Respondent, No. l was married to the petitioner on 31-3-1989 in Sargodha. Thereafter, the parties started living at 140-B, Model Town, Lahore. On 3-5-1990 a child was born out of this wedlock who was named Khaqan Ali Khi1ji. The petitioner went to the United States of America for further studies leaving behind the minor and respondent No. 1, who were later on taken by him to the U.S.A. It appears that disputes and differences arose between the parties which led to the dissolution of marriage. The petitioner alleged that respondent No. l removed. The minor son from the school and took him to another State. After some proceedings in the U.S.A., the petitioner filed applications under sections 12 and 25 of the Guardian and Wards Act before the Guardian Judge, Lahore who, however, without calling for any reply from respondent No. l returned the same to the petitioner for their presentation before the appropriate Court as he was of the view that the Guardian Judge at Lahore lacked jurisdiction to try the petition. The order of the Guardian Judge, dated 28-10-1997 was challenged by the petitioner in appeal before the Additional District Judge who dismissed the same on 4-12-1997. Hence this petition.
2. The learned counsel for the petitioner has contended that the child is a Pakistani national and is, therefore, subject to jurisdiction of Pakistani Courts and the Guardian Judge has acted illegally in holding that only the Courts in the U.S.A. Where the minor ordinarily resides would have the jurisdiction in the matter.
3. On the other hand, the learned counsel for respondent has supported the impugned judgments and orders of the Courts below and has argued that the petitioner is not a Pakistani national and that the child was presently studying in the U.S.A. Where he is ordinarily residing and as such the Guardian Judge has no jurisdiction to try the petition.
4. A perusal of the judgment of the Additional District Judge as also that of the Guardian Judge shows that both the Courts have taken the view that the application should have been filed within the territorial jurisdiction of a Court in which the minor ordinarily resides or from where he has been removed. It appears that while so holding both the Courts had the provisions of Guardian and Wards Act in mind. Unfortunately they did not advert to the Punjab Family Courts Act, 1964 and the Punjab Family Court Rules, 1965, which were the laws applicable.
5. Section 5 of the Family Court Act, 1964 unmistakably provides that in all matters mentioned in the schedule the Family Courts shall have exclusive jurisdiction. Custody of children is specifically mentioned at Item 5 of the Schedule. It is obvious, therefore, that the dispute about the custody of minors is to be tried and decided by the Family Court.
6. Section 25 of the Punjab Family Courts Act, 1964, however, provides that Family Court shall be deemed to be District Court for purposes of Guardians and Wards Act, 1890 and notwithstanding anything contained in this Act shall in dealing with matters specified in that Act follow the procedure. Prescribed in that Act. On its proper analysis, it becomes evident that it is only procedural matter that Family Court is required to follow but not substantive matters like jurisdiction, review, revision and appeal which are governed by the Punjab Family Courts Act, 1964 and not Guardian and Wards Act, 1890.
7. In exercise of the powers conferred by section 26 of the Punjab Family Courts Act, 1964 the Government has promulgated West Pakistan Family Courts Rules, 1965, rule 6 of which provides that the Court which shall have jurisdiction to try a suit will be that within the local limits of which the cause of action wholly or in part has arisen where the parties reside or last resided to ether.
While considering the question as to the jurisdiction, unfortunately the Courts below did not avert to this rule at all especially its later parts. They completely went by the place where the cause of action arose and ignored from consideration the fact as to where the parties last resided.
8. This question came up for examination before this Court in Mst. Sajida Parveen v. The Additional District Judge, Rawalpindi and 2 others 1991 MLD 745 in which it was observed at page 754 of the report;-- "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 Court 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." .
The same view was taken in Mst. Hamida Begum and another v. Ubedullah and others 1989 CLC 604 and Khalil-ur-Rehman's v. Mst. Tajunnisa and another 1991 CLC Note 62 at p.46.
9. The learned counsel for the respondent has, however, relied upon Sh. Muhammad Rashid v. Mst.
Zarnigar Qaiser Sheikh PLD 1980 Lah. 61 to contend that the application for guardianship can only be filed at the ordinary place of residence of the minor. The reliance of the learned counsel for the respondent is misplaced, for apart from being distinguishable on facts it is to be stated that the effect of Rule 6 of the West Pakistan Family Courts Rules, 1965 was not considered. It is also to be noticed that in the present case the Courts in the United States of America have themselves taken the view that question of custody of the minor can at be, be determined by the Civil Court in Pakistan. In this respect the decision of the Juvenile and Domestic Relations District Court of Fairfax County in Khaqan Khilji v. Tahir Khilji, dated 8-7-1998 wherein it was observed that "It appearing to the Court upon the pleadings filed by the parties and argument by counsel. That the appropriate jurisdiction for the resolution of this matter is Pakistan".
10. In the present case, it is to be noted that in the application filed before the Family Court it was clearly averred that the parties have been living together as husband and were at Lahore. It was also stated that the place of ordinary residence of the minor was at Lahore, In these circumstances, the Family Court was not justified in throwing out the application of the petitioner summarily without obtaining any reply or holding any inquiry. The question as to whether the parties had last resided together at Lahore and further that the ordinary place of residence of the minor was at Lahore could not have been decided in such a slipshod manner and the Courts below should have given an opportunity to the parties to establish their respective case.
As a consequence of what has been stated above, this petition is allowed and the impugned orders are declared to be illegal and without lawful authority with the result that the application under section 25 of the Guardians and Wards Act, 1890 of the petitioner shall be deemed to be pending before the Court concerned at Lahore and shall be decided afresh.
No order as to costs.