P L D 2014 Lahore 317 (PLP)

UMAR ATA BANDIAL, C J.

This is an application seeking transfer of two proceedings filed by respondent, one .for restitution of conjugal rights pending before the learned Judge Family Court, Pakpattan Sharif and the other for obtaining guardianship of the minor daughter of marriage, namely Abeeha Zafar aged about 8 years pending before the learned Guardian Judge, Pakpattan Sharif. The applicant on the other hand has filed a suit for dissolution of marriage, recovery of maintenance and dowry articles on 08.11.2013 against the respondent which is pending before the learned Judge Family Court, Lahore.

2. Learned counsel for the applicant relies on the rule laid down in section 7(2) of the West Pakistan Family Courts, Act, 1964 read with Rule 6 of the West Pakistan Family Courts Rules, 1965 as interpreted by the Hon'ble Supreme Court in Muhammad Iqbal v. Parveen Iqbal (PLD 2005 SC 22) to claim that convenience of the female spouse takes precedence in the choice of forum. Prays for transfer of the two proceedings filed by respondent before the learned courts at Pakpattan Sharif to the competent courts at Lahore.

3. Learned counsel for the respondent submits that the applicant left her matrimonial home about six months ago. She already has custody of the younger daughter Tehreem Zafar aged about four years. She left behind elder daughter Abeeha Zafar with the respondent who admitted her in a school on 25-7-2013. The attendance record of the school for the month of July, August and September, 2013 has been placed on record.

4. Learned counsel for the applicant has also placed on record admission slip of the minor Abeeha Zafar dated 28-1-2013 in a school at Lahore. The attendance record for the month of August-2013 is also attached.

5. Learned counsel for the applicant does not have the attendance record of the minor from January, 2013 until August, 2013. He states on instructions that the applicant left her matrimonial home in December, 2012. It is also established between the parties that the applicant left her husband in the year, 2010 when the husband snatched the minor child who was recovered by applicant through filing of a habeas corpus petition bearing Criminal Miscellaneous No.108-H-2010. Thereafter, the applicant returned to her matrimonial home and has left the same again allegedly in December 2012 according to the applicant and in August-2013 according to the respondent. The respondent maintains that the applicant left behind the older daughter with father.

6. The evidence on record regarding the alleged claim that the respondent father snatched the minor in August, 2013 is substantiated with the school record mentioned above. That record is not persuasive in its present form, therefore, an opportunity for bringing further evidence by applicant needs to be availed.

7. Be that as it may, the Hon'ble Supreme Court has in its judgment titled Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and others (PLD 2012 SC 66) held that according to rule 6(a) of the West Pakistan Family Courts, Rules 1965, the first ground for determination of territorial jurisdiction is the place where the cause of action wholly or in part has arisen. In a custody or guardianship matter, if the minor was with the mother and has been illegally removed from her custody and place of her residence, 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.

8. In the present case the suit for restitution of conjugal rights filed by the respondent against the applicant must stand transferred to the competent court at Lahore under the principle laid down in Section 7(2) of the West Pakistan Family Courts Act, 1964 read with Rule 6 of the West Pakistan Family Courts Rules, 1965 and the law laid down by the Hon'ble Supreme Court in Muhammad lqbal's case supra.

9. In respect of the guardianship matter the conclusion is different. In the present case, there is not enough evidence to show that respondent father snatched the child from applicant/mother's custody. Therefore, the guardianship matter in respect of the minor who is residing with her father at Pakpattan Sharif is liable to be heard by competent courts of the said District. However, this finding is subject to any evidence brought by applicant on the record of the competent court to demonstrate that child was snatched from the applicant by respondent/father.

10. Application disposed of. KMZ/S-15/L Order accordingly.