P L D 1956 Karachi 451 (PLP)

Khalid Ishaq for Opponent. CONSTANTINE, C. J.‑The preliminary question in this matter is whether this Court has jurisdiction. The necessary underlying facts are as follows. It is common ground that the opponent Ali Muhammad's father, now dead, carried on business and lived in Karachi where Ali Muhammad's two brothers are now living. In 1941, Ali Muhammad married the applicant Saran, whose father lives and carries on business in Karachi, and whose brother is married to Ali Muhammad's sister in Karachi. In 1945, the elder minor was born at Karachi. In 1946, Ali Muhammad went to America with a Sind Government Scholarship, leaving his wife and child in Karachi, chiefly with his parents and sometimes with her parents. On return from America in 1949, Ali Muhammad joined the M. E. S. and was posted to Rawal pindi. Saran, his wife, accompanied him there, and the second child Muhammad Anwar, subject of the interim injunction, was born in 1950. A year later Ali Muhammad, in June 1951, married his second wife, Katherine, who was previously a Christian, but became a Muslim on marriage. In 1951, Ali Muhammad was transferred to Dacca. En route he left Saran with the younger child at Karachi for three or four months, but later Saran and this child joined the rest of them at Dacca. It is also common ground that Saran came to Karachi in July 1952 without either child, but it is disputed why she did so. The opponent says that Saran came of her own accord upon her parents' request to Karachi, leaving the children behind, as she was about to return soon. Saran states that she wished to take the children, but Ali Muhammad detained them against her will. On 27th September 1952, Ali Muhammad came with his second wife and the two children to Karachi on leave for a holiday. There is a conflict whether Saran knew that he intended to come on leave or not before she left Dacca. The main point at issue between them has arisen from the second marriage. Saran states that she does not intend to live with him as he maltreats her and the children. The opponent states that he is not prepared to take her back at once as he has no arrangements ; finance is a difficulty ; and he has been called to Court in other words he resents the action of Saran. fie hoped however in two months to be able to take her. The application was originally lodged under section 10 of the Guardian and Wards Act, but has been converted into an application under section

25. I granted an interim injunction, restraining the opponent from removing the younger child from the jurisdiction of this Court, but not the elder child, since there was nothing to show that the father was not fit to have custody of this boy of over seven years. The jurisdiction of this Court depends on the question whether this younger child, now aged two years and three months, ordinarily resides in Karachi. This is the ground of jurisdiction either in an application under section 10 or section 25 of the Guardians and Wards Act. In Lakshman v. Gangaram (A I R 1932 Bom. 592), it is laid down that residence is a matter of fact and not a matter of presumption. I think that proposition is in the main clear, though where facts are ambiguous, presumption may have to be called in, to solve the question of fact. A minor aged two and a quarter obviously has no independent volition in the matter of residence. In the brief life of this minor, he has lived together with his parents first at Pindi and then at Dacca. This residence with both parents has been interrupted by one period of three or four months when he lived at Karachi with his mother, but this was obvi ously not intended to be his ordinary residence, as the mother was only paying a visit to her parents. The second interrup tion started in July of this year when Saran came alone to Karachi. Till then the child's ordinary residence, it appears to me, was at Dacca. A government servant like the opponent ordinarily resides at the place where he is posted, and if the mother of the child lives with her husband, in such circum stances the child's ordinary residence is obviously as a matter of fact where her father and mother are residing. Saran states that the children were detained against her will. Ali Muhammad states that she left the children behind as she intended to return soon to Dacca. It ‑is not necessary to determine which version is correct, for in either case the child continued ordinarily to reside at Dacca. It may be conceded that the mother or female relations were entitled under Muslim law to the custody of the child, if Saran did not intend to return to her husband ; , but the child did continue to reside at Dacca with the opponent, where he had previously ordinarily resided. Thus I do not think that it can be said that Saran's leaving Dacca altered the ordinary residence of the child. It altered the character of the residence only in this respect, namely, that the previous residence was with the consent of the person entitled to the custody, while the later residence was without such consent. It may be argued that the test of ordinary residence in the case of a child is not so much where the child is living as the place where the person entitled to his custody is living. This view, however, I think is contradicted by the well known case of Annie Besant v. Narayaniah (38 Mad. 807.) in which Lord Parker deli vering the judgment of the Board made it clear that among Hindus the father is the natural guardian of his children and entitled to their custody and education, subject to the welfare of the children. The children had previously lived in Chin gulput District, but had gone to England to be educated at School and at Oxford. It was held that it was impossible to hold that they were ordinarily resident in Chingulput. Finally the child has come to Karachi accompanying his father on his holiday. That leave has already expired, despite an extension, and the minor's present residence within the jurisdiction is due to the interim injunction still in force. I do not think that this residence in Karachi can be held to be ordinary residence. I, therefore, hold that this Court has no jurisdiction. The interim injunction is discharged and the applications are dis missed. Since according to Muslim Law the material female relations, if not the mother, are entitled to the custody of the child, and since my impression, derived from seeing the parties and recording their contentions, is that there is nothing against tine welfare of the child to overrule this presumptive rights there should be no order as to costs. K. B. A. Applications dismissed.