' Facts giving rise to this transfer application are that the petitioner, Rubia Zarin was married to the respondent, Aamer Amin Malik. Out of their wedlock, one daughter, namely, Mst. Fatima was horn.
Their marriage has since come to an end. Now, dispute has arisen between the parties with regard to Mst. Fatima, who is a minor. Petitioner has taken out proceedings at Sialkot for recovery of maintenance for the minor. On the other hand, the respondent has filed an application, under section 25 of the Guardian and Wards Act, 1925, before Mr. Faiz Talib, Guardian Judge, Lahore, for getting custody of the minor who is now residing with the petitioner at Sialkot. The petitioner has made the petition in hand for transfer of the respondent's application to Sialkot.
2. Preliminary objection was raised by learned counsel for the respondent that this petition, which has been filed under, section 25-A of the West. Pakistan Family Courts Act, 1964, is not competent inasmuch as proceeding sought to be transferred is not a suit or proceedings under the West Pakistan Family Courts Act, 1964. On the other hand, it was submitted by learned counsel for the petitioner that according to section 5 of the West Pakistan Family Courts Act, read with the schedule appended thereto, application sought to be transferred is a proceeding under the West Pakistan Family Courts Act, and therefore, it can be transferred under section 25-A of the said Act.
3. It is not disputed that an application under section 25 of the Guardian and Wards Act can be heard by a Family Court in pursuance of the provisions of section 5 of the West Pakistan Family Courts Act read with the Schedule annexed to that Act. Although substantive provisions in regard to such applications are contained in the Guardian and Wards Act, yet adjudication thereof is made under the West Pakistan Family Courts Act embodying procedural provisions in the matter.
In my opinion, therefore, application under section 25 of the Guardian and Wards Act is a proceeding under the Family Courts Act, for the purpose of clause (a) of section 25-A of the West Pakistan Family Courts Act, and as such there is no force in the preliminary objection raised by learned counsel for the respondent. The objection is, accordingly, repelled.
4. In view of the nature of the two cases referred to at the outset, common questions of law and fact are likely to arise therein. Conflicting findings on such questions can be avoided if both the cases are heard and decided by one and the same Court. Further, if the two cases are allowed to he heard by the Courts now seized of them, the petitioner will have to come to Lahore to defend the case brought by the respondent and the latter will have to visit Sialkot to resist the case instituted by the former. It is, therefore, my desire that one of the parties should be saved of the bother and expense to which she/he would be put for going to a place other than the place of her/his residence to contest the case against her/him. Which of the two parties should he helped in this regard is the question which now falls for consideration. Since the petitioner is a female but the respondent is a male, and the petitioner claims to be a pardahnashin lady and also apprehends trouble at the hands of the respondent in the event of her coming to Lahore to defend the application made against her, for the custody of the minor, I feel that she deserves to be accommodated in preference to the respondent. Accordingly, I accept this petition and transfer the said application of the respondent from the Court of Mr. Fair. Talib, Guardian Judge, Lahore to the Court of Guardian Judge, Sialkot. The petitioner's suit for maintenance shall also be heard by the said learned Guardian Judge as a Judge of the Family Court. Order in this regard is passed by me suo motu in the interest of justice and for the convenience of parties and other concerned.
There shall he no order as to costs.