1995 PLP 1550 (CLC)

MIAN SHAKIRULLAH JAN, J.‑‑‑This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan filed by Mst. Gulzar Bibi is directed against the judgment and decrees of the learned Senior Civil Judge/Judge Family Court, D.I. Khan dated 22‑2‑1990 and Additional District Judge, D.I. Khan dated 5‑1‑1991, whereby the application of the petitioner for custody and guardianship of the minor was returned by the Judge Family Court and the same decision was upheld in appeal by the learned Additional District Judge, D.I. Khan.

2. Succinctly stated, the facts of the case are that Javed Muhammad, son of the petitioner had married Mst. Nasrin Bibi, respondent No.2 in 1986. Muniba Javed was born from their wedlock and thereafter relations between the spouses became strained due to which Javed Muhammad divorced his wife Mst. Nasrin Bibi ‑on 23‑2‑1989, whereafter Mst. Nasrin Bibi contracted second marriage with one Abdul Majid Shah s/o Syed Rasool Shah r/o Mianwali (Punjab) on 5‑11‑1989 and started living there alongwith her minor daughter Muniba Javed. 2‑A. Javed Muhammad, father of the minor and the petitioner Mst. Gulzar Bibi, paternal grandmother of the minor, moved two separate applications for custody and guardianship of the child Muniba Javed, which were returned to them for lack of territorial jurisdiction by the learned Senior Civil Judge/Judge Family Court, D.I. Khan for presentation before the proper forum. The learned Guardian Judge observed:‑‑ "It is admitted that the minor is with her mother in District Mianwali. According to law petitions for custody of a minor can be filed only at a place where the minor resides. In the instant case, the minor is residing at a place outside the jurisdiction of this Court. So, this Court has got no jurisdiction to entertain the two petitions." Feeling aggrieved from the said order, an appeal was preferred in the Court of learned Additional District Judge, D.I. Khan, who vide his judgment and decree dated 5‑1‑1991 by upholding the judgment and decree of the learned trial Judge; dismissed the appeal by referring to section 9 (1) of the Guardians and Wards Act, 1890. Hence the present writ petition has been filed by Mst. Gulzar Bibi petitioner.

3. S. Safdar Hussain Shah, Advocate appearing on behalf of the petitioner and Mr. Sanaullah Khan Gandapur, Advocate who appeared on behalf of the respondents were heard and the record perused with their assistance.

4. The learned counsel for the petitioner mainly contended that as at the time of institution of the application the minor was residing within the jurisdiction of the Court concerned. To understand the point in question, it will not be out of place to reproduce section 9 of the Guardians and Wards Act, 1890, which reads:‑‑ "

9. Court having jurisdiction to entertain application.‑‑(1) If the application is with respect 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." The record reveals that the petition for guardianship was filed on 23‑2‑1989 on which date the divorce had taken place, replication to which was filed by Mst. Nasrin Bibi on 3‑5‑1989. She had contracted second marriage with Abdul Majid on 5‑11‑1989. At the time of filing the application for guardianship .the minor was residing at D.I. Khan but looking at section 9 of the Act ibid and specially the word 'ordinarily resides' it becomes clear that the requirements of the law that during the whole proceedings that the ward should reside ordinarily within the jurisdiction of the Court and in this respect the word `ordinarily' means more than a mere temporarily resides or for a certain short period but it contains the residence during the whole proceedings of the case and after the contract of second marriage by the mother of the ward his ordinary abode is the place where her mother resides and thus his shifting to Mianwali with her mother in consequence of her second marriage does not seem to be temporarily or for ulterior motives/objects e.g. simply with the intention to defeat process of the Court etc. it was but natural, as her real mother started living with her second husband in Mianwali, therefore, the minor was supposed to live with her mother and furthermore in the family matters/disputes the convenience of the female and the children/wards with regard to the territorial jurisdiction of the Court has been looked at with favour by the law. The learned Trial Court has rightly interpreted the law and returned the application of the petitioner with respect to guardianship of the minor under section 9 of the Act ibid ‑ and by upholding the judgment and decree of the learned trial Court, the learned Additional District Judge has committed no illegality. Thus, resultantly following the principles of law and facts of the instant case we are satisfied that the return of the application for want of jurisdiction was correct as the same was not entertainable and the conclusions arrived at by the two Courts below do not suffer from any infirmity, material illegality or irregularity warranting invocation of the extraordinary Constitutional jurisdiction of this Court. Consequently this writ petition is dismissed. However, there would be no order as to costs. A.A./1742/P Petition dismissed.