' This is an application under section 25-A of the Family Courts Act, 1964 filed by the petitioner, the ex-wife, for transfer of guardian ship application titles "Muhammad Akbar v. Halima Bibi" from the Court of Senior Civil Judge/Judge Family Court, Multan, to the Court of Judge Family Court, Faisalabad.
2. The marriage between the spouses took place at Faisalabad on 10th of March, 1969, and the parties resided at Multan after marriage. In 1981, the petitioner-wife was divorced and she came to reside with her parents at Faisalabad with the six children born out of the wedlock. A suit for recovery of dowry was filed by the petitioner before the Senior Civil Judge/Family Court Faisalabad and the same is admittedly still pending. The minor children also filed application for the grant of maintenance and the same was allowed and at the moment an appeal filed by the minors for enhancement of the maintenance allowance awarded, is pending at Faisalabad before the Appellate Court. The respondent, father of the minors, has filed an application under section 25 of the Guardians and Wards Act before the learned Senior Civil Judge/Judge Family Court, Multan. In the said application the minors as well as the petitioner have been shown to be residents of Faisalabad. The petitioner has sought transfer of the guardianship proceedings to the Court of Senior Civil Judge/Judge Family Court, Faisalabad where the suit for recovery of dowry is already pending between the parties on the ground that the rule of propriety, demands that the respondent's suit which was filed subsequently should also be transferred to Faisalabad and that it will be extremely difficult for her to prosecute the case at Multan.
3. Learned counsel for the respondent strenuously opposed this petition and submitted that the convenience of the parties is no ground for seeking transfer of the proceeding lodged competently before a competent Court. He also argued that transfer cannot be sought under section 25-A of the Family Courts Act, 1964, as though under section 25 of the Act a Family Court is deemed to be a District Court for the purposes of Guardian and Wards Act, yet these proceedings are to be held and processed under the Guardians and Wards Act and not under the Family Courts Act, 1964. The objection in essence is that under section 25-A of the Act, only the suit or proceeding under the said Act can be transferred and not the proceedings filed and to be processed under another Act, namely, Guardians and Wards Act, 1890. In support of this plea reliance is placed on Mst. Kaneez Fatima v. Bashir Ahmed 1980 CLC 865.
4. In this precedent the question whether in view of the provisions of section 25 read with section 9 of the Guardians and Wards Act a case can be transferred from one Court to another where the question of jurisdiction to entertain the application is under adjudication, was considered. This question was answered by observing that the provisions of section 9 of Guardians and Wards Act read with section 25 of the West Pakistan Family Courts Act will not have the effect of enlarging the scope of section 25-A of the Act so as to enable the High Court to transfer case from one Court to another and thereby confer jurisdiction as against section 9 of the Guardians and Wards Act. The request of transfer was, therefore, refused. Learned Judge further observed that the view expressed and the law enunciated by Mr. Justice M.A. Zullah in Mst. Irshad Bibi v. Bashir Ahmad PLD 1978 Lah.
518, is not applicable as section 9 of the Guardians and Wards Act read with section 25 of the Family Courts Act were not under consideration in the said case.
5. I have considered the submissions of the learned counsel and have also gone through the two precedents noted above. Learned Judge in the case of Mst. Kaneez Fatima (supra) refused the request of transfer by observing that section 9 of the Guardians and Wards Act and section 25 of the Family Courts Act do not have the effect of enlarging the scope of section 25-A so as to enable the High Court to transfer a case from one Court to another and confer jurisdiction as against section 9 of the Guardians and Wards Act. The question whether a suit, in which objector that the same was not validly pending as the Court had no jurisdiction to entertain, hear or adjudicate upon the matter, can be transferred was considered by Mr. Justice M.A. Zullah, now learned Judge of the Supreme Court, in the case of Mst. Irshad Bibi (supra) and after comparison of section 24 of the C.P.C. and section 25-A of the Family .Courts Act it was held that the transfer can be ordered even in case where question of jurisdiction to entertain the application is under adjudication. The observations in the case of Mst. Irshad Bibi are quoted below:- "The comparison of the two provisions would show that the Legislature, in its wisdom, while enacting section 25-A of the Family Courts Act, has intentionally omitted to use the word 'pending' in clause (a) and (b) of the said section which otherwise is pari materia with section 24, C.P.C. It can be legitimately presumed that the language of the two provisions being generally similar, it is quite possible that when enacting section 25-A, the language of section 24 of C.P.C. was kept in view. The Legislature can, in proper cause, be presumed to have known the latest position of the precedent law on the subject of a particular legislation. The question of lack of jurisdiction of a Court as a ground vis-a-vis the competency of the transferring Court as already noted, has been the subject-matter of considerable case-law. If, despite what has been stated above, the Legislature chose to omit the use of the word "pending" in enacting section 25-A of the Family Courts Act it must be intentional and with the purpose, namely, of widening the scope of transfer proceedings. It is legitimate further to presume that it was in view of the interpretation in several rulings of the language used in section 24, C.P.C. that the legislature thought it fit not only to exclude the use of word "pending" but also to add subsection (3) a new provision in section 25-A.
The clear purpose was to confer powers on the transferring and transferee Court, in these cases as well where the jurisdiction and competency of the Court trying the matter (from which it is sought to be transferred) is challenged in the transfer application. Moreover, the Legislature must have kept in view the incalculable harm which could be caused to family set-up, in case of conflicting judgments on same issues by different Courts. It appears, a salutary remedial measure has been taken. Thus, in view of this distiguishing feature qua the language used in section 25-A of the Family Courts Act the cases under section 24 of the C.P.C. dealing with the question in issue, would not be applicable. Accordingly I, with respect would treat the ruling in the case of Mst. Razia Shafi distinguishable and not attracted."
' It is also important to note that the Family Courts have exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the schedule. Custody of children and guardianship are some of the matters given in the schedule to the Act. To complete the scheme of the Family Courts Act, section 25 provides that a Family Court shall be deemed to be a District Court for the purposes of Guardians and Wards Act and notwithstanding anything contained in this Act, shall, in dealing with the matter specified in that Act, follow the procedure prescribed in that Act. Thus, it is the procedure prescribed in that Act which remains applicable but this circumstance cannot be so interpreted as to bring the Code of Civil Procedure again through a back door to take its old place in Guardianship proceedings See Khizar Hayat Khan Tiwana v. Zainab Begum PLD 1967 SC 402.
6. I am, therefore, clear in my mind that the guardianship proceedings are proceedings under the Family Courts Act and the same can be transferred from one Family Court to another in exercise of the powers vesting under section 25-A of the Act. These proceedings can be transferred irrespective of the challenge made to the jurisdiction of the Court to entertain it. I would prefer to follow the views expressed in the case of Mst. Irshad Bibi by Mr. Justice M.A. Zullah.
7. Now coming to the merits of the case, I find that in view of the convenience and the apprehension expressed by the petitioner, it will be just and appropriate to transfer the guardianship proceedings to Senior Civil Judge/Judge Family Court, Faisalabad where the other proceedings instituted by the wife are already pending.
8. .
Case transferred.