Sadia Yasmeen Vs Zeeshan Ahmed etc

Stereo. H C J D A 38.

Judgment Sheet

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

T.A. No.76469/2024

Sadia Yasmeen vs. Zeeshan Ahmed etc.

JUDGMENT

Date of Hearing: 07.02.2025 Petitioner by: Ch. Zulfiqar Ali, Advocate, assisted by Mian Ahsan Raza, Advocate.

Respondent No.1 Barrister Ch. Muhammad Umar, by: Advocate, assisted by Mr. Abdul Rehman and Mufti Ahtesham ud Din Haider, Advocates.

Anwaar Hussain, J. Through the present petition, prayer has been made for transfer of petition under Section 25 of the Guardians and Wards Act, 1890 (“Act 1890”) titled “Zeeshan Ahmed v. Public at Large etc.”, filed by respondent No.1 (“the respondent”) against the petitioner, from the Court of Judge Family Court/Guardian Court, Multan to the Family Court, Sialkot where the petitioner’s application under the Act 1890 is pending.

2.On behalf of the petitioner, Ch. Zulfiqar Ali, Advocate, submits that the petitioner is residing at Sialkot along with the two minor children and her convenience is to be looked into for transfer of the cases. Conversely, on behalf of the respondent, Barrister Ch. Muhammad Umar, Advocate submits that the petitioner and the respondent were residing in Multan where the petitioner was working and raising three children born from their wedlock including eldest daughter who is presently residing with the respondent, at Multan, whereas the petitioner, having been divorced, continued to reside in Multan where the respondent filed his guardian petition, on 30.03.2024, and the proceedings thereof were joined by the petitioner, by appearing on 21.05.2024, and no objection as to the territorial

jurisdiction of the Family Court, Multan was taken in the reply filed by the petitioner, however, the petitioner now, for ulterior motives has shifted to Sialkot and filed independent petition under the Act 1890 regarding custody of the two minor children. While relying upon Rule 6 of the West Pakistan Family Courts Rules, 1965 (“the Rules”), learned counsel for the respondent further contends that having filed reply to the guardian petition filed by the respondent at Multan without objection to jurisdiction of the said Court and by submitting to the jurisdiction of the said Court, the petitioner is estopped from filing subsequent petition at Sialkot. Adds that the petitioner is not vested with any right to move to another district and seek transfer of the guardian petition of the respondent on the ground that convenience of the females is to be looked into, in the family matters. Places reliance on the case reported as “Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others” (PLD 2012 SC 66) in support of his contentions. In rebuttal, learned counsel for the petitioner submits that no doubt the petitioner was residing in Multan, in a rented house, and the rent of the said house was being paid by the respondent, however, the respondent stopped making payment of the rented house which, coupled with the facts that no male member was residing with her at Multan and the aggression of the respondent was increasing by the time against the petitioner that compelled the petitioner to vacate the said rented house and move to Sialkot to live with her parents as a safe abode on account of her physical safety and financial constraints.

3.Arguments heard. Record perused.

4.The nub of the matter is to determine the meaning and import of the term “resides” contemplated in Rule 6 of the Rules and how will this rule apply in a situation where the wife was residing at place- A at the time of institution of the guardian petition but later moved to place B?

5.Under Section 5 of the Family Courts Act, 1964 (“Act 1964”), the Family Court has the exclusive jurisdiction to entertain, hear and

adjudicate all the matters, which fall within the First Schedule to the Act 1964, which admittedly includes the custody and guardianship matters. For the purposes of determining the territorial jurisdiction of the Family Court, it is Act 1964, and the Rules framed thereunder that are to be taken into account and not the provisions of the Act 1890. Rule 6 of the Rules reads as under:

“The Court which shall have jurisdiction to try a suit will be that within the local limits of which-

(a)the cause of action wholly or in part has arisen, or

(b)where the parties reside or last resided together:

Provided that in suits for dissolution of marriage or dower, the Court within the local limits of which the wife ordinarily resides shall also have jurisdiction.”

In terms of Rule 6 quoted hereinabove, there are three factual eventualities, which are relevant for the purposes of the determination of the “territorial jurisdiction” of the Family Court. Firstly, under sub- Rule (a), where the cause of action wholly or in part has arisen. Meaning thereby, in the custody or guardianship disputes if the minors were with the mother and they have been illegally and improperly removed and taken away from the place where they were living with her (or vice versa for father as well), the cause of action shall be said to have arisen at such place, otherwise the cause of action shall be deemed to have arisen where the minors are residing. Secondly, in terms of sub-Rule (b), where the parties reside or last resided. Thirdly, per proviso to Rule 6, in a suit for dissolution of marriage or dower, where the wife ordinarily resides.

6.Factual matrix of the case has not been disputed by the parties. The petitioner was residing at Multan when the guardian petition was filed by the respondent and subsequently moved to Sialkot. It is in this context that the respondent side has heavily relied upon case of Major Muhammad Khalid Karim supra. Therefore, it is substantially important for this Court to traverse through the said judgment along

with the facts of the said case that involved the issue of territorial jurisdiction of the Family Court established under the Act 1964 with respect to custody/guardianship matter. The respondent-mother in the said case had initiated custody/guardianship proceedings before the Family Court, Lahore, which was contested by the appellant-father on the issue of territorial jurisdiction by contending that the minors were residing with him at Multan and were getting education at Multan, which, being a jurisdictional fact, denuded the Court at Lahore from the territorial jurisdiction. The Supreme Court having scanned through the law as well as the judicial precedents as to the territorial jurisdiction of the Family Court along with the procedure applicable to the proceedings before the Family Court, under the Act 1890 and the issue of transfer of cases spelled out the principles in following terms:

“11. Be that as it may, from the ratio of all the law cited above, the legal position, which emerge is as under:--

(a)Under section 5 of the Act 1964, the Family Court has the exclusive jurisdiction to entertain, hear and adjudicate (emphasis supplied) all the matters which fall within the first schedule to the Act; this admittedly includes the custody and guardianship matter.

(b)For the purposes of determining the ‘territorial jurisdiction’ of the Family Court, it is Act 1964, and the rules framed thereunder which shall be taken into account and met the provision of the Guardian and Wards Act 1980, even as per force of section 25 of the Act 1964.

(c)According to Rule 6 (a) of the Family Court Rules 1965, there are three factual eventualities which are relevant for the purposes of the determination of the ‘territorial jurisdiction’ of the Family Court; firstly, where the cause of action wholly or in part has arisen, meaning thereby, in the custody or guardianship disputes if the minors were with the mother and they have been illegally and improperly removed and taken away that from the place where they were living with her (or vice versa for father as well), the cause of action shall be said to have arisen at such place, otherwise the cause of action shall be deemed to have arisen where the

minors are residing; secondly, under Rule 6(b) where the parties reside or last resided; thirdly as per proviso to Rule 6, in a suit for dissolution of marriage or dower where the wife ordinarily resided. And in view of the addition of proviso to section 7(2) of the Act 1964, which was introduced on 1-10-2002 if in a suit for the dissolution of marriage join other causes of action mentioned in the said proviso, such suit shall also fall in the last category, otherwise not.

12.The petitioner was and is residing in Multan where the minors are residing with him, who are admitted in the schools there. It is not proved by the respondent that she had brought them to Lahore and was deprived of their custody from Lahore on account of which the cause of action could arise in her favour at Lahore. It is also not established if before parting, the parties hereto were residing at Lahore so as to attract Rule 6(b) ibid.”

Having laid down the above quoted legal position, the said civil appeal was allowed by the Supreme Court by observing that the appellant-father was residing at Multan and the minors were also residing with him at Multan and getting education there and that the respondent-mother had been unable to establish either that she had brought the minors to Lahore or that she had been deprived of the custody of minors at Lahore, which denuded rather did not vest at all with the Family Court, at Lahore, from assuming jurisdiction in the said case. When the facts of the case of Major Muhammad Khalid Karim supra are put in juxtaposition with the facts of the present case, it brings forth a marked distinction from each other as in the present case, the minors, except the eldest daughter, have been brought by the petitioner to Sialkot as the custody of the minors was with her (while being in Multan) and the said fact has not been denied. On the contrary, the petitioner has stated to have taken the minors to Sialkot on account of compulsions stated above. It is imperative to note that it is not the case of the respondent that the minors were residing with him at Multan and have been removed therefrom or taken away from that place illegally and improperly, which would have brought his case within the third of the three factual eventualities spelled out in

case of Major Muhammad Khalid Karim supra i.e., para 11 reproduced hereinabove.

7.This takes me to the second out of the three factual eventualities culled out by the Supreme Court on the basis of Rule 6 of the Rules, which provides that the Court where the parties “reside or last resided” is vested with the territorial jurisdiction. This clearly envisages legislative intention that where the parties currently reside or last resided is vested with the territorial jurisdiction. Thus, the current residence confers jurisdiction on the Family Court of that territory. Hence, the contention of the respondent that the Court at Sialkot lacks territorial jurisdiction to try the matter of custody/guardianship lacks persuasion.

8.Similarly, the submission of reply by the petitioner before the Court, at Multan, in guardian petition pending there, also does not estop her from filing petition/suit before the Court at Sialkot after having been moved to that district nor the same can be considered as a hindrance or hurdle for transferring the cases from Multan to Sialkot for the ease and convenience of the petitioner-mother and the minors as the Supreme Court in a recent reported judgment passed in Civil Miscellaneous Application No. 100 of 2024 titled “Mst. Sidra Hameed etc. v. Syed Abdul Mateen” transferred two cases (one custody/guardianship petition filed by the mother herself and the family appeal filed by father himself at Islamabad) from the Courts at Islamabad to Karachi where the mother had subsequently moved as her second husband was posted and there was no male member to stay with her at Islamabad and cases were transferred to Karachi to be heard with the suit filed by the mother, subsequently for recovery of dowry articles and maintenance allowance for herself and for the minors. Thus, even filing of petition for custody/guardianship by the mother at Islamabad and subsequently moving to Karachi and filing suits there was not considered as a ground for not permitting the application for transfer of cases from Federal Capital to another Province.

9.Moreover, it is also noted that the petitioner has filed suit for recovery of maintenance of the minors as well as her maintenance for iddat period as well as petition for guardianship/custody whereas the guardian petition filed by the respondent at Multan is confined to the custody/guardianship. The law enables the petitioner to club together matters enumerated in the Schedule to the Act 1964. The non-transfer of the case at Multan to Sialkot would indirectly imply that the present petitioner is indirectly required to split litigation into custody/guardianship and maintenance; the former to be prosecuted at Multan and the latter to be prosecuted at Sialkot. In this way, this Court is likely to direct the petitioner to do what the law does not command her to do rather the law permits and enables to club together both the causes of action. At this juncture, this Court cannot lose sight of the fact that the power of the High Court to transfer cases from a Family Court in one district to a Family Court in another district is provided for under section 25-A (1)(a) of the Act 1964, which are vast. Section 25-A reads as under:

“25A. Transfer of cases.– Notwithstanding anything contained in any law the High Court may, either on the application of any party or of its own accord, by an order in writing–

(a)transfer any suit or proceeding under this Act from one Family Court to another Family Court in the same district or from a Family Court of one district to a Family Court of another district; and

(b)transfer any appeal or proceeding under this Act from the District Court of one district to the District Court of another district.”

This Court is of the opinion that in deciding a transfer application, due regard is to be given to the Rule 6 of the Rules, however, the scope of the power under Section 25-A, of the Act 1964 is broad and not restricted, which is clear from the fact that the said provision of law begins with the words “Notwithstanding anything contained in any law...”. The non-obstante clause, with which Section 25-A begins,

clearly indicates that the power under section 25-A should not be construed in a restrictive manner.

10.In view of the above discussion, the present application is accepted and the guardian petition titled “Zeeshan Ahmed v. Public at Large etc.”, filed by the respondent and pending in the Court of Mr. Muhammad Asif Nawaz, Judge Family Court/Guardian Court at Multan is transferred to the Court of Miss Sidra Aneeq, Judge Family Court, at Sialkot, where the guardian petition of the petitioner is pending. Since the main case has been allowed, therefore, C.M Nos. 03 and 04 of 2025 for placing on record certain documents have become infructuous.

11.Learned counsel for the respondent has pointed out that case of the petitioner for recovery of maintenance allowance and the guardian petition are pending in two different Courts at Sialkot, causing inconvenience for expeditious decision and therefore, before parting with this judgment, it is held that once the guardian petition of the respondent is transferred from the Court of Judge Family Court/Guardian Court, Multan to the Family Court, Sialkot, where guardian petition of the petitioner is pending, the suit of the petitioner for maintenance shall also stand transferred to the Court where the guardianship petition of the petitioner is pending.

12.Allowed in above terms.

(ANWAAR HUSSAIN)

Judge

Approved for reporting.

Judge Akram