1. ' This is an application under Article 199 of the Constitution of Islamic Republic of Pakistan for a writ in the nature of certiorari or any other appropriate writ for quashing the orders passed in the hierarchy of forums established under the Family Courts Act, 1964 in a dispute between a mother who is petitioner in this Court and the father about their right to hold the custody of their minor child who admittedly is a boy beyond the age of seven now. Family Court presided over by a Civil Judge, 1st Class held that it was not in the welfare of the ward to order his return to the custody of his mother. Additional District Judge who heard the appeal against the decision transferred to his Court by District Judge was of the same opinion. Agreed views expressed on welfare of the minor for holding his future custody are assailed in this Court at the instance of petitioner mother. It is submitted that the question of welfare has not been correctly resolved in the Courts below. It is further submitted that Civil Judge, 1st Class who took cognizance of the guardianship matter was incompetent to try it. Similarly, Additional District Judge who heard and decided the appeal filed against the decision of the Civil Judge, 1st Class lacked jurisdiction. Upon the above premises, it was submitted that since the decisions suffered from absence of jurisdiction, they were coram non-judice and reduced to absolute nullities.
2. ' The facts which are few and simple leading to the present application briefly summarised are:- Mst. Sajida Parveen petitioner was wedded to Malik Iftikhar Ahmad respondent No,2 as his wife in the year 1981. Exact date of their marriage is not available on the record. First offspring of the marriage is a male child named Malik Ammad Ali Khan. He was born in the year 1982. He is alive and presently is a bone of contention between his parents. Marriage between the spouses proved to be extremely of a short duration. Soon after its solemnization, it suffered a set-back and relations between the couple grew strained. Petitioner complained of illtreatment at the hands of respondent No,2 and took up residence in her parents' house. Petitioner's case is that about fifteen days before the filing of the application under section 25 of the Guardians and Wards Act, on 6-11- 1984, respondent No,2 forcibly removed the minor who was then hardly of 2-1/2 years from the custody of the petitioner. Application for restoration of the custody was presented to the Court of Senior Civil Judge, Rawalpindi who assigned it for its trial to a Civil Judge in the same district.
3. Respondent No,2 submitted his defence and resisted the application. The trial Court seized of the matter framed necessary issues arising for determination in it and after taking evidence from the parties and on its examination found against the petitioner and dismissed her application on 28- 9-1989. Against this decision of the trial Court, an appeal was filed under section 14 of the Family Courts Act, 1964 to learned District Judge, Rawalpindi who transferred it for hearing to a learned Additional District Judge in the same district. It also failed on 5-9-1990 and decision of the trial Court was maintained. It may be observed here that in course of trial of the application under section 25 of the Guardians and Wards Act, the trial Court had entrusted interim custody of the minor to the petitioner and under this arrangement the child remained with the petitioner but in view of the final orders passed by the Courts now, his custody reverted to respondent No,2.
4. ' Respondent No,2 gave irreversible divorce to the petitioner and snapped the marital relations between them. Soon after receiving divorce, petitioner entered into a fresh wed-lock with Muhammad Anwar, and, has two children from him. Respondent No,2 has not yet re-married. He is a handicapped person which prevented his free movements. He is a radio, and, T.V. Mechanic. He works on his own shop. He has employed a servant at his shop for his assistance. He owns a house and agricultural lands also. He earns from the shop and has income from agricultural lands.
5. Therefore, he has the capacity and the necessary wherewithal to look after and provide for his child. His mother is also there to look after his minor child. Further, there is no moral defect in the person of respondent No,2. At least, none has been pointed out at the hearing. When the dispute about custody was first brought to the Court, minor boy was stated to be of 2-1/2 years of age. By passage of time consumed in litigation, he is over seven years of age. Under Muslim Law, a father is entitled to the custody of a boy over seven years of age. Consistent with the personal law of the minor, his welfare is presumed to lie in the custody of the person entitled to it under that law unless facts leading to a contrary conclusion are established which is not the case here. As against a mother who is married to a stranger to the minor and has her own children from him, the father can be safely looked upon to better look after the interests and welfare of his minor son. Therefore, it is not in the welfare of the minor to return to the custody of his mother and the Courts below have rightly allowed him the parental protection by his father. In determining the question about custody of infant children, their welfare plays a paramount and fundamental consideration and that question, on present record, I think has already been correctly decided in the Courts below and there is no need to interfere with the findings. Further, the point about welfare is essentially a question of fact determinable on the evidence led in the case and is not open to review in extraordinary jurisdiction for substituting an opinion by this Court. Upon this view, the agreed finding that it is not in the interest and welfare of the minor to return to the custody of the petitioner is neither without jurisdiction nor without lawful authority.
6. ' If the matter had merely rested at that, there would have been indeed, no difficulty in concluding against the petitioner and saying 'No' to her but her counsel raised a more serious and fundamental question of law regarding jurisdiction both of the trial Court, and, the Appeal Court to hear and decide the dispute. Relying on the case of Muhammad Hayat versus Additional District Judge 1st, Okara and 2 others PLD 1990 Lahore 350, it was submitted that except Lahore District, only Senior Civil Judges in the Province of Punjab were competent to hear and decide the dispute about guardianship matters. It was further submitted that an appeal under section 14 of the Family Courts Act, 1964 could only be entertained and decided by District Judge of the District and not by an Additional District Judge as was done in the case. This point was neither raised before the first Court trying the matter nor in appeal before the Judge below. It was urged for the first time in the Constitution petition in this Court. Ordinarily, it would not have been permissible for the petitioner to urge it but being a pure question of law touching the jurisdiction of the trial Court and of the appellate Court, petitioner was allowed to take up the objection more particularly when it was also supported by a judgment of this Court. I must admit at the outset that upon careful survey of the relevant provisions in the Guardians and Wards Act, Family Courts Act 1964, and, Family Courts Rules 1965 as amended upto date, I am unable to subscribe to the views of my learned brother expressed in case of Muhammad Hayat (Supra) that only Senior Civil Judges in the Punjab (excepting Lahore) had jurisdiction to hear and decide guardianship matters. Section 4, subsection
(4) of the Guardians and Wards Act says that "District Court" has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction. Section 2 (4) of Civil Procedure Code runs thus: "District" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court') and includes the local limits of the ordinary original civil jurisdiction of a High Court. Section 4 (5) of the Guardians and Wards Act defines "the Court" as:-- "(a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring a person to be a guardian; or
(b) Where a guardian has been appointed or declared in pursuance of any such application--
(i) the Court which, or the Court of the officer who, appointed or declared the guardian or is under this Act deemed to have appointed or declared the guardian; or
(ii) in any matter relating to the person of the ward the District Court having jurisdiction in the place where the ward for the time being ordinarily resides; or
(c) in respect of any proceeding transferred under section 4-A, the Court of the officer to whom such proceeding has been transferred."
7. ' Section 4-A of the Guardians and Wards Act gave power to the High Court to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers. It reads as follows:-- "4-A. Power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.--(1) The High Court may, by general or special order, empower any officer exercising original civil jurisdiction subordinate to a District Court, or authorise the Judge of any District Court to empower any such officer subordinate to him, to dispose of any proceedings under this Act transferred to such officer under the provisions of this section.
(2) The Judge of a District Court may, by order in writing, transfer at any stage any proceeding under this Act pending in his Court for disposal to any officer subordinate to him empowered under sub-section (1).
(3) The Judge of a District Court may at any stage transfer to his own Court or to any officer subordinate to him empowered under subsection (1) any proceeding under this Act pending in the Court of any other such officer.
(4) When any proceedings are transferred under this section in any case in which a guardian has been appointed or declared, the Judge of the District Court may, by order in writing, declare that the Court of the Judge or officer to whom they are transferred shall, for all or any of the purposes of this Act, be deemed to be the Court which appointed or declared the guardian."
8. ' Therefore, under the Guardians and Wards Act, jurisdiction to decide guardianship matters was conferred upon "the Court" as defined in it. Obviously, it meant the Court of a District Judge or a subordinate Court empowered under section 4-A of the Act by the High Court. This position prevailed till the West Pakistan Family Courts Act, 1964 (Act XXXV of 1964) was enforced on July, 18, 1964. As the preamble to the Act would show, it created special forums for expeditious decision of certain matters specified in the schedule to the Act and conferred exclusive jurisdiction in the new forums regarding matters which initially consisted of six items namely, (1) dissolution of marriage;
(2) dower; (3) maintenance; (4) restitution of conjugal rights; (5) custody of children; (6) guardianship. In 1969, jactitation of marriage was also included in the schedule. Section 3 of the Act provided for establishment of Family Courts, section 4 laid down the qualifications for the appointment of the Judge of a Family Court and stated that no person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, or has been a Senior Civil Judge or Civil Judge, 1st Class, section 5 conferred exclusive jurisdiction on Family Courts to entertain, hear, and adjudicate upon the scheduled matters, section 6 provided for the place of sittings of the Family Courts, section 7 about the manner of institution of suits in the Family Courts. Rest of the sections of the Act except sections 14 and 26 which in the context shall be referred to later, are not material for the purposes of the present case. Section 14 provided for a forum of appeal and section 26 empowered the Government to frame rules under the Act. By Ordinance X of 1966--West Pakistan Family Courts (Amendment) Ordinance, 1966 enforced on 4th April, 1966, section 4 was substituted to read as "No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge, an Additional District Judge or a Civil Judge". By W.P. Act (1 of 1969), for the words "or a Civil Judge", words "a Civil Judge or a Qazi appointed under the Dastur-ul-Amal Diwani, Riasat Kalat" were substituted. Under section 26 of the Act, Rules commonly known as West Pakistan Family Courts Rules, 1965 were framed by the Government which came in force on November 2, 1965. There are provisions in these Rules, altered from time to time, which throw light and assist for discovering of the forum for trial of guardianship disputes and hearing of appeals from them. Rule 6 provided, that the Court which shall have jurisdiction to try a suit which included an application for the custody of children or guardianship under the Guardians and Wards Act, 1890, in terms of rule 2 (e), will be that within the local limits of which the cause of action wholly or in part arose or where the parties reside or last resided: Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall have also jurisdiction. Rule 7 as originally enacted was as follows:-- "7.--(1) Suits relating to custody of children and guardianship shall be instituted in, and be heard and tried by the Court of the District Judge, but such Court may transfer any such suit to the Court of the Additional District Judge, the Senior Civil Judge, the Civil Judge, First Class or the Civil Judge, First Class (Additional), having jurisdiction as provided in rule 6, and thereupon the Court to which such suit is so transferred shall have jurisdiction to hear and try the same.
(2) Suits relating to the custody of children and guardianship shall be instituted, heard and tried in the Court of the Senior Civil Judge, the Civil Judge, First Class, or the Civil Judge, First Class (Additional), having jurisdiction as provided in rule 6 and where in any District there is no such Court, such suits shall be instituted in, and heard and tried by the Court of District Judge.
(3) Notwithstanding anything contained in sub-rules (1) and (2), the Court of District Judge may--
(a) recall any suit made over by it for trial under sub-rule (1) to an Additional District Judge, Senior Civil Judge, Civil Judge, First Class or ' Civil Judge, First Class (Additional) and either try such suit himself or refer it for trial to any other Court within the District;
(b) send for the record and proceedings of any suit pending for trial in the Court of Additional District Judge, Senior Civil Judge, Civil Judge, First Class, or the Civil Judge, First Class (Additional) and hear and try the suit itself or refer it for trial to any other Court within the District and thereupon the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit."
9. ' Interpreting the rule in the form then existing, in case of Mst. Hayat Khatoon versus Allah Dino and another 1985 CLC 1343, Nasir Aslam Zahid, J.,in para. 5 of the judgment observed:-- "In my view, the provisions of law are reasonably clear and there appears to be no ambiguity. As observed earlier, the power was with the Government to establish the Family Courts. In accordance with this power, by rule 3 of the West Pakistan Family Courts Rules, 1965, it was provided that Courts of District Judge, Additional District Judge and Civil Judge, shall be the Family Courts for the purposes of the Act but subject to the provisions of rule 7. And, as seen earlier, rule 7 specifically provides that suits relating to custody of children and for guardianship shall be instituted in and to be heard and tried by the Court of the District Judge but the District Judge may transfer any such suit to a Family Court presided over by an Additional District Judge or a Civil Judge. Reading rules 3 and 7 together with section 2 (1) (b) and section 3 it follows that a family suit for custody of children must be instituted in the Court of District Judge who can then transfer the case to an Additional District Judge or Civil Judge having Jurisdiction under rule 5 (it should be rule 6). Mr. A.A. Dareshani is, therefore, correct in his contention that the family suit under section 25 of the Guardians and Wards Act was wrongly instituted by respondent No,1 in the Court of Civil Judge, Kandiaro. It should have been instituted in the Court of District Judge, Nawabshah who could then transfer the case to a Court having jurisdiction under rule 5 of the West Pakistan Family Courts Rules, 1965."
10. ' In 1969, rule 7 of the Family Courts Rules, 1965 was substituted in a new form to read as follows:-- "7 (1) Suits triable under the Act shall be instituted in, and be heard and tried by the Court of the Civil Judge having jurisdiction as provided in rule 6, and where in any District there is no such Court, such suits shall be instituted in, and be heard and tried by the Court of the District Judge or the Additional District Judge.
(2) Notwithstanding anything contained in sub-rule (1), the Court of the district Judge may send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the suit itself or refer it for trial to any other Court within the District, and thereupon the Court of District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit."
11. ' In Janat Bibi v. Ramzan & another NLR 1980 Civil BJ 100, Muhammad Amin Butt, J., interpreted the amended rule to hold that a Civil Judge was competent to try the guardianship case. After quoting the substituted rule, it was observed in that judgment:-- "A bare reading of the above rule would show that the Civil Judge Minchinabad had the jurisdiction to try the present case as the petition was instituted on 4-2-1978.
6. Section 25 of the West Pakistan Family Courts Act, 1964 provides that a Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890. The section further provides that in dealing with the matters specified in the Guardians and Wards Act the Family Court shall follow the procedure prescribed in that Act. Thus the powers and functions of the District Court under the Guardians and Wards Act ought to be performed by the Family Court which by fiction of law is to be deemed to be the District Court.
7. Faced with this situation the learned counsel for the petitioner was unable to advance any argument in support of his attack on the powers of the learned Civil Judge, Minchinabad who was entitled to exercise jurisdiction of the Family Court under the provisions of rule 7 as amended."
12. ' By Gazette of Punjab, Extraordinary 7th April 1972, sub-rule (2) of rule 7 was deleted and sub-rule
(1) of rule 7 was re-numbered as rule 7. By the same gazette notification, rules 8 and 9 of 1965 Rules were deleted: In Asif Mowjee versus Mst. Fatcma A. Mowjee and another PLD 1987 Karachi 239, Mr. Justice Abdul Qadeer Chaudhry, now an Honourable Judge of the Supreme Court, on comparison of the provisions in the related Acts observed:-- "In order to appreciate the respective contentions of the parties it is necessary to refer to the various provisions of the two relevant laws. Section 5 of the Act of 1964 provides that the Family Court shall have exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule. Item numbers 5 and 6 of the Schedule relate to the custody of children and guardianship respectively. Section 25 of the same Act stipulates that a Family Court shall be deemed to be a District Court for the purposes of the Act of 1890 and notwithstanding anything contained in this Act (Act of 1890) shall in dealing with the matters specified in that Act, follow the procedure nrescribed in that Act. The Court has been defined in section 4 (5) (b) (ii) of the Act of 1890 as under: "In any matter relating to the person of the ward, the District Court having jurisdiction in the place where the ward for the time being ordinarily resides."
13. ' Under section 7 of Act of 1890 the welfare of the minor would be the paramount consideration in appointing a guardian of his person or property. Under section 17 of the same Act the Court would consider certain facts in appointing a guardian. According to section 19 the Court would not appoint guardian in certain cases. Under section 25 if a ward leaves or is removed from the custody of a guardian of his person the Court may return the ward to the custody of his guardian if it is of the opinion that it may be in the welfare of the minor. Schedule to Act of 1964 has mentioned custody of minor and guardianship of minor distinctly. There are two different items. Every expression or word of a statute has to be interpreted in its ordinary sense and no word of the statute shall be considered as superfluous. Rule 6 has to be interpreted in a sense which is in consonance with the provisions of the Act. In my view in the matter of the custody of the minor an application is maintainable at a place where cause of action has arisen. Such an application can also be moved in a place where the minor ordinarily resides. As regards guardianship application, an application would be maintainable only in a Court where the minor ordinarily resides. By means of section 25 of the Act of 1964 residence of the minor would give the Court jurisdiction to adjudicate upon the matter."
14. ' I have quoted this judgment merely to show that a distinction about the forum for the trial in matters relating to the appointment of a guardian for the person and property has been drawn in it. Otherwise, rule 6 of 1965 Rules looked to be all pervasive and did not ex facie admit of such a distinction. The position as it emerges from the survey of the related provisions of the two Acts; Guardians and Wards Act 1890, Family Courts Act 1964 and Family Courts .Rules 1965 as amended up to date, was that the application under section 25 of the Guardians and Wards Act, 1890 was rightly instituted in the Court of Senior Civil Judge and correctly transferred by him to the Civil Judge who heard and finally decided it. Unfortunately, and I speak with immense respects, Family Courts Rules which governed the forum had not been taken into account in the judgment of my esteemed brother which proceeded on sole consideration of section 4-A of the Guardians and Wards Act. In my opinion, rules 6 and 7 of the Family Courts Rules 1965 made all the difference which escaped notice in the aforesaid judgment. It is in this view that I respectfully differ from my learned brother and hold that as Civil Judge, 1st Class, the trial Court was competent to try the application under section 25 of the Guardians and Wards Act 1890 and its decision did not suffer from defect of jurisdiction. On merits, I have already said that it is a correct decision.
15. ' Reverting to the objection about the competence of Additional District Judge to hear the appeal, there is no ambiguity about his jurisdiction because section 14 of the Family Courts Act is absolutely clear on this point. For facility of reference, it is reproduced:- "14. Appeal. (1) Notwithstanding anything provided in any other law for the time being in force, a decision given or a decree passed by a Family Court shall be appealable--
(a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge, or a 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 passed by a Family Court--
(a) 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."
16. In terms of section 14 of the Family Courts Act, in case of a decision or a decree passed by a Family Court presided over by a Civil Judge, appeal lies to the `District Court'. Section 2 (21) of the Punjab General Clauses Act 1956 says that "District Court" shall mean the principal Civil Court of original civil jurisdiction of a district; but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. Section 2 (2) defines "District Judge" to mean "the Judge of a principal Civil Court of original jurisdiction, but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". Under section 2 (4) Civil P.C., a District Court is defined as the principal Civil Court of original jurisdiction in the District. Section 5 of the Civil Courts Ordinance 1962 empowered the Government in consultation with the High Court to appoint as many persons as it thinks necessary to be the District Judges and post a District Judge to each District. Section 6 of the Ordinance deals with the appointment of Additional District Judges and in subsection (2) says that an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him and in discharge of those functions he shall exercise the same powers as the District Judge. From this, it is clear that a District Judge can transfer any case pending before him to an Additional District Judge who shall then have the same powers in regard to it as the District Judge. According to definitions in section 2 of the Family Courts Act, expression District Court' as defined in section 2 (4) of Civil Procedure Code has been adopted for purposes of the Act. It is not correct to state that learned District Judge had no jurisdiction to assign the appeal to learned Additional District Judge and the latter had no power to hear and decide it.
17. Therefore, his decision did not suffer from want of jurisdiction.
18. Having regard to the above, writ petition fails and is dismissed in limine. At the end, I must observe that ordinarily judgment of a single Judge must be taken as binding by a brother Judge sitting singly so as to avoid conflict of opinion in the High Court and confusion in the subordinate Courts whose duty is to follow what is said and observed by the High Court. In course of hearing of the writ petition, as I was differing with my learned brother, on a point of law decided by him, I thought, I should refer the case to a larger Bench for an authoritative pronouncement on it, but since my learned brother had not taken into account rules 6 and 7 of the Family Courts Rules, 1965 in deciding on the powers of a Civil Judge, 1st Class to hear guardianship matters, which in my opinion made all the difference, upon reflection, I dropped the idea for a reference to a larger Bench and opted to decide the point myself.