1. ' MUNAWAR AHMED MIRZA, J----This petition is directed against judgment dated 11-6-1991 passed by learned Additional District Judge-I, Quetta.
2. Facts concisely stated are that on 3-12-1988 petitioner filed an application under section 25 of Guardians and Wards Act in the Court of Civil Judge-III-cum-Family Court, Quetta claiming custody of five minor children i,e, (i) Bibi Zahida, (ii) Bibi Rubina, (iii) Bibi Tahira, (iv) Master Zahoor Ahmed and (v) Master Mir Ahmed.
3. Respondent No,1 contested the proceedings and filed, written statement in February, 1989 wherein question of jurisdiction of Courts at Quetta was specifically agitated. Trial Court on the pleadings of parties, framed following 3 issues on 14-3-1989:--
(1) Whether the Court has no jurisdiction and application is not maintainable in view of L/Objections 'A' and 'B' of the written statement?
(2) Whether the applicant is entitled for the relief claimed for?
(3) Relief.
2. ' Record reveals that petitioner in support of her entitlement for the custody of minor children adduced A.W. (i) Mulla Pasund, (ii) Haji Ghulam Nabi and (iii) Haji Abdul Karim apart from her own statement. Whereas respondent No,1 in rebuttal has examined (i) Nabi Bakhsh, (ii) Fazal Karim and
(iii) Yar Muhammad besides himself. Learned Civil Judge-III, Quetta on appraisement of evidence accepted the application, holding that petitioner is entitled for the custody of the children.
3. Respondent preferred Civil Appeal No, 16/91 against the order of trial Court, before learned Additional District Judge-I, Quetta who eventually accepted the same by means of judgment dated 11-6-1991, directing the dismissal of application on question of jurisdiction as well as merits.
4. ' Petitioner is now aggrieved from the last mentioned judgment of appellate Court.
5. ' Mr. W.N. Kohli learned counsel for petitioner strenuously urged that impuged order, as regards findings on the point of jurisdiction, and merits, treating poverty as ground for disentitling petitioner to have custody of minor of children was extraneous to the provisions of Guardians and Wards Act, therefore, according to him the judgment is patently defective.
6. ' On the other hand, Mr. Akhtar Zaman, learned counsel for respondent No,1 maintained that minor children have been ordinarily residing in village Chattar of Tehsil Dalbandin, therefore, the Courts at Quetta have absolutely no jurisdiction. He further submitted that the evidence was correctly re- evaluated by the appellate Court and findings arrived at by learned Additional District Judge-I, Quetta are unexceptionable.
7. ' We have carefully gone through arguments addressed by learned counsel for the parties in the light of available record.
8. ' Firstly we have, thoroughly considered the question of jurisdiction which was in controversy between the parties. Apart from the evidence on record we enquired from Mr. W.N. Kohli learned counsel for petitioner, the period for which according to him the minor children stayed at Quetta.
9. He categorically admitted that children alongwith their mother were continuously residing at Chattar till November, 1988 but they came to Quetta and stayed with Mulla Pasund during November 1988 from where they were removed by respondent No,1. It is further conceded by learned counsel, that on the date of institution of suit viz. 3-12-1988, the petitioner alongwith minor children were residing there. However, he attempted to argue that stay of minor children at Quetta during November, 1988 and there after of their mother's stay at Quetta or Kalat be deemed as ordinary residence of minors within the territorial jurisdiction of Quetta. We are unable to agree with this novel approach concerning, ordinary residence of children. Record clearly discloses that children throughout have been living in the custody of father i,e, respondent No, 1 who is natural guardian of the minors, at Chattar Tchsil Dalbandin. Their temporary visit to Quetta during treatment of their mother by no means would constitute shifting of 'ordinary residence', to Quetta merely because mother chooses not to go back for living with her husband. In this view we are supported by observations in case Mst. Nazir Begum v. Ghulam Qadar Khan and others (AIR 1937 Lahore 797): "S. 9.--(1) Guardians and Wards Act, requires that an application for guardianship of the person of the minor should be made to the District Court having jurisdiction in the place where the minor ordinarily resides. In 53 PLR 1902 the minor's father had lived both in Delhi and Khan Khoda in the Rohtak District dying in the latter place. The child was born at Khan Khoda but brought to Delhi by her mother who died a few weeks later in the house of a relative in Delhi. Robertson, J, held that the minor ordinarily resided in Khan Khoda. To much the same effect is the Division Bench ruling of the Bombay High Court reported in AIR 1932 Bombay 592. I hold that the minor, who had lived all her life in the Multan District until a few weeks before the application, ordinarily resided in Multan District."
10. ' In the case of Muhammad Saddique Siddiqi v. Mst. Aziza Bibi and 3 others reported in (PLD 1970 Lahore page 596), expression "ordinarily resides" under section 9 (1) of the Guardians and Wards Act was discussed. Paras. 4 and 14 of the judgment are reproduced hereunder for better appreciation of jurisdictional aspects in the instant case:-- "4. The first point argued by the learned counsel for the appellant was that according to subsection
(1) of section 9 of the Act, an application with respect to the guardianship of the person of a minor can be made only to the District Court having jurisdiction in the place where the minor ordinarily resides. He submits that the expression "where the minor ordinarily resides" in the aforesaid provision of law appears to have been deliberately used to exclude places to which the minor may be removed at or about the time of filing of the application for the enforcement of the guardianship and custody of the minor and the phrase "ordinarily resides" indicates ordinary residence even at the time of the presentation' of the application. The contention appears to be sound as the emphasis is undoubtedly on the minor's 'ordinary' piece of residence. Such a place is to be determined by finding out as to where the minor was ordinarily residing and where such residence would have continued but for the recent removal of a minor to a different place. Where the application is filed soon after such removal, the place of such removal will be ignored for the purpose of determining the jurisdiction of the Court to entertain the application and in spite of such removal the minor will be deemed to have its residence at the place where it was ordinarily residing. The new place to which the minor may have gone or may have been removed, can become the ordinary residence of the minor only after the minor has settled down at that place for a reasonably long period and the residence passed the stage of casual or temporary residence.
11. The questions of determining the Court's jurisdiction on the basis of the place, where the minor ordinarily resides, have come up for consideration in a series of cases, some of which will be mentioned in the later part of this judgment."
14. Learned counsel for the respondents argued that it is the minor's actual place of residence where, he, in fact is, at the time of the application which must necessarily and in all circumstances determine the jurisdiction of the Court under section 9(1) of the Act. The contention has no force for various reasons, firstly, in section 9 (1) the phrase used is not where the minor 'resides' but where he 'ordinarily resides'. If the contention of the learned counsel is accepted it will tantamount to drop the word 'ordinarily' or to make it redundant which it is obvious cannot be done. Secondly, the word ordinarily' has been intentionally used to bring in a consideration other than that of mere factual residence--See the case-law already referred to in Paragraphs 9 and 10 of this judgment and Mr. Lalita Tawaif v. Paramatma Prasad AIR 1940 All. 329, Jhala Harpalsinh Natwar Sinhji v. Bai Arunkanvar AIR 1954 SAU 13. Thirdly, the word 'ordinarily' means more than mere temporary residence and if this word is omitted, then mere temporary residence will also become residences within the meaning of the clause under construction which, it is obvious, cannot be the intention of the legislature on the subject--See Chandra Kishore and another v. Smt. Hemlata Gupta. AIR 1955 All. 611, Mubarak Shah Khan v. Mst. Wajch-ul-Nisa and others, 53 PLR 194. Mst. Nazir Begum v.
12. Ghulam Qadir Khan and Smt. Vimalabai v. Baburoo Sahmroo Kshiragar in AIR 1951 Nagpur 179 and In re. Erskin (1893-94) 10 TLR 32 where Lord Esher Master of Rolls with whom the other two lords justices concurred, wrote as follows with regard to the interpretation of the phrase "ordinarily resided":-- "The petitioning creditor desired to show that within a year before the presentation of the petition, the debtor had 'ordinarily resided' in England. If a young man came to stay with a relative in London for some weeks it could not be said that he resided in London. If a person when went to a hotel and stayed there a month, he could not be said from that to reside there. This young man came to London for what purpose they did not know. All they knew was that when he was in London he had a bedroom at a lodging house in Half Moon-Street and he slept there at the intermittent times stated in the affidavits. It was perfectly consistent with that state of things that he was a mere visitor there. There was really no evidence that the debtor resided in England. But further than that, the section required that he should have "ordinarily resided" in England. He merely came to London on a visit. Even, however, if they assumed that he resided here, he did not `ordinarily reside' in London. Therefore, upon the two grounds the petitioner creditor failed. There was, first, no evidence that the debtor, resided in London, secondly there was no evidence that he 'ordinarily resided' in London. The appeal must, therefore, be allowed, the receiving order must be rescinded, and the petition must be dismissed.
13. ' Fourthly if the construction as put forward by the learned counsel for the respondent is accepted then it will seriously affect those situations where a minor is removed from place to place in order to defeat the process of law and the jurisdiction of Courts. The interpretation put by the learned counsel will then not be workable and in cases of removal will lead to defeat the ends of justice as pointed out in Sarat Chandra Chakarbati and another and in Mst. Nazir Begum v. Ghulam Qadir Khan and another and in Sarada Nayar v. Vayankara Amma and others AIR 1957 Ker. 158, some points and passages from which have already been borrowed by me and reiterated in paragraph 4 of this judgment."
14. Thus respectfully following principles of law, enunciated in aforequoted reports and also keeping in view facts of instant case, we are satisfied that application moved by petitioner, was not entertainable for want of jurisdiction, as such conclusions arrived at by the Appellate Court, does not suffer from any infirmity, material illegality and irregularity warranting invocation of extraordinary constitutional jurisdiction of this Court.
15. ' Consequently petition is dismissed. However, there would be no order as to costs.