2007 PLP 1831 (CLC)

AHMED KHAN LASHARI, J.

By this constitutional petition order, dated 11-12-2001 passed by learned Additional District Judge-V, Quetta has been challenged whereby order, dated 22-8-2001 passed by Civil Judge-IV/Family Court, Quetta, was set aside and direction was given for proceedings with .the application filed for appointment of Guardian of-the minors on merits.

2. Concise and relevant facts arising out of this petition are that the- respondent No.1 filed an application under section 25 of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act, 1890) for her appointment as guardian of he minors in the Court of Civil Judge-IV-cum-Family Court, Quetta. The petitioner filed his written statement wherein he challenged maintainability of the suit on various legal grounds and on merit the claim was repudiated and denied. The learned trial Court for determining the territorial jurisdiction of the Court after hearing the parties returned the application for its presentation to the Court having jurisdiction vide order dated 22-8-2001. The respondent being aggrieved and dissatisfied: with the order filed an Appeal bearing No.34 of 2001 under section 14 of the West Pakistan Family Courts Act, 1964 (hereinafter referred to as the Act, 1964) before the learned Additional District Judge-V, Quetta. The learned Appellate Court after hearing the counsel for the parties by means of order dated 11-12-2001 set aside the order of Family Court and remanded the case for proceeding on merit which order has been challenged by this Constitutional Petition.

3. Mr. Muhammad Ashfaq Butt, Advocate, learned counsel for the petitioner argued that the application for appointment of Guardian has wrongly been filed before the Family Court at Quetta as the children namely Mahrukh, Mah Noor and Shah Zaib were getting education from Army Public School Malir Cantt., Karachi and living with their father at the Karachi as such application should have been filed before the Family Court at Karachi having jurisdiction in the matter. In support of the arguments he relied on judgments reported in 1995 CLC 1550 and PLD 1987 Kar. 239.

4. Raja Rub Nawaz, Advocate, learned counsel for respondent No. l contended that respondent is permanently residing at Quetta as such she being lady has preferential right under rule 6 of the West Pakistan Family Courts Rules, 1965 (hereinafter called as the Rules, 1965) to file application for appointment of Guardian before the Court where she resides. It was next argued that petitioner was performing services in Pak Army and temporarily posted at Karachi his residence is Sialkot therefore, Appellate Court rightly held that Family Court at Quetta was competent to adjudicate upon the matter. He relied on the judgment reported in 1999 SCMR 1834.

5. We have heard learned counsel for the parties and have gone through the record annexed with the petition and the orders impugned herein as well as the cited case-laws. The respondent in her Application bearing No.8 of 2001, dated 21-3-2001 claimed that she entered into marriage-tie with the petitioner in the year 1991 and out of wedlock three children were born namely Mah Rukh aged 8 years, Mah Noor aged 6 years and Muhammad Shah Zaib aged 4 years. The petitioner was serving in Pak Army as such on account of his posting he remained on various stations along with the petitioner. In the year 2000 when petitioner was transferred to Sialkot the respondent was advised to go and visit her ailing mother at Quetta. She left for Quetta to see her parents, without taking the dowery articles and documents of different properties, which remained in possession with the petitioner, received a letter of divorce from the petitioner stated to be sent from Sialkot as. such she filed application for appointment of Guardian of minors being the mother and natural Guardian of minors. The petitioner in his written averted submitted that children were getting education from Army Public School Malir Cantt. Karachi and residing with him in Karachi. The documents to this effect filed along with written statement are available on record i.e, admission fee, payment receipts paid in August, 2000 and March, 2001 indicate, the minors are ordinary residing in Karachi along .with their father. The territorial jurisdiction of the Court for the suits for dissolution of marriage, maintenance or dower is to be determined by the cause of action wholly or in part arisen or where the parties resided together or the Court within the local limits of which the wife ordinarily resides as provided by Rule 6 of the Rules, 1965. The jurisdiction of the Court for appointment of Guardian of minor/minors is to be assessed by section 9 of the Act, 1890, which provides the Court within the jurisdiction of which minor/minors ordinarily resides shall have jurisdiction to proceed with the matter. The question as to which Court has jurisdiction to entertain the application apart from determining the residence of minor, the balance of convenience and interest of the minor shall also be kept in view. The above-referred documents annexed with the written statement indicate that the children are .residing at Karachi with the petitioner for more then 3 years, in such circumstances the District Judge or as the case may be in Karachi has a jurisdiction to entertain the application or suit. The judgments referred by learned .counsel for parties are not on the point of jurisdiction as argued before this Court, however, it has been held in PLD 1987 Kar. 239, the application for Guardianship would be maintainable only in a Court where the minor ordinary resides. What has been discussed hereinabove, we are, of the view that minors. are getting education in Karachi and are residing with their. father for the last ,about more .than three years as such District Court at Karachi, or as the case may be has the jurisdiction to adjudicate upon the matter, consequently the impugned order dated 11-12-2001 passed by learned Additional District Judge-V, Quetta, is set aside and the order dated 22-8-2001 of Civil Judge-IV-cum-Family Court, Quetta is upheld. This disposes of Constitutional Petition No.752 of 2001. H.B.T./32/Q Petition allowed: