent were filed under the provisions of the 1890 Act before the Court constituted thereunder, therefore, issue should be strictly decided on the basis of the law (ibid). According to him, as per section 9 of the said Act, the jurisdiction to try such matter shall vest with the Guardian Court in whose jurisdiction the minors ordinarily or permanently reside, in the instant case it has been proved on the record through evidence and has also been so held by the first two forums that the minors along with their father (the appellant) are permanently residing in Multan, where they are admitted to the schools since long, thus, territorial jurisdiction to decide about the custody/guardianship of the minors is with the Guardian, Judge at Multan and not at Lahore. It is submitted that the learned High Court has erroneously placed reliance upon the judgment reported as Muhammad Iqbal (supra), which has no application to the facts and circumstances of the present case; it is further urged that second proviso to Section 7(2) of the West Pakistan Family Courts Act, 1964 (the Act, 1964) neither has the overriding effect of the aforesaid provisions of the 1890. Act nor this, being a subsequent addition in the Act, 1964 by virtue of amending Ordinance dated 1-10-2002, would affect the jurisdiction of the Family Court in guardianship/custody matter, as those would remain to be regulated by Rule 6 of the Family Courts Rules, 1965, which clearly specify, that in such cases, the jurisdiction shall be with the Court, where the cause of action has arisen or the parties last resided, with the exception however, that the suits for dissolution of marriage or dower can be instituted before the Family Court where the wife resides. Learned counsel has also distinguished the judgment reported as Anne Zahra (supra) by arguing that in this pronouncement, the provisions of section 7(2) second proviso have not been considered, thus it has no relevance to the present case; to that extent, otherwise it supports his contention of the point of jurisdiction even otherwise the provisions of the noted proviso, as earlier argued, neither has the affect of overriding. The provisions of the 1890 Act nor she principles of implied repeal can be invoked to hold that the provisions of the 1890 Act are done away with; the proviso to a section in its application is restricted to that provision alone to which it forms part and cannot be extended to any other part of the statute.
3. On the contrary, the learned counsel for the respondent has strenuously relied upon the judgments reported as Muhammad Iqbal and Anne Zehra supra and has also drawn distinction between the suit for the appointment of guardianship of a minor and the application for the custody thereof. It is argued that the provisions of Rule 6 of the Family Courts. Rules,1965 shall have no affect and relevance to this case, because those being inconsistent with the parent statute have to give way thereto. He has also relied upon the judgments reported as Mirza Mohammad Iqbal and others v. Government of Punjab (PLD 1999 Lahore 109) and Muhammad Bakhsh Masood v. Mst. Aysha Mai and others (2009 CLC 905) in support of his contentions. Khawaja Haris Ahmed, learned Advocate general, Punjab, pursuant to the order dated 10-11-2010 has appeared, who, at the very outset, has stated that, in fact, the present appeal has been rendered infructuous for the reason that the petition was instituted by the respondent for the custody of the minors, when she had the right of custody on account of hazanat, but due to the elapse of time this right has been lost. Both the minors are far above the requisite age, however, on the legal issue, he has urged that the provisions of section 5(1) of the Act, 1964 confer exclusive jurisdiction (emphasis supplied) pertaining to those matters, which fall within the purview and ambit of the schedule attached thereto upon the family courts.
4. It is stated that entry/item No,5 of the schedule is about the custody of the minors, while No, 6 is for the guardianship, thus the proposition of the case has to be settled as per Section 25 of the Family Courts Act, 1964 as sections 9 and 4(5) of the 1890 Act, shall be subservient in those matters which are covered by items/entries of the Act, 1964. In support of his contentions, he has relied upon the judgment reported as Anne Zahra (supra). It is also argued that as according to Section 25 ibid, the Family Court has been deemed to be the District Court, therefore, such court shall have all the jurisdiction, traits and shades of that Court. However, when questioned, if this interpretation shall be apt in the light of section 14 of the Family Courts Act, 1964, Khawaja Haris Ahmad, has submitted that it is only a 'procedural provision' enunciating the deeming status of the Family Court for a limited purpose when it is exercising its original jurisdiction in the family matter, but for the purposes of appeal against its orders/judgments, such fictional status shall not be relevant, rather the Family Court shall be subordinate to the Court to which the appeal has been provided by section 14. In support of his contentions about the distinction between the custody and guardianship, reliance has also been placed upon the cases reported as Asif Mowjee v. Mst.
Fatema A. Mowjee Sand another (PLD 1987 Karachi 239) and Mst. Zaibun Nisa v. Muhammad Mozammil (PLD 1972 Karachi 401).
5. Heard. Prior to the enforcement of Family Courts Act, 1964, the disputes, relating to and concerning the family affairs (except guardianship etc.) such as the dissolution of marriage, recovery of dower, dowery, maintenance, enforcement of conjugal rights and jactitation etc. (subject to the amendment of the schedule to the Act 1964 from time to time) were within the jurisdiction of ordinary civil court. Whereas, the issues about the guardianship and custody of the minors were the subject matter of the Guardian Courts constituted under Guardians and. Wards Act, 1890. It seems that on account of delays, in the adjudication of this class of cases, which possibly was due to the complexity of procedure and the rush of work in such courts, but undoubtedly was adversely affecting the family union and comity, the legislature in order to prevent the above enforced the Act, 1964. It is so clear from the preamble of the Act that this law was enforced with a vivid object to take out the matters falling within the ambit thereof from the ordinary regime qua dispensation of justice, and for the expeditious disposal of such matters, special forum was created in which the rigors of procedural implications and the requirements of the Evidence Law (Qanun-e-Shahadat Order, 1984) were either dispensed with or were simplified; with an addition of a statutory mechanism, enabling the parties for an amicable settlement of their disputes, through the courtesy of the Court was provided. Therefore, to achieve the aforesaid object, section 5 of the Act, 1964 conferred exclusive jurisdiction to the Family Court to entertain, hear and adjudicate upon matters specified in Part-I of the schedule to the Act. It may be pertinent to refer here, that if the original Act, 1964 is examined there were six entries/items to the schedule, relating to the matters about dissolution of marriage, dower, maintenance, restitution of conjugal rights, custody of the children and guardianship. However, these items have been increased from time to time e.g. Khula' is added to the dissolution cases; the custody issues also involve visitation rights of the parents to meet the minors; jactitation of marriage, dowery, personal property and personal belongings of the wife have also been made part thereof and subjected to the jurisdiction of the Family Court. Furthermore, Subsections (4) & (5) to Section 1 of the Act 1964 were added which read:-- "(4). Nothing in this Act shall apply to any suit, or any application under the Guardians and Wards Act 1890, pending for trial or hearing in any Court immediately before the coming into force of this Act, and all such suits and applications shall be heard and disposed of as if this Act were not in force.
(5). Any suit, or any application under the Guardians and Wards Act, 1890, which was pending for trial or hearing in any Court immediately before the coming into force of this Act, and which has been dismissed solely on the ground that such suit or application is to be tried by a Family court established under this Act, shall, notwithstanding anything to the contrary contained in any law, on petition made to it in that behalf by any party to the suit or application be tried and heard by such Court from the stage at which such suit or application had reached at the time of its dismissal."
' Whereas, section 20 confers powers upon the Family Court to exercise all powers of Judicial Magistrate of first class under the Code of Civil Procedure. Likewise, under section 25 of the Act, 1964, it is enunciated "a Family Court shall be deemed to be a District Court for the purpose of the Guardians and Wards Act, 1890, and notwithstanding anything contained in this Act, shall in dealing with the matter specified in that Act, follow the procedure prescribed in that Act". Besides, for the purposes of inter alia the 'territorial jurisdiction' of the Family Court, the Family Court Rules, 1965 were enforced; the Rule 6 whereof prescribes the Court shall have the jurisdiction to try a suit will be that within the local limits of which :-
(a) the cause of action wholly or in part has arisen; or
(b) where the parties reside or last resided together: Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.
6. After the enforcement of the Act, 1964 the questions arose about the exclusivity of Family Courts jurisdiction and in the judgment reported as Noor Zaman v. Mst. Saidano (PLD 1967 Peshawar 343) while considering the proposition, though in relation to a maintenance dispute which (maintenance) could also be earlier granted by the Magistrate in terms of Section 488 of Criminal.
Procedure Code it was held "it is well established principle of law that where Special Tribunal is created, then by necessary implication the jurisdiction of the ordinary Courts is excluded even in the absence of the express words ousting the jurisdiction of the ordinary Court. The words "exclusive jurisdiction to entertain, hear and adjudicate upon matters" occurring in section 5 of the Act expressly oust the jurisdiction of the ordinary courts, in regard to the six matters enumerated in the Schedule including the "maintenance", and if any doubt is left about exclusive jurisdiction in regard to order of maintenance under section 488, Cr. P. C. The same is resolved by sections 14 and 20 of the Family Courts Act". In Alifdin v. Shaukat Ali (PLD 1969 Peshawar 62) considering the effect of section 5 of the Act, 1964 and the extent of ouster of ordinary court's jurisdiction it was conspicuously and categorically held that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate the matters specified in the schedules. This shall cover all the three stages of the proceedings i,e, the time of initiation, process of proceedings and the final adjudication of the dispute, therefore, it was stipulated that "this provides sufficient scope for the proposition that if a matter has been entertained in another forum, on the coming into force of the Act if that matter has gone to the exclusive jurisdiction of a forum created by the Act, it shall be heard and adjudicated by the new forum". In Muhammad Amin v. Mst. Surraya Begum and others (PLD 1969 Lahore 512) while interpreting section 8 of the Muslim Family Law Ordinance, 1961 and Section 5 of the Act, 1964 in unequivocal terms the Court ordained "if however, section 8 of the Ordinance were so construed as leading inferentially to the ouster of jurisdiction of civil Courts, the subsequent vesting of exclusive jurisdiction in the Family Courts would be obviously repugnant to such a construction of the provision contained in section 8 of the Ordinance in which case the latter would prevail". The question about the exclusive jurisdiction of the Family Court constituted under the Act 1964 and the ouster of jurisdiction of other forums came under consideration before this Court in Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) though in connection with the issue of maintenance relating again to section 488, Cr.P.C. And this Court held: "Furthermore; the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, in any way, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Looking at the provisions as a whole it is therefore clear that all that the Family Courts Act has done is that it has changed the forum, altered the method of the trial and empowered the Court to grant better remedies. It has thus in every sense of the term brought about only procedural changes and not affected any substantive right. According to the general rule of interpretation, therefore, a procedural statue is to be given retroactive effect unless the law contains a contrary indication. There is no such contrary indication in the West Pakistan Family Courts Act. It could, therefore, rightly be held that the Act affected also pending proceedings and Magistrates have no longer any jurisdiction either to entertain, hear or adjudicate upon a matter relating to maintenance".
7. In order to comprehend the ratio of the case Anne Zehra (supra), reference to which has also been made in the order of this Court dated 7-10-2009), the facts thereof needs to be mentioned: the minor/son of the divorced parents was perhaps abroad with his mother (Anne Zehra) when the father (Tahir Ali Khilji) initiated guardianship and custody proceedings by moving an application under sections 12 and 25 of the Guardians and Wards Act before the Guardian Judge, Lahore, who without calling for any reply from Mr. Khilji returned the application for presentation before the appropriate Court, as the learned Guardian Judge was of the view that he was not vested with the jurisdiction to try the matter. The appeal of the father before the Additional District Judge also could not succeed, but his challenge to both these orders before the High Court turned fruitful and by setting aside the orders, the case was sent back to the Guardian Court to decide the applications afresh. It is in the above factual backdrop, the matter came before this Court wherein after considering the relevant provisions of both the statutes it was held: "under section 25 (ibid), a Family Court, thus seized of a matter brought before it in respect of any matter included in the schedule was deemed to be a Court of a District Judge for the purposes of Guardians and Wards Act and notwithstanding anything contained in the Family Courts Act would, in dealing with the matters specified in this Act, follow the procedure prescribed in the Guardians and Wards Act, 1890" Para 6: "It is manifestly clear from the express provisions of the Family Courts Act that it is the Family Court under the said Act which has to be approached in the cases relating to custody of minors, which Act has overriding effect over the Guardians and Wards Act, therefore, the question of territorial jurisdiction is to be decided under the said Act and the rules framed thereunder and the Guardians and Wards Act for that matter has no relevancy (emphasis supplied). Rule 6 of the West Pakistan Family Court Rules, 1965, framed under the West Pakistan Family Courts Act, 1964 provides that the Court which shall have 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, therefore, it was under the provisions of the said rule that the question of territorial jurisdiction of the Family Court was to be decided under the said Act and not under the provisions of the Guardians and Wards Act. The Guardian Judge as also the learned Additional District Judge, however, decided the question of territorial jurisdiction in this case by applying the provisions of the Guardians and Wards Act and not the West Pakistan Family Courts Act, 1964 and the rules framed thereunder which has held by the High Court in the impugned judgment was not correctly decided". About the plea raised in that case, that "territorial jurisdiction" is a procedural question therefore should be settled under the Guardians and Wards Act, the Court held to contend that the question of forum being a matter of procedure, therefore, should have been decided in view of the provisions of the Guardians and Wards Act. We are afraid, the argument is plainly unsound and cannot be accepted on any reason". It was further held "the Family Court shall have jurisdiction to entertain such a petition shall have to be decided under the provisions of the said Act and the rules framed thereunder and once a Family Court is approached accordingly by a party considering that a particular Family Court was vested with the territorial jurisdiction to entertain the petition, for the purposes of the trial of the same, the procedure as prescribed under the said Act is not to be followed but the general procedure for the trial of suit under the Civil Procedure Code has to be followed which has no nexus or relevancy with the question of determination of the Trial Jurisdiction of the Court. By virtue of section 25 of the West Pakistan Family Courts Act, every Family Court has been designated as the District Court, therefore, there is no Guardian Judge as such under the Guardians and Wards Act whereas the Family Court under the said Act competently seized of a matter relating to matter of minors shall be deemed to be a District Court"....Moreover, "it has been rightly held by the High Court, therefore, that the Family Court/District Judge in which Court the present petition for custody of minor was filed should decide the question of territorial jurisdiction in the light of the rules framed under the Family Courts Act after giving opportunities to the parties to prove their respective contentions in respect thereof after recording evidence to the effect whether requirements of Rule 6 (ibid) are satisfied in order to attract the jurisdiction of the said Court".
' From the above dictum, the relevant portions whereof, have been quoted in extenso, it is abundantly and unequivocally clear, that on the enforcement of the Act, 1964, the Family Court was vested with the exclusive jurisdiction to entertain, hear and adjudicate the matters covered by the Act, 1964 and no other Court. At this juncture, it may be also mentioned that the above view is also fortified from the provisions of subsections (4) & (5) of section 1 of the Act, 1964, because it only had saved those cases for the jurisdiction of the Guardian Court which were pending at the time when the Act, 1964 came into force, while all future matters which otherwise would have been within the jurisdiction of the Guardians and Wards Act were subjected to the jurisdiction of the Family Court.
As regards the judgment of this Court reported as Muhammad Iqbal through Special Attorney Faiz Sultan v. Parveen Iqbal (PLD 2005 SC 22), the decision on the basis of which, the learned High Court in the present case has interfered in the decisions of the two Courts and has held that the applications for the guardianship/the custody of the minors can be filed, in the territorial jurisdiction of the Court, where the mother resides, it is expedient to analyze the facts of the case to ascertain the ratio of the pronouncement:--Parveen Iqbal, the respondent of the case, was married to Muhammad Iqbal, the petitioner, and this wed lock produced three sons. The lady brought a suit for the maintenance against her spouse before the Family Court at Chakwal, while the latter initiated guardian petition before such Court at Chakwal, thereafter a transfer application was moved by the lady, who by then seems to have moved to Jhang, to live with her son there; the order transferring the case was passed by the Lahore High Court, which was challenged before this Court, on 24-5-2004. The counsel for the husband in the case, by relying upon Rule 6 of the Family Court Rules, 1965 had argued that the suit for dissolution of marriage or dower could only be competently filed before the Family Court where the wife ordinarily resided; as Mst. Parveen was residing at Chakwal where the suit was filed, thus the matter could not be transferred to Jhang. This court while considering the above plea and refusing the leave to appeal came to the conclusion that "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) (emphasis supplied by us). 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".
10. Anyhow, in order to settle the proposition in hand, in view of the provisions of the law quoted above and the preponderance of the view set out in the judicial pronouncements, we do not find ourselves in a position to form an opinion different from the judgments of the Peshawar and Lahore High Courts and this Court (supra), holding that Section 5 of the Act, 1964 confer exclusive jurisdiction upon the Family Court to hear the matters/disputes covered by the items mentioned in the schedule. In Anne Zehra's case (supra), it has been made clear that the question of 'territorial jurisdiction' is not purely a procedural question and, therefore, would not be settled on account of the provisions of Act, 1890, as per force of section 25 of the Act 1964 and this is the correct exposition of law. It seems that this Court was not properly assisted in the case Muhammad Iqbal supra, because we have endeavoured to examine the,entire law on the subject, as has been amended from time to time and are unable to locate any amendment introduced, as a proviso to subsection (2) of section 7 of the Act, 1964 by virtue of which the jurisdiction for the purposes of the guardianship/custody disputes was/is conferred upon the Family Court, where the wife resides. The proviso to which reference perhaps is intended in Muhammad Iqbal's case supra, reads as:-- "Provided that a plaint for dissolution of marriage may contain all claims relating to dowery, maintenance, dower, personal property and belongings of the wife, custody of the children and visitation rights of the parents to meet their children"
' The said proviso only permits the joinder of different causes of action in one suit, whereas the determination of 'territorial jurisdiction' still remains to be regulated by Rule 6 of the Family Courts Rules, 1965 (reproduced above). The proviso does not envisage that if such a composite suit is either filed or if any one of the claims covered by that is separately initiated, the Family Court where the wife resides would have the jurisdiction in the matter, rather it is Rule 6 ibid which shall provide the answer in the given situation; it seems that on account of lack of proper legal assistance, the said judgment is per incuriam.
11. Be that as it may, from the ratio of all the law cited above, the legal position, which emerge is as under:-
(a) Under section 5 of the Act 1964, the Family Court has the exclusive jurisdiction to entertain, hear and adjudicate (emphasis supplied) all the matters which fall within the first 'schedule to the Act; this admittedly includes the custody and guardianship matter.
(b) For the purposes of determining the 'territorial .Jurisdiction" of the Family Court, it is Act 1964, and the rules framed thereunder which shall be taken into account and not the provision of the Guardian and Wards Act 1980, even as per force of section 25 of the Act 1964.
(c) According to Rule 6 (a) of the Family Court Rules 1965, there are three factual eventualities which are relevant for the purposes of the determination of the 'territorial jurisdiction' of the Family Court; firstly, where the cause of action wholly or in part has arisen, meaning thereby, in the custody or guardianship disputes if the minors were with the mother and they have been illegally and improperly removed and taken away that from the place where they were living with her (or vice versa for father as well), the cause of action shall be said to have arisen at such place, otherwise the cause of action shall be deemed to have arisen where the minors are residing; secondly, under Rule 6(b) where the parties reside or last resided; thirdly as per proviso to Rule 6, in a suit for dissolution of marriage or dower where the wife ordinarily resided. And in view of the addition of proviso to section 7(2) of the Act 1964, which was introduced on 1-10-2002 if in a suit for the dissolution of marriage join other causes of action mentioned in the said proviso, such suit shall also fall in the last category, otherwise not.
12. The petitioner was/and is residing in Multan where the minors are residing with him, who are admitted in the schools there. It is not proved by the respondent that she had brought them to Lahore and was deprived of their custody from Lahore on account of which the cause of action could arise in her favour at Lahore. It is also not established if before parting, the parties hereto were residing at Lahore so as to attract Rule 6(b) ibid.
13. In view of the above, the learned High Court has fallen in error, while relying upon the judgment reported as Muhammad Iqbal supra; therefore, by allowing this appeal, the impugned judgment of the High Court dated 29-5-2009 is set aside and that of the Family Court and Appellate Court dated 30-5-2006 and 15-2-2008 respectively are upheld.