1. This is a Constitutional petition under Article 199 of Constitution of Islamic Republic of Pakistan where in the petitioner has challenged the order dated 18-2-1998 passed by HI-Additional District Judge, Karachi Central dismissing the Family Appeal No,59 of 1997 whereby order dated 19-9-1997 passed on an application G.W. Application No,19 of 1995 with regard to the objection of territorial jurisdiction by the Family Judge/IIInd Senior Civil Judge, Karachi Central, filed by the petitioner was upheld, hence this petition.
2. Brief facts of the case are that the respondent No,3 Syed Kamran Rabbani filed an application under section 25 of the Guardians and Wards Act against the petitioner Mst. Furqana before the District Judge/Guardians Judge, Karachi Central for return of the custody of the minor Syed Shaheer Rubbani aged less than two years which application was sent to the Family Judge/II Senior Civil Judge, Karachi Central, from where it was transferred to the Court of Family Judge/III Senior Civil Judge, Karachi Central for disposal. The petitioner raised preliminary objection to territorial jurisdiction through an application on the ground that in view of section 7(1) of Family Courts Acts, 1964 read with Rules 4, 5 and 6 of Family Courts Rules, the proceedings before the Family Judge, Karachi Central in G.W. Application No,19 of 1995 are coram non judice. The said application was heard by the learned Family Court Judge/III Senior Civil Judge, Karachi Central, and was dismissed holding that since the minor was residing within the territorial jurisdiction of District Central, Karachi, and the case was transferred by the learned District Judge, Karachi Central to the Court of Family Judge/III Senior Civil Judge, Karachi Central, therefore the application challenging the territorial jurisdiction of the Family Court of District Karachi Central, had no merit.
3. The petitioner filed an Appeal No,59 of 1997 before the District Judge, Karachi Central, against the order dated 16-9-1997 passed by Family Court/III Senior Civil Judge, Karachi Central, which was heard and dismissed by the learned III Additional District Judge, Karachi Central, holding that the minor was in the custody of the petitioner/appellant who was residing in North Nazimabad, Karachi. consequently in view of section 9 of Guardians and Wards Act, an application for custody of a minor would be filed before the District Judge having jurisdiction where the minor ordinarily resided.
4. Heard learned counsel for the parties perused the impugned orders and annexures filed with the petition.
5. Contention of learned counsel for the petitioner is that Courts below have failed to examine and discuss the provision of section 7 of Family Courts Act read with Rules 4, 5, 6 and 7 of the Family Courts Rules, 1965 as well as provisions of Guardians and Wards Act and further the provisions of section 9 of Guardians and Wards Act would not apply to a case for the return of custody of the minor. Learned counsel for the petitioner has placed reliance upon (i) Mst. Hamida Begum and another v. Ubedullah and others (1989 CLC 604), (ii) Asif Mowjee v. Mst. Fatema A. Mowjee and another ([PLD 1987 Karachi 239) and (iii) Mst. Hayat Khatoon v. Allah Dino and another (1985 CLC 1343) in support of his contention. Learned counsel for respondent No,3 has argued that the petitioner had moved the application challenging the territorial jurisdiction of Family Court Judge with mala fide intention so as to cause inordinate delay in the disposal of the matter with regard to the custody of the minor which was filed in the Court within whose jurisdiction the minor is found to be living at the time of filing of the matter and further in view of section 9 of Guardians and Wards, Act the Court where the minor ordinarily resided will have a jurisdiction, consequently the impugned orders passed are legal, proper and called for no interference in the writ jurisdiction of this Court. He has placed reliance upon Fahimuddin Khokhar v. Mst. Zainbunnisa (PLD 1968 Kar.
6. 774) in support of his contention.
7. In order to appreciate the contention of learned counsel for the parties it is necessary to reproduce the provisions of law referred by the counsel for the parties. Section 7 of the Family Courts Act reads:-- "7. Institution of suit.---(1) Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and in such Court as may be prescribed.
(2) The plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the number of witnesses intended to be produced in support of the plaint, the names and addresses of the witnesses and a brief summary of the facts to which they would depose: Provided that the parties may, with the permission of the Court, call any witness and at any later stage, if the Court considers such evidence in the interest of justice.
8. (3)(i) Where a plaintiff sues or relies upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
(ii) Where he relies on any other document not in his possession or power, as evidence in support of his claim, he shall enter such documents in a list to be appended to the plaint.
9. (4)The plaint shall be accompanied by as many duplicate copies thereof including the schedule and the lists of documents referred to in subsection (3), as there are defendants in the suit, for service upon the defendants."
10. The above provision of law provides that the suit before the Family Court shall be instituted in such Court as may be prescribed. Rule 6 of the Family Courts Rules, 1965 runs:-- "6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which-- (a)the cause of action wholly or in part has arisen; or (b)where the parties resided together: Provided that in suits for dissolution of marriage or dower the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction."
11. The above rule states that the Family Court will have a jurisdiction to try the suit within the local limits of which cause of action wholly or in part has arisen or where the parties resided together.
12. Section 9 of Guardians and Wards Act runs:-- "9. Court having jurisdiction to entertain application.--(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
13. (2)If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
14. (3)If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."
15. The above provisions of Guardians and Wards Act stated that an application in respect of guardianship of the person of the minor shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
16. So far the case of Mst. Hamida Begum (1989 CLC 604), the point involved in the instant case, was not in issue in the cited case therefore same would not apply. Citation made in the headnote appear to be misleading. So for the case of Asif Mowjee (PLD 1987 Karachi 239) at page 244 the learned Single judge has observed that in the matter of custody of minor, an application would be maintainable at the place where cause of action has arisen and such application can also be moved in a place where minor ordinarily resided and so far the guardianship application same would be maintainable only in a Court where minor would ordinarily reside. It has further been held that by means of section 25 of the Family Courts Act of 1964 provisions of Guardians and Wards Act have been saved and the ordinary residence of the minor would give the Court jurisdiction to adjudicate upon the matter and that a petition for the appointment of guardianship of the person or the property of the minor could only be made in the Court where the minor ordinarily would reside and in such case, no other Court would have a territorial jurisdiction to decide such issue and section 9 of Guardians and Wards Act of 1890, has clearly mentioned that an application would lie in a place where the minor ordinarily would reside. So far the case of Mst. Hayat Khatoon (1985 CLC 1343) the issue involved in the cited case was that an application under section 25 of Guardians and Wards Act for the custody of the minor was not filed before the District Judge as provided under Rule 7 of Family Courts Rules, 1965 but was filed in the Court of Civil Judge, Kandiaro which, in tact, should have been filed in the Court of District Judge, Nawabshah, who could have transferred the case to a Court having jurisdiction under Rule 6 of the West Pakistan Family Courts Rules, 1965. The learned counsel for respondent No,3 has only placed reliance to the case of Fahimuddin Khokhar (PLD 1968 Karachi 774) wherein the learned Additional District Judge dismissed the application under section 25 of Guardians and Wards Act on the ground that Court had no jurisdiction to entertain it as the minor was residing in Kuwait. The learned Single Judge at page 777 observed that "there is of course a presumption that residence of ward is the residence of his guardian, but it could be rebutted". A citation from the judgment of Mst. Zubaida Begum's case (PLD 1959 Lahore 967) has been reproduced with above-cited case which reads:-- "I do not see on what principle of law, justice, equity or good conscience, the guardian should be allowed to say that though in fact the minor is, with his consent, residing at a place which is outside the jurisdiction of the Court where the application had been put in, it should nevertheless be held that the minor was ordinarily residing within the jurisdiction of that Court."
17. In the above-cited case learned Judge in Chamber in view of section 9 of Guardians and Wards Act has held that the Court where the minor would ordinarily reside would have jurisdiction.
18. In the instant case following the above decisions and the law with respect to the issue involved in the instant appeal, the minor is admittedly residing within the territorial jurisdiction of Police Station North Nazimabad with her mother/the petitioner and further the respondent No,3 in his application under section 25 of Guardians and Wards Act in para. 27 has also stated that the petitioner alongwith the minor was residing within the limits of Police Station North Nazimabad hence the Family Court which has been invested/assigned the territorial jurisdiction in respect of Police Station North Nazimabad will have jurisdiction. Besides above, refusal to hand over the custody of the minor also took place within the jurisdiction of Police Station North Nazimabad which would be a part of cause of action within the meaning of Rule 6 of Family Courts Rules, 1965 therefore, the Family Court Judge where the part of cause of action accrued to the respondent No,3 which is also the place where the minor has been residing with the petitioner will have a jurisdiction. In the circumstances the contention of learned counsel for the petitioner has no merit and substance.
19. In view of aforesaid reasonings and settled principles of law, the present petition has no merit which in hereby dismissed in limine alongwith the listed application.