The petitioner has called in question the judgment, dated 8-8-1998 passed by learned VIth Additional District Judge, Karachi East, in Family Appeal No,6 of 1998 (Mst. Ruqayya v. Khalid Mehmood) whereby the order, dated 9-2-1998 passed by IVth Senior Civil Judge, Karachi East, in Guardian and Wards Application No,1216 of 1997 filed by respondent No,1 was dismissed on the short question i,e, for want of jurisdiction.
2. The admitted facts are that the petitioner and respondent No,1 were married; that respondent No,1 was the second wife of the petitioner; that since no offspring was born as a result of that marriage a child was adopted namely Sajid who is the bone of contention between the parties. It is claimed by the petitioner that minor Sajid is the real son of the petitioner while it is claimed by the respondent No,1 that this boy is the child of Mst. Sakina wife of Essa from whom they have adopted this child. Be that as it may, during proceedings of such application, ad interim order was passed by the learned Guardian Court under section 12 of the Guardian and Wards Act, 1890 (hereinafter referred to as the Act, 1890) directing the petitioner to produce the custody of minor in Court.
However, before this order could have been complied with, the main suit was dismissed on the objections of the petitioner on the sole ground that the minor son is now residing with his grand parents at District Haripur, Hazara and, therefore, the Guardian Court has ceased to have jurisdiction over the custody of the child. Learned trial Court in its order, dated 9-12-1998 has noted this fact that since the applicant (now respondent No,1) has admitted that after service of the notices of petition under section 25 of the Act, 1890, the Ward was shifted by the respondent (now petitioner) to Haripur, Hazara, therefore, such admission was sufficient to dispose of a matter on the short ground of want of jurisdiction.
3. Respondent No,1 filed appeal before the District Judge, Karachi East, which was heard and disposed of by the learned VIth Additional District Judge, Karachi East through impugned judgment whereby the order of learned trial Court was set aside and the matter was remanded back to the trial Court for proceedings on merits. This is the order which has been impugned by the petitioner/father in the instant proceedings. I have heard Mr. Taza Gul Khattak, Advocate for the petitioner who has argued that the respondent No,1 mother is not the real mother of the minor and, therefore, could not maintain an application under section 25 of the Act, 1890. It was further argued that the minor was already residing at District Haripur, Hazara much prior to filing of the proceedings before the trial Court and, therefore, the Court has rightly dismissed the petition of the respondent No,1 He has placed reliance on section 9 of the Act, 1890 as well as on the cases Mst.
Azizan Bibi and another v. District Judge, Badin and 2 others 1995 CLC 614; Mst. Gulzar Bibi v.
Publicin-General and 4 others 1995 CLC 1550. He has also attempted to argue this case on different grounds in order to canvass that the respondent No,1 was not entitled in law to maintain an application under section 25 of the Act, 1890 before the trial Court. He was not permitted to argue on these points as they were neither considered by the trial Court nor by the appellate Court.
The only question involved in this petition revolves around the provisions of section 9 of the Act, 1890 which reads as follows:-- "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.
(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.
(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."
4. In the case Mst. Azizan Bibi (supra), it was held by a learned Single Judge of this Court, Mukhtar Ahmed Junejo, J. (as his Lordship then was) that the Court before deciding question of interim custody of minor, has first to determine point of jurisdiction and that an order of interim custody of minor is to be passed once the Court is of the confirmed view that it has jurisdiction to entertain an application under section 25 of the Act, 1890. There is no cavil to this proposition of law. In the case of Mst. Gulzar Bibi (supra), a Division Bench of Peshawar High Court interpreted section 9 of the Act, 1890 to the extent that the words "ordinarily resides" mean that during the whole proceedings the ward should reside ordinarily within the jurisdiction of the Court and that the word ordinarily means more than a mere temporary residence or a residence for a short period.
5. Learned 1st Appellate Court has referred to the cases Mst. Zubaida Begum v. Chaudhri Ghulam Rasul PLD 1959 Lah. 967; Syed Widhal Shah and another v. Syed Ghulam Nabi Shah and others PLD 1965 (W.P) Kar. 84 and Mst. Nazir Begum v. Ghulam Qadir and others AIR 1937 Lah. 797 while upsetting the decision of the trial Court. In the case of Mst. Zubaida Begum (supra) a Division Bench of Lahore High Court considered the term "ordinary residence of the minor" as mentioned in section 9 of the Act, 1890 and held that it means the place where the guardian resides. It was further held that such presumption is rebuttable and may, in a suitable case, be held to have been rebutted. It was observed that the case, where a minor is removed from the custody of:the Court with the ulterior object of taking away the jurisdiction of the Court, will stand on different footing. Reliance was placed on the case of Mst. Nazir Begum (ibid). This view was followed by a learned Single Judge of this Court, Waheeduddin Ahmed, J. (as his Lordship then was) in the case of Syed Widhal Shah (supra) where reference was made to the cases Mahmooda Khatoon v. Syed Zainul Hasnain Rizvi PLD 1958 Kar. 150, Mst. Lalita Twaif v. Paramatma Prasad AIR 1940 All. 329, Sm. Vimalabai wife of Baburao Kshirsagar v. Baburao Shumrao Kshirsagar AIR 1951 Nag. 179, Mst. Zubaida Begum (supra) and Mst. Nazir Begum (supra) whereafter it was held as follows:-- "I am in respectful agreement with the observations made in the above-mentioned case. The question where a minor ordinarily resides is always purely a question of fact. Its decision must depend on the evidence produced in a case. In the present case there is reliable evidence to come to the conclusion that the minor at the material time was residing within the jurisdiction of Nawabshah Courts. In the face of such evidence the mere fact that the father is a resident of Hyderabad cannot confer jurisdiction on the Hyderabad Courts."
6. It is an admitted position that respondent No,1, mother of the child, is a permanent resident of District East where she was living alongwith the petitioner and the minor child. It is also an admitted position that petitioner who claims to be the real father of the minor is also a permanent citizen of Karachi and is residing here for material gains. In such circumstances, it could not be said that the minor, who is now residing at Haripur, Hazara with his paternal-grandfather, is ordinarily residing at Haripur Hazara. Learned trial Court ought to have considered the admission of the respondent No, 1 mother that the custody of the minor was removed after service of notice on the petitioner in order to defeat the petition of the respondent No, 1 . If it was correct, then the trial Court had the jurisdiction despite the fact that the minor was forced to leave the jurisdiction of the Court. Nobody is permitted to deprive the other party of availing legal remedies by resorting to illegal means and foul play. The learned trial Court should have considered all these circumstances in reference to the rule laid down by this Court in the case of Syed Widhal Shah (supra). The question where the minor ordinarily resides is a question of fact and could not be decided in a manner as done by the learned trial Court. It should have afforded opportunities to both the parties to adduce evidence on the point of ordinary c residence of the minor and only thereafter should have decided the question of jurisdiction. From the order passed by the learned trial Court it is clear that it has preceded in a slip shod manner and in great haste which has resulted in defeating the ends of justice.
7. As a result of above discussion, this petition is dismissed with no order as to costs with the direction to the trial Court to first decide the question of ordinary residence of the minor in reference to the above observations within a period of three months and in case it comes to the conclusion that the minor ordinarily resides within the jurisdiction of the Guardian and Wards Court, then to proceed on merits. Till such decision on the jurisdiction of the Court, order passed by learned trial Court under section 12 of the Act, 1890 directing the petitioner to produce the minor/ward in Court, shall remain suspended. It will be open to either party to raise further plea on merits as well as on the point of jurisdiction. Consequently, C.M.A. No,659 of 1998 has become infructuous and stands dismissed accordingly.