P L D (PLP)

SHABIR AHMAD, J.

‑This is a revision petition presented by Mst. Zubaida Begum against the order dated the 4th of December 1956 of Ch. Muhammad Siddiq, P. C. S., who was then the Guardian Judge, Lahore, wherein it was held that the Guardian Judge at Lahore had jurisdiction to hear the application put in by Ch. Ghulam Rasul, who was then a Magistrate of the 1st Class at Lahore, with regard to the custody of his two minor children. The revision petition came up before me sitting in single Bench, and as the question that arose was of some importance and there were conflicting views expressed about it in some decisions, I sent the papers to His Lordship the Chief Justice so that he may nominate a Bench of two Judges to hear the revision petition. It is in these circumstances that this petition has came up for hearing before this Bench.

2. A question similar to that that arises in Civil Revision Petition No. 22 of 1957 arises in Civil Revision Petition No. 266 of 1957 which was presented by Mst. MaqbuI Begum against Abdul Khaliq Qureshi against the order dated the 31st October 1957 of Mr. Hamid Ullah the then Guardian Judge, Lahore. That petition came up for hearing before my brother, Muhammad Yaqub Ali J., who, on the 27th of February 1958, passed an order that it should be heard along with Civil Revision No. 22 of 1957. The two revision petitions will, therefore, be disposed of by this order.

3. The main question that falls for determination in the two revision petitions is whether it is the actual residence of a minor that determines the jurisdiction of the Court to hear an applica tion under section 25 of the Guardians and Wards Act, (Act VIII of 1890) with regard to the minor's custody or the place where the guardian resides is to be taken to be the place of the residence of the minor for the purposes of that Act. Application under section 25 of the Guardians and Wards Act was in each of the cases under consideration made by the father and there is no doubt that the application was competent. The question that arises is about the territorial jurisdiction of the Court in which the application was made, because it is common ground between the parties that the minors with regard to whom the applications were made were not at the time of the making of the applica tions living within the jurisdiction of the Court which the applica tions were presented.

4. Section 25 of the Guardians and Wards Act (VIII of 1890) does not say where an application under this section is to lie and all it says that the Court, if it is of the opinion that it will be for the welfare of the ward to return to the custody of the guardian, may make an order for such return. The expression "The Court" is defined in clause (5) of section 4, the relevan part of which reads as under:‑ " the Court' means‑ (a) the District Court having jurisdiction to entertain an application under this Act for an order appointing or declaring' a person to be a guardian." and it is clear that the axpression "The Court" occurring in section 25 of the Guardians and Wards Act is to have this meaning, section 9 of the Guardians and Wards Act mentions the Courts which have jurisdiction to entertain applications with regard to the appointment and declaration of guardianship of the person or property of a minor. Subsections (2) and (3) of section 9 deal with appointment of guardians of the property of minors but as the subject dealt with in section 25 of the. Guardians and Wards Act relates to the person of minors it is clear that those two subsections have no relevancy and only the first subsection has. Subsection (1) of section 9 reads as follows :‑ "If the application is with regard to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides." It follows, therefore, that even with regard to an application under section 25 of the Guardians and Wards Act the Court which will have jurisdiction is the Court having jurisdiction in the place where the minor ordinarily resides.

5. Now, the question where a minor ordinarily resides is a pure question of fact, the decision of which must depend on the evidence produced in a case unless it be the law that in giving its decision on that question of fact the Court shall take into consideration matters which do not really relate to the ordinary residence of the minor but to something else. Nothing is said in section 9 of the Guardians and Wards Act will regard to any fact other than the residence of the minor being material for determining the ordinary place of residence of the minor and it would, therefore, appear that the question must in each case be determined as any other question of fact, the decision depend ing on the evidence in that case with regard to the question of fact that falls for determination. It is clear that the residence of the minor, in order to satisfy section 9 of the Guardians and Wards Act, must be its ordinary residence and not merely casual residence. Cases can arise in which, with a view to taking away the jurisdiction of a Court, a minor may be removed out of the jurisdiction of that Court by interested parties and unless this o kind of residence had continued for a sufficiently long time, it is obvious that it cannot be deemed on any reasonable ground to be the ordinary residence of the minor.

6. The ordinary meaning of the wards "ordinarily resides" occurring in section 9 of Guardians and Wards Act being what I have indicated above, I proceed to the question whether any decisions have taken a view which does not accord with what I have said above. The only decision of this Court which has taken the contrary view is that given by my brother Kaikaus, J. in Ali Akbar v. Kaniz Maryam (P L D 1956 Lah. 484) wherein he held that the Court from whose jurisdiction the minor is removed has jurisdiction to entertain an application under section 25 of the Guardians and Wards Act. Another case which was relied upon by the learned counsel for the respondents in both the petitions, as well as referred to by Kaikaus, J, in Ali Akbar v. Kaniz Maryam, is reported as Mst. Nazir Begum v. Ghulam Qadir (A I R 1938 Lah. 313). In that case the minor with regard to whom the application was made was not residing within the jurisdiction of the Court in which the application was made and yet it was held that the Court had jurisdiction. The facts of that case, however, are peculiar and it was held by the Bench hearing the case that the minor had been removed in order to deprive the Court, in which the appli cation was made, of its jurisdiction to hear it. That kind of case, as I have already mentioned, stands on a different footing from those where the minor has been living for a long time at a place other than the place where the guardian resides. The case reported as Vimalabai v. Baburao (A I R 1951 Nag. 179), which too was relied upon by the learned counsel for the respondents, also appears to have taken the view that a minor is to be deemed to be ordi narily residing at the place where the guardian resides. With all respect to the learned Judges who have taken the view that for the purposes of the Guardians and Wards Act a minor, about whom an application is made under section 25 of this Act, is to be deemed to be ordinarily residing at the place where the guardian resides, I am of the opinion that they travelled beyond the words used in the section.

7. If the intention of the Legislature were that an application under section 25 of the Guardians and Wards Act could be made at a place where the guardian ordinarily resides and that place is to be deemed to be the place where the minor ordinarily resides for the purpose of Guardians and Wards Act, it would have very easily made that intention clear. As section 9 stands, all that is relevant is the ordinary place of the residence of the minor as no mention has been made in the section with regard to the ordinary place of the residence of the guardian. According to well recognised canons of interpretation of statutes the words occurring in section 9 of the Guardians and Wards Act with regard to the ordinary residence of the minor have, in my opinion, to be given their due weight and violence cannot be done to the language of the section for reasons which, though they may be laudable, are not recognised by law It is true that a minor would ordinarily reside at a place where the guardian resides, but cases can arise‑and in the present cases that is the allegation' in which the minors were allowed to be taken away to a place outside the jurisdiction of the Court within the jurisdiction of which the guardian ordinarily resides. If it was with the consent of the guardian that the minors had been taken away out of the jurisdiction of the Court in which an application under section 25 was subsequently, made I do not see on what principle of law, justice, equity or good conscience, the guardian should be allowed to say that though in fact the minor is, with his consent, residing at a place which is outside the jurisdiction of the Court where the application had been put in, it should nevertheless be held that the minor was ordinarily residing within the jurisdiction of that Court. As I have already said those cases in which a minor is removed with the ulterior object of taking away the jurisdiction of the Court, will stand on a different footing because if the removal is recent the Court can hold that the ordinary residence of the minor is the place from which it had been removed for an ulterior object and this is the view which was taken in Mst. Nazir Begum v. Ghulam Qadir (A I R 1938 Lah. 313), to which I have already made a reference. It is, however, clear that, because a ward should ordinarily reside at the place where the guardian resides, the initial pre sumption should be that the ward is ordinarily residing at the place where the guardian is, but the presumption is rebutable and may in a suitable case be held to have been rebutted. I need hardly add that whether or not the initial presumption has been rebutted would depend on the facts and circumstances of each case and it is no' possible, nor perhaps permissible, to lay down under what circumstances the above‑mentioned initial presumption is to be taken to have been rebutted.

9. I now proceed to consider whether the orders reversal of which is sought by the two revision petitions were justified on the evidence produced by the parties. Taking up first Civil Revision No. 22 of 1957, I find that the parents of the two minors, to whom the application under section 25 of the Guardians and Wards Act related, entered into a contract of marriage on the 13th of September 1950 at Montgomery and their union resulted in the birth of two sons, Shahid Rasul and Suleman Rasul, the former having been born on the 7th of September 1951 and the latter on the 2nd of April 1953. On the 11th of October 1954 the father of the minors divorced their mother at Lahore and in the divorce deed mentioned that the two children will reside with their mother till they reach the age at which they should go to school and the father will pay Rs. 50 a month to the mother of the minors for their upkeep till such time as they remained with her. It is not denied that since the date of the divorce the minors have been residing with their mother, who, at the time of the presentation of the application under section 25 of the Guardians and Wards Act was at Haroonabad in the district of Bahawalnagar where she had been posted for quite along time as a teacher in the girls school. The application under section 25 of the Guardians and Wards Act was made on the 23rd of April 1956 and it is obvious that at the time of the presentation of the application the minors were ordinarily residing at a place over which the trial Court had no jurisdiction. It is clear that in the circumstances of the case the initial pre sumption that a minor ordinarily resides at the place where the guardian resides was amply rebutted and it must be held that the minors were ordinarily residing at Haroonabad in the district of Bahawalnagar, a place over which the trial Court had no jurisdiction. It follows, therefore, that the finding of the trial Court that it had jurisdiction was incorrect. Consequently, I would accept Civil Revision Petition No. 22 of 1957 and direct that the application under section 25 of the Guardians and Wards Act shall be returned to the applicant for presentation to the proper Court. The petitioner shall have her costs of both the Courts from the respondent.

10. The other petition, namely, Civil Revision 266 of 1957, may now be taken up. In the application under section 25 of the Guardians and Wards Act, which was presented at Lahore on the 4th of February 1957, only the custody of the minor son of the parties was asked for by the father. The application averred, inter alia, that the applicant had divorced the mother of the ward and that she had been keeping the children, including the minor to whom the application related, since the 10th of December 1954, on which date she had taken them away without his consent. It was not stated in the application where the minor children were being kept since the 10th of December 1954 but the address of the mother given in the heading of the petition was shown to be Sialkot where her father resided. The appli cation clearly intended to convey that the children had been living with their mother at Sialkot since the 10th of December 1954. In the reply put in by the wife, it was said that she did not know that she had been divorced but it was asserted that the Court at Lahore had no jurisdiction to hear the application under section 25 of the Guardians and Wards Act for the reason that the child to whom the application related had been living at Sialkot for over two years before the presentation of the appli cation. Considering the entire material on the record, I have arrived at the conclusion that the initial presumption that the minor was ordinarily residing at the place where the guardian resides was rebutted in this case also because the child had beer living at Sialkot for over two years, while the father was admittedly living at Lahore at the time of the presentation of the application and would appear to have been living there eves since the 10th of December 1954. It follows that the Guardian Court at Lahore had no jurisdiction to hear the application under section 25 of the Guardians and Wards Act. Consequently, I accept the petition for revision and direct that the application under section 25 of the Guardians and Wards‑ Act shall be returned to the applicant for presentation to the proper Court and that the petitioner shall have her costs of both the Courts from the respondent. MASUD AHMAD, J.

‑I agree. K.M A. Petitions accepted.