' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 assails the judgment of the Additional District Judge Faisalabad, dated 18th July, 1988 accepting the appeal filed by respondent No,3 against the order, dated 11th May, 1988 of the Family Court/Guardian Judge, Faisalabad whereby he decided the preliminary issue regarding territorial jurisdiction in favour of the petitioner.
2. Mst. Shamim Akhtar petitioner was married to Saeed Akhtar respondent No,3 and out of this wed-lock a daughter named Fahmina Saeed was born. It appears that a suit for dissolution of marriage was filed by petitioner against respondent No,3 in the Family Court Faisalabad wherein the parties purportedly entered into a compromise in accordance with which the marriage was dissolved and the custody of the minor daughter was handed over by the petitioner to respondent No,3 on 20th February 1988. About 8 days thereafter on 28th February, 1988 an application under section 25 of the Guardians and Wards Act for the custody of the minor was filed by the petitioner alleging that he was coerced into entering the compromise and relinquishing the custody of the child. It was averred that it was not in the welfare of the minor aged about 4 years that she should live with the father. An objection was taken by respondent No,3 that the Family Court at Faisalabad lacked territorial jurisdiction as the minor was residing with the father at Sargodha. The Family Judge framed a preliminary issue which was decided against respondent No,3 on 11th May, 1988 and it was held that the Family Court at Faisalabad had the territorial jurisdiction to try the petition.
3. Against this order of the Family Court an appeal was filed by respondent No,3 which was accepted by the Additional District Judge Faisalabad who was of the view that as the custody was voluntarily handed over by the mother to respondent No,3 who was living at Sargodha, the Courts at Faisalabad had no jurisdiction. This judgment of the Additional District Judge has been assailed by the petitioner by filing this constitutional petition.
4. The question which arises for consideration in the present case is as to whether the order dated.
11th May, 1988 of the Family Court deciding the preliminary issue was appealable before the District Court under section 14 of the Punjab Family Courts Act 1964. It is by now well settled and needs no authority that interim orders passed by the Family Court during the pendency of the main case are not appealable and it is only the final order or decision or decree, as the case may be, which can be appealed against. Confronted with this position the only argument raised by learned counsel for respondent No,1 is that this point was not taken in this constitutional petition. However, as the objection raised is legal in nature and goes to the very root of the case, I have allowed the learned counsel for the petitioner to urge the same.
5. It was next contended by Mr. Navccd Shaharyar, learned counsel that the exercise of Constitutional jurisdiction is in the discretion of the Court and the petitioner/mother having herself relinquished the custody of the child was not entitled to the exercise of discretion in her favour. It is to be seen that in the petition filed by her under section 25 of the Guardian and Wards Act it was alleged that the Petitioner had been coercive and pressurized into entering the agreement and had never voluntarily agreed to relinquish the custody. This aspect of the matter need not be dilated upon lest any discussion on the subject may prejudice the case of any of the parties before the Guardian Judge who has still to adjudicate upon this aspect of the matter.
' At the request of the learned counsel for the petitioner it is clarified that it will be open to respondent No,3 to avail of the remedy, if any, against the order, dated 11th May, 1988 passed by the Guardian Judge.
' As a result of what has been stated above this petition is accepted and the judgment of the Additional District Judge dated 18th July, 1988 is declared to be without lawful authority and of no legal effect.
' There shall be no order as to costs.