By this application Mst. Samina Gul, admittedly belonging to Haripur, has sought the transfer of a Family Suit No,7/FC/2001 filed before Judge Family Court, Tando Allah Yar (Sindh) by her husband Zainab Din, to Haripur (N.-W.F.P.) where, she had already lodged a Suit No,11/FC/2001 for dower, maintenance and dowry gifts etc. Apart from consolidation of the suits, the prime consideration for transfer is the convenience of lady.
2. After hearing the learned counsel on either side and also a brother of the respondent-husband, I have come to a definite conclusion that the husband Zainab Din originally belongs to Pindi Ghaib (Punjab), that he is presently working at Abu Dhabi, that his marriage had taken place in Pindi Ghaib and that he had, for a short time, been living at Tando Allah Yar with her married sister. I am also convinced that while presently living at Abu Dhabi, he could have had brought his suit for return of marriage gifts, at the most at Pindi Ghaib, where he belongs. His suit at Tando Allah Yar where he neither resides nor belongs is a matter of utter mala fides and nothing but to harass his divorced wife. This was about the conduct of the husband.
3. Sofaras the law is concerned, both the suits are family suits and hence section 25-A of the Family Courts Act, 1964 would be attracted, the plain reading whereof would indicate that a High Court can order the transfer of such cases only when the two Courts are located within its own territorial jurisdiction.
4. Anyhow, section 23(3) of the C.P.C. Is brought under discussion where one High Court can transfer a civil suit from its jurisdiction to the jurisdiction of another High Court but in that case the transfer application should be moved in the High Court from whose jurisdiction the civil suit is sought to be transferred. Had the suit sought to be transferred in the instant case been a civil suit, the jurisdiction to transfer such case would have been vested in the Sindh High Court. I believe, that the Civil Procedure Code, being a Federal Law and the West Pakistan Family Courts Act, being Provincial Law, the provisions of C.P.C. Would not be applicable. If the provisions of section 25-A of the Family Courts Act are made applicable, in my humble view, the jurisdiction to transfer the cases would vest obviously, in the Hon'ble Supreme Court.
5. Mst. Bakht Shada v. Mansab Dar PLD 1995 Lah. 198, a judgment of the Single Bench was produced where the Hon'ble Judge, despite having drawn a clear distinction between the jurisdictions of the High Court under section 25-A of the Family Courts Act and under section 23(3) of the C.P.C., had transferred a family suit from Punjab to N.-W.F.P. Purely on humanitarian grounds and expediencies. I very humbly differ from such findings because once the very jurisdiction is lacking, it cannot be assumed on any ground whatsoever.
6. The present applicant-lady had once, of course, gone to the Supreme Court but on 21-2-2001 her application with reference to Article 186-A of the Constitution, was returned, but by Assistant Registrar of the Supreme Court. I believe, that the applicant under Supreme Court Rules should have moved the Hon'ble Supreme Court for hearing against such order dated 21-2-2001 of the Assistant Registrar Supreme Court.
7. There is another aspect of the case as well. The plaint of suit at Tando Allah Yar, though is not filed with the instant transfer application but from arguments of the parties, it appear that such suit, certainly after divorce, has been filed for the return of marriage gifts, allegedly given by the husband to his wife at the time of marriage. The Schedule to the West Pakistan Family Courts Act, as amended upto date, does not include marriage gifts to be the subject-matter of dispute with reference to section 5 of the Act. In my view, the suit at Tando Allah Yar has to be a civil suit and in case it is so, the jurisdiction to transfer such suit under section 23(3), C.P.C. Would vest in Sindh High Court.
8. Consequently, while rejecting the application, it is remarked that, if advised, the petitioner-lady should move the august Supreme Court, as alluded to above, and if the suit of the husband happens to be a civil suit, she should move Sindh High Court.