1. ' The petitioner by this Constitutional petition seeks of challenge the order dated 15th November, 1980 passed by the VIlth Additional District Judge, Karachi (respondent 2) in Family Appeal No, 100/1980 whereby he suspended the interim order passed by first Family Court Judge, Karachi dated 5th May, 1980 directing the respondent No, 1 to produce minor Maha Nayyar in Court on 16th July, 1980 and also remanded the case to the First Family Court Judge, Karachi.
2. ' The facts leading to the filing of the petition are as under :- ' The petitioner was married to respondent No, 1 on 19th February, 1977 in consideration of dower of Rs, 20,000 in accordance with Muslim Law at Karachi. Female Child, namely, Maha Nayyar was born on 4th December, 1978. The relations of the spouses became estranged, and on third day of April, 1979 by a consent agreement styled deed of divorce respondent No, 1 divorced the petitioner.
3. Under paragraph 3 of the deed respondent No, 1 undertook and agreed that he shall maintain and take care of the minor child at his own expenses and shall look after her welfare and give her proper education, according to his standard of life. Under paragraph 4 of the deed, the respondent No, 1 also undertook and agreed that he shall whenever convenient to him bring the child, namely, Maha Nayyar from Lahore at his own expense and shall allow the petitioner to see and remain with the child at the residence of Mr. Muhammad Sultan Khan upto a limit of 10 days. Paragraph 5 further provided that the petitioner shall not be allowed to take the minor child out of the residence of aforesaid Muhammad Sultan Khan without the consent and permission of respondent No, 1.
4. There was further undertaking given by respondent No, 1 that whenever possible and convenient to the petitioner she could come down to Lahore and he shall allow her to see the minor at his parents' residence and his parents shall not forbid her to see the minor at their residence.
5. ' It is the case of the petitioner that the agreement with regard to the custody of the minor was agreed to by her under duress inasmuch as the respondent No, 1 had made it a condition that she should agree to his retaining custody of the child before he divorced her. Be that as it may, it is the case of the petitioner that since the day of divorce respondent No, 1 had kept the minor away from her and never permitted her to see her own daughter and had, therefore, committed a breach of the conditions of the deed. After her attempts and efforts to see her minor daughter were frustrated by respondent No, 1, she had served him with notice through her counsel dated 1st April, 1980 that he should allow her to meet her minor daughter. As under the Shariat Law, the mother is entitled to Hizant of her female child until she has completed the age of puberty, the petitioner instituted Guardian and Ward Application Bearing No, 990 of 1980 before the First Family Court Judge, Karachi. She also moved an application under 'section 12 of the Guardian and Wards Act on which the learned First Family Judge, Karachi passed the interim order dated 15th May, 1980 directing respondent No, 1 to produce the minor in Court on 16th July, 1980. The respondent No, 1, however, preferred Family Appeal No, 100 of 1980 against the aforesaid order to the District Judge, Karachi who transferred the same to V1Ith Additional District Judge who passed the impugned order against which the instant petition has been filed.
6. ' In his counter-affidavit respondent No, 1, besides denying the allegations about the reasons for estrangement of relations with the petitioner also denied that the petitioner had agreed to the deed of divorce due to any duress and coercion on his part. He has further stated that he never (restrained the petitioner from meeting the minor at Lahore which is the ordinary place of residence of the minor, but the petitioner had never chosen to meet the minor and had in fact never enquired about the welfare of the minor. It is his case that under the deed of divorce it was mutually agreed that the petitioner would receive the total amount of dower from him in terms of four instalments of Rs, 5,000 each every three months making a total of Rs, 20,000. It is further his case that the petitioner waited for full one year till an the dower amount had been received by her and for ulterior reasons has dragged him in multiple litigation after recovering the aforesaid amount under the agreement. It is further stated in the counter affidavit that while the petitioner continued to live as his wife (as she then was) her daughter from previous husband had been put in a hostel where she continued to live from her tender age. As he is a Flying Officer and used to live alone at Karachi, he used to continue visiting his permanent residence which is also the ordinary place of the residence of the minor in Lahore where his parents, his sisters and brother reside. The respondent No, 1 has stated that on receiving notice of the proceedings before the Family Court No, 1 he had been served with the interim order dated 15-5-1980 directing him to produce the minor in Court on 15th July, 1980 and he had preferred a Family Appeal against the said interim order challenging the jurisdiction of the First Family Judge as the ordinary residence of the minor was not within the jurisdiction of the aforesaid Family Court. He has explained that he had filed the appeal after having filed his objections before the Family Judge, Karachi pointing out that the ordinary place of residence of the minor was at Lahore and not at Karachi.
7. ' The impugned order of VIIth Additional District Judge has been assailed on the following grounds :- "(1) That he was not competent to hear the appeal having no jurisdiction to do so.
(2) That the order dated 15.5-1980 being an interim order no appeal lay from the same.
(3) That as the order had not been passed after going into the merits of the case, it was not a speaking order and, therefore, the appeal against it did not lie."
8. ' Since the question involved is whether the impugned order could have been passed in appeal it is relevant to refer to the provisions of section 14 of the West Pakistan Family Courts Act, 1964. The aforesaid section reads as under :- "14. Appeal. -(1) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable-
(a) to the High Court where the Family Court is presided by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional District Judge ; and
(b) to the District Court, in any other case.
(2) No appeal shall lie from a decree by a Family Court- ta) for dissolution of marriage, except in the case of dissolution for reasons specified in clause (d) of item (viii) of section 2 of the Dissolution of Muslim Marriages Act, 1939 ;
(b) for dower not exceeding rupees one thousand ;
(c) for maintenance of rupees twenty-five or less per month."
9. A perusal of the provisions of subsection 1 of section 14 would show that a decision given or a decree passed by a Family Court shall be appealable. The order dated 15-5-1980 was passed by the XIth Senior Civil Judge and Assistant Sessions Judge acting as Family Court and, therefore, appeal under subsection (1) clause (b) lay to the District Court as he was not of the rank of a District Judge or an Additional District Judge. The contention of the learned counsel for the petitioner, however, is that the order dated 15-5-1980 was on an interim application under section 12 and, therefore, it was not appealable order under the aforesaid section. The question as to whether an order passed on an application under section 12 of the Guardian and Wards Act could be considered as "a decision given" and whether it was, therefore, appealable under section 14 of the Family Courts Act, 1964 was considered in the decision of this Court in Syed Shamim Ahmad v.
10. Mst. Riaz Fatima (1). It was observed in that decision that the expression "a decision given" in section 14 was not in any manner qualified by any such word as 'final' and, therefore, an order under section 12 of the Guardian and Wards Act, 1890 was "a decision given" and hence appealable under section 14 of the Family Courts Act, 1964. Mr. Raja Qureshi, the learned counsel for respondent No, 1, has also relied on the D. B. Decision of this Court in Mst. Zaibun Nisa v. Muhammad Moazzamali (2), in which it was inter alia (1) PLD 1975 Kar. 448 (2) PLD 1972 Kar. 401 ' observed that an appeal against a decree or decision of a Family Court under the Guardian and Wards Act, when its Presiding Judge is not a District Judge or a Judge of equivalent rank lies to the District Court and not to the High Court. While discussing the revision application filed against an interlocutory order passed on an application under section 12 of the Guardians and Wards Act the Court observed as under :- "In the first place, the argument that the applicant has no other remedy is based on a misreading of section 14 of the said Act. I have quoted this section earlier and it confers a right of appeal even against the decisions of a Family Court, it is clear that the applicant could have filed an appeal in the District Court under clause (b) of section 14 against the order by which be was aggrieved."
11. ' It was further held that, as section 17 of the Family Courts Act, 1964 had prescribed that the provisions of the Civil Procedure Code except sections 10 and 11 shall not apply to Family Courts, the applicant could not invoke section 115 of the Civil Procedure Code, and therefore no revision could lie against such an order.
12. The point that the order was not a speaking order and therefore n appeal lay against it does not have any substance inasmuch as if an order purporting to have been passed under some enabling provision of la does not mention the reasons due to which it was passed, it may be considered as not a proper order specially if it is appealable as the Appellate Court cannot possibly consider its merits, but the aforesaid fact does not mean that no appeal against such an order can lie. On the contrary, such orders require to be set right much more than the orders which mention the reasons for which the same are passed.
13. ' A perusal of the record would show that the respondent No, 1 had raised a substantial point of jurisdiction which had to be decided before the Courts in Karachi could deal with the matter. As a matter of fact, respondent No, 1 has legitimately raised the point even about the jurisdiction of this Court in the matter as under section 9 of the Guardian and Wards Act, if the application is with respect to guardianship of the person of the minor, it could be made to the Court having jurisdiction in the place where the minor ordinarily resides. The question as to what place the minor ordinarily resides in is a question of fact to be decided after considering the evidence that is brought on record. However, there is indication from perusal of the deed of divorce that the petitioner had consented that their minor be in custody of the father and that she should reside in Lahore with the parents of respondent No,
1. It is true that she has made the allegation that she had agreed to give up the custody of the minor under duress, but it is quite evident, in view of the deed of divorce, that the minor was taken with her consent and lived in Lahore with the parents of respondent No, 1 for at least the period of one year till all the instalments of the amount of dower were being paid, and it is for the Family Court concerned to look into all the evidence that might be led on the point. Suffice it to say, however,' that the point with regard to jurisdiction is, as observed by the learned With Additional District Judge, in the impugned order, a point of substance which requires to be decided in the first instance.
14. ' It is for reasons stated not made out that the impugned order was passed without jurisdiction, but even if, for the sake of argument, it had been so, since it appears to have done substantial justice between the parties in pointing out that the question of jurisdiction had first to be determined, the order could not have been set aside in exercise of discretionary jurisdiction of this Court. I accordingly dismiss the petition, with no order as to costs.