This appeal under section 47(c) of the Guardians and Wards Act, 1890, has been directed against the order, dated 3-1-2002 passed by the learned District Judge, Lasbela at Hub whereby application filed by the respondent under section 25 of the Guardians and Wards Act was accepted and the appellant No.2 was directed to hand over custody of the minor Faraz Ahmed to the respondent.
2. The brief facts of the case are that on or about 15-10-2001 respondent (Mst. Shakila) filed an application under section 25 of the Guardians and Ward Act, 1890 for the custody of her minor son namely Faraz Ahmed, aged about four years and ten months, in the Court of District Judge, Lasbela at Hub on the stated averments that she was married to appellant No. 1 (Dad Rehman's) on 23-11- 1995 and out of the wedlock minor Faraz was born and she was divorced by her husband/appellant No.1 on 31-5-1998, however, about five months prior to the institution of the application for custody of the minor, the appellant No. 1 returned from Dubai and requested that custody of the minor son be given to him temporarily for a view days, accordingly, keeping in view the parental request she handed over custody of the minor son to his father (appellant No. 1) for a few days, but he did not honour his commitment and promise and refused to restore the custody of the minor Faraz Ahmed to the respondent as well as further retention of custody of the minor was also against the excess terms and conditions of the divorce deed. On these averments relief was claimed for the restoration of the custody of minor.
3. The appellant No.1 for himself and as attorney for the appellant No.2 by means of their joint written statement dated 17-11-2001 contested the case of the respondent/applicant and repudiated her claim for restoration of the custody of the minor on the ground that the respondent out of her own freewill and accord surrendered the custody of the minor in favour of the appellant No. 1 so that the minor may be able to get education and be admitted in a school and thus; after having acquired the custody, the minor was admitted in the PAF Public School, Bela, but subsequently; the respondent statedly removed the custody of the minor from Bela to the Province of Sindh without the consent of the appellants i.e. Respectively being the father and grandfather of the minor and a complaint was registered with Police Station Bela. Moreover, it was pleaded in the written statement that welfare and interest of the minor demands that his custody may not be disturbed, as the interest and welfare of the minor are being properly and effectively looked after by the appellants.
3. Out of pleadings of the parties, the learned District Judge on 26-1-2001 framed the following issues:-- (1)Whether it is in the welfare of the minor to hand over his custody to the petitioner?
(2)Whether the petitioner is entitled for the relief claimed for?
(3)Relief.
4. The respondent/applicant in support of her case filed duly sworn-in-affidavit of three witnesses namely Mst. Hafiza (A. W.1), Muhammad Ismail (A. W.2) and Abdul Sattar (A. W.3) besides her own affidavit. The respondent/applicant as well as her witnesses appeared in the witness-box and went subjected to cross-examination by the other side. In rebuttal, the appellants filed sworn in- affidavits of two witnesses i.e. Ghulam Muhammad (R.W.1) and Muhammad Ramzan (R.W.2).
Appellant No.2 (grandfather of the minor) for himself and as attorney for the appellant No. 1 (father of the minor) filed his affidavit and appeared in the witness-box as R.W.3 for the purpose of cross- examination and such right was duly availed on behalf of the respondent. After close of the parties' evidence, the learned District Judge vide impugned order accepted the application tiled under section 25 of the Guardians and Wards Act and directed for the restoration of the custody of the minor son to the respondent mother. The appellants feeling themselves aggrieved of the order, passed by the learned District Judge, have tiled the instant appeal under section 47(c) of the Act.
5. The learned counsel for the parties have been heard at length. At the very outset Mr. M. Riaz Ahmed contended that proceedings conducted by the learned District Judge, Lasbela at Hub in entertaining the application for custody of the minor were coram non judice for the reason that the District Judge was not a Family Court within the purview of section 3 of the Baluchistan Family Courts Act, 1964 (as) he was (not) appointed as a Family Court by the Government nor ex officio the District Judge was designated/declared as a Family Court for the purposes of section 3 of the Family Courts Act, 1964, hence; he had no jurisdiction to entertain the application for custody of the minor nor as such he was competent to enjoy the jurisdiction to proceed with the case. According to the learned counsel the only permissible course for the learned Court was to have returned the application to the respondent/applicant for presentation to the proper Court i.e. Family Court, Lasbela at Hub viz. Civil Judge, Lasbela at Hub being the duly appointed Family Judge within the meaning of section 3 of the Act. Mr. M. Riaz Ahmed further submitted that the Family Court, Lasbela at Hub by virtue of section 5 has the exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule which include custody of the children and guardianship matters, hence; according to the learned counsel the impugned order being void and without jurisdiction, is liable to be set aside, as the exclusive jurisdiction to adjudicate upon the matter lies with Family Court, Lasbela at Hub.
6. Mr. H. Shakil Ahmed, the learned counsel for the respondent/applicant after having gone through the relevant provisions of the Baluchistan Family Courts Act, 1964 conceded that at the relevant time when the application was instituted for the custody of the minor. Civil Judge, Lasbela at Hub was the Family Court already established by the Government for District Lasbela at Hub within the meaning of section 3 of the Act and the Presiding Officer of the Court of Civil Judge, Lasbela at Hub was appointed as the Judge of that Court, established under section 3 of the Act, however, in view of the provisions of section 14 of the Act read with rules 7 and 9 of Family Courts Rules, 1975 he attempted to convince that evidence admittedly produced by both the parties in the Court of District Judge be taken and treated as the evidence produced by the parties before the Family Court having the jurisdiction in the matter, and, the case after setting aside the impugned order be sent to the Court of Civil Judge/Family Court, Lasbela at Hub with the direction to decide the same in the light of the evidence already produced by the parties on its own merits in accordance with law after hearing the parties.
The submissions so made by Mr. H. Shakil Ahmed was seriously contested by Mr. M. Riaz Ahmed on the ground that the entire proceedings in the Court of learned District Judge are coram non judice, void and without jurisdiction, which cannot be treated as the evidence validly and competently recorded by the learned Court, hence, the parties have to produce their evidence afresh in the competent forum/Family Court, Lasbela at Hub. The learned counsel, however; conceded that being a family matter relating to the custody of the minor, needs to be expeditiously decided.
7. The contentions put forth by the parties' learned counsel have been considered in the light of the relevant provisions of the Family Courts Act, 1964 and the Rules made thereunder. Undisputedly, a Family Court established under section 3 of the Family Courts Act, 1964 in view of the provisions of section 5 of the Act and subject to the provisions of the Muslim Family Laws `Ordinance, 1961 and Conciliation Courts Ordinance, 1961 has exclusive jurisdiction to entertain, hear and adjudicate upon the matters specified in the schedule and thus; in. Relation to matters specified in the Schedule i.e. (i) Dissolution of Marriage, (ii) Dower, (i.e) Maintenance, (iv) Restitution of Conjugal Rights, (v) Custody of Children, (vi) Guardianship (vii) Jactitation of Marriage and (viii) Dowry, a Family Court has the exclusive jurisdiction to entertain, hear and adjudicate upon these matters subject -to the provisions of the Muslim Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961. Thus, no other Court except a Family Court established under section 3 of the Act on coming into force of the West Pakistan Act No.XXXV of 1964 subject to the provisions of subsections (4) and (5) of the said Act has any jurisdiction to entertain, hear and adjudicate upon the matters specified in the Schedule except a Family Court. Also, subsection (1) of section 7 of the Family Courts Act, 1964 provides that 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 tray be prescribed is consistent with the intent of the law-maker and the object for enacting the special law on the subject that every suit to which the jurisdiction of Family Court extends be instituted in such Court and in such Court as may be prescribed. Keeping in view the latter part of the provision of subsection (1) of section 7 of the Act as regards "such Court as may be prescribed" reference can be made to sub-rule (2) of rule 7 and rule 9 of the Family Courts Rules, 1965. Sub-rule (2) of rule 7 provides that notwithstanding anything contained in sub--rule (1), the Court of the District Judge may send for the record and proceedings of any suit pending for trial in any Court in the District and hear and try the suit itself or refer it for trial to any other Court within the District and thereupon the Court of the District Judge or the Court to which such suit is so transferred, as the case may be, shall have jurisdiction to hear and try the suit, but in the instant case the provisions of sub-rule (2) have no application because the suit instituted by the respondent for custody of the minor was not pending in any Family Court of the District rather; was directly instituted in the Court of learned District Judge, however, by virtue of provisions of sub-rule (1) of rule 7 of the Family Courts Rules, a District Judge has the jurisdiction to entertain, hear and try a suit triable under the Family Courts Act, 1964 provided no Court of Civil Judge in any such District has been established and thus, a Court of Civil Judge already established in the District having E jurisdiction as provided under rule 6 was the only Court competent to entertain, hear and try the suit/ application for custody of the minor and not the District Court in which the application was filed. The prerequisites for the exercise of jurisdiction by the learned District Judge as a Family Court within the purview of rule 7 of the Family Courts Rules, 1965 were non-existent, as the Court of Civil Judge in the District at the relevant time when the application for custody of the minor was instituted, and much prior to it, was estbalished to entertain, hear and adjudicate upon the matters as a Family Court, established under section 3 of the Act. Therefore, the learned District Judge had no jurisdiction to entertain hear and adjudicate upon the application filed by the applicant/respondent for custody of the minor.
Consequently, the proceedings conducted in the case by the said Court were corarn non judice including the impugned order and thus; the same are not curable on account of total lack of jurisdiction hence; the evidence recorded by such Court including the proceedings conducted by such Court cannot be validated or authenticated, as if recorded by a Court of competent jurisdiction nor the provisions of rule 9 of the Family Courts Rules, 1965 have any application in the case in hand, for the reason that the matter does not relate to the transfer of the case from one Family Court to another, in which evidence was recorded by a former Court, therefore, the submissions made by Mr. H. Shakil Ahmed that the evidence already recorded by the District Judge can be treated as having been validly recorded by such Court and the Court/Family Court, to which the suit may be presented having jurisdiction in the matter to decide the case on such evidence after hearing the parties, is without any substance. In this context provisions of rule 7 of the Family Courts Rules, can be conveniently referred which provides that where a plaint is presented to a Court not having jurisdiction the plaint shall be returned to be presented to the Court to which it should have been presented and the Court returning the plaint shall endorse thereon the date of its presentation to it and its return; the name of the party presenting it, and a brief statement of the reasons therefor. As hereinabove held since the District Judge in the given facts and circumstances of the case was not a Family Court competent to entertain, hear and adjudicate upon the matter due to total lack of jurisdiction, therefore, irrespective of the fact that the impugned order was passed by the learned District Judge, the same was appealable under section 14 of the Family Courts Act, 1964 and not under section 47(c) of the Guardians and Wards Act, 1890 as if the order was passed by a Court of competent jurisdiction, therefore, in such view of the matter the appeal is converted to that filed under section 14 of the Family Courts Act. The expression used in section 25 of the Family Courts Act that a Family Court shall be deemed to be a District Court for the purpose of Guardians and Wards Act, 1890, does not contemplate and mean that the District Court is a Family Court or vice versa and such provision only signifies that Family Courts have to follow the procedure laid down in the Guardians and Wards Act in dealing with the matters specified in that Act and thus; it would not mean that a Court of Civil Judge being Family Court exercising jurisdiction in relation to guardianship matters and custody of children shall be deemed to be a Principal Court of original civil jurisdiction of a District i.e. District Court as defined in subsection (21) of section 2 of the Baluchistan General Clauses Act, 1956, rather; appeal against a decision given or a decreed passed by a Family Court not presided over by a District Judge, an Additional District Judge or any person notified by the Government to be of the rank and status of a District Judge or an Additional District Judge, would lie to the District Court within the meaning of subsection (1)(b) of section 14 of Family Courts Act, 1964 and where a Family Court is presided over by the District Judge or an Additional District Judge, an appeal against a decision given or a decree passed by such Court shall lie to the High Court as provided under clause (a) of subsection
(1) of section 14.
Thus; in view of the above reasons the impugned order being illegal, void and without jurisdiction, is set aside, consequently. The learned District Judge, Lasbela at Hub is directed to return the application/suit to the respondent to be presented to the Court of competent jurisdiction i.e. Civil Judge, Lasbela at Hub/Family Court and the written statement alongwith its accompaniments be directly sent to such Court by the District Judge, which shall on presentation of the application/suit frame issues, out, of pleadings of the parties to whom opportunity for production of evidence be afforded and the trial of the case be concluded and decided within next two months after framing of the issues.
The result is that this appeal is accepted in the above terms, leaving thel6 parties to bear their own costs.
Q.M.H./M.A.K./134/Q