' Through this Constitutional petition under Article 199 of the Constitution, 1973 the order, dated 3-11- 1996 passed by learned IIIrd Senior Civil Judge, Karachi Central in Guardian and Ward Case No,290 of 1996 dismissing an application filed by the petitioner under Order IX, Rule 7, C.P.C. Has been called in question.
2. Brief facts relevant for disposal of this petition are that the petitioner and respondent No,1 were married on 31-10-1991 and as a result of consumation of such marriage .Two children, Master Huzafa (aged about 7 years at present) and Baby Mahnoor (aged about 4 years at present) were born. Marriage was subsequently dissolved and a dispute arose for custody of the aforesaid two minors which resulted in filing of a suit under section 12 of the Guardian and Wards Act, 1890. Notice of the suit was issued to the petitioner for 30th May, 1996 which was returned served with the bailiff's endorsement that it has been served on one Javed who is admittedly brother of the petitioner. This service of notice was held well by the trial Court and the matter was adjourned to 10th July, 1996 and thereafter to 28th July, 1996 when on both the occasions the petitioner did not appear and as a result she was declared ex pane on 11-8-1996. It is this order against which the petitioner filed an application under Order IX, Rule 7, C.P.C. Read with section 151, C.P.C. Which was dismissed by the learned trial Court through the impugned judgment.
3. I have heard Mr. Saadullah Qureshi, Advocate for the petitioner and Mr. Syed Abdul Waheed, Advocate for respondent No,
1. It is contended by Mr. Muhammad Saad Qureshi that the notice was served on the brother of the petitioner and, therefore, it could not be termed to be a good service.
Secondly, it is contended that the petitioner approached Pakistan Women Lawyers Association seeking free legal aid and she was told that the matter. Would be looked after and that she is not required to appear before the trial Court. For such reasons, she did not appear before the trial Court on 30th May, 1996 and on subsequent dates. In support of these contentions, the petitioner filed her affidavit substantiating her application seeking setting aside of the ex pane order against which no counter-affidavit was filed. Learned counsel for respondent No,1 plaintiff has filed objections to the petitioner's application. In such circumstances, it was argued that since the contents of the affidavit have gone unchallenged, the trial Court ought to have granted petitioner's application under Order IX, Rule 7, C.P.C. Mr. Syed Abdul Waheed has referred to para. 1 of the said application and contended that once the petitioner has admitted service of notice through her brother, the Court was not required to issue fresh notice. It was further argued that the petitioner and her father were silently observing the proceedings of the trial Court and once the case was fixed for pronouncement of judgment, she filed the said application only in order to delay the proceedings before the trial Court. He has supported the impugned judgment.
4. It is an admitted fact that the notice of suit was served on the petitioner through her brother which fact was admitted by the petitioner subsequent to the order, dated 30th May, 1996. The question which arises for determination is whether the learned trial Court was required to hold service of notice on the petitioner good in such circumstances. In all fairness, the learned trial Court should have ordered for the petitioner of fresh notices in ordinary course as well as through registered post. In a matter where the defendant is a woman and where question of custody of two minors is involved, the Courts should adopt more reasonable approach and much caution while holding service of notice good on a woman defendant. Section 8 of the Family Courts Act, 1964, has provided detailed mode of service of notice/summons including issuance of such process through registered post. It is pertinent to observe that subsection (6) of section 8 of the Family Courts Act, 1964 has made permissible service of summons in a manner as provided in Rules 9 to 11, 16 to 19, 21 to 24 and 26 to 29 of Order V, C.P.C. The provision of Order V, Rule 15, C.P.C. Provides that where the defendant cannot be found and has no agent authorised to accept service of summons, such person may be served through any adult male member of the family of the defendant who is residing with such defendant. Exclusion of Rule 15 of Order V, C.P.C. In section 8(6), Family Courts Act, 1964 clearly indicate that the service of summon/notices on the male member of the family of female defendant is not permissible. It would be advantageous to reproduce provisions of section 8(6) of the Family Courts Act, 1964 and Order V, Rule 15, C.P.C. Which read as follows:- "8. Intimation to defendant.--(1).......
(6) Summons issued under clause (b) of subsection (1) shall be served in the manner provided in the Code of Civil Procedure, 1908, Order V. Rules 9, 10, 11, 16, 17, 18, 19, 21, 23, 24, 26, 27, 28, and 29. The cost of such summons shall be assessed and paid as for summon issued under the Code of Civil Procedure, 1908."
Order V, Rule 15, C.P.C.
"15 Where service may be on male member of defendant's family.---Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family of the defendant who is residing with him. Explanation. A servant is not a member of the family within the meaning of this rule."
5. In the instant case, the contents of the affidavit filed in support of application seeking setting aside of the ex parte order have gone unrebutted and unchallenged. It is categorically stated by the petitioner that after receiving notice from the trial Court, she approached Pakistan Women Lawyers Association, Karachi office to seek legal assistance where one of the law officer told her that her matter would be conducted by them and she need not appear before the trial Court. Still the petitioner asked her father to inquire from the trial Court, and on 22-9-1996, he was informed by the Reader that the matter has been ordered to proceed ex parte on 11-8-1996. In addition to this fact, it was claimed in the affidavit that serious prejudice will not only be caused to the defendant (petitioner) but also to the two minor wards if the petitioner' was not granted an opportunity to contest the case on merits. This fact should have been appreciated by the learned trial Court. In a suit filed under the Guardian and Wards Act seeking custody of a ward, the real dispute is not between the spouses but the Court being guardian is duty bound to determine first as to where the welfare of the ward/child lies and such finding could not be arrived at unless the party in whose custody the minors are living is extended proper opportunity to contest the matter on merits.
6. As a result of the above discussion, I am of the considered view that the petitioner has shown sufficient cause for her non-appearance on 30th May, 1996. I am also of the considered view that the order passed by the learned trial Court on the said day declaring service of notice as good was incorrect and not warranted in law. In this background, the instant petition is accepted and the impugned order is set aside with the direction to the trial Court to expeditiously proceed with the suit and to dispose of the same within three months. Consequently, Miscellaneous No,331 of 1996 has become infructuous and stands disposed of.