P L D 2010 Karachi 61 (PLP)

SHAHID ANWAR BAJWA, J.

Guardian and Wards Application under section 25 of the Guardians and Wards Act, 1890 was filed by the present petitioner. It was stated in the application that petitioner married respondent No.1 on 11-1-2001 at Karachi. It was further stated that during subsistence of marriage the petitioner contracted another marriage albeit because of attitude of the respondent No.1 with one Azra daughter of Allah Wasaya, on 15-12-2003 and out of this second wedlock a male baby Wasif Naseer was born on 16-2-2005. It was further stated in the application that' when second wife came to know of his first marriage, by consent, upon her seeking the second marriage was dissolved by way of divorce on 11-6-2005 and custody of the minor was handed over to the father. The father brought the child to his home and entrusted him to respondent No.1. Marriage of petitioner with respondent No.1 was .dissolved by way of Khuia in Case No.60 of 2009 but it is alleged that the respondent kept the child in her custody and did not hand him over to the petitioner.

2. Respondent No.1 filed written-statement and pleaded that child was an adopted child and not an offspring of present petitioner. An application under section 12 of the Guardians and Wards Act, was filed which application has been dismissed by the trial Court. Thereafter the present respondent No.1 filed an application in the trial Court praying that DNA test of the child and the applicant before the Court be conducted to determine whether the applicant before the trial Court is rather of the child or not. That application is still pending.

3. The Civil Transfer Application has been filed and the grounds stated are as under: "(1) That the applicant saw the respondent No.1 was coming out from the chamber of the trial Court in the absence of party counsel as well as the applicant. (2) That the applicant is being treated as accused person by the learned trial Court, on date of hearing he is insulted, misbehaved and threaten to send him in police custody therefore the applicant have lost faith upon the learned trial Court. (3) That from the day of meeting of the respondent No.1 with the learned trial Judge, on many occasions the Hon'ble Court has stated that you are not father of the minor which amount to announcing judgment prior to proceedings. Due to such conduct of the Hon'ble Court the applicant has lost faith upon the Court and having no other remedy except filing this application. (5)(sic) That the applicant shall crave urge further ground at the time of hearing of this application."

4. The key ground is, that the applicant states that he has lost faith in the trial Court. I am afraid such a ground is not available to a litigant unless litigant is able to demonstrate from the record that the trial Judge has acted with malice or that he deliberately committed an irregularity or some previous circumstances are pointed out or similar other cognate factors are demonstrated to have existed. It is not appropriate to transfer a case from one Court to another Court on mere saying of applicant that he has lost faith in the trial Court. This Civil Transfer Application is therefore dismissed.

5. Before parting with the judgment, trial Court is directed as under:-- (1) To proceed with the trial, record evidence and dispose of the main application within a period of six months; (2) As far as, application for DNA test is concerned, since the question whether the applicant before the trial Court is father of the child or not has to be decided on the basis of evidence available it is obviously for the Family Court to decide whether it needs DNA tests or not. Obviously costs of such DNA test should be borne by the person who made the application for such test. M.H./N-50/K Application dismissed.