2001 PLP 2000 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑This petition for leave to appeal is directed against the judgment dated 18‑12‑1998 of the Lahore High Court, Lahore through which Writ Petition No.4809 of 1998 filed by respondent No.1 against the orders of the Guardian Judge in petitions under sections 12 and 25 of the Guardians and Wards Act, 1890 by which the same had been returned for presentation before the appropriate Court having jurisdiction the matter, was accepted and the matter as regards jurisdiction of the Court has been ordered to be decided afresh in the light of the rules framed under the Family Courts Act, 1964 and not under the provisions of the Guardians and Wards Act.

2. The petitioner was married to respondent No.1 on 31‑3‑1989 in Sargodha. They started living at 140‑B Model Town, Lahore. On 3‑5‑1990, a child was born out of this wedlock who was named Khaqan Ali Khilji. Respondent No.1 went to the United States of America for further studies leaving behind the minor and the petitioner who were also later on taken by him to the USA. It seems that disputes and differences arose between the parties which led to the dissolution of marriage. Respondent No.1 alleged that the said minor had been removed by the petitioner from the School and took him to another State. Some proceedings were taken in the USA whereafter respondent No.1 filed applications under sections 12 and 25 of the Guardians and Wards Act before the Guardian Judge, Lahore who without calling for any reply from the petitioner, through order dated 28‑10‑1997, returned the same to respondent No.1 for presentation before the appropriate Court as he was of the view that he (Guardian Judge at Lahore) was not vested with the jurisdiction to try the same which was challenged by respondent No.1 in appeal before the learned Additional District Judge who dismissed the same 4‑12‑1997, which order was challenged through Constitution petition before the Lahore High Court, which has been accepted through the impugned judgment, dated 18‑12‑1998 by the learned Judge in Chamber of the said Court against which leave to appeal has been sought.

3. The judgments of the original Court i.e., the Guardian Judge and that of the learned Additional District Judge show that the question as to whether the first said Court was vested with the jurisdiction to entertain the said applications was decided under the provisions of Guardians and Wards Act which provide that such applications could be made to a Court within the territorial jurisdiction of which the minor ordinarily resides or from where he has been removed and not under the provisions of the West Pakistan Family Courts Act, 1964 and the Rules (West Pakistan Family Courts Rules, 1965) framed thereunder.

4. The question for determination which arose in this case was as to which Family Court had the territorial jurisdiction to entertain application under section 25 of the Guardians and Wards Act and whether such a question should be determined in the light of the provisions of the Guardians and Wards Act or the West Pakistan Family Courts Act, 1964 and the rules framed thereunder.

5. There is no doubt that prior to promulgation and coming into force of West Pakistan Family Courts Act, 1964, the matter regarding territorial jurisdiction of the Guardian Judge constituted under the said Act and the procedure to be followed after entertainment of the applications thereunder as also the filing of appeals and revision petitions against the orders passed by the Guardian Judge were governed and regulated by the Guardians and Wards Act, 1890. The Guardian Judge was the District Court which was to be designated through notification under the said Act. Family Courts under the West Pakistan Family Courts Act, 1964 were created and vested with the exclusive jurisdiction to entertain and decide all the suits and other matters included in the schedule attached to the said Act. A perusal of the said schedule shows that the matters relating to appointment of guardians of the minors and their properties and custody are included in it. Section 5 of the said Act provides that in respect of all mattes included in the schedule, the Family Court shall have the exclusive jurisdiction to entertain suits or applications with regard thereto and decide the same. Under section 25 (ibid), a Family Court, thus seized of a matter brought before it in respect of any matter included in the schedule was deemed to be a Court a District P` Judge for the purposes of Guardians and Wards Act and notwithstanding anything contained in the Family Courts Act would, in dealing with the matters specified in this Act, follow the procedure prescribed in the Guardians and Wards Act, 1890.

6. It is manifestly clear from the express provisions of the Family Courts Act that it is the Family Court under the said Act which has to be approached in the cases relating to custody of minors which Act has overriding effect over the Guardians and Wards Act, therefore, the question of territorial jurisdiction is to be decided under the said Act and the rules framed thereunder and the Guardians and Wards Act for that matter has no relevancy. Rule 6 of the West Pakistan Family Courts Rules, 1965 framed under the West Pakistan Family Courts Act, 1964 provides that the Court which shall have jurisdiction to try a suit will be that within the local limits of which the cause of action wholly or in part has arisen or where the parties reside or last resided together, therefore, it was under the provisions of the said rule that the question of territorial jurisdiction of the Family Court was to be decided und; r the said Act and not under the provisions of the Guardians and Wards Act. The Guardian Judge as also the learned Additional District Judge, however, decided the question of territorial jurisdiction in this case by applying the provisions of the Guardians and Wards Act and not the West Pakistan Family Courts Act, 1964 and the rules framed thereunder which as held by the High Court in the impugned judgment was not correctly decided.

7. Learned counsel for the petitioner in support of this petition made reliance on judgments reported as Sakhawat Ali and another v. Mst. Shui Khclay (PLD 1981 SC 454), Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC. 187) and Ihsan‑ur‑Rehman v. Mst. Najma Parveen (PLD 1986 SC 14) to contend that the question of forum being a matter of procedure, therefore should have been decided in view of the provisions of the Guardians and Wards Act. We are afraid, the argument is plainly unsound and cannot be G accepted on any reason. As has been observed, the West Pakistan Family Courts Act, 1964 has overriding effect in so far as the matter included in the Schedule, therefore, initially it is the Family Court which has to be approached in respect of hatters relating to custody of minor being one of the listed item in the Schedule and in determining as (o which of the Family Court shall have jurisdiction to entertain such a petition shall have to be decided under the provisions of the said Act and the rules framed thereunder and once a Family Court is approached accordingly by a party considering that a particular Family Court was vested with the territorial jurisdiction to entertain the petition, for the purposes of the trial of the same, the procedure as prescribed under the said Act is not to be followed but the general procedure for the trial of suit under the Civil Procedure Code has to be followed which has no nexus or relevancy with the question of determination of the Trial Jurisdiction of the Court. By virtue of section 25 of the West Pakistan Family Courts Act, every Family Court has been designated as the District Court, therefore, there is no Guardian Judge as such under the Guardians and Wards Act whereas the Family Court under the said Act competently seized of a matter relating to matter of minors shall be deemed to be a District Court.

8. None of the reported judgments relied upon by the learned counsel for the petitioner has laid down that the question of territorial jurisdiction was to be decided not with reference to Family Courts Act and the rules framed thereunder but on the basis of the provisions of the Guardian and Wards Act whereas the questions decided thereunder were regarding substantial rights of filing of appeal or revision against the orders of the judgment of the Family Court seized with the guardianship matter and it has appeal against the judgments and orders of the Family Courts in such matters, the provisions of the Family Courts Act and the rules framed thereunder are to be looked into, for the Guardians and Wards Act would be, applicable in such matter only to the extent of following the procedure for the trial of such matters and not as regards substantial right of appeal etc.

9. It has been rightly held by the High Court, therefore, that the Family Court/District Judge in which Court the present petition for custody of minor was filed should decide the question of territorial jurisdiction in the light of the rules framed under the Family Courts Act after giving opportunities to the parties to prove their respective contentions in respect thereof after recording evidence to the effect whether requirements of rule 6 (ibid) are satisfied in order to attract the jurisdiction of the said Court.

10. For the foregoing reasons, this petition has no forte which is accordingly dismissed and leave to appeal refused. Q.M.H./M.A.K./A‑149/S Petition dismissed.