' SYED HASAN AZHAR RIZVI, J.---Through this Constitutional Petition, the petitioner has impugned the order dated 22-12-2011 passed by the learned Family Judge, Karachi. South in G & W Application No,966 of 2011 whereby the minor was allowed to move abroad (Auban) to spend and enjoy his vacations from 23-12-2011 till 7-1-2012 and ensure attendance of minor before that Court on the next date.
2. The facts of the case, as narrated by the petitioner, in the instant petition, are that, she is the real sister of the respondent No, l's wife. The petitioner being issueless have, adopted two child namely Sehrish Adeeb now aged about 26 years and a married girl and another is Haji Muhammad Muzzammil now aged about 14 years from her real sister (wife of respondent No,1). The minor child namely Haji Muhammad Muzzammil is a special child who suffers from Macular Dystrophy Stargardt's, which is a genetic disease, relates to the decrees in peripheral vision and very sensitive boy. According to the petitioner, the facilities of said disease are not available in Pakistan so that the child for the purposes of treatment travels to Singapore, Italy and USA etc. The wife of the respondent No,1 expired on 11-12-2005.
3. It is, inter alia, contended by the learned counsel for the petitioner that the learned trial Court has no jurisdiction to pass the order impugned herein, as according to him, the respondent No,1 (real father of the minor) moved application under section 25 and section 12 of the Guardians and Wards Act, 1890, but the minor was not disclosed the fact that the respondent No,1 is the biological father of the minor so that the child would not have disturbed or confused. According to the learned counsel for the petitioner, after receiving the notice, the petitioner has, challenged the jurisdiction of the learned trial Court and moved, application. He further contended that the instead of passing appropriate orders on the application for rejection of the plaint as well as on the question of jurisdiction, the learned trial Court passed the order impugned by the petitioner in the instant petition. He also contended that for the purpose of deciding the interim custody of minor the Court has first to decide the point of jurisdiction and thereafter decide the question of interim custody and without determining such point its order requiring inner to be present in Court on every date was not warranted. According to the learned counsel, the respondent No,1 moved - applications under section 25 and section 12 of the Guardians and Wards Act, 1890 before the learned trial Court for custody of the minor Haji Muhammad Muzzammil, but with the consent of the parties, in the light of the sensitivity of the minor Haji Muhammad Muzzammil, the petitioner and her husband decided not to disclose to the minor about his biological father and the minor assumes the petitioner and her husband from the day one to be his real parents and it would be a shock to the mind of the minor, if the respondent No,1 comes suddenly and discloses that he is the real father of the minor. In support of his case, learned counsel for the petitioner has pleaded reliance upon the case of Mst. Nighat Firdous v. Khadim Hussain (1998 SCM R 1593), Mst. Firdous Iqbal v. Shifaat Ali (2000 SCM R 838), Mst. Azizan Bibi v. District. Judge Badin (1995 CLC 614) and Mst.
Misbah Rubeena v. Ali Quli Amin-udDin (2003 YLR 2528).
4. On the other hand, Mr. Salahuddin Ahmed, learned counsel appearing on behalf of the respondent No,1, has vehemently opposed the contentions of the learned counsel for the petitioner, as according to him, in the facts and circumstances of the case, this Constitutional Petition is not maintainable. According to the learned counsel, if the petitioner has aggrieved by any order of the learned trial Court, she should have filed an appeal before the learned District and Sessions Judge instead of invoking Constitutional jurisdiction of this Court, as alternate and efficacious remedy was available with the petitioner, which would have been exhausted by her before seeking some sort of relief from this Court. In support of the case, learned counsel for the respondent No,1, has placed reliance upon the case of Sheikh Waseem .Ahmed v. Mst. Wazir. Begum (2005 CLC 1755), Mst Tahira v. Additional District Judge, Rawalpindi (1990 SCM R 852), Mrs Ghazala Yamin v.
Muhammad Yamin (1987 M LD 2940).
5. I have heard the learned counsel for the parties, perused the entire record as well as the case- law cited by learned counsel for the parties.
6. Prima facie, it appears from the record that the petitioner has only challenged the jurisdiction of the learned Family Court by invoking the Constitutional jurisdiction of this Court, as according to the learned counsel for the petitioner, he has filed an application for rejection of the plaint, moved by the respondent No,1 before the Family Court. Simultaneously, the respondent No,1 moved applications under section, 25 and section 12 of the Guardians and Wards Act, 1890, upon which the learned Family Judge, Karachi South, before deciding the application of the petitioner for rejection of the plaint, passed the order (impugned 'in the instant petition) in G & W Application No,966 of 2011 whereby while allowing the minor to move abroad (Auban) to spend and enjoy his vacations from 23-12-2011 till 7-1-2012, ensured attendance of minor before that Court on the next date.
7. Before giving my findings on the issue of jurisdiction of the Family Court, challenged by the petitioner in the instant petition, it would be pertinent to state here that as to whether the Constitutional Petition filed by the petitioner is maintainable or not?
8. The Petition filed under the Constitution of 1973 is not maintainable, when the scope of the appeal against the order passed by the learned Family Court exists before the learned District Judge. The appeal against the order of the learned Family Judge, would lie before the learned District Judge and not before the High Court as provisions of West Pakistan Family Courts, Act, 1964 had overriding effect upon provisions of the Guardians and Wards, Act, 1890. Even under new Proviso to section 47 of the Guardians and Wards, Act, 1890, such appeal would lie before the District Court. The Constitutional Petition would not lie before the High Court in any manner.
9. The Family Court would not only have exclusive jurisdiction to decide the matters relating to the custody of children and guardianship etc., but would also be deemed to be a District Court for the purposes of Guardian and Wards Act, 1890 and that an appeal against the order passed by a Family Court would lie to District Judge under section 14 of the West Pakistan Family Courts Act, 1964 when Family Court was presided over by a Judge subordinate to a District Judge and that would be an end of the matter. Aggrieved person could file Constitutional Petition in the High Court, and that too when finding of District Judge was based on misreading and non-reading of evidence, erroneous assumption of law and fact or was founded on considerations which was extraneous to the record.
10, In respect of the family disputes cropped up between the parties as well as custody of the minor, what does law say, is as under:-- "(1) Custody of minor - Forum of suit. Provisions of W.P. Family Courts Act, 1964 has overriding effect insofar as the matters fall within the ambit of Schedule. Family Court is the forum which has to be approached in respect of matters relating to custody of minor being one listed item in the Schedule attached to Family Courts Act, 1964.
(2) Form of appeal. For appeal against judgment and order of Family Court, provisions of Guardians and Wards Act, 1890 are applicable only to the extent of following the procedure for the trial of such matters and not as regards substantial right of appeal."
11. Bare reading of above quoted provisions of law clearly shows that this Court has no jurisdiction whether in cases dealt under the Family Courts Act or those dealt under the Guardians and Wards Act by virtue of section 25 of the Family Courts Act. Section 14 providing for the appeals continues and will continue to cover the field of remedy, of course, apart from the Constitutional remedy.
12. In view of the above, though only there is an issue of jurisdiction of the learned Family Court, challenged by the petitioner in the instant petition, which have elaborately been discussed, I am not impressed with the arguments of the learned counsel for the petitioner and the case law cited by him are not relevant on the point, this Constitutional Petition is dismissed as not maintainable.
13. If the petitioner has aggrieved with any of the order of the learned Family Judge, she should approach the learned District Judge in Appeal first to exhaust the remedy available to her.
14. Since there is a question involved for the welfare of the minor, who is a special child, the learned Family Court is directed to decide the main case as well as all the applications pending before it within a period of six months from the date of receipt of this order after 'giving full opportunity of hearing to the parties.
15. The observations made hereinabove are tentative in nature and the learned Family Court shall not be influenced with the same while deciding the main case as well as all the applications pending before it.